L.1^J..»«.I-).I^...| KP (SnrnpU ICatu ^rlyonl Sjibraty PHOFtH 1 y OF R. S, STEVENS Cornell University Library KF3318.S37 1922 A selection of cases and other authoriti 3 1924 019 260 458 A SELECTION OF CASES AND OTHER AUTHORITIES ON LABOR LAW BY FRANCIS BOWES J_AYRE, LL.B., S.J.D. ASSISTANT PROFESSOR OF LAW IN HARVARD UNIVERSITY CAMBRIDGE HARVARD UNIVERSITY PRESS 1922 I 511.81 COPYRIGHT, 1922 HARVARD UNIVERSITY PRESS TO MY BROTHER J. N. S. THIS BOOK IS AFFECTIONATELY DEDICATED 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/cu31924019260458 PREFACE Labor law has in recent years been attracting widespread attention, and in response to the growing demand for an ade- quate collection of cases on thle subject this volume is pub- lished. In order to keep the book within reasonable limits it has been necessary to omit portions of the opinions in the ma- jority of cases. Such omissions are indicated in the text. In practically all cases the names and arguments of counsel are omitted ; in a few, the statement of facts has not been reprinted where these sufficiently appear in the opinion. Except in a few cases mistakes in the original texts have been retained; and for the most part the general style of spelUng, capitalization, punc- tuation, etc., of the original reports has been reproduced. In regard to the cases cited in the footnotes the effort has been made not to give exhaustive collections of decisions, but rather to cite a few leading authorities or suggestive decisions, in the belief that the latter will prove more stimulating and helpful to the student than encyclopaedic collections of cases. An appendix containing figures on minimum budgets for workingmen has been added for the convenience of those who are studying the question of "the living wage" as worked out in some of the decisions appearing in Chapter XIX by the Australian Court of Conciliation and Arbitration and the Kansas Court of Industrial Relations. It is hoped that this collection of cases may also prove useful as a source book to all those, whether in the ranks of employers or employees, who are interested in studying the development and apphcation of the legal principles underlying the growing mass of decisions which make up the body of labor law. F. B. S. Cambridge, Mass. July, 1922 TABLE OF CONTENTS Introduction — English Labor Legislation Page Section 1. Early English Statutes 3 Section 2. Nineteenth Century and Later Legislation 18 PART I Chapter I. Early English Statutory Regulations 27 Chapter II. Legality op Combination Section 1. Right of Association 33 Section 2. Law of Conspiracy 37 A. Criminal Conspiracy 37 B. Civil Conspiracy 59 Section 3. Restraint of Trade 68 Section 4. Legality of Permanent Labor Combinations in the United States 99 Chapter III. Federal Jurisdiction over Labor Disputes. Inter- TERENCE with INTERSTATE COMMERCE OR WITH UnITED StATES Mails 112 Chapter IV. Legality of Means used by Labor Organizations Section 1. The Strike 147 Section 2. Inducing Breach of Contract. Enticement of Servants . . 154 Section 3. Violence, Intimidation 181 Section 4. Peaceful Persuasion 194 Section 5. Picketing 200 Section 6. Legality of Union Action as affected by Violence on the part of Union Members 237 Chapter V. Legality of Ends Pursued through Collective Action BY Labor Organizations Section 1. General Principles 242 A. The Effect of Motive upon the Legality of Acts ... 242 B. Trade Competition. Justification 250 Section 2. Strikes to Secure Higher Wages, Shorter Hours, or Im- proved Working Conditions 264 Section 3. Strikes to Secure Increased Opportunity of Employment . 268 Section 4. Strikes to Force the Discharge of Non-Union Men and to Unionize Shops 275 Section 5. Trade Agreements for Unionization of Shops 331 Section 6. Strikes to Compel Payment of Fines Levied against Em- ployer 344 Section 7. Strikes to Compel Payment of Fines Levied against Union . Members 354 Section 8. Strikes and Other Forms of Collective Action for Miscel- laneous Purposes 366 Vm CONTENTS Page Chapter VI. Lockouts 390 Chapter VII. Boycotts Section 1. Primary Boycott 394 Section 2. Secondary Boycott by Means of Coercion 403 Section 3. Boycott by Means of Notice or Non-coercive Persuasion. The "Unfair List" 453 Chapter VIII. The Black List 468 Chapter IX. The Union Label 479 Chapter X. Union Organizers in Non-Union Fields 489 PART II Chapter XL Corporate Rights, Powers and Liabilities or Unincor- porated Labor Unions | ^ ; It , li ; \\ ,\\, n , i-i J . ■ . \-\, i't . 1 1 Section 1. Suits By and Against Unincorporated Labor Unions ... 517 Section 2. Ownership of Property . 554 Section 3. Liability in respect to Association Assets 577 Section 4. Doctrine of "Ultra Vires" 596 Chapter XII. Rights and Liabilities of Members of Labor Unions in Respect to Thibd Parties Section 1. Officers and Agents 608 Section 2. Members 612 Chapter XIII. Trade Agreements 644 Chapter XIV. Internal Government of Unions Section 1. Regulation of Internal Affairs 672 Section 2. Admission of Members 686 Section 3. Discipline of Members 690 Section 4. Expulsion of Members 708 PART III Chapter XV. Use op the Injunction against Labor Organizations Section 1. Historical Development of the Injunction Remedy in Labor Cases 7J7 Section 2. Injunctions against Unnamed Parties 734 Sections. "Government by Injunction" 751 Section 4. General Limitations upon the Issue of Injunctions .... 762 Chapter XVI. Prohibition of Strikes by Injunction or by the Criminal Law in the Light op the Thirteenth Amendment Section 1. The Thirteenth Amendment and Compulsory Service . . 771 Section 2. The Thirteenth Amendment and the Strike 782 A. Compelling Individuals to Serve 782 B. Restraining Leaders from Calling a Strike ..... 795 CONTENTS IX Chapter XVII. Regulatory Labor Legislation Page Section 1. General Principles. The Fourteenth Amendment .... 800 Section 2. Laws Regulating the Employment of Women and Chil- dren 806 Section 3. Laws Regulating Employment in Dangerous or Unhealth- ful Occupations 819 Section 4. Laws Regulating Hours of Labor in General 826 Section 6. Minimum Wage Laws 837 Section 6. Miscellaneous Laws for the Protection of Industrially Weaker Classes 842 Chapter XVIII. Employment in a Business Charged with a Public Interest 862 Chapter XIX. Compulsory Arbitration and the Industrial Court Section 1. Industrial Disputes Investigation Act of Canada .... 875 Section 2. The Australian Court of Conciliation and Arbitration . . 881 Section 3. The South AustraUan Industrial Court 905 Section 4. The Kansas Court of Industrial Relations 918 Chapter XX. Workmen's Compensation Laws Section 1. Constitutionality 954 Section 2. Conclusiveness of Findings of State Commissions .... 960 Section 3. "In the Course of the Employment" 962 Section 4. "Arising out of the Employment" 969 Section 6. Occupational Injury 979 Appendix 991 Index 1007 TABLE OF CASES Cases are indexed under the names of both parties. Where only a short extract from the case is given, the page number appears in parentheses. ^ Page Abbot of Lilleshall, Case of 412 Abels V. McKeen 596 Alabama, Bailey v. State of 774 Allen V. Flood 275 Allis-Chalmers Co., Iron Holders' Union v. 194 Amalgamated Assn. of Street Rail- way Employees v. Joplin & Pittsburg Ry. Co. 933 Amalgamated Society of Ry. Serv- ants V. Osborne 599 Amalgamated Society of Ry. Serv- ants, Taff Vale Ry. Co. v. 527 Amalgamated Woodworkers' Union, Karges Furniture Co. v. (237), 264 American Bakers' Union, Davitt v. 765 American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions 737 American Steel Foundries v. The Tri-City Central Trades Coun- cil 213 Anderson, Reding v. 646 Angliss & Co. and the Australas- ian Meat Industry Employees' Union 890 Anon. (Y. B., 24 Edw. Ill, 75, 99) 38 (27 Lib. Ass., 138, 44) 39 (Y. B., 50 Edw. Ill, 13, 3) 28 (Y. B., 11 Hen. IV, 23, 46) 154 (Y. B., 11 Hen. IV, 47, 21) 250 Anon. Case 427 (12 Mod. 248) 68 Ariss, Wolstenholme v. 324 Arizona Employers' Liability Cases 954 Arkansas, McLean v. 851 Arnold, Wilcox v. 623 Arnot V. Pittston and Elmira Coal Co. 73 Arthur, Guilfoil v. 524 Arthur v. Oakes 782 Atchison, T. & S. F. Ry. Co. v. Gee 212 Australasian Meat Industry Em- ployees' Union, Angliss & Co. and 890 Australian Boot Trade Employees' Fed. V. Whybrow & Co. 883 B Page Badger 3rass Mfg. Co. v. Daly 762 Bagg's Case 42 Bailey v. State of Alabama 774 Baldwin, Robertson v. 780 Baltimore & Ohio R. R. Co. v. In- terstate Commerce Com. (825) Barber v. Jones Shoe Co. 966 Barclay Coal Co., Morris Coal Co. V. 76 Barnes v. Berry 653 Barrier Branch of Amal. Miners' Assn. «. Broken HUl Proprietary Co. (3 Com. Arb. Rep. 1) (881) (10 Com. Arb. Rep. 155) 898 Barzilay v. Loewenthal 658 Batchelor, Claygate v. 68 Baush Machine Tool Co. v. Hill 388 Beekman v. Marsters 165 Behan, Vredenburg v. 631 Behanna, O'Neil v. 191 Bennecke, Blakely v. 610 Bennett, Grassi Contracting Co. V. (7m) Berry, Barnes v. 653 Binney, Boston Glass Manufac- tory V. 176 Bishop, Raggett v. 678 Blake v. Lanyon 155 Blakely v. Bennecke 610 Bohn Mfg. Co. v. Hollis 62 Borderland Coal Corp., Gasaway v. 509 Bossert v. Dhuy 434 Boston Glass Manufactory v. Bin- ney 176 Bowen v. Matheson 297 Boyer v. Western Union Tel. Co. 468 Boyson v. Thorn 244 Brendel, McVey v. 483n. Brennan v. United Hatters 361 Brewers of London, Tubwomen v. 147 Brezzenski v. Crenshaw Engineer- ing Co. 977 Brick-layers', etc., Union, Burns V. 690 Bricklayers' Union, March v. 350 Brintons, Ltd. v. Turvey 979 xu TABLE OF CASES Broken Hill Proprietary Co., Bar- rier Branch of Amal. Miners' Assn. V. (3 Com. Arb. Rep. 1) (881) ao Com. Arb. Rep. 155) 898 Broken HUl Proprietary Co., Fed^ erated Engine Drivers', etc., Assn. V. 888 Brothers v. Morris 242 Brown, Industrial Com. of Ohio v. 983 Brown v. Stoerkel 555 Buck, Tuttle v. 259 Bucks Stove & Range Co., Gomp- ers V. 462 Buffalo & Susquehanna R. R. Co., Mclnerney v. 963 Building Trades Council, Gray v. 417 Parkinson Co. v. 150 Bunting v. Oregon 833 Burke, Thacker Coal Co. v. 177 Burn V. Natl. Amalgamated La- bourers' Union 701 Burnham, State v. 52 Burns v. Brick-layers, etc., Union 690 Butterick Pub. Co. v. Typographi- cal Union No. 6 ' 185 Bykerdike, Rex v. 48 Carew v. Rutherford 344 Case of Abbot of Lilleshall 412 Case of Mary Clark, A Woman of Color 771 Case of Phila. Cordwainers 99 (147) Cater, Cobb v. 247 Central Lumber Co. v. South Da- kota 803 Charles Schweinler Press, People v. 813 Charles Wolff Packing Co., May v. 936 Church, Winona Lumber Co. v. 608 Cincinnati, etc., Ry. Co., Hudson v. 647 Clark, Case of Mary 771 Claygate v. Batchelor 68 Close, Hornby v. 80 Cobb V. Cater 247 Coeur D'Alene Consol. & Mining Co. V. Miners' Union 726 Cohen, Jacobs v. 335 Commonwealth v. Hunt 104 V. Prius 61 Commonwealth Steamship Owners' Assn., Waterside Workers' Fed. V. 903 Connell v. Sta:lker 696 Gonnol, Rigby v. 83 Coppage V. Kansas 843 Cordwainers, Case of Philadelphia 99 (147) Coronado Coal Co., The United Mine Workers, v. 533 Corrigan, Truax v. ' 220 (759) Cother v. Midland Ry. Co. (768) Cotton Jammers, etc., Assn. v. Tay- lor 698 Page Craig, De Minico v. 147 Crenshaw Engineering Co., Brez- zenski v. 977 Cumming, Natl. Prot. Assn. v. "303 Curran v. Galen 331 D Daly, Badger Brass Mfg. Co. v. 762 "Danbury Hatters Case" (Loewe V. Lawlor) 121 Davidson v. Joplin & Pittsburg Ry. Co. 928 Davis, Reynolds v. 366 Davis V. Zimmerman 730 Davitt V. American Bakers' Union 765 Day i>. Studebaker Bros. Mfg. Co. 349 ' Debs, In re 138, 751 Deering, Duplex Printing Press Co. V. 440 Delaware, Lackawanna & Western R. R. Co. V. Switchmen's Union 795 De Minico v. Craig 147 Dhuy, Bossert v. 434 Diamond Block Coal Co. v. United Mine Workers (237), 504 Division No. 241, Kemp v. 319 Dixon, Rex v. 36 Donaldson, State v. 299 Doremus v. Hennessy 59 Druitt, Reg. v. 181 Dunlap's Cable News Co. v. Stone 406 Duplex Printing Press Co. v. Deer- ing 440 E Eagle Glass & Mfg. Co., Hill v. 238 Earl of Momington, Lord Welles- ley V. 735 East Haddam Baptist Ecclesias- tical Society, East Haddam Church V. 554 East Haddam Central Baptist Church V. East Haddam Eccle- siastical Soc. 554 Eccles, Rex v. 34 E. C. Knight Co., United States v. 112 Edwards, Rex v. 43 Ehrlich v. Willenski 612 Electrolytic Alkali Co. Ltd., North Western Salt Co., Ltd. v. (98) Eq^uity Rule No. 38 527 Erie Railroad Co. v. Williams 857 Ex parte Hudgins 777 Farmers' Loan & Trust Co. v. Northern Pacific R. R. Co. 748 Faulkner, Kealey v. 89 Federal Equity Rule No. 38 627 Federated Engine Drivers' & Fire- men's Assn. V. Broken Hill Proprietary Co. 888 TABLE OF CASES Xlll Page Fellows V. Fellows . 734 First Natl. Bank of Plattsmouth v. Rector 644 Flood, AUen v. 275 Forbes, Siff v. 614 G Galen, Curran v. 331 Garibaldi Grove, Grand Grove v. 712 Garret v. Taylor 189 Garrigan v. United States 742 Gasaway v. Borderland Coal Corp. 509 Gee, Atchison, etc., Ry. Co. v. 212 Giblan v. Natl. Amal. Labourers' Union 357 Glamorgan Coal Co., Ltd., South Wales Miners' Federation v. 171 Gompers v. Bucks Stove & Range Co. 462 Grand Grove v. Garibaldi Grove 712 Grand Lodge of New Jersey, ZeUfff. 683 Grassi Contracting Co. v. Bennett (769) Gray v. Building Trades Council 417 Guilfoil V. Arthur 524 Guntner, Vegelahn v. 200 Gye, Luinley v. 157 H Hall, Homan v. Ham V. Topeka Ry. Co. Hammond, Rex v. Hardy, Holden v. Haskell, Noble State Bank v. Hayes et al., United States v. Heert, Perkins v. Hennessy, Doremus v. Hess V. Johnson Hetterman Bros & Co. v. Powers Hewitt, Reg. v. Hey, Wilson v. Heywood v. TiUson Hickeringill, Keeble v. Hill, Baush Machine Tool Co. v. Hill V. Eagle Glass & Mfg. Co. Hillman, Michaels v. (585), Hilhnan, Welinsky v. Hitchman Coal & Coke Co. Mitchell Holcombe, Lavretta v. Holden v. Hardy HoUis, Bohn Mfg. Co. v. Homan v. Hall Honora E. Madden's Case Hopkins i;. Oxley Stave Co. Homberger v. Orchard Hornby v. Close Howat, State v. Hudgins, Ex parte Hudson V. Cincinnati, etc., Ry. Co Hunt, Commonwealth v. 169 943 44 819 800 757 484 59 672 479 355 413 403 248 388 238 (770) 380 V. 489 561 819 62 169 972 429 627 80 945 777 647 104 Imperial Woolen Co. In re Debs , McCauley v. 988 138, 751 Page In re Lennon 790 Indianapolis Abattoir Co., Rich- ards V. 967 Industrial Com. of Ohio v. Brown 983 Interstate Commerce Com., Balti- more & Ohio R. R. Co. V. (825) New Haven R. R. v. (769) Iron Molders' Union v. AUis-Chal- mers Co. 194 Iron Molders' Union, U. S. Heater Co. V. 522 Jacobs V. Cohen 335 James Bagg's Case 42 Jetton-Dekle Lumber Co. v. Mather 692 Johnson, Hess v. - 672 Johnson's Case 981 Jones V. Maher 638 Jones Shoe Co., Barber v. 966 Joplin & Pittsburg Ry. Co., Amal. Assn. of Street Railway Em- ployees, V. 933 Joplin & Pittsburg Ry. Co., David- son », 928 Journeymen Stonecutters' Assn., Mayer v. 686 Journeymen Tailors', etc.. Union, Otto V. 708 Journeymen-Taylors of Cambridge, Rex V. 33 Justices, Opinion of the 686 Justices of Kent, King v. 29 Justices of Labourers, Presentments made before the 27 Justus, State v. 476 K Kansas, Coppage v. 843 Kansas v. Topeka Edison Co. 923 Kafges Furniture Co. v. Amal. Woodworkers' Union, 264 (237) Kealey v. Faulkner 89 Kearney v. Lloyd 395 Kearney, Walton Lunch Co. v. 377 Keeble v. Hickeringill 248 Keegan, Pope Motor Car Co. v. 207 Kemp V. Division No. 241 319 Keokee Coke Co. v. Taylor 860 King V. Justices of Kent 29 King Sewing Machine Co., Naudv. 985 ffirby, U. S. V. 135 Kissam v. U. S. Printing Co. 338, 398 Knight Co., E. C, U. S. B. 112 Knight's Case 960 Knott, Lefebvre v. 390 Langmade v. Olean Brewing Co. 659 Lanyon, Blake v. 155 Laurie v. Laurie 767 Lavretta v. Holcombe 561 Lawlor v. Loewe (235 U. S. 522) 466, 636 XIV TABLE OF CASES Page Lawlor, Loewe v. (208 U. S. 274) 121 Leathern, Quinn v. 286 Le Blanc v. Lemaire 564 Lefebvre v. Knott 390 Lemaire^ Le Blanc v. 564 Lennon, In re 790 LilleshaU, Case of Abbot of 412 Linaker v. Pilcher 588 Lindsay & Co. v. Montana Fed. of Labor 454 Living Wage (Tinsmiths') Case (882) Lloyd, Kearney v. 395 Local Union No. 60, Schneider v. 384 Lochner v. New York 826 Loewe v. Lawlor (208 U. S. 274) 121 Loewe, Lawlor v. (235 U. S. 522) 466, 636 Loewenthal, Barzilay v. 658 London Soc. of Compositors, Vacher & Sons, V. 591 Lord Wellesley v. Earl of Morning- ton 735 Lumley v. Gye 157 Lynch, Mechanics Foundry & Ma- chine Co. V. 378 M McCauley v. Imperial Woolen Co. 988 M'Gawley, Tarleton v. 190 McGregor, Gow & Co., Mogul Steamship Co. v. 252 McGuire, Rex v. 879 Mclnemey v. B. & S. R. R. Co. 963 McKeen, Abels v. 596 McLaughlin v. Wall 567 McLean v. Arkansas 851 McNicol's Case 969 McVey v. Brendel 483ra Macauley Brothers v. Tierney 408 Madden's Case -972 Maher, Jones v. 638 March v. Bricklayers' Union 350 Marshall v. Pilots' Assn. 679 Marsters, Beekman v. 165 Martyn, Nichol v. 453 Mary Clark, Case of 771 Mather, Jetton-Dekle Lumber Co. V. 692 Matheson, Bowen v. 297 Matter of Mclnemey v. B. & S. R. R. Co. 963 May V. Wolff Packing Co. 936 Mayer v. Journeymen Stonecutters' Assn. 686 Mechanics Foundry & Machine Co. V. Lynch 378 Melvin, People v. 102 Michaels v. Hillman (585), (770) Midland Ry. Co., Cother v. (768) Mills V. United States Printing Co. 398 Minasian v. Osborne 373 Miners' Union, Coeur D'Alene Consol. & Mining Co. v. 726 Page Minneapolis Musicians' Assn., Scott- Stafford Opera House Co. v. 381 Minor v. St. John's Union Grand Lodge , 571 Mitchell, Hitchman Coal & Coke Co. V. 489 Mitchell, Shipwrights, etc., Assn.w. 576 Mogul Steamship Co. v. McGregor, Gow & Co. 252 Montana Fed. of Labor, Lindsay & Co. V. 454 Moore v. Stemmons 577 Morgan v. Owners of Steamship Zenaida 978 Morrin, O'Connor v. 691 Morris, Brothers v. 242 Morris Run Coal Co. v. Barclay Coal Co. 76 Muller V. Oregon 809 Musgrave, Raggett v. 678 Musical, etc., Union, O'Brien v. 673 N National Amal; Labourers' Union, Bum V. 701 National Amal. Labourers' Union, Giblan v. 357 National Protective Assn. v. Gum- ming 303 Naud V. King Sewing Machine Co. 985 Nederlandsch Amenkaansehe Stoom- vaart Maatschappij v. Steve- dores', etc.. Society 668 New, Wilson v. 863 New Haven R. R. v. Interstate Commerce Com. (769) New York, Lochner v. 826 New York Cordwainers' Case (People V. Melvin) 102 Nichol V. Martyn 453 Noble State Bank v. Haskell 800 North Western Salt Co. Ltd. v. Electrolytic Alkali Co. Ltd. (98) Northern Pacific Ry. Co., Farmers' Loan & Trust Co. v. 748 O Oakes, Arthur v. 782 O'Brien v. Musical, etc.. Union 673 O'Connor v. Morrin 691 O'Hara, Stettler v. 837 Olean Brewing Co., Langmade v. 659 O'Neil V. Behaima 191 O'Neil, Shinsky v. 340 Opinion of the Justices (211 Mass. 618) 586 Orchard, Homberger v. 627 Oregon, Bunting v. 833 Muller V. 809 Osborne, Amal. Soc. of Ry. Serv- ants V. 599 Osborne, Minasian v. 373 TABLE OF CASES XV Page Otto V. Journeymen Tailors, etc., Union 708 Owners of Steamship Zenaida, Mor- gan V. 978 Oxley Stave Co., Hopkins v. 429 Parkinson Co. v. Building Trades Council 150 Pennsylvania Co., Toledo, Aim Arbor, etc., Ry. Co. v. 127, 786 (862) People V. Melvin 102 V. Schweinler Press 813 People, Wallace v. 561 People V. Williams 806 Pepper, Rosenwasser Bros. v. 871 Perkins v. Heert 484 Perkins, Sherry v. 724 Perpetual Trustee Co. Ltd., Wise !;. 617 Phila. Cordwainer's Case 99 (147) Phinizy, Wimpy v. 736 Pickett V. Walsh 268 Pierce v. Stablemen's Union 401 (424) Pilcher, Linaker v. 588 Pilots' Assn., Marshall v. 679 Pine, Van Houten v. 579 Pittston&ElmiraCoalCo.,Arnotw. 73 Plant V. Woods 312 Pope Motor Car Co. v. Keegan 207 Poulterer's Case 40 Powers, Hetterman Bros & Co. v. 479 Powers, Ray v. 625 Presentment, 1576 (Court Leet of Southampton) 29 Presentment, 1577 (Court Leet of Southampton) 29 Presentments made before the Jus- tices of Labourers, 1351 27 Printing Trades Case 905 Prius, Commonwealth v. 51 Pywell, Rex v. 47 Q Quinn p. Leathem , 286 Quinto, Schlesinger v. 661 R Raggett V. Bishop 678 V. Musgrave 678 Ray V. Powers 625 Rector, First Natl, Bank v. 644 Reding v. Anderson 646 Regina v. DrUitt 181 V. Hewitt 355 V. Warburton 49 Rex V. Bykerdike 48 w.JDixon 36 ji.TEccles 34 V. Edwards 43 V. Hammond 44 V. Journeymen-Taylors of Cam- bridge 33 Page Rex V. Justices of Kent 29 V. McGuire 879 V. Pywell 47 V. Salter 354 V. Turner 45 V. Waddington 70 Reynolds v. Davis 366 Richards v. Indianapolis Abattoir Co. 967 Rigby V. Connol 83 Riley, Springhead Spiiming Co. v. 718 Riley, White v. 327 Robertson v. Baldwin 780 Rosenwasser Bros. v. Pepper 871 Ruse V. Williams 568 Rutherford, Carew v. 344 St. John's, etc.. Lodge, Minor v. 571 St. Paul Bookbinders' Union, St. Paul Typothetae v. 517 St. Paul Typothetae v. St. Paul Bookbinders' Union No. 37 517 Salter, Rex v. 354 Schlesinger v. Quinto 661 Schneider v. Local Union No. 60 384 Schumacher v. Sumner Telephone Co. (616) Schweinler Press, People v. 813 Scott-Stafford Opera House Co. v. Musicians' Assn. 381 Sherry v. Perkins 724 Shinsky v. O'Neil 340 Shipwrights, Joiners & Calkers Assn. V. Mitchell ~ 576 Sifi V. Forbes 614 Silverman, Willner v. 472 Sinsheimer v. United Garment Workers 460 Slaughter-house Cases (842) Snow !).. Wheeler 86 Society of Shakers v. Watson 582 South Dakota, Central Lumber Co. V. 803 South Wales Miners' Fed. v. Gla- morgan Coal Co., Ltd. 171 Springhead Spinning Co. v. Riley 718 Stablemen's Union, Pierce v. (401) 424 Stalker, Connell v. 696 Standard Oil Co., State v. (97) State V. Bumham 52 V. Donaldson 299 V. Howat 945 V. Justus 476 V. Standard Oil Co. (97) V. Straw 55 State of Kansas v. Topeka Edison Co. 923 Stemmons, Moore v. 577 Stettler v. O'Hara 837 Stevedores', etc.. Society, Neder- landsch, etc. v. 668 XVI TABLE OF CASES Page Stoerkel, Brown v. 655 Stone, Dunlap's Cable News Co. v. 406 Strauss, Terlecki v. 962 Straw, State v. 55 Studebaker Bros. Mfg. Co., Day v. 349 Sumner Telephone Co., Schumacher V. (616) Swift and Co. v. United States 1 18 (768) Switchmen's Union, D. L. & W. R. R. V. 795 Taff Vale Ry. Co. v. Amal. Society of Ry. Servants 527 Tarleton v. M'Gawley 190 Taylor, Cotton Jammers, etc., Assn. V. 698 Taylor, Garret v. 189 Taylor, Keokee Coal Co. v. 860 Terlecki v. Strauss 962 Thacker Coal Co. v. Burke 177 Thorn, Boyson v. 244 Tiemey, Macauley Brothers v. 408 TiUson, Heywood v. 403 Tinsmiths' (Living Wage) Case (882) Toledo, Ann Arbor, etc., Ry. Co. v. Pennsylvania Co. 127, 786 (862) Topeka Edison Co., State of Kan- sas V. 923 Topeka Ry. Co., Ham v. 943 Tri-City Central Trades Council, American Steel Foundries v. 213 Truax v. Corrigan 220 (759) Tubwomen v. Brewers of London 147 Turner, Rex v. 45 Turvey, Brintons, Ltd. v. 979 Tuttle V. Buck 259 Typographical Uflion No. 6, But- terick Pub. Co. v. 185 U United Garment Workers, Sin- sheimer v. 460 United Hatters, Brennan v. 361 United Mine Workers v. Coronado Coal Co. 533 United Mine Workers, Diamond Block Coal Co. v. (237) 504 United States v. E. C. Knight Co. 112 United States, Garrigan v. 742 United States v. Hayes et al 757 V. Kirby 135 United States, Swift & Co. v. 118 (768) United States Heater Co. v. Iron Molders' Union 522 Page United States Printing Co., Kissam V. 338, 398 United States Prmting Co., Mills v. 398 Vacher & Sons, Ltd. v. London Soc. of Compositors 591 Van Houten v. Pine 579 Vegelahn v. Guntner 200 Vredenburg v. Behan 631 W W. Angliss & Co. and the Austra- lasian Meat Industry Employ- ees' Union 890 Waddington, Rex v. 70 Wall, McLaughlin v. 567 Wallace v. The People 561 Walsh, Pickett v. 268 Walton Limch Co. v. Kearney 377 Warburton, Reg. v. 49 Waterside Workers' Fed. v. Com- monwealth Steamship Owners' Assn. 903 Watson, Society of Shakers v. 582 Welmskyi). Hillman 380 Western Union Tel. Co., Boyer v. 468 Wheeler, Snow v. 86 White V. Riley 327 Whybrow & Co., Australian Boot Trade Employees', Fed. v. 883 Wilcox V. Arnold 623 Willenski, Ehrlich ». 612 Williams, Erie Railroad Co. v. 857 People V. 806 Ruse V. 568 Willner v. Silverman 472 Wilson V. Hey 413 V. New 863 Wimpy V. Phinizy 736 Winona Lumber Co. v. Church 608 Wire Drawers' & Die Makers' Unions, Amer. Steel & Wire Co. V. 737 Wise V. Perpetual Trastee Co., Ltd. 617 Wolff Packing Co. , May !). 936 Wolstenholme v. Ariss 324 Woods, Plant v. 312 Zeliff V. Grand Lodge 683 Zenaida, Owners of Steamship, Morgan v. 978 Zimmerman, Davis v. 730 TABLE OF STATUTES 1. ENGLISH STATUTES Page Ordinance of Conspirators, 33 Ed. I (1305) Ordinance of Labourers, 23 Ed. Ill (1349) Statute of Labourers, 25 Ed. Ill (1350-1) Act of 34 Ed. Ill (1360) Act of 37 Ed. Ill (1363) Act of 12 Richard II (1388) Act of 2 & 3 Ed. VI, c. 15 (1548) An Act against Regrators, Forestall- ers and Ingrossers, 5 & 6 Ed. VI, c. 14 (1552) Act of 5 Eliz. c. 4 (1562) Act of 7 Geo. I, stat. 1, c. 13 (1720) Act for Repealing Certain Laws Against Engrossers, Forestall- ers and Regrators, 12 Geo. Ill, 0. 71 a772) Combination Act, 1800, 40 Geo. Ill, c. 106 Combination Act, 1824, 5 Geo. IV, c. 96 Combination Act, 1825, 6 Geo. IV, c. 129 Trade Union Act, 1871, 34 & 35 Vict. c. 31 Criminal Law Amendment Act, 1871, 34 & 35 Vict. c. 32 37 20 22 Page Conspiracy, and Protection of Prop- erty Act, 1875, 38 & 39 Vict, c. 86 23 Trade Disputes Act, 1906, 6 Ed. VII, c. 47 24 Trade Union Act, 1913, 2 & 3 Geo. V, c. 30 25 English Picketing Legislation 236 2. AMERICAN STATUTES Clayton Act, Act of Oct. 15, 1914, c. 323, sees. 6, 20 145 Conspiracy Statute, U. S. Crim. Code, sec. 37 58 Court of Industrial Relations Act, Kansas S. S. Laws of 1920, c. 29 918 Fourteenth Amendment, U. S. Con- stitution 800 Obstructing the Mail, U. S. Crim. Code, sec. 201 135 Sherman Anti-Trust Act, Act of July 2, 1890, c. 647, sees. 1, 2, 7 112 Thirteenth Amendment, U. S. Con- stitution 774 3. CANADIAN STATUTE Industrial Disputes Investigation Act, 1907, 6 & 7 Ed. VII, c. 20 (Dom.) 875 TEXTS QUOTED Page Clark, The Law of the Employment of Labor 394 Collyer, Law of Partnership 612 Dicey, Law and Public Opinion in England 33 Fitzherbert, New Natura Brevium 200 Page Hawkins, Pleas of the Crown 42 Martin, The Law of Labor Unions 394 Russel, Sir Charles, Speech before Pamell Commission 402 Spence, Equitable Juri^ction 717 LABOR LAW CASES ON LABOR LAW INTRODUCTION— ENGLISH LABOR LEGISLATION^ Section 1. Early English Statutes^ Ordinance of Labourers, 23 Edward III (1349)' Edward by the grace of God, &c. to the reverend father in Christ, William, by the same grace archbishop of Canterbury, primate of all England, greet- ing. Because a great part of the people, and especially of workmen and servants, late died of the pestilence, many seeing the necessity of masters, and great scarcity of servants, will not serve unless they may receive exces- sive wages, and some rather willing to beg in idleness, than by labour to get their living; we, considering the grievous incommodities, which of the lack especially of ploughmen and such labourers may hereafter come, have upon deliberation and treaty with the prelates and the nobles, and learned men assisting us, of their mutual counsel, ordained : Chapter I. Every person able in body under the age of sixty years, not having to live on, being required, shall be bound to serve him that doth require him, or else committed to the gaol, until he find surety to serve. That every man and woman of our realm of England, of what condition he be, free or bond, able in body, and within the age of threescore years, not living in merchandize, nor exercising any craft, nor having of his own whereof he may live, nor proper land, about whose tillage he may himself occupy, and not serving any other, if he in convenient service (his Estate considered) be required to serve, he shall be bounden to serve him which so shall him require. And take only the wages, livery, meed, or salary, which were accustomed to be given in the places where he oweth to serve, the xx. year of our reign of England, or five or six other common years next before. Provided always, That the lords be preferred before other in their bondmen or their land tenants, so in their service to be retained; so that nevertheless ' Other English statutes, as well as American statutes, dealing with specific subjects, will be found scattered through the cases under the appropriate subject headings. See Table of Statutes, p. xvii. — En. * The translation of the statutes in this section is taken from Pickering's edition of the English Statutes at Large (Cambridge, 1762, 1763, 1765). —Ed. ' For a scholarly discussion of the Statutes of Labourers, see B. H. Putnam, The Enforcement of the Statutes of Labourers (Columbia University Studies in History, Economics, and PubUc Law, vol. 32). See also. Social England (edited by H. D. Traill), vol. 2, pp. 133-146 (bibUog., p. 276); W. Cunningham, The Growth of English Industry and Commerce (5th ed.), pp. 330-336; Thorold Rogers, Six Centuries of Work and Wages, Chap. 8; W. J. Ashley, Introduction to English Economic History and Theory. Sixty-one early Yearbook cases arising under the Statutes of Labourers will be found digested in Fitzherbert's Abridgement, tit. Labourers, fol. 88 ff. 4 ENGLISH STATUTES [INTBOD. the said lords shall retain no more than be necessary for them. And if any such man or woman, being so required to serve, wUl not the same do, that proved by two true men before the sheriff or the bailiffs of our sovereign lord the King, or the constables of the town where the same shall happen to be done, he shall anon be taken by them or any of them, and committed to the next gaol, there to remain imder strait keeping, till he find surety to serve in the form aforesaid. Chapter II. // a workman or servant depart from service before the time agreed upon, he shall he imprisoned. Item, If any reaper, mower, or other workman or servant, of what estate or condition that he be, retained in any man's service, do depart from the said service without reasonable cause or licence, before the term agreed, he shall have pain of imprisonment. And that none imder the same pain pre- sume to receive or to retain any such in his service. Chapter III. The old wages, and no more, shall be given to servants. Item, That no man pay, or promise to pay, any servant any more wages, liveries, meed, or salary than was wont, as afore is said. Nor that any in other manner shall demand or receive the same, upon pain of doubling of that, that so shall be paid, promised, required, or received, to him which thereof shall feel himself grieved, pursuing for the same. And if none such will pursue, then the same to be applied to any of the people that will pursue. And such pursuit shall be in the court of the lord of the place where such case shall happen. Chapter V. If any artificer or workman take more wages than were wont to be paid, he shall be committed to the gaol. Item, That sadlers, skinners, white-tawers, cordwainers, taylors, smiths, carpenters, masons, tilers, shipwrights, carters, and all other artificers and workmen, shaU not take for their labour and workmanship above the same that was wont to be paid to such persons the said twentieth year, and other common years next before, as afore is said, in the place where they shall happen to work. And if any man take more, he shall be committed to the next gaol, in manner as afore is said. Chapter VI. Victuals shall be sold at reasonable prices. Item, That butchers, fishmongers, regrators, hostelers, brewers, bakers, pulters, and all other sellers of all manner of victual, shall be bound to sell the same victual for a reasonable price, having respect to the price that such victual be sold at in the places adjoining, so that the same sellers have mod- erate gains, and not excessive, reasonlably to be required according to the distance of the place from whence the said victuals be carried. . . . Chapter VII. No person shall give any thing to a beggar that is able to labour . Item, Because that many valiant beggars, as long as they may live of beg- ging, do refuse to labour, giving themselves to idleness and vice, and some- time to theft and other abominations ; none upon the said pain of imprison- ment shall, under the colour of pity or alms, give any thing to such, which may labour, or presume to favour them towards their desires, so that thereby they may be compelled to labour for their necessary living. . . . SECT. I] EAKLY STATUTES 5 Chapter VIII. He that taketh more wages than is accustomdbly given, shall pay the surplusage to the town where he dwelleth, towards a payment to the King of a tenth and fifteenth granted to him. Subsequently our sovereign lord the King, perceiving by the common complaint, that his people, for such excessive stipend, liveries, and prices, which to such servants, labourers, and workmen were constrainedly paid, be oppressed, and that the disme and quinzime to him attaining might not be paid, unless remedy were therefore provided : regarding also the coactions and manifest extortions, and that there was no man, which against such offenders, did pursue for the said commodity so ordained to be obtained: wherefore it was consonant, that that thing which was ordained to be ap- plied to singular uses, seeing that the same persons did not, nor would not, pursue, should be converted to a publick and common profit, by the advice of his counsel. Hath ordained. That all and singular workmen, servants and artificers, as well men as women, of whatsoever estate or condition they be, taking more for their labours, services, and workmanship, than they were wont to take the said xx. year, and other years aforesaid, should be assessed to the same sum, which they shall receive over and above, with other sums as well for the time past, when the stipend, wages, liveries, and prices were augmented, as for the time then to come. And that the said whole sum re- ceived over and above, should be levied of every of them, and gathered to the King's use. . . . And therefore our said sovereign lord the Bang hath commanded all archbishops, and bishops, that they do to be published the premises in aU places of their dioceses, commanding the curates and other subdiocesans, that they compel their parochians to labour, according to the necessity of the time, and also their stipendiary priests of their said dioceses, which do now excessively take, and will not, as it is said, serve for a competent salary, as hath been accustomed, upon pain of suspension and interdiction. And that in no wise ye omit the same, as ye love us and the commonwealth of our realm. Dated the day and year aforesaid. Statute of Labourers, 25 Edward m (1350-l)i Whereas late against the malice of servants, which were idle, and not willing to serve after the pestilence, without taking excessive wages, it was ordained by our lord the King, and by assent of the prelates, earls, barons, and other of his council. That such manner of servants, as well men as women, should be bound to serve, receiving salary and wages, accustomed in places where they ought to serve in the twentieth year of the reign of the King that now is, or five or six years before; and that the same servants refusing to serve in such manner should be punished by imprisonment of their bodies, as in the said statute is more plainly contained; (2) whereupon commissions were made to divers people in every county to enquire and punish all them which offend against the same. (3) And now forasmuch as it is given the King to understand in this present parUament, by the petition of the com- monalty, that the said servants having no regard to the said ordinance, but to their ease and singular covetise, do withdraw themselves to serve great men and other,' unless they have livery and wages to the double or treble of that they were wont to take the said twentieth year, and before, to the great damage of the great men, and impoverishing of all the said commonalty, 1 Under our modem reckoning, this Statute of Labourers was passed in Feb- ruary, 1351. — Ed. 6 ENGLISH STATUTES [INTEOD. whereof the said commonalty prayeth remedy: (4) wherefore in the same parliament, by the assent of the said prelates, earls, barons, and other great men of the same commonalty there assembled, to refrain the malice of the said servants, be ordained and established the things under-written. Chapter I. The year and day's wages of servants and labourers in husbandry. First, That carters, ploughmen, drivers of the plough, shepherds, swine- herds, deies, and all other servants, shall take liveries and wages, accus- tomed the said twentieth year, or four years before, so that in the country, where wheat was wont to be given, they shall take for the bushel ten pence, or wheat at the will of the giver, till it be otherwise ordained. And that they be allowed to serve by a whole year, or by other usual terms, and not by the day. And that none pay in the time of sarcling or hay-making but a penny the day. And a mower of meadows for the acre five pence, or by the day five pence. And reapers of corn in the first Week of August two pence, and the second three pence, and so till the end of August, and less in the country where less was wont to be given, without meat or drink, or other courtesy to be demanded, given, or taken. And that all workmen bring openly in their hands to the merchant towns their instruments, and there shall be hired in a common place and not privy. Chapter II. How much shall be given for threshing all sorts of corn by the quarter. None shall depart from the town in summer where he dwelt in winter. '■.■ Item, That none take for the threshing of a quarter of wheat or rye over ii. d. ob. and the quarter of barley, beans, pease, and oats, i. d. ob. ijf so much were wont to be given, and in the country, where it is used to reap by certain sheaves, and to thresh by certain bushels, they shall take no more nor in other manner than was wont the said xx. year and before. And that the same servants be sworn two times in the year before lords, stewards, bailiffs, and constables of every town, to hold and do these ordinances. And that none of them go out of the town, where he dwelleth in the winter, to serve the summer, if he may serve in the same town, taking as before is said. . . . And that those, which refuse to make such oath, or to perform that that? they be sworn to, or have taken upon jihem, shall be put in the stocks, by the said lords, stewards, bailiffs, and constables of the towns by three days or more, or sent to the next gaol, there to remain, till they will justify themselves. And that stocks be made in every town by such oc- casion betwixt this 'and the feast of Pentecost. Chapter III. The wages of several sorts of artificers and labourers. Item, That carpenters, masons, and tilers, and other workmen of houses, shall not take by the day for their work, but in manner as they were wont, that is to say; A master carpenter, ui. d. and an other ii. d. A master free mason iiii. d. and other masons iii. d. and their servants i. d. ob.; tylers iii. d. and their knaves i.d. ob., and other coverers of fern and straw iii. d.,and their knaves i. d. ob.; plaisterers and other workers of mudwalls, and their knaves, by the same manner, without meat or drink, s. from Easter to Saint Michael. And from that time less, according to the rate and discretion of the justices, which should be thereto assigned. And that they that make carriage by land or by water, shall take no more for such carriage to be made, than they were wont the said xx. year, and iiii. years before. SECT. I] EARLY STATUTES 7 Chapter V. The several punishments of persons offending against this statute. Item, That the said stewards, bailiffs, and constables of the said towns, be sworn before the same justices, to inquire diligently by all the good ways they may, of all them that come against this ordinance, and to certify the same justices of their names at all times, when they shall come into the country to make their sessions, so that the same justices in certification of the same stewards, bailiffs, and constables, of the names of the rebels, shall do them to be attached by their body, to be before the said justices, to answer of such contempts, so that they make fine and ransom to the King, in case they be attainted. And moreover to be commanded to prison, there to re- main, till they have found surety, to serve, and take and do their work, and to sell things vendable in the manner aforesaid. . . . Chapter VII. The justices shall hold their sessions four times a year, and at all times needful. Servants which flee from one county to another shall be committed to prison. . . . And if any of the said servants, labourers, or artificers do flee from one county to another, because of this ordinance, that the sheriffs of the county where such fugitive persons shall be found, shaU do them to be taken, at the commandment of the justices of the counties from whence they shall flee, and bring them to the chief gaol of the same county, there to abide tiU the next sessions of the same justices. . . . Act of 34 Edward m (1360) Chapter IX. The statutes of 23 Edw. ■?, cap. 1, and 25 Edw. 3, stat. 1, cap. 1 and 2, touching labourers, carpenters, masons, &c. confirmed. Item, It is accorded in this present parliament, That the statute of labourers of old times made, shall stand in all points, except the pecuniar pain, which from henceforth is accorded, that the labourers shall not be punished by fine and ransom. And it is assented. That the said statute shall be enforced in punishment of laborers, in the form following : that is to say, that the lords of towns may take and imprison them by fifteen days, if they wiU not justify themselves. And then to send them to the next gaol, there to abide tiU they wiU justify them, by the form of the statute. And that the sheriff, jaylor nor other minister shall not let them to mainprise nor baU, and if he do, he shaU pay to the King ten pound, and to the party an hundred shil- lings: nor that the sheriff, jailor, nor other minister shall take no fee nor porterage of prison, nor at his entering, nor at his going out, upon the same pain. And that as well carpenters and masons be comprised of this ordi- nance, as all other labourers servants and artificers. And that the carpenters and masons take from henceforth wages by the day, and not by the week, nor in other manner. And that the chief masters of carpenters and masons take four pence by the day, and the other three pence or two pence accord- ing as they be worth. And that aU alliances and covines of masons and car- penters, and congregations, chapters, ordinances and oaths betwixt them made, shall be from henceforth void and wholly annulled: so that every mason and carpenter of what condition that he be, shall be compelled by his master to whom he serveth, to do every work that to him pertaineth to do, or of free stone, or of rough stone. And also every carpenter in his de- gree. But it shall be lawful to every lord or other, to make bargain or cove- 8 ENGLISH STATUTES [INTROD. nant of their work in gross, with such labourers and artificers when please them, so that they perform such works well and lawfully according to the bargain or covenant with them thereof made. Chapter X. The punishment of labourers, &c. departing from their service into another county. Item, Labourers and artificers that absent them out of their services in an- other town, or another county, the party shall have the suit before the jus- tices, and that the sheriff take him at the first day, as is contained in the statute, if he be found, and do of him execution as afore is said, and if he re- turn, that he is not found, he shall have an exigend at the first day, and the same pursue till he be outlawed, and after the outlawry, a writ of the same justices shall be sent to every sheriff of England, that the party wiE sue to take him, and to send him to the sheriff of the county where he is outlawed, and when he shall be there brought, he shall have there imprisonment, till he win justify himself, and have made gree to the party: and nevertheless for the falsity he shall be burnt in the forehead, with an iron made and formed to this letter F. in token of falsity, if the party grieved the same wiU sue. But this pain of burning shall be put in respite till saint Michael next en- suing, and then not executed, unless it be by the advice of the justices. And the iron shall abide in the custody of the sheriff. And that the sheriff and some bailiff of the franchise be attending to the plaintiff, to put this ordi- nance in execution, upon the pain aforesaid. And that no labourer, servant, nor a,rtificer shall take no manner of wages the festival days. Act of 37 Edward HI (1363) Chapter VI. Handicraftsmen shaU use but one mystery, hut workwomen may work as they did. Item, It is ordained, That artificers, handicraft people, hold them every- one to one mystery, which he will choose betwixt this and the said feast of Candlemas. And two of every craft shall be chosen to survey, that none use other craft than the same which he hath chosen, and that justices be assigned to enquire by process, to hear and determine in this article, as is ordained in the article before said, saving that the trespassers in this article shall be punished by imprisonment of half a year, and moreover to make fine and ransom, according to the quantity of the trespass. . . . Chapter VIII. The diet and apparel of servants. Item, For the outragious and excessive apparel of divers people, against their estate and degree, to the great destruction and impoverishment of all the land: it is ordained. That grooms, as well servants of lords, as they of mysteries and artificers, shall be served to eat and drink once a day of flesh or of fish, and the remnant of other victuals, as of milk, butter, and cheese, and other such victuals, according to their estate. And that they have cloths for their vesture, or hosing, whereof the whole cloth shall not exceed two marks, and that they wear no cloth of higher price, of their buying, nor otherwise, nor nothing of gold nor of silver embroidered, aimeled, nor of silk, nor nothing pertaining to the said things. And their wives, daughters, and children of the same condition in their clothing and apparel, and they shall wear no veils passing xii. d. a veil. SECT. I] EARLY STATUTES 9 Chapter IX. The apparel of handicraftsmen and yeomen, and of their wives and children. Item, That people of handicraft, and yeomen, shall take nor wear cloth of an liigher price for their vesture or hoSing than within forty shillings the whole cloth, by way of buying, nor otherwise, nor stone, nor cloth of sUk, nor of silver, nor girdle, knife, button, ring, garter, nor owche, ribband, chains, nor no such other things of gold nor silver, nor no manner of apparel embroidered, aimeled, nor of silk by no way. And that their wives, daugh- ters, and children, be of the same condition in their vesture and apparel. And that they wear no veil of sUk, but only of yarn made within the realm, r "ir no manner of f urr, nor of budge, but only lamb, cony, cat, and fox. Chapter XII. The apparel of knights which have lands whithin the yearly value of two hundred marks, and of knights and ladies which have four hun- dred mark land. Item, That knights, which have land or rent within the value of ii. C. U. shall take and wear cloth of vi. marks the whole cloth, for their vesture, and of none higher price. And that they wear not cloth of gold, nor cloths, mantle, nor gold furred with miniver nor of ermins, nor no apparel broidered of stone, nor otherwise: and that their wives, daughters, and children be of the same condition. And that they wear no turning up of ermins, nor of letuses, nor no manner of apparel of stone, but only for their heads. But that all knights and ladies, which have land or rent over the value of iv. C. mark by year, to the sum of M. li. shall wear at their pleasure, except ermins and letuses, and apparel of pearl and stone, but only for their heads. Chapter XIV. The apparel of ploughmen, and other of mean estate; and the forfeitures of offenders against this ordinance. Item, That carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, deyars, and all other keepers of beasts, threshers of corn, and all manner of people of the estate of a groom, attending to husbandry, and all other people, that have not forty shillings of goodis, nor of chattels, shall not take nor wear any manner of cloth, but blanket, and ilisset wool of twelve pence, and shall wear the girdles of hnen according to their estate, and that they come to eat and drink in the manner as pertaineth to them, and not excessively. And it is ordained, that if any wear or do contrary to any of the points aforesaid, that he shall forfeit against the King all the apparel that he hath so worn against the form of this ordinance.' Act of 12 Richard II (1388) Chapter III. No servant shall depart from one hundred to another, without a testimonial under the King's seal, on pain of being set in the stocks. Item, It is accorded and assented. That all the statutes of artificers, la- bourers, servants and victuallers, made as well in the time of our sovereign lord the King that now is, as in the time of his noble grandfather (whom God assoil) not repealed, shall be firmly holden and kept, and duly executed. And that the said artificers, labourera, servants and victuallers be duly ' Other chapters of this statute prescribe in detail the apparel to be worn by gentlemen under the estate of knights, by esquires of two hundred mark land, by merchants, citizens and burgesses, by handicraftsmen, and by various kinds of clerks. — Ed. .10 ENGLISH STATUTES [INTROD. justified by the justices of peace as well at the suit of the King as of the party, according as the said statutes require. And that the mayors, bailiffs, and stewards of lords, and constables of towns, do duly their offices touching such artificers, servants, labourers and victuallers. And that a pair of stocks be in every town to justify the same servants and labourers as is ordained in the said statutes. And moreover it is ordained and assented. That no servant nor labourer be he man or woman, shall depart at the end of his term out of the hundred, rape, or wapentake where he is dwelliag, to serve or dwell elsewhere, or by colour to go from thence in pilgrimage, unless he bring a letter patent containing the cause of his going, and the time of his return, if he ought to return, under the King's seal. . . . And also if any servant or labourer be found in any city or borough or elsewhere coming from any place, wandering without such letter, he shall be maintenant taken by the said mayors, bailiffs, stewards or constables, and put in the stocks, and kept till he hath found surety to return to his service, or to serve or labour in the town from whence he came, tiU he have such letter to depart for a reasonable cause. . . . Chaptek IV. The several penalties for giving or taking more wages than is limited by statute. Item, Because that servants and labourers will not, nor by a long season, would serve and labour without outragious and excessive hire, and much more than hath been given to such servants and labourers in any time past, so that for scarcity of the said servants and labourers, the husbands and landtenants may not pay their rents, nor hardly five upon their lands, to the great damage and loss as well of the lords as all the commons: also be- cause that the [hire] of the said servants and labourers have not been put in certainty before this time: It is accorded and assented that the bailiff for husbandry shall take by year xiii. s. iii. d. and his clothing once by year at the most. The master hine x. s. the carter x. s. the shepherd x. s. the oxherd vi. s. viii. d. the cowherd vi. s. viii. d. the swineherd vi. s. a woman labourer vi. s. a dey vi. s. a driver of the plough vii. s. at the most. And every other labourer and servant according to his degree, and less in the country where less was wont to be given without clothing, courtesie, or other reward by covenant. . . . Chapter V. Whosoever serveth in husbandry until twelve years old, shall so continue. Item, It is ordained and assented, That he or she, which use to labour at the plough and cart, or other labour or service of husbandry, tiU they be of the age of twelve years, that from thenceforth they shall abide at the same labour, without being put to any mystery or handicraft. And if any cov- enant or bond of apprentice be from henceforth made to the contrary, the same shall be holden for none. Chapter VT. No servants in husbandry, or labourer, shall wear any sword, buckler, or dagger. Unlawful games prohibited. Item, It is accorded and assented, that no servant of husbandry, or labourer, nor servant, or artificer, nor of victualler, shall from henceforth bear any buckler, sword nor dagger, upon forfeiture of the same, but in the time of war for defence of the realm of England, and that by the surveying of the arrears for the time being, or travailing by the country with their master. SECT. I] EARLY STATUTES 11 or in their master's message, but such servants and labourers shall have bows and arrows, and use the same the Sundays and holydays, and leave all playing at tennis or football, and other games called coits, dice, casting of the stone, kails, and other such importune games. . . . Act of 2 & 3 Edward VI, c. 15 (1548) Chapter XV. The bill of conspiracies of victiiallers and craftsmen. Section 1. Forasmuch as of late divers sellers of victuals, not contented with moderate and reasonable gain, but minding to have and to take for their victuals so much as list them, have conspired and covenanted together to sell their victuals at unreasonable prices: (2) And likewise artificers, handicraftsmen and labourers have made confederacies and promises, and have sworn mutual oaths not only that they should not meddle one with another's work, and perform and finish that another hath begun, but also to constitute and appoint how much work they shall do in a day, and what hours and times they shall work, contrary to the laws and statutes of this realm, and to the great hurt and impoverishment of the King's majesty's subjects: (3) For reformation thereof it is ordkined and enacted by the King our sovereign lord, the lords and commons in this present parliament assembled, and by the authority of the same, That if any butchers, brewers, bakers, poulterers, cooks, costermongers or fruiterers, shall at any time from and after the first day of March next coming, conspire, covenant, promise or make any oaths, that they shall not sell their victuals but at certain prices; (4) or if any artificers, workmen or labourers do conspire, covenant, or promise together, or make any oaths, that they shall not make or do their works but at a certain price or rate, or shall not enterprize or take upon them to finish that another hath begun, or shall do but a certain work in a day, or shall not work but at certain hours and times, (5) that then every person so conspiring, covenanting, swearing or offending, being lawfully convict thereof, by witness, confession or otherwise, shall forfeit for the first offence ten pounds to the King's highness; and if he have sufficient to pay the same, and do also pay the same within six days next after his conviction; or else sh&U suffer for the same offence twenty days imprisonment, and shall only have bread and water for his sustenance: (6) And for the second of- fence shall forfeit twenty pounds to the King, if he have sufficient to pay the same, and do pay the same within six days next after his conviction, or else shall suffer for the second offence punishment of the pillory; (7) and for the third offence shall forfeit forty pound to the King, if he have sufficient to pay the same, and also do pay the same within six days next after his con- viction, or else shall sit on the pillory and lose one of his ears, and also shall at all times after that be taken as a man infamous, and his sajing, depositions or oath not to be credited at any time in any matters of judgment. Section 2. And if it fortune any such conspiracy, covenant or promise to be had and made by any society, brotherhood or company of any craft, mystery or occupation of the victuallers a'bove mentioned, with the presence or consent of the more part of them, that then immediately upon such act of conspiracy, covenanit or promise had or made, over and besides the partic- ular punishment before in this act appointed for the offender, their corpora- tion shall be dissolved to all intents, constructions and purposes. . . . 12 ENGLISH STATUTES [INTROD. Act of 5 Elizabeth, c. 4 (1562) i A repeal of so SECTION 1. Although there remain and stand in force presently a great much of for- number of acts and statutes concerning the retaining, departing, wages ™n"rnrthe ^^ ^^'^ Orders of apprentices, servants and labourers, as well in husbandry as hiring"keei^ in divers other arts, mysteries and occupations; (2) yet partly for the im- ing, depart- perfection and contrariety that is found, and doth appear in sundry of the ing, working gajd laws, and for the variety and number of them, (3) and chiefly for that or order of ^j^^ wages and allowances limited and rated in many of the said statutes, bomers,'&^ are in divers places too small and not answerable to this time, respecting And a decia- the advancement of prices of all things belonging to the said servants and ration who labourers; (4) the said laws cannot conveniently, without the great grief labietoser'^efn ^^^ burden of the poor labourer and hired man, be put in good and due handiorafte™™ execution: (5) and as the said several acts and statutes were, at the time and who in of the making of them, thought to be very good and beneficial for the com- husbandry, and mon wealth of this realm (as divers of them are:) so if the substance of as dtteX™* many of the said laws as are meet to be continued, shall be digested and " '^' "■ - reduced into one sole law and statute, and in the same an uniform order pre- scribed and limited concerning the wages and other orders for apprentices, servants and labourers, there is good hope that it wiU come to pass, that the same law (being duly executed) should banish idleness, advance husbandry, and yield unto the hired person, both in the time of scarcity, and in the time of plenty, a convenient propori;ion of wages. Section 2. Be it therefore enacted by the authority of this present par- liament. That as much of all the estatutes heretofore made, and every branch of them, as touch or concern the hiring, keeping, departing, working, wages, or order of servants, workmen, artificers, apprentices and labourers, or any of them, and the penalties and forfeitures concerning the same, shall be from and after the last day of September next ensuing, repealed and utterly void and of none effect; (2) and that all the said statutes, and every branch thereof, or any matter contained ia them, and not repealed by this statute, shall remain and be in fuU force and effect; any thing in this statute to the contrary notwithstanding. No person shall SECTION 3. And be it further enacted by the authority aforesaid, That retain a servant jjq manner of person or persons, after the aforesaid last day of September inUiese^Bci^nces ^^^ ^^^^ ensuuig, shaU retain, hire or take into service, or cause to be re- year, tained, hired or taken into service, nor any person shall be retained, hired or taken into service, by any means or colour, to work for any less time or term than for one whole year, in any of the sciences, crafts, mysteries or arts of clothiers, woolen cloth weavers, tuckers, fuUers, clothworkers, shere- men, dyers, hosiers, taylors, shoemakers, tanners, pewterers, bakers, brewers, glovers, cutlers, smiths, farriers, curriers, sadlers, spurriers, turners, cappers, hatmakers or feltmakers, bowyers, fletchers, arrow-head-makers, butchers, cooks or millers. What sort of SECTION 4. And be it further enacted. That eveiy person being Unmarried; persons are (2) and every other person being under the age of thirty years, that after serveln an^ '" *^® iesLst of Easter next shall marry, (3) and having been brought up in any of the crafts of the Said arts, crafts or sciences; (4) or that hath used or exercised any of aforesaid. them by the space of three years or more; (5) and not having lands, tene- ments, rents or hereditaments, copyhold or freehold, of an estate of inheri- ' The Act of 5 Eliz. c. 4 remained in force practically for a long period of time, and was not formally repealed until 1875. SECT, q EAKLY STATUTES 13 tance, or for term of any life or lives, of the clear yearly value of forty shil- lings; (6) nor being worth of his own goods the clear value of ten pound; (7) and so allowed by two justices of the peace of the county where he hath most conunonly inhabited by the space of one whole year, and under their hands and seals, (8) or by the mayor or other head officer of the city, borough or town corporate where such person hath most commonly dwelt by the space of one whole year, and two aldermen, or two other discreet burgesses of the same city, borough or town corporate, if there be no aldermen, under their hands and seals; (9) nor being retained with any person in husbandry, or in any of the aforesaid arts and sciences, according to this statute; (10) nor lawfully retained in any other art or science; (11) nor being lawfully re- tained in houshold, or in any office, with any nobleman, gentleman or others, according to the laws of this realm; (12) nor have a convenient farm, or other holding in tillage, whereupon he may employ his labour: (13) shall, during the time that he or they shall be so unmarried, or under the said age of thirty years, upon request made by any person using the art or mystery wherein the said person so required hath been exercised (as is aforesaid) be retained; (14) and shall not refuse to serve according to the tenor of this statute, upon the pain and penalty hereafter mentioned. Section 6. And be it further enacted, That no person which shall re- No person ehaii tain any servant, shall put away his or her said servant, (2) and that no put away Ms person retained according to this statute, shall depart from his master, mis- ^fT™'' "^ tress or dame, before the end of his or her term; (3) upon the pain hereafter ^nt depart mentioned; (4) unless it be for some reasonable and sufficient cause or mat- from his mas- ter to be allowed before two justices of peace, or one at the least, within the *«■■ before the said county, or before the mayor or other chief officer of the city. ... ®°'* °^ ""^ *™®- Section 7. And be it further enacted by the authority aforesaid, That what sort of every person between the age of twelve years and the age of sixty years, not persons are being lawfully retained, nor apprentice with any fisherman or mariner haunt- "o™P«"*bie ing the seas; (2) nor being in service with any kidder or carrier of any com, yg^r in hus- graiu or meal, for provision of the city of London; (3) nor with any husband- bandry. man in husbandry; (4) nor in any city, town corporate or market-town, in any of the arts or sciences Umited or appointed by this estatute to have or take apprentices; (5) nor being retained by the year, or half the year at the least, for the digging, seeking, fmding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, sea-coal, stone- coal, moor-coal or cherk-coal; (6) nor being occupied in or about the making of any glass; (7) nor being a gentleman born, nor being a student or scholar in any of the universities, or in any school; (8) nor having lands, tenements, rents or hereditaments, for term of life, or of one estate of inheritance, of the clear yearly value of forty shillings; (9) nor being worth in goods and chat- tels to the value of ten pound; (10) nor having a father or mother then living, or other ancestor whose heir apparent he is, then having lands, tene- ments or hereditaments, of the yearly value of ten pound or above, or goods or chattels of the value of forty pound; (11) nor being a necessary or con- venient officer or servant lawfully retained, as is aforesaid; (12) nor having a convenient farm or holding, whereupon he may or shall imploy his labour; (13) nor being otherwise lawfully retained, according to the true meaning of this estatute; (14) shall after the aforesaid last day of September now next ensuing, by virtue of this estatute, be compelled to be retained to serve in husbandry by the year, with any person lihat keepeth husbandry, and will require any such person so to serve, within the same shire where he shall be so required. 14 ENGLISH STATUTES [INTEOD. The punish- ment of a serv- ant which performeth not his duty in service or departure. None may de- part forth of the city, town, parish, &c. without a tes- timonial. How long la- bourers shall continue at their work. Section 9. And if any servant retained according to the form of this estatute, depart from his master, mistress or dame's service, before the end of his term, unless it be for some reasonable and Sufficient cause to be al- lowed, as is aforesaid; (2) or if any servant at the end of his term depart from his said master, mistress or dame's service without one quarter's warn- ing given before the end of his said term, in form aforesaid, and before two lawful witnesses; (3) or if any person or persons compellable and bounden to be retained, and to serve in husbandry, or in any other the arts, sciences or mysteries above remembred, by the year or otherwise, do (upon request made) refuse to serve for the wages that shall be limited, rated and appointed, according to the form of this statute; (4) or promise or covenant to serve, and do not serve according to the tenor of the same: (5) that then every servant so departing away, and every person so refusing to serve for such wages, upon complaint thereof made by the master, mistress or dame of the said servant, or by the party to or with whom the said refusal is made, or promise not kept, to two justices of peace of the county, or to the mayor or other head officer of the city, borough or town corporate, and two aldermen, or two other discreet burgesses of the same city, borough or town corporate, if there be no aldermen, . . . the said justices, . . . and also the said may- ors or other head officers, and other persons of cities, boroughs or towns corporate, or any of them, as is aforesaid, shall have power by force of this statute, to hear and examine the matter; (6) and finding the said servant, or the said party so refusing faulty in the premisses, upon such proofs and good matter as to their discretions shall be thought sufficient, to commit him or them to ward, there to remain without baU or mainprise, until the said servant or party so oif ending shall be bound to the party to whom the of- fence shall be made, to serve and continue with him for the wages that then shall be limited and appointed, according to the tenor and form of this estatute. . . . Section 10. And be it likewise enacted by the authority aforesaid, That none of the said retained persons in husbandry, or in any the arts or sciences above remembred, after the time of his retainer expired, shall depart forth of one city, town or parish to another; (2) nor out of the lath, rape, wapen- take or hundred; (3) nor out of the county or shire where he last served, to serve in any other city, town corporate, lath, rape, wapentake, hundred, shire or county; (4) unless he have a testimonial under the seal of the said city or town corporate, or of the constable or constables, or other head officer or officers, and of two other honest housholders of the city, town or parish where he last served, declaring his lawful departure. . . . Section 12. And be it further enacted by the authority aforesaid. That all artificers and labourers, being hired for wages by the day or week, shall betwixt the midst of the months of March and September be and continue at their work at or before five of the clock in the morning, and continue at work and not depart until betwixt seven and eight of the clock at night (except it be in the time of breakfast, dinner or drinking, the which times at the most shall not exceed above two hours and a haH in a day, that is to say, at every drinking one half hour, for his dinner one hour, and for his sleep when he is allowed to sleep, the which is from the midst of May to the midst of August, half an hour at the most, and at every breakfast one half hour) : (2) and aU the said artificers and labourers, between the midst of September and the midst of March, shall be and continue at their work from the spring of the day in the morning until the night of the same day, except it be in SECT. I] EARLY STATUTES 15 time afore appointed for breakfast and dinner; (3) upon pain to lose and forfeit one penny for every hour's absence, to be deducted and defaulked out of his wages that shall so offend. Section 13. And be it also enacted by the authority aforesaid, That No artificer or every artificer and labourer that shall be lawfully retained in and for the labourer shall building or repairing of any church, house, ship, mill or every other piece hiTworkte™ of work taken in great, in task or in gross, or that shall hereafter take upon finished, him to make or finish any such thing or work, shall continue and not depart from the same, uifless it be for not paying of his wages or hire agreed on, or otherwise lawfully taken or appointed to serve the Queen's majesty, her heirs or successors, or for other lawful cause, or without licence of the master or owner of the work, or of him that hath the charge thereof, before the finishing of the said work; (2) upon pain of imprisonment by one month, without bail or mainprise ; (3) and the forfeiture of the sum of five pounds to the party from whom he shall so depart. . . . Section 15. And for the declaration and limitation what wages servants, The wages of labourers and artificers, either by the year or day or otherwise, shall have servants, la- and receive. Be it enacted by the authority of this present parliament. That ?'°"''^'^°' ^^^' the justices of peace of every shire, riding and liberty within the limits of assessed by the their several commissions, or the more part of them, being then resiant within justices of the same, and the sheriff of that county if he conveniently may, and every peace, sheriff, mayor, bailiff or other head officer within any city or town corporate wherein is any justice of peace, within the limits of the said city or town corporate, and of the said corporation, shall before the tenth day of June next coining, and afterward shall yearly at every general sessions first to be holden and kept after Easter or at some time convenient within six weeks next follow- ing every of the said feasts of Easter, assemble themselves together; (2) and they (so assembled) caUing unto them such discreet and grave persons of the said county or of the said city or town corporate, as they shall think meet, and conferring together, respecting the plenty or scarcity of the time and other circumstances necessarily to be considered, shall have authority by virtue thereof, within the limits and precincts of their several commissions, to limit, rate and appoint the wages, as well of such and so many of the said artificers, handicrafts-men, husbandmen or any other labourer, servant or workman, whose wages in time past hath been by any law or statute rated and appointed, (3) as also the wages of all other labourers, artificers, workmen or apprentices of husbandry, which have not been rated, (4) as they the same justices, mayors or head officers within their several commissions or liberties shall think meet by their discretions to be rated, limited or appointed by the year or by the day, week, month or otherwise, with meat and drink or without meat and drink, (5) and what wages every workman or labourer shall take by the great, for mowing, reaping or threshing of corn and grain, or for mowiag or making of hay, or for ditching, paving, railing or hedging, by the rod, pearch, lugg, yard, pole, rope or foot, and for any other kind of reasonable labours or service. . . . Section 18. And be it further enacted by the authority aforesaid, That The punish- if any person after the said proclamation shall be so sent down and published, ment of him shall by any secret ways or means, directly or indirectly retain or keep any *''''* s'^e*'" r 1 1 u I, 11 ■ J. t- J more wages servant, workman or labourer, or shall give any more or greater wages or ^^^^ j^ ^^^^^ other commodity, contrary to the true intent and purport of this estatute, by the iustices, or contrary to the rates or wages that shall be assessed or appointed in the &o- said proclamations; that then every person that shall so offend, and be 16 ENGLISH STATUTES [INTKOD. The punish- ment of the servant, la- bourer, &c. that taketh more wages than is taxed. Artificers compellable to work in hay- time and har- vest. Women com- pellable to serve that be above twelve and under forty years old, unmar- ried, and forth of serv- ice. Every hous- holder dwell- ing in any town corpo- rate may take an apprentice for seven years. thereof lawfully convicted before any the justices or other head officers above-remembred, or either of the said presidents and councils, shall suffer imprisonment by the space of ten days, without bail or mainprise, and shall lose and forfeit five pounds of lawful money of England. Section 19. And that every person that shall be so retained and take wages contrary to this estatute or any branch thereof, or of the said procla- mation, and shall be thereof convicted before the justices aforesaid, or any two of them, or before the mayor or other head officers aforesaid, shall suffer imprisonment by the space of one and twenty days, without bail or mainprise. Section 22. Provided always, and be it enacted by the authority afore- said. That in the time of hay or com harvest, the justices of peace and every of them, and also the constable or other head officer of every township upon request, and for the avpiding of the loss of any com, grain or hay, shall and may cause all such artificers and persons as be meet to labour, by the discre- tions of the said justices or constables, or other head officers, or by any of them, to serve by the day for the mowing, reaping, shearing, setting or inning of corn, grain and hay, according to the skill and quality of the person;, (2) and that none of the said persons shall refuse so to do, upon pain to suffer imprisonment in the stocks by the space of two days and one night: (3) And the constable of the town or other head officer of the same, where the said refusal shall be made, upon complaint to him made, shall have authority by virtue hereof to set the said offender in the stocks for the time aforesaid,, and shall punish him accordingly, upon pain to lose and forfeit for not doing thereof the sum of forty shillings. Section 24. And be it further enacted by the authority aforesaid. That two justices of peace, the mayor or other head officer of any city, borough or town corporate, and two aldermen, or two other discreet burgesses of the same city, borough or town corporate, if there be no aldermen, shall and may, by virtue hereof, appoint any such woman as is of the age of twelve years, and under the age of forty years and unmarried, and forth of service, as they shall think meet to serve, to be retained or serve by the year, or by the week or day, for such wages, and in such reasonable sort and manner as they shall think meet; (2) and if any such woman shall refuse so to serve,, then it shall be lawful for the said justices of peace, mayor or head officers, to commit such woman to ward, until she shall be bounder to serve as is aforesaid. Section 26. And be it further enacted, That every person being an housholder, and twenty-four years old at the least, dwelling or inhabiting, or which shall dwell and inhabit in any city or town corporate, and using and exercising any art, mystery or manual occupation there, shall and may, after the feast of Saint John Baptist next coming, during the time that he shall so dwell or inhabit in any such city or town corporate, and use and exercise any such mystery, art or manual occupation, have and retain the son of any freeman, not occupying husbandry, nor being a labourer, and inhabiting in the same, or in any other city or town that now is or hereafter shall be and continue incorporate, to serve and be bound as an apprentice after the custom and order of the city of London, for seven years at the least, so as the term and years of such apprentice do not expire or determine afore such apprentice shall be of the age of twenty-four years at the least. Section 31. And be it further enacted by the authority aforesaid. That after the first day of May next coming, it shall not be lawful to any person SECT. I] EARLY STATUTES 17 or persons, other than such as now do lawfully use or exercise any art, mystery None may we or manual occupation, (2) to set up, occupy, use or exercise any craft, mystery ^"^ manual or occupatioli, now used or occupied within the realm of England or Wales; exoeprhe'hath except he shall have been brought up therein seven years at the least as an been appren- apprentice, in manner and form abovesaid; (4) nor to set any person on tioetothe work in such mystery, art or occupation, being not a workman at this day; ^*'^®' *"■ (5) except he shall have been apprentice as is aforesaid; (6) or else having served as an apprentice as is aforesaid, shall or will become a journeyman, or be hired by the year; (7) upon pain that every person willingly offend- ing or doing the contrary, shall forfeit and lose for every default forty shil- lings for every month. Section 33. And be it further enacted by the authority aforesaid. That He that hath aU and every person and persons that shall have three apprentices in any of *?™® appren- the said crafts, mysteries or occupations of a cloth-maker, fuller, sheerman, teeponejoui- weaver, taylor or shoemaker, shall retain and keep one journeyman, and for neyman. every other apprentice above the number of the said three apprentices, one other journeyman, upon pain for every default therein ten pounds. Act of 7 George I, stat. 1, c. 13 (1720) i Section 1. Whereas great numbers of journeymen taylors, in and about ■'Ui contracts the cities of London and Westminster, and others, who have served appren- between jour- ticeships, or been brought up in the art or mystery of a taylor, have lately iOTs°in\on- departed from their services without just cause, and have entred into com- don' and West- binations to advance their wages to unreasonable prices, and lessen their minster, for usual hours of work, which is of evil example, and manifestly tends to the ^d-rancmg prejudice of trade, to the encouragement of idleness, and to the great in- orTe^asening crease of the poor: for remedy thereof, may it please your most excellent their hours of Majesty, that it may be enacted; and be it enacted by the King's most ^^k. declared excellent majesty, by and with the advice and consent of the lords spiritual ^^^^^^ ^""^ ™"^ and temporal and commons, in this present parliament assembled, and by the authority of the same, That all contracts, covenants or agreements in writing, or not in writing, heretofore made or entred into, or hereafter to be made or entred into, by or between any persons brought up in, or pro- fessing, using or exercising the art or mystery of a taylor, or joumejrman Taylors en- taylor, in making up mens or womens work, in the cities of London and *"°^ '°*'° ^'^"^ Westminster, or either of them, or within the weekly biUs of mortality, for tfr ^i^m^^ advancing their wages, or for lessening their usual hours of work, shall be, 1721, to be and are hereby declared to be illegal, nuU and void to all intents and pur- committed to poses; and further, that if any taylor, iourneyman taylor, or other person the house of i ,, . c ■ • ■ ■ it, _x X J i correction, or brought up m, or professmg, usmg or exercising the art or mystery of a tay- gg^^, f^j, ^^^ lor, or journeyman taylor, within the limits aforesaid, shall at any time or months with- times after the first day of May one thousand seven hundred and twenty out bail, one, keep up, continue, act in, make, enter into, sign, seal, or be knowingly interested or concerned in any contract, covenant or agreement, by this act declared to be illegal, nuU and void, every person or persons so offending, 1 This Act was amended by 8 Geo. Ill, c. 17. Per similar statutes covering other trades enacted prior to the general acts of 1799 and 1800, see 12 Geo. I, c. 34 (1725) (woolen industry) ; 9 Geo. I, c. 27 (1729) (shoemakers); 22 Geo. II, c. 27 (1749) (hatters); 17 Geo. Ill, c. 55 (1777) (silk weavers); 36 Geo. Ill, c. Ill (1795) (paper making) (fixing a work day of twelve hours). During this period many other similar statutes were passed. 18 ENGLISH STATUTES [INTROD. Hours of work and wages ap- pointed. being lawfully convicted thereof upon the oath or oaths of one or more credible witness or witnesses before any two justices of the peace in their jurisdictions within the limits aforesaid, upon any information exhibited, or prosecution, within three months after the offence committed, (which oaths the said justices are hereby impowered and required to administer) every such offender shall, by order of such justices, at their discretion be committed, either to the house of correction, there to remain and be kept to hard labour for any time not exceeding two months, or to the common gaol, as they shall see cause, there to remain without bail or mainprize for any time not exceed- ing two months. Section 2. And for declaring, limiting and appointing the hours of work, and wages for journeymen taylors, servants, and apprentices to taylors, within the limits aforesaid; be it enacted by the authority aforesaid, That from and after the first day of May one thousand seven hundred and twenty one, the hours of work for aU journeyman taylors, servants and apprentices to taylors, and other persons injployed or to be imployed, or retained as taylors, in making up mens or womens work, or such servants or appren- tices within the cities of London and Westminster, or either of them, or within the weekly biUs of mortality, shall be from six of the clock in the morning untU eight of the clock at night; excepting only that there shall be allowed by the master one penny halfpenny a day for breakfast, and one hour for dinner, in the time aforesaid; and for the said time or hours of work afore- said there shaU be paid unto every journeyman taylor, or other person im- ployed, or to be imployed or retained as a journeyman taylor, for his work, during the hours aforesaid, the wages and sums following, (that is to say) from the five and twentieth day of March to the four and twentieth day of June, any sum not exceeding two shillings per diem, and for the rest of the year one shilling and eight pence per diem.' Preamble. 39 Geo. 3. c. 81, repealed. Section 2. Nineteenth Century and Later. Legislation. Combination Act, 1800 (40 George III, c. 106) ^ Section 1. Whereas it is expedient to explain and amend an act, passed in the thirty-ninth year of the reign of his present Majesty, intituled. An act to prevent unlawful combinations of workmen; be it therefore enacted by the King's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parlia- ment assembled, and by the authority of the same. That from and after the passing of this act, the said act shall be repealed; and that all contracts, covenants, and agreements whatsoever, in writing or not in writing, at any time or times heretofore made or entered into by or between any journey- • Subsequent sections of the statute provide for various punishments for breach of the foregoing provisions, for journeymen tailors departing from their service before the end of the term or for refusing to work, for journeymen taking greater wages than those fixed by law, etc. '^ This Act supersedes the Combination Act of the preceding year, 39 Geo. Ill, c. 81 (1799). There is little substantial difference between these, except that the latter Act contains a series of arbitration clauses. As to the Combination Acts, see Dicey, Law and Opinion in England (2d ed., 1919), pp. 95 et seq.; Stephen, History of the Criminal Law, vol. 8, pp. 206-209; Webb, History of Trade Unionism (1920 ed.), pp. 69 et seq. SECT. II] NINETEENTH CENTURY LEGISLATION 19 men manufacturers or other persons within this kingdom, for obtaining an All contracta advance of wages of them or any of them, or any other journeymen manu- heretofore facturers or workmen, or other persons in any manufacture, trade, or busi- fOTobfai^^n ness, or for lessening or altering their or any of their usual hours or time of an advance of working, or for decreasing the quantity of work, (save and except any con- wageB, aiter- tract made or to be made between any master and his journeyman or manu- '°^ the usual facturer, for or on account of the work or service of such journeyman or *™^/^ ^°^^' manufacturer with whom such contract may be made), or for preventing or the quanmy"^ hindering any person or persons from employing whomsoever he, she, or they of work, &o. shall think proper to employ in his, her, or their manufacture, trade, or busi- (except con- ness, or for controlling or anyway affecting any person or persons carrying ^^"f between on any manufacture, trade, or business, in the conduct or management men) shall be thereof, shall be and the same are hereby declared to be illegal, null, and void. void, to all intents and purposes whatsoever. Section 2. And be it further enacted, That no journeyman, workman. Every work- or other person shall at any time after the passing of this act make or enter °'™; ^^^", into, or be concerned in the making of or entering into any such contract, a^'^who*dLil covenant, or agreement, in writing or not in writing, as is herein-before beguUtyof declared to be an illegal covenant, contract, or agreement; and every jour- any such of- neyman and workman or other person who, after the passing of this act, fence, shall be shall be guilty of any of the said offences, being thereof lawfully convicted, th™°"mm'*^ upon his own confession, or the oath or oaths of one or more credible witness gad, or the or witnesses, before any two justices of the peace for the county, riding, divi- house of cor- sion, city, liberty, town, or place where such offence shall be committed, rection; (which oath either of such justices is hereby authorised and empowered to administer in such case, and in all other cases where an oath is to be taken before any justices of the peace in pursuance of this act), within three cal- endar months next after the offence shall have been committed, shall, by order of such justices, be committed to and confined in the common gaol within his or their jul-isdiction, for any time not exceeding three calender months, or at the discretion of such justices shall be committed to some house of correction within the same jurisdiction, there to remain and to be as also kept to hard labour for any time not exceeding two calendar months. *°y workman Section 3. And be it further enacted, That every journeyman or work- entering mto man, or other person, who shall at any time after the passing of this act tion for ad- enter into any combination to obtain an advance of wages, or to lessen or vancing wages, alter the hours or duration of the time of working, or to decrease the quantity *"■ °^ "ho of work, or for any other purpose contrary to this act, or who shall, by giving ^"'^^ endeavour u ■ 1- -i i- • i- -J X- il! *o prevent any money, or by persuasion, sohcitation, or mtimidation, or any other means, workman wilfully and maliciously endeavour to prevent any unhired or unemployed from hiring journe3Tnan or workman, or other person, in any manufacture, trade, or Wmseif, or business, or any other person wanting employment in such manufacture, F'^"^"^'!^^'" trade, or business, from hiring himself to any manufacturer, or tradesman, or employ, or person conducting any manufacture, trade, or business, or who shall, for the who shall purpose of obtaining an advance of wages, or for any other purpose contrary hinder any to the provisions of this act, wilfully and mahciously decoy, persuade, solicit, "^^** .*™™ intimidate, influence, or prevail, or attempt or endeavour to prevail, on any person, or journeyman or workman, or other person hired or employed, or to be hired without rea- or employed in any such manufacture, trade, or business, to quit or leave sonabie cause his work, service, or employment, or who shall wilfully and mahciously ^'^'^'I'^-j^^jj^" hinder or prevent any manufacturer or tradesman, or other person, from ^ther work- employing in his or her manufacture, trade, or business, such journeymen, man> 20 ENGLISH STATUTES [INTEOD. Workmen of- fending ex- empted from Punishment under the Com- mon and Statute Law. Masters offend- ing in like Manner ex- empted from Funishmenta t Sic. workmen, and other persons as he or she shall think proper, or who, being hired or employed, shall, without any just or reasonable cause, refuse to work with any other journe3rman or workman employed or hired to work therein, and who shall be lawfully convicted of any of the said offences, upon his own confession, or the oath or oaths of one or more credible witness or witnesses, before any two justices of the peace for the county, riding, division, city, liberty, town, or place, where such offence shall be committed, within three calendar months next after the offence shall have been committed, shall, by order of such justices, be committed to and be confin'ed in the com- mon gaol within his or their jurisdiction, for any time not exceeding three calendar months; or otherwise be committed to some house of correction within the same jurisdiction, there to remain and to be kept to hard labour for any time not exceeding two calendar months.' Combination Act, 1824 (5 George IV, c. 95) ^ [Section 1. Repeals the ComMnation Act of 1800 and all the then existing Acts relating to combinations of workmen. — Ed.] Section 2. And be it further enacted, That Joumejrmen, Workmen or other Persons who shall enter into any Combination to obtain an Advance, or to fix the Rate of Wages, or to lessen or alter the Hours or Duration of the Time of working, or to decrease the Quantity of Work, or to induce an- other to depart from his Service before the End of the Time or Term for which he is hired, or to qujt or return his Work before the same shall be finished, or not being hired, to refuse to enter into Work or Employment, or to regulate the Mode of carrjdng on any Manufacture, Trade or Busi- ness, or the Management thereof, shall not therefore be subject or liable to any Indictment or Prosecution for Conspiracy, or to any other Criminal Information or Punishment whatever, under the Common or the Statute Law. Section 3. And be it further enacted, That Masters, Employers or other Persons, who shall enter into any Combination to lower or to fix the Rate of Wages, or to increase or alter the Hours or Duration of the Time of working, or to increase the Qup-ntity of Work, or to regulate the Mode of carrying on any Manufacture, Trade or Business, or the Management thereof, shall not therefore be subject or hable to any Indictment or Prosecution, or,t for Conspiracy, or to any other Criminal Information or Punishment what- ever, under the Common or the Statute Law. 1 Section 4 of the Act makes criminally punishable all persons who shall at- tend any meeting for the purpose of making any such contract, or who shall sum- mon or endeavour to induce any journeyman to attend any such meeting, or who shall collect any money, etc. Section 5 makes criminally punishable all persons who contribute for any ex- penses incurred for action contrary to this Act, or towards the support of any person for inducing him not to work. Other sections contain provisions for the better enforcement of the Act. Sec- tions 18-22 contain interesting provisions " for settling all disputes that may arise between" masters and workmen "respecting wages and work" by means of arbitration. ' On the Combination Acts of 1824 and 1825, see Dicey, Law and Opinion in England (2d ed., 1919), pp. 191 et seq, ; Stephen, History of the Criminal Law, vol. 3, pp. 212-216; Webb, History of Trade Unionism (1920 ed.), Chap. 2; Graham Wallas, Life of Francis Place, Chap. 8. SECT. II] NINETEENTH CENTURY LEGISLATION 21 Section 5. And be it further enacted, That if any Person by Violence to the Person or Property, by Threats or by Intimidation, shall wilfully or maUciously force another to depart from his Hiring or Work before the End of the Time or Term for which he is hired, or return his Work before the same shall be finished, or damnify, spoil or destroy any Machinery, Tools, Goods, Wares or Work, or prevent any Person not being hired from accept- ing any Work or Employment; or if any Person shall wilfully or maliciously use or employ Violence to the Person or Property, Threats or Intimidation towards another on account of his not complying with or conforming to any Rules, Orders, Resolutions or Regulations made to obtain an Advance of Wages, or to lessen or alter the Hours of working, or to decrease the Quantity of Work, or to regulate the Mode of carrying on any Manufacture, Trade or Business, or the Management thereof; or if any Person, by Violence to the Person or Property, by Threats or by Intimidation, shall wilfully or maUciously force any Master or Mistress Manufacturer, his or her Foreman or Agent, to make any Alteration in their Mode of regulating, managing, conducting or carrying on their Manufacture, Trade or Business; every Person so offending, or causing, procuring, aiding, abetting or assisting in such Offence, being convicted thereof in Manner hereafter mentioned, shall be imprisoned only, or imprisoned and kept to hard Labour, for any Time not exceeding Two Calendar Months. [Section 6. Makes criminal the combining to effect such purposes as are prohibited in Section 6. — Ed.] I?7)rcing Work- men, by Vio- eace, &c. to offend as herein mentioned. Forcing Master by Violence, &c. to alter Mode of con- ducting Ms Business. Punishment. Combination Act, 1825 (6 George IV, c. 129) i [Section 1. Repeals the Combination Act of 1824- — Ed.] Section 3. And be it further enacted, That from and after the passing of this Act, if any Person shall by Violence to the Person or Property, or by Threats or Intimidation, or by molesting or in any way obs'tnicting another, force or endeavour to force any Journeyman, Manufacturer, Workman or other Person hired or employed in any Manufacture, Trade or Business, to depart from his Hiring, Employment or Work, or to return his Work, before the same shall be finished, or prevent or endeavour to prevent any Journey- man, Manufacturer, Workman or other Person not being hired or employed from hiring himself to, or from accepting Work or Employment from any Person or Persons; or if any Person shall use or employ Violence to the Person or Property of another, or Threats or Intimidation, or shall molest or in any way obstruct another for the Purpose of forcing or inducing such Person to belong to any Club or Association, or to contribute to any com- mon Fund, or to pay any Fine or Penalty, or on account of his not belonging to any particular Club or Association, or not having contributed or having refused to contribute to any common Fund, or to pay any Fine or Penalty, or on account of his not having complied or of his refusing to comply with any Rules, Orders, Resolutions or Regulations made to obtain an Advance or to reduce the Rate of Wages, or to lessen or alter the Hours of working, or to decrease or alter the Quantity of Work, or to regulate the Mode of carry- ing on any Manufacture, Trade or Business, or the Management thereof; or if any Person shall by violence to the Person or Property of another, or by Threats or Intimidation, or by molesting or in any way obstructing an- ' See note 2, p. 20, supra. Compelling Journeymen to leave Employ- ment, or to return Work unfinished; preventing hiring them- selves; com- pelling them to belong to Clubs, &e.; or to pay Fines; or to alter Mode of carrying on Business. 22 ENGLISH STATUTES [INTKOD. Funishznent. Proyiso for Meetings for settling Rates of Wages to be received, or Hours of Work to be employed by the Persons meeting. Trade union not criminal. Trade union not unlawful for civil pur- poses. other, force or endeavour to force any Manufacturer or Person carrying on any Trade or Business, to make any Alteration in his Mode of regulating, managing, conducting or carrying on such Manufacture, Trade or Business, or to limit the Number of his Apprentices, or the Number or Description of his Journeymen, Workmen or Servants; every Person so offending or aiding, abetting or assisting therein, being convicted thereof in Manner hereinafter mentioned, shall be imprisoned only, or shall and may be imprisoned and kept to Hard Labour, for any Time not exceeding Three Calendar Months. Section 4. Provided always, and be it enacted. That this Act shall not extend to subject any Persons to Punishment, who shall meet together for the sole Purpose of consulting upon and determining the Rate of Wages or Prices, which the Persons present at such Meeting or any of them, shall require or demand for his or their Work, or the Hours or Time for which he or they shall work in any Manufacture, Trade or Business, or who shall enter into any Agreement, verbal or written, among themselves, for the Purpose of fixing the Rate of Wages or Prices which the Parties entering into such Agreement, or any of them, shall require or demand for his or their Work, or the Hours of Time for which he or they will work, in any Manu- facture, Trade or Business; and that Persons so meeting for the Purposes aforesaid, or entering into any such Agreement as aforesaid, shall not be liable to any Prosecution or Penalty for so doing; any Law or Statute to the contrary notwithstanding. [Section 5. Applies to employers provisions similar to those enacted in Sec- tion 4 relating to employees. — Ed.] The Trade Union Act, 1871 (34 & 35 Vict. c. 31) ^ Section 2. The purposes of any trade union shall not by reason merely that they are in restraint of trade, be deemed to be unlawful so as to render any member of such trade union liable to criminal prosecutioli for conspiracy or otherwise. Section 3. The purposes of any trade union shall not, by reason merely that they are in restraint of trade, be unlawful so as to render void or void- able any agreement or trust. [Sections 6 et seg. Provide for and regulate the registry of trade unions. — Ed.] Penalty for threats, mo- lestations, and obstruction. Criminal Law Amendment Act, 1871 (34 & 35 Vict. c. 32) Section 1. Every person who shall do any one or more of the following acts, that is to say, (1) Use violence to any person or any property, (2) Threaten or intimidate any person in such manner as would justify a ju.stice of the peace, on complaint made to him, to bind over the person so threatening or intimidatuig to keep the peace, (3) Molest or obstruct any person in manner defraed by this section, with a view to coerce such person, — ' The Trade Union Act, 1871, was amended by the Trade Union Act Amend- ment Act, 1876 (39 & 40 Vict. c. 22). The amendments relate to the provisions for registration of trade unions. As to the passing of this Act, see Webb, History of Trade Unionism (1920 ed.), pp. 276 et seq. SECT. II] NINETEENTH CENTURY LEGISLATION 23 (1) Being a master to dismiss or to cease to employ any workman, or being a workman to quit any employment or to return work be- fore it is finished; (2) Being a master not to offer or being a workman not to accept any employment or work; (3) Being a master or workman to belong or not to belong to any tem- porary or permanent association or combination; (4) Being a master or workman to pay any fine or penalty imposed by any temporary or permanent association or combination; (5) Being a master* to alter the mode of carrying on his business, or the number or description of any persons emploj^ed by him, shall be liable to imprisonment, with or without hard labour, for a term not exceeding three months. A person shall, for the purposes of this Act, be deemed to molest or ob- struct another person in any of the following cases; that is to say, (1) If he persistently foUow such person about from place to place: (2) If he hide any tools, clothes, or other property owned or used by such person, or deprive him of or hinder him ia the use thereof : (3) If he watch or beset the house or other place where such person re- sides or works, or carries on business, or happens to be, or the approach to such house or place, or if with two or more other persons he follow such per- son iQ a disorderly manner in or through any street or road. Nothing in this section shall prevent any person from being hable under any other Act, or otherwise, to any other or higher punishment than is pro- vided for any offence by this section, so that no person be punished twice for the same offence. Provided that no person shall be liable to any punishment for doing or conspiring to do any act on the ground that such act restrains or tends to restrain the free course of trade, unless such act is one of the acts herein- before specified in this section, and is done with the object of coercing as hereilibefore mentioned. Conspiracy, and Protection of Property Act, 1875 (38 & 39 Vict. c. 86) Section 3. An. agreement or combination by two or more persons to do AmendmEnt or procure to be done any act in contemplation or furtherance of a trade °^ '^^ as to dispute between employers and workmen shall not be indictable as a con- ♦""^'^"^il spiracy if such act comnaitted by one person would not be punishable as a crime. . . . Nothing in this section shall affect the law relating to riot, unlawful as- sembly, breach of the peace, or sedition, or any offence against the State or the Sovereign. . . . SEcnbN 7. Every person who, with a view to compel any other person Penalty for in- to abstain from doing or to do any act which such other person has a legal timidation or right to do or abstain from doing, wrongfully and without legal authority, — b°°^otenoe or 1. Uses violence to or intimidates such other person or his pdfe or children, otherwise. or injures his property; or, 2. Persistently follows such other person about from place to place; or, 3. Hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof; or, 4. Watches or besets the house or other place where such other person 24 ENGLISH STATUTES [INTROD. resides, or works, or carries on business, or happens to be, or the approach to such house or place; or, 5. Follows such other person with two or more other persons in a dis- orderly manner in or through any street or road, shall, on conviction thereof by a court of summary jurisdiction, or on in- dictment as hereinafter mentioned, be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceeding three months, with or without hard labour. Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section. Amendment of law of con- spiracy in the case of trade disputes. 38 & 39 Vict, c. 86. Peaceful picketing. Removal of liability for interfering with another person's busi- ness, &c. Prohibition of actions of tort against trade unions. 34 & 35 Vict. 0. 3J Trade Disputes Act, 1906 (6 Edward VII, c, 47) ^ Section 1. The following paragraph shall be added as a new paragraph after the first paragraph of section three of the Conspiracy and Protection of Property Act, 1875: — "An act done in pursuance of an agreement or combination by two or more persona shall, if done in contemplation or furtherance of a trade dis- pute, not be actionable unless the act, if done without any such agreement or combination, would be actionable." Section 2. (1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or hap- pens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working. (2) Section seven of the Conspiracy and Protection of Property Act, 1875, is hereby repealed from "attending at or near" to the end of the section. Section 3. An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an inter- ference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills. Section 4. (1) An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of them- selves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court. (2) Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the Trades Union Act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute. I See W. M. Geldart, The Present Law of Trade Disputes and Trade Unions, ' The Polit. Quart. No. 2 (May, 1914), pp. 17-61; Webb, History of Trade Union- ism (1920 ed.), pp. 604-608; Dicey, Law and Opinion in England (2d ed., 1919), pp. xliv et seq. SECT, n] NINETEENTH CENTURY LEGISLATION 25 Section 5. ... (3) In this Act and in the Conspiracy and Protection of Property Act, 1875, the expression "trade dispute" means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person, and the expression "workmen" means aU persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dis- pute arises; and, in section three of the last-mentioned Act, the words "be- tween employers and workmen" shall he repealed. Trade Union Act, 1913 (2 & 3 George V, c. 30) ^ This Act, which is too lengthy to quote, provides that a trade union shall have power to apply its funds, without restriction, for any lawful objects or purposes {other than political objects) fc/r the time being authorized under its constitution. It further provides that no trade union shall apply its funds for political objects except under the conditions, first that a resolution in favour of political objects has been passed by a secret ballot, and secondly, that every member who objects to contributing to such objects shall be entitled to claim exemption. But if these conditions are satisfied every trade union is now empowered to form a political fund, and to apply such fund to political purposes.' — Ed. 1 See as to the Trade Union Act of 1913, W. M. Geldart, The Present Law of Trade Disputes and Trade Unions, The Political Quarterly, No. 2 (May, 1914), pp. 17 et seq.; Webb, History of Trade Unionism (1920 ed.), pp. 631-634. To understand the significance of the Trade Union Act of 1913, one must read the decision in Amalgamated Soc. of Ry. Servants v. Osborne, [1910] A. C. 87. ' Section 1 of the Act provides that "the fact that a combination has under its constitution objects or powers other than statutory objects within the mean- ing of this Act shall not prevent the combination being a trade union for the purposes of the Trade Union Acts, 1871 to 1906, so long as the combination is a trade union as defined by this Act, and, subject to the provisions of this Act, as to the furtherance of political objects, any such trade union shall have power to apply the funds of the union for any lawful objects or purposes for the time being authorized under its constitution." Section 2 substitutes a new definition of a trade union for the definition con- tained in the Act of 1876; and it provides that the Registrar's certificate to the effect that a body is registered as a trade union, and a certificate given by him to the efi'ect that an unregistered body is a trade union, shall be conclusive that the body in question is a trade union. Section 3 reads, in part, as follows': " (1) The funds of a trade union shall not be applied, either directly or in conjunction with any other trade union, associa- tion, or body, or otherwise indirectly, in the furtherance of the pohtical objects to which this section apphes (without prejudice to the furtherance of any other pohtical objects), unless the furtherance of those objects has been approved as an object of the union by a resolution for the time being in force passed on a ballot of the members of the union taken in accordance with this Act for the pur- pose by a majority of the members voting; and where such a resolution is in force, unless rules, to be approved, whether the union is registered or not, by the Regis- trar of Friendly Societies, are in force providing — (a) That any payments in the furtherance of those objects are to be made out of a separate fund (in this Act referred to as the political fund of the union), and for the exemption in accordance with this Act of any member of the union from any obUgation to contribute to such a fund if he gives notice in accordance with this Act that he objects to con- tribute; and 26 ENGLISH STATUTES [INTROD. (fe) That a member who is exempt from the obligation to contribute to the poUtioal fund of the union shall not be excluded from any benefits of the union, or placed in any respect either directly or indirectly under any disability or at any disadvantage as compared with other members of the union (except in relation to the control or management of the poUtical fund) by reason of his being so exempt, and that contribution to the political fund of the union shall not be made a condition for admission to the union. . . . (3) The poUtical objects to which this section appUes are the expenditure of money — (a) on the payment of any expenses incurred either directly or indirectly by a candidate or prospective candidate for election to Parliament or to any pubUc office, before, during, or after the election in connexion with his candidature or election; or (6) on the holding of any meeting or the distribution of any literature or documents in support of any such candidate or prospective candidate; or (c) on the maintenance of any person who is a member of Parliament or who holds a public office; or (d) in connexion with the registration of electors or the selection of a can- didate for Parliament or any public office; or (e) on the holding of political meetings of any kind, or on the distribution of political literature or political documents of any kind, unless the main purpose of the meetings or of the distribution of the hterature or docu- ments is the furtherance of statutory objects within the meaning of this Act." . . . PART I CHAPTER I EARLY ENGLISH STATUTORY REGULATIONS PRESENTMENTS MADE BEFORE THE JUSTICES OF LABOURERS Hundred of ChelmsfoeDj 1351 Assize Roll, 287, mm. 1, 8 ' The twelve [jurors] present that Arnulph le Hierde of Maldon, late servant of John Dodebroke from Michaehnas, 24 Edward III, until Michaelmas next following, 25 Edward III, for one year and for a quarter of a year next following and for the whole of that time, the said Arnulph took a quarter of wheat for twelve weeks and 5s. a year for his stipend. Further, he took from the feast of St. Peter's Chains until Christmas in the same time 10s. beyond that which he took above; and hereupon the said Arnulph withdrew from his service before the end of the term, to the damage of the said John of 40s., against the Statute, etc. ... Trespass. Further, they present that Robert Grys of Danbury, potter, makes brass pots and sells them at threefold the price which he used [to take], against the Statute, etc., in oppression of the people. Trespass. Further, they say that John Sextayn the younger, tailor, John Banestrat, tailor, Roger atte Tye of Great Baddow, take salaries for their labours from divers folk against the Statute, etc., and this threefold that which they used to take. Trespass. Further, they say that WilUam Denk, servant of Geoffrey le Smyth, took from the said Geoffrey 20s. a year, and is at his table, and was sworn before John de Sutton and his fellows to serve accord- ing to the Statute, etc., where he should not take but 8s., etc. . . . Trespass. Further, they present that Richard Smjrth of Great Baddow commonly takes for his work double that which he used to take, against the Statute. Trespass. Further, they present that John Plukkerose, William Smyth of Danbury and William Molt, shoemakers, of Great Baddow, make shoes and sell them at almost double the price which they used [to take], against the Statute, etc., in oppression of the people. ' Printed in Columbia University Studies in History, Economics, and Public Law, vol. 32, appendix, p. 169*. The translation here given is taken from that printed in A. E. Bland, English Economic History, Select Documents, p. 167. 28 ENGLISH STATUTORY REGULATIONS [CHAP. I ANONYMOUS Common Pleas. 1376 Year Book, 50 Edw. Ill, fol. 13, pi. 3 One Henry B., Parson of B, brings a writ on the Statute of Labourers against Thomas F., a chaplain, and counted how he made covenant with him to serve in the office of seneschal, and to be his parochial chaplain for a certain time, etc. And that he was in his service, and departed without reasonable cause. Hammer [counsel]. As to that which he has counted that we made covenant to be his seneschal and that we were in his service of sen- eschal we say that we never made such a covenant with him. Ready. The others to the contrary. Hanimer [counsel, continuing]. And as to what he has surmised, that we made covenant with him to be parochial chaplain and that we departed out of his service, we apprehend that the Statute was not to any other intent than as to those who are labourers artificers; and this is neither one nor other, but the servant of God; so he is not bound by the Statute; so we apprehend not that this action lies against us; for every one of the other sorts of servants (chescun auter servant), if he be in health and bodily power, he is bound to do his service, and his work from day to day; but the chaplain is not bound to sing every day, if he will not, for divers causes which lie in his conscience (i. e., to judge of the sufficiency of which causes is left to his conscience); and so he may cease to sing for one day or two, so that he is in quite a different degree from a labourer or artificer. Clapton [counsel]. This man, who is his parpchial chaplain, may more readily be adjudged a labourer than another chaplain who is to serve only as private priest (ou parson singuler). For a parochial priest has many other things to do besides to sing the mass and other divine services; for it bbhooves him to visit the sick of the parish in their houses, to administer to them the rites of Holy Church, and so it behooves that parsons of the Holy Church should have their need- ful assistance, for they cannot do it themselves. Wherefore it seems in divers respects that he is as much within the Statute as any other person of the people. Belknap [J.].i This was a case and the matter was adjourned, in the other term, till now; and it is our opinion, and that of our fellows of the King's Bench also, that he is not bound by the Statute as an- other person is; wherefore as to this point we dismiss you; and, as to the remainder on which you are at issue, keep your day, etc.^ 1 Robert Bilknap or Bealknap, Chief Justice of Common Pleas October 10 1374. 2 The latter part of the case will be found translated in 2 Ellis & Blackburn 263 note. ' CHAP. I] ENGLISH STATUTORY REGULATIONS 29 PRESENTMENT CoxJET Leet of Southampton. 1576 Court Leet Records of Southampton,^ Vol. I, Part I, p. 137 It. we p'^sent that the Coblers of this towne Do vsse to mend & Cobble mens shewes w"" naughtie sUttinge lether w""" is to the greate chardges of the Inhabitants of this towne for that y£E they did vsse & occupie good & weU taned lether yt wolde be to theire most proffyt & bett" s'Mce w** we dess"" may be amendid, excepting sudgen the cobler. PRESENTMENT Court Leet of Southampton. 1577 Court Leet Records of Southampton,'^ Vol. I, Part I, p. 161 Item we present that concerning the statute of apparrell we fynde waiter earle to ware gardes of velvat on his hosse, John delylls wyffe a peticot gardid [adorned, trimmed] w*'' veUat, martyne howes a gowne of norwyg worsted w* a brode byllyment [habiliment] Lace of sylke & his wyffe a hatte of tafStie Lynid w**" vellat brough- ton a hatt Lynid w*'' veUat, John goddardes wyffe a hatt of tafhtie Lynid w* vellat John mylls wyffe a cape of veUat & gardes [trim- mings] in her gowne, John hoptons wyffe a taffytie hatt, Roger mylls wyffe a hatt of veUat, Andro harris a cloke Lynid w* tufte tafRtie, John markes a cloke w^'^ cape of veUat w*'' divers others as we sup- pose offendeth the statutes in that behalfe p''°vidid, the consideracon wherof we refer vnto yo' worshipps. KING V. JUSTICES OF KENT King's Bench. 1811 14 East, 395 A petition was presented to the justices of Kent at their general quarter-sessions in January last, from certain persons stating them- selves to be millers in that county, and "within the description of millers mentioned in the stat. 5 Eliz. c. 4 "; which petition stated in substance that the wages paid to them for many years past by their respective employers never exceeded and often fell short of one guinea a week: that their day-work was long, and sometimes they were also obhged to work in the night; and that by reason of the great increase which had of late years taken place in the price of the necessaries of life, their wages were become wholly inadequate to their support and 1 Published by the Southampton Record Society, edited by F. J. C. Heam- shaw, MA.., Uj.Ms. and D. M. Hearnshaw. 30 ENGLISH STATUTOEY REGULATIONS [CHAP. I maintenance; and that not less than 4s. 6d. a day, with a proportionate allowance for extra work, would suffice for that purpose: and con- cluding with a prayer (in the relative terms of the section of the 15th section of the stat. 5 Eliz. c. 4) "that you the said justices or the more part of you, and the said sheriff (if you the said sheriff conveniently may,) will, at the general sessions first to be holden and kept in and for the said county after Easter now next ensuing, or at some time convenient within six weeks next following the said feast of Easter, assemble yourselves together; and being so assembled, and calling unto you such discreet and grave persons of the said county as you shall think meet; and conferring together respecting the plenty or scarcity of the time, and other circumstances necessarily to be con- sidered; that you will limit unto and appoint the wages of millers in the county aforesaid, according to the form of the statute in that case made and provided." This application of the journeymen millers was supported by counsel at the last Easter sessions; and was then opposed by counsel on behalf of the master miUers, principally, as it seemed, on the ground that the statute of Elizabeth was confined, if not in the terms of it, yet by construction and in practice, to the wages of labourers in husbandry; and this as well since the act of the IJac. 1,- c. 6 as before. And the sessions finally refused to act upon the petition, upon the ground, as it now appeared to the court, that they had no jurisdiction to interfere in the case of these petitioners; and not upon the result of a discretionary judgment formed upon the subject-matter of the petition. Whereupon The Attorney-General (and Gurney) applied in the last term for a mandamus to the justices of Kent, "commanding them, together with the sheriff of the same coxmty, if conveniently he may, pursuant to the statute in such case made and provided, to hear and determine upon the application of certain millers of the said county, for them the said keepers of the peace and justices to limit, rate, and appoint the wages of millers in the said county." And the court were referred to the following cases upon the subject: Snape v. Dowsr. Comb. 3. R. V. Champion, Carth. 156. Q. v. London, 2 Salk. 442, 3 Salk. 260, and 6 Mod. 204. R. v. Gregory, 2 Salk. 484. Q. v. Cor- bett, 3 Salk. 261. R. u. Pope, 5 Mod. 419. Q. v. Gouche, 2 Ld. Raym. 820. R. V. HeUing, 1 Stra. 8, and Shergold v. HoUoway, 2 Stra. 1002; and 4 Com. Dig. 554, tit. Justices of the Peace (B), 60, etc. Lord Ellenborough, C. J., then said that if the justices had re- jected the application in the exercise of the discretion vested in them by the legislature, this Court would not interfere; but if they had rejected it on the ground now stated, that they had no power to grant it, the court would interfere so far as to set the jurisdiction of the magistrates in motion, by directing them to hear and deter- mine upon the application. The court therefore granted a rule to shew cause, etc. CHAP, I] ENGLISH STATUTOKY REGULATIONS 31 Parfc, Tadd^/) and Berens, now shewed cause against the rule. . . . Principally they relied on several cases, where it had been held that the stat. 5 Eliz. only extended to give the justices authority to settle the wages of servants in husbandry; within which description the present apphcants did not bring themselves. And they added that the policy of the state was against the extension of such a power, which placed the ignorant and the idle upon a level with the expert and industrious. The cases referred to were The King v. Gregory,^ The Queen v. London,^ The King v. The Inhabitants of Halcott,^ and The King v. Devall, 3 Keb. 626. [Lord Ellenborough, C. J. It might have been doubtful upon the stat. of the 5 Eliz. c. 4: but what doubt can there be as to the general power of the justices in this mat- ter upon the stat. 1, Jac. 1, c. 6.] They admitted the generality of the words in the statute of James extending the power of the justices to affix the rates of wages of any labourers and workmen whatsoever: but observed, notwithstanding, that no notice appears to have been taken of it in any of the subsequent cases; and suggested that as the act was only temporary in the first instance, and the last continuance of it was by the stat. 16 Car. 1, c. 4, s. 2, there might from the period at which the last act passed, have been a doubt whether the original statute had been continued by a competent authority. Lord Ellenborough, C. J. I cannot see what ground there can be for the doubt suggested as to the efficacy of the stat. 16 Car. 1, c. 4, s. 2, for continuing the stat. 1, Jac. 1. There are several statutes placed subsequent to this in the printed statute books, of the force of which there is no doubt; such as the statute for shortening Michael- mas term, and the statute for the abolition of the court of Star Cham- ber: and taking the statute of James I to be a subsisting law, the words of it are large enough to include the persons now applying. We do not, however, by granting this mandamus, at all interfere with the' exercise of that discretion which the legislature meant to confide to the JTistices of the peace in sessions: we only say that they have a discretion to exercise; and therefore they must hear the application: bu^ having heard it, it rests entirely with them to act or not upon it as they think fit. Grose, J., agreed. Le Blanc, J. We only say that justices have authority to act upon the subject-matter of the application; and that they are to hear it, and then to determine whether in their discretion they think proper to fix a rate of wages. c » Hil. 10 W.'3, 2 Salk. 484, 5. 2 T. 3 Ann, ib. 442; and 6 Mod. 204. These were cases of orders to enforce the payment of wages to individual labourers. ' 6 Term Rep. 583. That was a question of settlement, and turned on the authority of an order of a justice for discharging a servant (not stated to be in husbandry) from her master's service. 32 ENGLISH STATUTORY REGULATIONS [CHAP. I Bayley, J. We tell the justices that they have authority by law to settle a rate of wages for the persons applying: but we do not say that they are to exercise that authority in this instance. Let them hear the application. Rule absolute} ^ The Justices of Kent, as I was afterwards informed, heard the application, but refused to make any rate. CHAPTER II LEGALITY OF COMBINATION Section 1. Right of Association "The point to note is that at the present day the exercise [of the right of association] raises difficulties in every civihzed country. In England, as elsewhere, trade unions and strikes, or federations of employers and lock-outs; in Ireland, the boycotting by leagues and societies of any landlord, tenant, trader, or workman, bold enough to disobey their behests or break their laws; in the United States, the efforts of mercantile trusts to create for themselves huge monopolies; in France, the real or alleged necessity of stringent legislation in order to keep reHgious communities {congregations religieioses) under the control of the State — in almost every country, in short, some forms of association force upon public attention the practical difficulty of so regulating the right of association that its exercise may neither trench upon each citizen's individual freedom nor shake the supreme author- ity of the State. The problem to be solved, either as a matter of theory or as a matter of practical necessity, is at bottom always and every- where the same. How can the right of combined action be curtailed without depriving individual liberty of half its value; how can it be left unrestricted without destroying either the liberty of individual citizens, or the power of the Government? To see that this problem at the present day presents itself everywhere, and has nowhere re- ceived a quite satisfactory solution, is of importance." Dicey, Law and Public Opinion in England (2d ed.), pp. 467-468.» REX V. JOURNEYMEN-TAYLORS OF CAMBRIDGE King's Bench. 1721 8 Modern, 10 One Wise, and several other journeymen-taylors, of or in the town of Cambridge, were indicted for a conspiracy amongst themselves to raise their wages, and were found guilty. It was moved in arrest of judgment upon several errors in the record, ... Thirdly.^ No crime appears upon the face of this indictment, for it 1 In regard to the Right of Association, see Dicey, Law and Opinion (2d ed.) (1919), pp. 153-158; 467-476; Duguit, Le droit social et le droit individual, pp. 107-143. See also the bibliography in Dicey, p. 467. ' The first, second, and fourth objections are omitted. — Ed. 33 34 LEGALITY OF COMBINATION [CHAP. 11 only charges them with a conspiracy and refusal to work at so much per diem, whereas they are not obliged to work at all by the day but by the year, by 5 Eliz. c. 4. It was answered, that the refusal to work was not the crime, but the conspiracy to raise the wages. The Court. The indictment, it is true, sets forth that the defend- ants refused to work under the wages which they demanded; but al- though these might be more than is directed by the statute, yet it is not for the refusing to work but for conspiring that they are indicted, and a conspiracy of any kind is illegal although the matter about which they conspired might have been lawful for them, or any of them to do, if they had not conspired to do it, as appears in the case of The Tubwomen v. The Brewers of London. ... Fifthly. This indictment ought to conclude contra formam slatvii; for by the late statute 7 Geo. I, c. 13, journeymen-taylors are prohib- ited to enter into any contract or agreement for advancing their wages, etc. And the statute of 2 & 3 Edw. VI, c. 15, makes such persons criminal. It was answered that the omission in not concluding this indictment contra formam statuti is not material, because it is for a conspiracy ^ which is an offence at common law. It is true, the indictment sets forth that the defendants refused to work under such rates, which were more than enjoined by the statute, for that is only two shillings a day; but yet these words wUl not bring the offence, for which the defendants are indicted, to be within that statute, because it is not the denial to work except for more wages than is allowed by the statute, but it is for a conspiracy to raise their wages, for which these defend- ants are indicted. It is true it does not appear by the record that the wages demanded were excessive, but that is not material, because it may be given in evidence. The Court. This indictment need not conclude contra formam statuti, because it is for a conspiracy, which is an offence at common law. So the judgment was confirmed by the whole court quod capiantur^ REX V. ECCLES King's Bench. 1783 Leach C. C. 274 The defendant and six other persons were convicted at the Sum- mer Assizes for Lancaster in the year 1783, on an indictment, con- taining two counts, for conspiring to impoverish one H. Booth a taylor, and to prevent him, by indirect means, from carrying on his^ trade. The indictment had been found at the Quarter Session for the. town of Lancaster, and removed by certiorari into the King's Bench. SECT. I] RIGHT OF ASSOCIATION 35 The first count stated, " that the defendant together with divers other persons to the Jurors unknown, being persons of ill name and fame, and of dishonest conversation, and wickedly devising and intending unjustly, unlawfully and by indirect means to impoverish one H. Booth, and to deprive and hinder him from using and exercising the trade and business of a taylor, which he used and exercised, on the 28th day of November in the 23d year, etc., at Liverpool, within the jurisdiction of the court of Quarter Sessions there, fraudulently, maliciously and unlawfully did con- federate, conspire, combine, and agree among themselves, by wrongful, and indirect means to impoverish the said H. Booth, and to deprive and hinder him from following and exercising his afore- said business of a taylor in Liverpool aforesaid, and within the jurisdiction aforesaid; and that the said defendants, together with the said other persons to the Jurors unknown, in pursuance of and according to the unlawful conspiracy, combination, and agreement aforesaid, on the said 28th day of November, at Liverpool afore- said, and within the jurisdiction aforesaid, indirectly, unlawfully, maliciously, and unjustly did prevent and hinder the said H. Booth from following his said trade or business at Liverpool aforesaid, and within the jurisdiction aforesaid; and thereby did, then and there, greatly impoverish the said H. Booth; to the great damage of the said H. Booth; to the evil example, etc., and against the peace, etc." The second count stated " that the said defendants, to- gether with divers other persons to the Jurors unknown, on the said 28th day of November in the 23d year aforesaid, at Liverpool aforesaid, and within the jurisdiction aforesaid, wickedly, wrong- fully, unlawfully, and maliciously, did confederate together, and conspire and agree by indirect means to prejudice and impoverish the said H. Booth, and to prevent and hinder him the said H. Booth from using and exercising his aforesaid trade or business of a taylor in Liverpool aforesaid, and within the jurisdiction aforesaid, to the great diamage, etc., in contempt, etc., to the evil, etc.; and against the peace, etc." In the Michaelmas Term following, the defendants were brought up to receive the judgment of the Court; but Ckambre and Topping moved that it might be arrested. First. The indictment only contains a general charge of con- spiracy. It ought to have stated the acts that were committed to impoverish Booth, and prevent him from carrying on his trade, in order that the defendants might thereby have had notice of the particular charges, they were called upon to answer, and that the Court might see that the alleged conspiracy really existed. . . . LoKD Mansfield (without hearing the other side). The con- spiracy, and the object of it are both stated in the indictment, but it is contended that the means by which the intended mischief was effected, ought also to have been particularly set forth as in the 36 LEGALITY OF COMBINATION [CHAP. II case of Rex v. Sterling and others, but this is certainly not necessary, for the offence does not consist in doing the acts by which the mis- chief is effected, for they may be perfectly indifferent, but in con- spiring with a view to effect the intended mischief by any means. The illegal combination is the gist of the offence, persons in posses- sion of any articles of trade may sell them at such prices as they individually may please, but if they confederate and agree not to sell them under certain prices, it is conspiracy; so every man may work at what price he pleases, but a combination not to work under cer- tain prices is an indictable offence. As to the second objection, the defendants all appeared; for upon this record it is added "and they and each of them severally say, etc." WiLLES, J. All the cases upon this subject were fully considered in the case of Rex v. Kinnersley, 1 Stra. 193, in which it was de- cided, that in an indictment for a conspiracy it is not necessary to state the means by which the mischief was effected.' Btjller, J. The indictment states, "that the defendants intend- ing unlawfully and by indirect means to impoverish the prosecutor, unlawfully did conspire," etc.; but nothing need to have been stated about the means, for the means are matter of evidence to prove the charge, and not the crime itself. The indictment therefore rather states too much than too little. As to the second objection, if in fact the defendants did not all appear, it is a blameable negligence in the clerks of the ofE,ce, in making this careless entry, and the remedy must be against them. The defendants received judgment of six months' imprisonment in the gaol of Liverpool.^ REX V. DIXON Cambridge Assizes. 1834 6 Car. & Payne, 601 Indictment on the stat. 57 Geo. 3, c. 19, s. 25, for becoming mem- bers of a society, the members whereof bound themselves by an oath, in consequence of becoming members of the said society. * See Rex v. Armstrong and others, 1 Vent. 304. ' In the case of Rex v. Mawbey, 6 Term Rep. 619, decided in 1796, Grose, J., in the course of his opinion said: " In many cases an agreement to do a certain thing has been considered as the subject of an indictment for a conspiracy, though the same act, if done separately by each individual without any agreement among themselves would not have been illegal. As in the case of journeymen conspiring to raise their wages: each may insist on raising his wages, if he can; but if several meet for the same purpose, it is illegal, and the parties may be indicted for a conspiracy." (p. 636.) How the English Parliament sought to solve the problem of the right of asso- ciation as applied to labor unions may be seen by consulting the EngUsh Statutes, supra, especially the EngUsh Combination Act of 1860 (supra, p. 18) and the subsequent English labor legislation of the nineteenth century. SECT. II] LAW OF CONSPIKACY 37 In some of the counts of the indictment, the purport of the oath was set forth, and others merely followed the terms of the statute, omitting to set forth the purport of the oath. Gunning, for the prosecution, stated that, in March, 1834, there existed in Cambridge a trade's union of the operative cordwainers of that town; the object of which was to make a powerful confederacy, under the pretence of protecting labour, and the members of which were bound by an oath not to disclose the secrets of the association. He further stated, that, as the union was dissolved, he should offer no evidence on this indictment. BosANQUET, J. I have no hesitation whatever in saying, that con- federacies like that which appears to have existed in the present case are as decidedly in contravention of the law of the land, as they are pregnant with mischief to the community and to the working classes themselves. It is for the sake of those who belong to associations like that of the late Cordwainers' Union of Cambridge, that I now declare, that aU. who engage in associations, the members of which, in consequence of being so, take any oaths not required by law, are guilty of an offence against the statute, which, if clearly proved, would, upon conviction, be in every case followed by exemplary punishment. It is impossible that any well-ordered state of society could tolerate the existence of confederacies bound together by secret compacts and oaths not required by law; one of the obvious conse- quences of such confederacies being to deprive the state of the benefit of the testimony of those who are engaged in them — a state of things injurious to individuals, subversive of public order, and strik- ing at the very existence of the state, by withdrawing the allegiance of the subject from the laws of the land to the secret tribunals of unlawful societies, constraining the conscience by oaths, and seeking to obtain their objects, whatever they might be, by popular intimi- dation. Verdict — Not Guilty.''- Section 2. Law of Conspiracy ^ (A) Ckiminal Conspiracy ORDINANCE OF CONSPIRATORS 33 Edw. I (1305) Conspirators be they that do confeder or bind themselves by Oath, Covenant, or other Alliance, that every of them shaU aid and bear ■ For English cases decided during the nineteenth century between the EngUsh Acts of 1825 and 1871, the student should consult in addition to the principal case Reg. v. Harris, C. & M. 661, n.; R. v. Selsby, 5 Cox, 495, n.; R. v. Rowlands, 2 Den. 364; Hilton v. Eckersley, 8 E. & B. 47; R. v. Perham, 5 H. & N. 30; Walsby V. Anley, 3 G. & E. 516; O'Neill v. Longman, 4 B. & S. 376; O'Neill v. Kruger, 4 B. & S. 389; Wood v. Bowron, L. R. 2 Q. B. 21; R. v. Skinner, 10 Cox, 493; R. V. Druitt, 10 Cox, 592, infra, p. 181; Farrerw. Close, L. R. 4 Q. B. 602; R. v. Bunn, 12 Cox, 316. * The best book on the subject of Conspiracy is R. S. Wright, The Law of 38 LEGALITY OF COMBINATION [CHAP. II the other falsely and maliciously to indite, or cause to indite, or falsely to move or maintain Pleas; and also such as cause Children within Age to appeal Men of Felony, whereby they are imprisoned and sore grieved; and such as retain Men in the Country with Liveries or Fees for to maintain their malicious Enterprises; and this extendeth as well to the Takers, as to the Givers. And Stewards and Bailiffs of great Lords, which, by their Seignory, Office, or Power undertake to bear or maintain Quarrels, Pleas or Debates, that concern other Parties than such as touch the Estate of their Lords or themselves. This Ordinance and final Definition of Conspirators was made and accorded by the King and his Council in his Parliament the thirty- third Year of his Reign.' ANONYMOUS King's Bench. 1350 Year Book, 24 Edw. HI, f. 75, pi. 99 ^ W[illiam], the son of W[illiam] of I[ngularby], sues now in the King's Bench to reverse a judgment given against him in the Eyre of Derby before Hekle [J.] ' upon a presentment of conspiracy. Thorpe said first how that a petition was sued to the King, etc., and afterwards a writ came to the Justices that they proceed to hear the errors notwithstanding, etc. And [the plaintiff] assigns among other errors that in the presentment there was comprised no day nor year nor place where the conspiracy should have been made; and in that the justices put him to deliver himself, etc., they erred. Also, how in the presentment were presented certain oppressions, his imprison- ment of a certain person until he had paid a fine, etc., and put to profit, and things of this sort, which things sounded more in the nature of oppression of the people than of conspiracy. Wherefore in that they put him to deliver himself from such a charge as of con- spiracy they erred, and he prayed, etc. Criminal Conspiracies (London, 1873). For a discussion of the underlying prin- ciples of the law of Conspiracy, see an article on that subject in 35 Harvard Law Review, 393. For a scholarly account of the early historical development of Con- spiracy, see P. H. Winfield, The History of Conspiracy and Abuse of Legal Pro- cedure (1921). 1 For an early interpretation of the Ordinance of Conspirators, see the case of Coldington v. Bassingburn, Y. B. Trin. 3 Edw. II, f. 81, decided in 1310. A con- venient translation of the case is available in the Selden Society PubUcations, vol. 20, p. 193. ' A somewhat different, and in certain respects more accurate account of this case will be found in Berthelet's quarto edition of Y. B. 24 Edw. Ill, printed in 1532. The translation in the text is taken from the Folio edition of 1679. — Ed. ^ William de Herle, appointed justice of the Common Pleas on Oct. 16, 1320, chief justice on Feb. 4, 1327. For a brief biographical account, see Foss, Judges of England, vol. 3, p. 440. —Ed. SECT. II] LAW OF CONSPIRACY 39- Thorpe. According to law you cannot take advantage of what happened, for you were arraigned of the same presentment and pleaded not guilty, at which time you would have been aided by such matter as you now plead, and could have challenged it. And foras- much as you did not do this, but pleaded as above, you ousted your- self of this advantage for all time afterward. . . . Shaeeshull [C. J.].i Certainly with respect to the point that the party did not challenge the court ought to have seen whether there was a case of conspiracy and inquired of the day, the year and the place before they put a man to deliver himself, for otherwise they could not know from what vicinage to make the jury come. Thorpe. His accepting the issue id supra gave them authority, etc., and furthermore W. de J. who was also indicted and attainted is dead; therefore if this judgment be reversed it will be reversed for the one as weU as for the other, because one cannot conspire, etc. Wherefore, etc. Shaeeshull [C. J.]. It would be a strong thing if the death of his- neighbor or of his companion should bar his action. And because there was neither year nor day nor place comprised [i. e., averred], etc., and in a writ of conspiracy mention shall be made between whom, and at what place the prohibited things, etc. Furthermore, the principal case of the conspiracy alleged, etc., is not conspiracy but is rather damage and oppression of the people. Wherefore we reverse and annul the judgment, etc. ANONYMOUS King's Bench. 1354 27 Ass. f. 138, pi. 44 And note, that two were indicted of confederacy, each to maintain the other, whether his cause should be true or false, and notwith- standing that nothing was suggested to have been put in ure, the parties were put to answer, because this thing is forbidden by the law, etc. ' A mistake has evidently crept into many of the editions of the Year Books, in regard to the name of the justice sitting on this case. The Foho edition of 1679, Redman's edition, and several others, name Shaedeixjwb ["Shard."]. But after 1342, J. Shaedelowe was justice, not of Bong's Bench, where this action arose, but of Common Pleas; furthermore he died in 18 Edward III, before this action was brought. Berthelet (1532) gives what is evidently the correct name, i. e., "Schar." This was William de Shakeshitll, appointed Chief Justice of the King's Bench on Oct. 26, 1350, where he presided till July 5, 1357. For a brief biographical account, see Foss, Judges of England, vol. 3, p, 504. — Ed. 40 LEGALITY OF COMBINATION [CHAP. II THE POULTERER'S, CASE Star Chambbb. 1611 9 Cohe, 556 Mich. 8 Jac. Regis, the case between Stone, plaintiff, and Ralph Waters, Henry Bate, J. Woodbridge, and many other poulterers of London, defendants, for a combination, confederacy, and agreement betwixt them falsely and maliciously to charge the plaintiff (who had married the widow of a poulterer in Gracechurch Street) with the robbery of the said Ralph Waters, supposed to be committed in the county of Essex, and to procure him to be indicted, arraigned, adjudged, and hanged, and in execution of this false conspiracy, they procured divers warrants of justices of peace, by force whereof Stone -was apprehended, examined, and bound to appear at the assizes in Essex; at which assizes the defendants did appear and preferred a bill of indictment of robbery against the said plaintiff; and the jus- tices of assize hearing the evidence to the grand jury openly in court, they perceived great malice in the defendants in the prosecution of the cause; and upon the whole matter it appeared, that the plaintiff the whole day that Waters was robbed, was in London, so that it was impossible that he committed the robbery, and thereupon the grand inquest found ignoramus. And it was moved and strongly urged by the defendants' counsel, that admitting this combination, confed- eracy, and agreement between them to indict the plaintiff to be false, and malicious, that yet no action lies for it in this court or else- where, for divers reasons. 1. Because no writ of conspiracy for the party grieved, or indictment or other suit for the King lies, but where the party grieved is indicted, and legitimo modo acquietatus, as the books are F. N. B. 114 b; 6 E. 3, 41 a; 24 E. 3, 34 b; 43 E. 3, Conspiracy 11; 27 Ass. p. 59; 19 H. 6, 28; 21 H. 6, 26; 9 E. 4, 12, etc. 2. Every one who knows himself guilty may, to cover their offences, and to terrify or discourage those who would prosecute the cause against them, surmise a confederacy, combination, or agreement betwixt them, and by such means notorious offenders will escape Tinpunished, or at the least, justice will be in danger of being per- verted, and great offences smothered, and therefore, they said, that there was no precedent or warrant in law to maintain such a bill as this is. But upon good consideration, it was resolved that the biU was maintainable; and in this case divers points were resolved.^ . . . 3. It is to be observed that there was means by the common law before indictment to protect the innocent against false accusation, and to dehver him out of prison. . . . And it is true that a writ of •conspiracy lies not, unless the party is indicted, and legitimo modo Leigh & Cave, 252; 32 L. J. (M. C.) 38. 2 See Russell on Crimes, 4th ed., vol. iii, p. 116. SECT. IQ LAW OF CONSPIRACY 51 or not it was criminal; it was, however, a conspiracy, as the object was to commit a civil wrong by fraud and false pretences, and I think that the conviction should be affirmed. Channbll and Cleasby, BB., Keating and Brett, JJ., concurred. Conviction affirmed} COMMONWEALTH v. PRIUS Stjpeemb Judicial Court of Massachusetts. 1857 9 Gray, 127 The second count of this indictment alleged that the defendants, on the 1st of March 1856, owning a stock of goods in Lowell as partners, and having insurance thereon against fire by certain insurance com- panies named in the indictment, amounting in aU to the smn of $10,000, " did then and there corruptly, wickedly and unlawfully con- federate, agree, combine and conspire together, to insure and cause to be insured on said stock" certain other sums, amounting to $10,000 more, in other companies named, "by then and there falsely pretend- ing that said stock so by said firm kept and used in their said business was then and there of a much greater value than twenty thousand dollars; and as a part of said unlawful agreement" the defendants "did then and there corruptly, wickedly and unlawfully confederate, agree, combine and conspire together to obtain from all said insurance companies as and for a loss to a large amount, to wit, twenty thousand dollars, by means of false pretences of a loss thereafterward to happen, with design, under pretence of a loss, to cheat and defraud all said insurance companies and each one of them of their moneys by means of said false pretences; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided." The defendants, being convicted in the court of common pleas on this count, moved in arrest of judgment, that no offence was alleged therein. Sanger, J., overruled the motion, and the defendants alleged exceptions. Bigelow, J. The second count in the indictment, on which alone the defendants were found guUty, is fatally defective. It was not a crime in the defendants to procure an over-insurance on their stock in trade. It was at most only a civil wrong. The charge of a conspiracy to do so does not therefore amount to a criminal offence. It was not a combination to effect an unlawful purpose, and no unlawful means by which the purpose was to be effected are set out in the indictment. The residue of the count is too uncertain and indefinite to support a conviction. It amounts to nothing more than an allegation of a con- spiracy to cheat and defraud the'msvirance companies, which is clearly insufficient. Commonwealth v. Shedd, 7 Cush. 514. The means by which this purpose was to be effected are not stated with such preci- ' Keg. V. Timothy, 1 Fost. & Fin. 39 (accord). 52 LEGALITY OF COMBINATION [CHAP. II sion and certainty as to show that they were unlawful. The false pretences by which money was to be obtained from the insurance companies are not set out; and the charge of a conspiracy "to obtain money by means of false pretences of a loss thereafterward to happen," is altogether too general and vague a statement to come within the rules of criminal pleading. Judgment arrested. STATE V. BURNHAM Superior Court of Judicature of New Hampshire. 1844 15 N. H. 396 Indictment, for a conspiracy. It was alleged that on the first day of January, 1841, there was a body politic in this State called the Rock- ingham Mutual Fire Insurance Company; that they had power, at their annual meeting on the first Wednesday in August, to choose a board of directors; that the respondents, with other persons unknown, fraudulently contriving to procure the election of certain persons as directors of the company, and thereby to cause themselves to be em- ployed in the service of the company, and to make gain and profit thereby, on the first day of July, 1841, did fraudulently conspire and combine among themselves to procure and induce sundry persons, by fraudulently pretending to make and issue to them fraudulent policies of insurance, to appear at the annual meeting of said company and vote for directors against and without right, to the great injury of the company, etc. The jury found the respondents guilty, and their counsel took exceptions in arrest of judgment, and to the verdict. . . . GiLfcHRisT, J. The allegations in the indictment in relation to which the questions arise, are that the respondents conspired to induce sun- dry persons, by issuing to them fraudulent policies of insurance, to appear at the annual meeting of the company, and vote for directors without right. The first exception is, because the policies were legal and valid, and binding on both parties. From the second and third exceptions we understand the court to have instructed the jury that the approval of the pohcies in regular form by the directors, if the design of the respondents were to impose upon the directors in procuring the policies, would not be conclusive evidence in favor of the respondents; that if the jury beheved the re- spondents intended that the pohcies should be treated as mere nulli- ties, for every purpose but that of enabling the holders to vote, the charge would be sustained, though the respondents agreed that the pohcies should be duly approved, and the directors were not cognizant of any fraud, and though the pohcies might be binding upon the parties. SECT. 11] LAW OF CONSPIHACY 53 The fourth exception is, that the conspiracy, if any existed, was to procure poHcies to be issued by the proper officers, and not to cause them to be issued by the respondents. An examination of all the cases on the subject of conspiracy would be a work of considerable labor, although, excepting for that reason, the subject is not one of much intrinsic difficulty. General definitions of the offence are given in numerous cases, and they are sufficiently precise to enable us to apply the law to the case now before us. In the first place, we have no doubt that a conspiracy is an in- dictable offence in this State. It is punishable at common law, its punishment is not repugnant to our institutions, and it is an offence productive of as much injury, and as deserving reprehension under one form of government as another. The case of the State v. Rollins, 8 N. H. Rep. 550, settles that the body of the common law, and the English statutes in amendment of it, so far as they were applicable to our institutions and the circumstances of the country, were in force here upon the organization of the provincial government, and have been continued in force by the Constitution, so far as they are not repugnan* to that instnmient, until altered or repealed by the legisla- ture. Combinations against law or against individuals are always dan- gerous to the public peace and to public security. To guard against the union of individuals to effect an unlawful design, is not easy, and to detect and ptmish them is often extremely difficult. The unlawful confederacy is, therefore, punished to prevent any act in execution of it. This principle is the foundation of the adjudged cases upon this subject. But the law by no means intends to exclude society from the benefits of united effort for legitimate purposes, and such as promote the well being of individuals or of the public. It uses the word con- spiracy in its bad sense. An act may be immoral without being in- dictable, where the isolated acts of an individual are not so injurious to society as to require the intervention of the law. But when im- moral acts are committed by numbers, in furtherance of a common object, and with the advantages and strength which determination and union impart to them, they assiune the grave importance of a conspiracy, and the peace and order of society require their repression. The existence, therefore, and execution of the law against conspiracies may, in certain contingencies, be as important as the enforcement of any other law for the punishment of offences, and it requires but little argument to demonstrate that such a law may be necessary under any system of government. We do not propose to go any farther than this case requires, in de- fining the offence of conspiracy. From its nature, no comprehensive rule can be laid down which shall include all instances of it, and we must rest, therefore, on the individual cases decided, which depend generally on particular circumstances. 3 Ch. Cr. Law, 1140. But the authorities agree in stating that a conspiracy is a confederacy to do an 54 LEGALITY OF COMBINATION [CHAP. II unlawful act, or a lawful act by unlawful means, whether to the prej- udice of an individual, or of the public, and that it is not necessary that its object should be the conunission of a crime. Hawk., B. 1, ch. 72; 3 Ch. Cr. Law, 1139; 2 Russ. on Cr. 1800; Archb. Cr. PI. 390; Commonwealth v. Judd, 2 Mass. 329; Commonwealth n. Hunt, 4 Met. 111. . . . Whether this indictment charges the respondents with a conspiracy to do an unlawful act, is a question which does not arise, and has not been made upon the argument. We assume, therefore, that the ulti- mate object which the respondents had in view was not illegal. Their purpose was to procure the election of certain persons as directors of the company, and thereby to cause themselves to be employed in the service of the company; and this end, pursued in a legitimate and open manner, and without deceiving or attempting to deceive and defraud those who had the power and right to employ them, or to aid them in their purposes, was as unobjectionable as any pursuit what- ever. But if, by an insatiable appetite for gain, the respondents kept exclusively in view the object to be accomplished, lost sight of honesty and fairness in the means used to effect it, and resorted to fraud and falsehood, in such case they have made themselves amenable to the law. Assviming, then, that the purpose of the respondents was lawful, still, if the means used to effect it be unlawful, the offence will be com- plete. The illegality of the means in such case must be explained by proper statements, and established by proof. 2 Russ. on Crimes, 569; The King v. Seward, 1 Ad. & E. 706; The King v. Eccles, 3 Dougl. 337; Archb. Cr. PI. 390, 391. The act of marriage is in itself lawful, but a conspiracy to procure it may amount to a crime, by the practice of undue means. Fowler's Case, 3 East P. C. 461; Best's Case, 2 Lord Raym. 1167; Hawk., B. 1, ch. 72, § 3 (n.). The authorities agree that the gist of the offence is the conspiracy. Best's Case, 2 Lord Raymond, 1167; Vertue v. Lord CUve, 4 Burr. 2475; Commonwealth v. Davis, 9 Mass. 415; Commonwealth v. Hunt, 4 Met. 125; Gill's Case, 2 B. & Aid. 204. When it is said in the books that the means must be unlawful, it is not to be understood that those means must amount to indictable offences, in order to make the offence of conspiracy complete. It will be enough if they are corrupt, dishonest, fraudulent, inamoral, and in that sense Ulegal, and it is in the combination to make use of such practices that the dangers of this offence consist. State v. Buchanan, 5 Har. & J. 317. Conspiracies may be indictable where neither the object, if effected, nor the means made use of to accomplish it, would be punishable without the conspiracy. In the case of a conspiracy among journeymen to raise their wages, the object of the conspiracy is lawful, and the means by which the object is to be effected are no otherwise unlawful than as the conspiracy makes them so. Rex v. Tailors of Cambridge, 8 Mod. 11. . . . And admitting that the of- SECT. II] LAW OF CONSPIRACY 55 fence of conspiracy is one which should be punished, if a combination to do dishonest and unmoral acts do not constitute a conspiracy, even although the acts be not indictable or even actionable, in numerous cases justice could not reach the offenders. But it is not necessary, in the present case, for us to determine whether, if the object be lawful, the offence of conspiracy will be com- mitted if the means used be no otherwise unlawful or immoral than as they are made so by the conspiracy. The indictment alleges that the respondents conspired to induce persons, by issuing to them fraudulent policies of insurance, to appear at the annual meeting and vote for directors.^ . . . Can we say that this was not a fraud on the directors; that it was not a fraud on the other members? Can we say that policies, legal in form, legally bind- ing in fact upon the insured, but which, it was agreed, should not have the validity they imported, were not founded upon a corrupt agree- ment; were not, in the language of the indictment, false policies? We can regard such policies only as most immoral and fraudulent means to accomplish the object of the respondents, and with this view our opinion is that the instructions of the court were correct. Judgment on the verdict.'^ STATE V. STRAW Supreme Judicial Coukt of New Hampshire. 1861 42 N. H. 393 Indictment for conspiracy, as follows : "State of New Hampshire. Hillsborough ss. At the Supreme Judicial Court, held at Manchester, within and for the coimty of HOsborough aforesaid, on the first Tuesday of January, in the year of oiu- Lord one thousand eight hundred and sixty, the grand jurors ' Only that part of the opinion is given which relates to conspiracy. — Ed. 2 In State v. Dalton, 134 Mo. App. 517, 534-535, Nortoni, J., says: "While from an examination of the authorities it may be asserted as true that the precise limits of the rule with respect to the terms ' unlawful purpose ' or ' unlawful means,' in cases where neither the purpose to be achieved nor the means to be employed, are actually criminal, has never been clearly defined, the authorities assert and sustain a doctrine commensurate at least with the exigencies of the case now under consideration. The doctrine referred to arises from the additional power or enhanced abihty to accomplish a result which is in many cases present in the combination of several to the same end. In some degree, the principle per- vades the entire law of conspiracy. It may be stated as a general proposition that, where an additional power or enhanced ability to accompUsh an injurious purpose arises by virtue of the confederation and concert of action, an element of criminal conspiracy is thereby introduced which will render suflBciently criminal either the means or the purpose, otherwise merely lawful, to sustain a conviction, although the means or the end were not such as are indictable if performed by a single individual." The doctrine that the crime of conspiracy may be committed even though neither the means used nor the end pursued would of itself constitute a breach of 66 LEGALITY OF COMBINATION [CHAP. II for the state of New-Hampshire, upon their oath, present, that Ezekiel A. Straw, George F. Judkins, Cyrus Warner and George W. Parker, all of Manchester, in said county of Hillsborough, yeomen, on the twenty-eighth day of July,' in the year of our Lord one thousand eight hundred and fifty-nine, at Manchester aforesaid, in the county of Hillsborough aforesaid, with force and arms, being then and there possessed of evil minds and dispositions, unlawfully and wickedly did conspire, combine, confederate and agree together unlawfully to put up and maintain flashboards upon a certain dam of the Amoskeag Manufactviring Company, situate and being across the Merrnnack river, in said Manchester, with intent to defraud John Harvey, Edwin E. Goodale and Joseph Mitchell, and compel the said Harvey, Goodale and MitcheU to dispose of and part with their rights and property, to the great damage of the said Harvey, Goodale and Mitchell, against the peace, and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. Aaron F. Stevens, Solicitor. This is a true bill — Samuel S. Moulton, Foreman." The defendants filed a general demurrer, and the questions thus arising were transferred. Sabgent, J. The questions arising in this case are upon a demurrer to the bill. Several grounds are stated by the defendants' counsel, upon which it is claimed that the indictment is insufficient, which objections we will notice in the same order in which they are stated. 1. The first objection is, that the indictment does not set forth in proper form any crime, because it sets forth no overt act. The gist of the offense by which the wrong is done — the putting up of the flash- boards — is not charged. It alleges a conspiracy together, but no act done to complete the conspiracy. This objection is not well founded. In indictments for conspiracy no overt acts need ever be set forth. Though it may be common to set forth such acts as having been done in pursuance of the conspiracy, and in order to effect the common purpose of it, yet this is not neces- sary. The offense is complete on the consummation of the conspiracy, and the overt acts, though they may be set forth in the bill, may be either regarded as matters of aggravation, or discharged as surplusage. Whart. Am. Cr. Law, 498. The conspiracy itself is the offense, and provided the indictment shows either that it was fpr an Unlawful purpose, or to effect a lawful purpose by unlawful means, this will be sufficient, and whether anything has been done in pursuance of it or not, is immaterial. Broom's Leg. Max. 147; Rex v. Seward, 1 A. & E. the criminal law, finds little support apart from the fraud cases in actual decisions. It is nevertheless reiterated in countless dicta, in numerous statements of text writers, and in encyclopaedias of law. See, for example: 2 Bishop, New Grim. Law (8th ed.), §§ 180, 195; 3 Chitty Grim. Law, 1139; 6 Amer. & Eng. Encyc. of Law (2d ed.), 851 ; 8 Cyc. 623 ; 12 C. J. 547, 548. In most of the cases cited to sup- port such a doctrine either the case is one involving fraud, or the statement is mere dictum. See 35 Harvard T,aw Rev., pp. 422-424. SECT. II] LAW OF CONSPIRACY 57 713; Regina v. Best, 2 Ld. Ray. 1167; Arch. Cr. PI. 635; Rex v. Gill, 2 B. & Aid. 205; 1 Salk. 174; State v. Burnham, 15 N. H. 396. 2. Next it is objected that there is no allegation in the indictment that the complainants have been compelled to dispose of their prop- erty, and consequently that no injury of the kind complained of has been sustained. This objection is also without foundation. This is not a civil action against the respondents, for conspiring together and injuring the com- plainants, in which damages for the injury are sought to be recovered. The criminal offense of conspiracy may be committed not only with- out any overt acts, but also without any damage or injury to those conspired against. A conspiracy to commit a crime, and the com- mission of that crime, are two separate and distinct offenses. To be sure, in certain cases, when a respondent is guilty both of conspiring with others to commit a crime, and also of committing the crime itself, the former offense is merged in the latter. But no question of that kind arises here. The offense complained of here is not that the com- plainants were damaged, nor is it the doing of any act by the con- spirators, but it is the unlawfully conspiring together. 3. Nor is there more weight in the third objection, that the par- ticular rights and property of which said Harvey and others were to be defrauded by this conspiracy, are not described and set forth in the bill. It is not alleged, and need not be, that said Harvey and others have been deprived of any right, or have been injured in or defrauded of any right or property. How, then, can it be necessary that the property or right should be partitjularly described, when it is imma- terial whether this right or property has been in any way affected? The most that is required is that the indictment should allege a con- spiracy to do an imlawful act, or to do a lawful act by the use of un- lawful means, and stating the means thus conspired to be used to accomplish such lawful object; but when this is done it is not held necessary to set forth the particular rights, property, goods or chattels of which the respondents conspired to defraud the complainant. Whart. Am. Cr. Law, 496, 497, and cases cited. 4. The fourth objection is that the bill concludes "contrary to the form of the statute," when there is no statute upon that subject in this state. But this objection is not available even upon demurrer. In a common law indictment the words "contra formam statuti" may be rejected as surplusage. State v. Buckman, 8 N. H. 203; Common- wealth V. Hoxie, 16 Mass. 385; 1 Chit. Cr. Law, 295; Whart. Am. Cr. Law, 105. 5. It is next objected that the charge here is in substance and effect a conspiracy to commit a civil trespass, and that an indictment will not lie for such an act, or for such a conspiring. The allegation is that the respondents conspired, confederated, etc., unlawfully to put up and maintain flash -boards upon a certain dam of the Amoskeag Manufacturing Company, situate, etc., with 58 LEGALITY OF COMBINATION [CHAP. II intent to defraud Harvey and others, and compel them to dispose of and part with their rights and property, to the great damage of the said Harvey and others, etc. Now there are several authorities that hold that an indictment will not lie for conspiring to commit a civil trespass upon property. Rex v. Turner, 13 East, 228; 3 Chit. Cr. Law, 1139; 2 Russell on Crimes, 687; Arch. Cr. PI. 634; Roscoe's Cr. Ev. 371. These authorities must, however, be received with allowance, for many acts which at common law would amount to merely a civil trespass to real estate, are, by special statutes in England, and in most or all of the United States, made crimes or misdemeanors, and a con- spiracy to commit such acts would of course be indictable. In the case before us the indictment does not charge a conspiracy to commit a trespass in terms, but it is evident that the flash-boards which the defendants are charged with conspiring to keep up and maintain, could not have affected Harvey and others' rights and prop- erty in any other way than by throwing back the water of said river so as to affect their real estate, or some rights connected therewith. The injury would be similar to that caused by a trespass, though not so direct; and if an indictment would not lie for a conspiracy to com- mit a civil trespass upon real estate, it coiild not, it would seem, in this case. It could not make the offense greater to do an injury to a man's farm indirectly, than it would to do the same directly, so as to make it technically a trespass. This is not a conspiracy to cheat and defraud Harvey and others of their rights and property. It is only alleged that such was the intent, but it is not charged as any part of the conspiracy. AH the conspiracy charged is to keep up and maintain flash-boards, not on Harvey's land, which would have been a direct trespass, but on the dam of the Amoskeag Manufacturing Company, which might cause a similar injury indirectly. Where the object of the conspiracy is to commit a mere civil tres- pass on real estate, it is not criminal, because such an act by one person is not criminal, and many united have in this case no more power for harm, and do no more harm, than if each proceeded with his part of the mischief alone. 2 Bishop's Cr. Law, sees. 158-160. Upon the last ground stated, therefore, the Demurrer is svMained. UNITED STATES CONSPIRACY STATUTE U. S. Crim. Code, § 37 » If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect I Fonnerly U. S. Revised Statute, § 5440, 35 Stat. L. 1096. SECT, ir] LAW OF CONSPIRACY 59 the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both. (B) Civil Conspiracy DOREMUS V. HENNESSY Appellate Coukt of Illinois, First District. 1895 62 III. Aw 391 Mb. Justice Waterman delivered the opinion of the Court. In her declaration, appellee alleges that she was, in the year 1888, and thereafter, keeping a laundry office in the city of Chicago; that is, a place at which she received clothing which people desired to have laundered; that she procured the laundering of the same, by various persons operating laundries, who, when the work was properly done, returned the same to her, for delivery by her to her customers; that the appellants mahciously and unlawfully contrived, plotted together and conspired to injvire her in her good name and credit, and injure, damage and utterly destroy her said business, because she would not increase the price charged by her for the laundering to the price fixed and required by a certain organization known as the Chicago Laun- drymen's Association, of which the defendants were members; and that for the purpose of carrying out their said design, they induced various parties with whom she had business engagements, whom she names, by false representations that she was financially irresponsible, and by threats and intimidations that the appellants would injure the business of said parties, to break their contracts and engagements with her to do laundry work for her. That the said persons with whom she had engagements, as afore- said, did, in consequence of the aforesaid acts of the said appellants, break their said contracts with her, and in consequence thereof, her said business of a laundry agency was broken up and ruined, and she thereby sustained great loss and damage. That the said appellants so contrived, plotted and conspired, and so, by the means aforesaid, injured, broke up and destroyed her said business, and caused her great loss and damage, for no purpose what- ever, but to injure and destroy her said business. A great deal of testimony was taken upon the trial, the result of which was a verdict of $6,000 for appellee, upon which judgment was rendered, from which appellants prosecute this appeal. The essence of a conspiracy, so far as it justifies a civil action for damages, is a concert or combination to defraud, or to cause other injury to persons or property, which, because of acts done in pursuance of such conspiracy, actually results in damage to the person or prop- erty of the person injured or defrauded. A civil action will not lie for a mere conspiracy. It is the damage done in pursuance of the con- spiracy which gives the right of action. 60 LEGALITY OF COMBINATION [CHAP. II It is now well established that, in, civil actions, the conspiracy is not the gravamen of the charge, but may be pleaded and proved in aggravation of the wrong of which the plaintiff complains, and as en- abling him to recover against all the conspirators, as joint tort feasors. If a plaintiff fail in the proof of a conspiracy, or concerted design, he may yet recover damages against such of the defendants as are shown to be guilty of a tort, directly resulting in damages to the plaintiff. It has sometimes been said that an act which is not unlawful if done by one person, can not be unlawful because done by a multitude. This may be true. It must, however, be borne in mind, that the united act of many persons is very different from the isolated act of one, as it is very seldom that each of many persons do, at one time, as in- dividuals, the same act, without there having been before, an agreed concert of action. The united call or cry of a thousand persons is a very different thing from the call or cry of one; and if the united call- ing of a thousand was by previous concert, then the loud acclaim or disturbance, which the union of so many voices make, is the act of each participating therein. Honest competition in business is always permissible, and it is not easy to draw the line between acts which are but lawful competition and those which are unlawful, because designed to, and actually re- sulting in an injury to the person or property of a rival. The line of demarkation is, in this matter, no more difficult of ascertainment than as to the lawfulness or unlawfulness of many other things of which the law takes note. . . . It is urged that appellants had a right to offer to the parties who were doing work for appellee, a greater price for doing similar work for them, appellants, than appellee was paying, and a right to ask such persons to give up appellee's work, and that to do that of appel- lants, would be found. more profitable; that this was but the carrying on, by the appellants, of their own business, and in the hne of legiti- mate competition with appeUee, who was engaged in the same business. It is not for the doing of this, merely, that the present action was brought. As has been already stated, the declaration charges and the jury have found that the defendants conspired together, and induced parties to break their contracts with appeUee, and to refuse to do business with her, for the purpose of breaking up and destroying the business of appellee; that the action of appellants in this regard was malicious, and was an attempt to obtain for themselves the business which appeUee was doing, not by legitunate competition, but for the purpose only, of destroying the business of appellee. That an action may be maintained for the mahcious interference with the business of another, his occupation, profession, or way of obtaining a liveli- hood, has for many years been recognized by the law; as where the plaintiff is the owner of a decoy for catching wild fowl, and the de- fendant, without entering upon the plaintiff's land, fires off guns near SECT. II] LAW OF CONSPIKACY 61 to the decoy, and frightens wild fowl away from it ; where, also, if a man menaces the tenants at will of another, of life or member, so that they depart from their tenures, an action on the case lies against him. . . . While no civil action lies for the mere conspiracy, whenever, in pursuance of an unlawful combination to defame or injure another in his particular avocation or business, means have been employed which tended to effectuate, and to a greater or less extent did accomplish, the object of the conspirators, an action on the case will lie. WUder v. McKee, 111 Penn. St. 335; Place v. Minster et al., 65 N. Y. 89-95; Cooley on Torts, Second Ed., 142; Webb's Pollock on Torts, pp. 401, 671-672; Walker v. Cronin, 117 Mass.; Bacon's Ab., Actions on the Case, f . Appellee's action is not a mere proceeding to recover damages of appellants, because they induced certain persons, to break their con- tracts with her; her action is for damages by her sustained in conse- quence of the malicious destruction and ruin of her business by appellants, in pursuance of their conspiracy so to do. In proof of such charges, she shows that for the purpose of breaking up and ruining her business, they did, in pursuance of a preconcerted plan, induce various persons to break their contracts with her, and did persuade many persons to refuse to do work for her, as a conse- quence of which her customers were lost and her business destroyed. The conspiracy charged and proven is only a matter of inducement, or evidence; it is the acts thereunder actually done by appellants, and the damage suffered in consequence thereof by appellee, that is the gist of this action. Taking the instructions given by the court below as a whole, we think appellants have no just cause for complaint thereon. In such an action as this, where the gist of the plaintiff's suit is the damage that has resulted from the malicious acts of the defendants, punitive damages may be imposed by the jury. The amount of such damage is, within wide limits, a matter of discretion for the jury. For these and other considerations already mentioned, we see no sufficient reason for interfering with the verdict of the jury, sanctioned as it has been by the judge before whom the case was tried. The judgment of the Circuit Court is affirmed.' » This decision was affirmed in 176 HI. 608. In Savile v. Roberts, 1 Ld. Raym. 374, at p. 378, it was said: "An action will not lie for the greatest conspiracy imaginable, if nothing be put in execution; but if the party be damaged the action will he." In Martens v. Reilly, 109 Wis. 464, at p. 472, Marshall, J., said: "In a civil action against members of a conspiracy for the recovery of damages, unlike a criminal action, the gist thereof is the damage, not the conspiracy. Smith v. Nippert, 76 Wis. 86; Hutchins v. Hutchins, 7 Hill, 104; Bush v. Sprague, 61 Mich. 41; Garing v. Fraser, 76 Me. 37; East Missouri v. Horseman, 16 U. C. Q. B. 556; Kimball v. Harman, 34 Md. 407; Leverty v. Vanarsdale, 65 Pa. St. 507; McHenry v. Sneer, 56 Iowa, 649; Adler v. Penton, 24 How. 407; Cooley, Torts (2d ed.), 125." See particularly, Adler v. Fenton, 24How. 407. — Ed. 62 LEGAI-ITY OF COMBINATION [CHAP. II BOHN MANUFACTURING CO. v!' HOLLIS SuPKEMB Court of Minnesota. 1893 54 Minn. 223 Appeal by defendants, W. G. Hollis and the Northwestern Lum- Ijermen's Association, from an order of the District Court of Ramsey- County, W. D. Cornish, J., made December 27, 1892, refusing to dissolve an injunction. In the year 1890 a large number, about one-half, of the retail dealers in lumber in Iowa, Minnesota, Nebraska, and the Dakotas associated together under the name Northwestern Lumbermen's Association and adopted a constitution and by-laws. Their principal place of business was St. Paul. They employed defendant W. G. HoUis as secretary. Some of their by-laws were as follows : Sec. 3. Whenever, and as often as, any wholesale dealer shall sell lumber, or any article manufactured from lumber and generally sold by retail lumber dealers, to any person not a regular dealer, any mem- ber doing business in the town to which such shipments are made, must notify the secretary of this association within thirty days after the arrival of the shipment at the point of destination, who thereupon shall notify the manufacturer or wholesale dealer who made such shipment that he has a claim of ten per cent of the value of such sale at the point of shipment, against him for such shipment. If the secre- tary is unable to adjust such claim either by correspondence or by personal presentation of the case, he shall refer the matter to the Board of Directors, whose duty it shall be to hear both sides of the case and determine the claim. If the manufacturer or wholesale dealer refuses to abide by the decision of the Board of Directors, it shall be the duty of the secretary to immediately notify the members of the Association, stating the name of such wholesale dealer or manu- facturer. If any member continues to deal with such wholesale dealer or manufacturer, he shall be expelled from the Association. Sec. 3i. The provisions of section three shall also apply to man- ufacturers or wholesalers who ship to contractors or consumers on the order of dealers not members of the Association, at points where said dealers do not maintain a retail yard, and where a member of the Association is located. ... Sec. 6. The secretary shall prepare and cause to be pubhshed, every three months, a list of all the members of this Association both active and honorary, and mail the same io all retail dealers. Also the list of all wholesale dealers and manufacturers oT lumber who shall refuse to comply with the rules prescribed in section 3 of the by-laws, and mail one of each of such lists to the members of this Association. The plaintiff, Bohn Manufacturing Company, a corporation deal- ing in lumber at wholesale at St. Paul, sold in 1891 to one Rakestraw, who was not a dealer, lumber for his own use to the value of $819.85, SECT. II] LAW OF CONSPIRACY 63 to be shipped to Worthington; and sold to Father Plut another bill of lumber of the value of $444.69, to be shipped to New Ulm for a Catholic church. The Association, hearing of these sales, demanded of the plaintiff ten per cent of the amount of the two sales, $126.45, and threatened, unless this siun was paid, to notify each member of the Association of the sales and refusal, pursuant to said by-laws. Thereupon plaintiff commenced this action, charging that Hollis and the other members of the Association had entered into a combina- tion and conspiracy to monopolize and restrain trade in lumber, and to fix and control prices and compel dealers and consimiers to pay the prices so fixed, and to limit the retail trade in lumber to its own mem- bers, and to extort money from any wholesale dealer who should deal directly with the consumer, and to compel aU wholesale dealers to join the Association and act and deal only with its members. Plaintiff further charged that the defendants and various persons unknown to it have secretly and solemnly bound themselves under penalties to compel plaintiff and all others similarly situated to sell Ivimber only to them, and to wreck and destroy their business, if they sold to others not members of the Association. The plaintiff prayed an in- junction, restraining defendants from issuing such notice, and from stating or mailing any matter that might tend to injure plaintiff's trade or business, and from combining with others to hinder or limit its sales and transactions in lumber. A temporary injunction was granted ex parte May 17, 1892, en- joining defendants as prayed. The defendants obtained an order May 25, 1892, requiring the plaintiff to show cause June 1, 1892, why this injunction should not be dissolved. The court filed its order December 27, 1892, refusing to dissolve, and from that order this appeal is taken. . . . Mitchell, J. The pleadings in this case, and the affidavits read on the motion to dissolve the temporary injunction, are so voluminous, and so abound in mere inferences as to motives and consequences, and in adjectives and other qualifying epithets, as to convey the impres- sion, at first sight, that the facts were both complicated and con- troverted. But a careful analysis of the record proves that there is no real dispute as to the material facts, which are comparatively simple. Stripped of all extraneous matter, the case discloses just this state of facts: The plaintiff is a manufacturer and vendor of lumber and other building material, having a large and profitable trade at wholesale and retail in this and adjoining states, a large and valuable part of this trade being with the retail lumber dealers. The defendant the North- western Lumbermen's Association is a voluntary association of retail lumber dealers, comprising from twenty-five to fifty per cent of the retail dealers doing business in the states referred to, many of whom are, or have been, customers of the plaintiff. A "retailer," as de- fined in the constitution of the association, is "any person who is en- gaged in retailing lumber, who carries at all times a stock of lumber 64 LEGALITY OP COMBINATION [CHAP. II adequate to the wants of the community, and who regularly main-, tains an office as a lumber dealer, and keeps the same open at proper times." Any wholesale dealer or manufacturer of lumber who con- forms to the rules of the association may become an honorary mem- ber, and attend its meetings, but is not allowed to vote. The object of the association is stated in its constitution to be "the protection of its members against sales by wholesale dealers and manufactvu-ers to con- tractors and consumers." The object is more fully stated, and the means by which it is to be carried into effect are fuUy set out, in sees. 3, 3i, 4, and 6 of the by-laws, which are all that we consider ma- terial in this case. The plaintiff sold two bills of lumber directly to consumers or contractors at points where members of the association were engaged in business as retail dealers. Defendant HoUis, the secretary of the association, having been informed of this fact, notified plaintiff, in pursuance of sec. 3 of the by-laws, that he had a claim against it for ten per cent of the amount of these sales. Considerable correspondence with reference to the matter ensued, in which the plaintiff, from time to time, promised to adjust the matter, but pro- crastinated and evaded doing so for so long that finally Holhs threat- ened that unless plaintiff immediately settled the matter he would send to all the members of the association the lists or notices provided for by sec. 6 of the by-laws, notifying them that plaintiff refused to comply with the rules of the association, and was no longer in sym- pathy with it. Thereupon, plaintiff commenced this action for a permanent injunction, and obtained, ex parte, a temporary one, en- joining the defendants from issuing these notices, etc. This appeal is from an order refusing to dissolve the temporary injunction. It is . alleged, and in view of the facts must be presumed to be true, that if these notices should be issued the members of the association would thereafter refuse to deal with the plaintiff, thereby resulting in loss to it of gains and profits. The case presents one phase of a subject which is likely to be one of the most important and difficult which will confront the courts during the next quarter of a century. This is the age of associations and unions, in all departments of labor and business, for purposes of mu- tual benefit and protection. Confined to proper limits, both as to end and means, they are not only lawful, but laudable. Carried beyond those limits, they are liable to become dangerous agencies for wrong and oppression. Beyond what limits these associations or combina- tions cannot go, without interfering with the legal rights of others, is the problem which, in various phases, the courts will doubtless be frequently called to pass upon. There is, perhaps, danger that, in- fluenced by such terms of illusive meaning as "monopolies," "trusts," "boycotts," "strikes," and the hke, they may be led to transcend the limits of their jurisdiction, and, like the Court of King's Bench in Bagg's Case, 11 Coke, 98a, assume that, on general principles, they have authority to correct or reform everything which they may deem SECT. 113 LAW OF CONSPIRACY 65 wrong, or, as Lord Ellsmere puts it, "to manage the state." But whatever doubts or dfficulties may arise in other cases, presenting other phrases of the general subject involved here, it seems to us that there can be none on the facts of the present case. Both the affidavits and brief in behalf of the plaintiff indulge in a great deal of strong, and even exaggerated, assertion, and in many words and expressions of very indefinite and illusive meaning, such as "wreck," "coerce," "ex- tort," "conspiracy," "monopoly," "drive out of business," and the like. This looks very formidable, but in law, as well as in mathe- matics, it simpfifies things very much to reduce them to their lowest terms. It is conceded that retail lumber yards in the various cities, towns, and villages are not only a pubfic convenience, but a pubHc necessity; also, that, to enable the owners to maintain these yards, they must sell their limiber at a reasonable profit. It also goes with- out saying that to have manufactm-ers or wholesale dealers sell at retail, directly to consumers, in the territory upon which the retail dealer depends for his customers, injuriously affects and demorafizes his trade. This is so well recognized as a rule of trade, in every de- partment, that generally wholesale dealers refrain from selling at re- tail within the territory from which their customers obtain their trade. Now, when reduced to its tiltimate analysis, all that the retail lumber dealers, in this case, have done, is to form an association to protect themselves from sales by wholesale dealers or manufactm-ers, directly to consumers or other nondealers, at points where a member of the association is engaged in the retail business. The means adopted to effect this object are simply these: They agree among themselves that they will not deal with any wholesale dealer or manufacturer who sells directly to customers, not dealers, at a point where a member of the association is doing business, and provide for notice being given to all their members whenever a wholesale dealer or manufacturer makes any such sale. That is the head and front of defendants' of- fense. It will be observed that defendants were not proposing to send notices to any one but members of the association. There was no ele- ment of fraud, coercion, or intimidation, either towards plaintiff or the members of the association. True, the secretary, in accordance with sec. 3 of the by-laws, made a demand on plaintiff for ten per cent on the amount of the two sales. But this involved no element of coercion or intimidation, in the legal sense of those terms. It was en- tirely optional with plaintiff whether it would pay or not. If it valued the trade of the members of the association higher than that of non- dealers at the same points, it would probably conclude to pay; other- wise, not. It cannot be claimed that the act of making this demand was actionable; much less, that it constituted any ground for an in- junction; and hence this matter may be laid entirely out of view. Nor was any coercion proposed to be brought to bear on the members of the association, to prevent them from trading with the plaintiff. After they received the notices, they would be at entire liberty to trade with 66 LEGALITY OF COMBINATION [CHAP. 11 plaintiff, or not, as they saw fit. By the provisions of the by-laws, if they traded with the plaintiff, they were liable to be "expelled"; but this simply meant to cease to be members. It was wholly a matter of their own free choice, which they preferred, — to trade with the plaintiff, or to continue members of the association. So much for the facts, and all that remains is to apply to them a few well-settled, elementary principles of law: 1. The mere fact that the proposed acts of the defendants would have resulted in plaintiff's loss of gains and profits does not, of itself, render those acts unlawful or actionable. That depends on whether the acts are, in and of themselves, unlawful. "Injury," in its legal sense, means damage resulting from an unlawful act. Associations may be entered into, the object of which is to adopt measures that may tend to diminish the gains and profits of another, and yet, so far from being unlawful, they may be highly meritorious. Commonwealth v. Hunt, 4 Met. (Mass.) Ill; Mogul Steamship Co. v. McGregor, 21 Q. B. Div. 544. 2. If an act be lawful, — one that the party has a legal right to do, — the fact that he may be actuated by an improper motive does not render it unlawful. As said in one case, "the exercise by one man of a legal right cannot be legal wrong to another," or, as expressed in another case, "malicious motives make a bad case worse, but they cannot make that wrong which, in its own essence, is lawful." Hey- wood V. TiUson, 75 Me. 225; Phelps v. Nowlen, 72 N. Y. 39; Jenkins v. Fowler, 24 Pa. St. 308. 3. To enable the plaintiff to maintain this action, it must appear that defendants have committed, or are about to commit, some un- lawful act, which will interfere with, and injuriously affect, some of its legal rights. We advert to this for the reason that counsel for plaintiff devotes much space to assailing this association as one whose object is unlawful because in restraint of trade. We fail to see wherein it is subject to this charge; but, even if it were, this would not, of itself, give plaintiff a cause of action. No case can be found in which it was ever held that, at common law, a contract or agreement in general restraint of trade was actionable at the instance of third parties, or could constitute the foundation for such an action. The courts sometimes call such contracts "imlawful" or "illegal," but in every instance it wiU 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 sufficient protection to the public. Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 598, [1892] App. Cas. 25. 4. What one man may lawfully do singly, two or more may law- fully agree to do jointly. The number who unite to do the act caimot change its character from lawful to unlawful. The gist of a private action for the wrongful act of many is not the combination or con- spiracy, but the damage done or threatened to the plaintiff by the acts SECT. II] LAW OF CONSPIRACY 67 of the defendants. If the act be unlawful, the combination of many to commit it may aggravate the injury, but cannot change the character of the act. In a few cases there may be some loose remarks apparently to the contrary, but they evidently have their origin in a confused and inaccurate idea of the law of criminal conspiracy, and in failing to dis- tinguish between an unlawful act and a criminal one. It can never be a crime to combine to commit a lawful act, but it may be a crime for several to conspire to commit an unlawful act, which, if done by one individual alone, although unlawful, would not be criminal. Hence, the fact that the defendants associated themselves together to do the act complained of is wholly immaterial in this case. We have referred to this for the reason that counsel has laid great stress upon the fact of the combination of a large number of persons, as if that, of itself, rendered their conduct actionable. Bowen v. Matheson, 14 Allen, 499; Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 598, [1892] App. Cas. 25; Parker v. Huntington, 2 Gray, 124; Wellington v. Small, 3 Gush. 145; Payne v. Western & Atlantic R. Co., 13 Lea, 507. 5. With these propositions in mind, which bring the case down to a very small compass, we come to another proposition, which is entirely decisive of the case. It is perfectly lawful for any man (unless under contract obhgation, or unless his employment charges him with some public duty) to refuse to work for or to deal with any man or class of men, as he sees fit. This doctrine is founded upon the fxmdamental right of every man to conduct his own business in his own way, sub- ject only to the condition that he does not interfere with the legal rights of others. And, as has been already said, the right which one man may exercise singly, many, after consultation, may agree to exer- cise jointly, and make simultaneous declaration of their choice. This has been repeatedly held as to associations or unions of workmen, and associations of men in other occupations or lines of business must be governed by the same principles. Summed up, and stripped of all extraneous matter, this is all that defendants have done, or threatened to do, and we fail to see anything unlawful or actionable in it. Com- monwealth V. Hunt, supra; Carew v. Rutherford, 106 Mass. 1; Mogul Steamship Co. v. McGregor, [1892] App. Cas. 25. Order reversed, and injunction dissolved. Vanderburgh, J., absent, took no part.^ I See Webb, History of Trade Unionism (1920 ed.), pp. 597-599 for an account of how the doctrine of Civil Conspiracy was applied by English courts to labor cases between 1875 and 1906. — Ed. 68 LEGALITY OF COMBINATION CCHAP. II Section 3. Restraint of Trade CLAYGATE v. BATCHELOR Common Bench. 1601 Owen, 143 In debt upon a bond of thirty pound, the condition was, that if Robert Batchelor, son to the defendant, did use the trade of haber- dasher as journeyman servant, or apprentice, or as a master, within the county of Kent, within the Cities of Canterbxiry and Rochester, within four years after the date, that then, if he pay twenty pound upon request, the obhgation to be voyd. And all the justices agreed that the condition was against law, and then all is voyd, for it is against the liberty of a free-man, and against the statute of Magna Carta cap. 20, and is against the commonwealth, 2 H. 5 & 5. And Anderson said, that he might as well bind himself, that he would not go to church. And judgment was given against the plaintiff.' ANONYMOUS CASE 427 King's Bench. 1698 12 Mod. 248. Leave was granted to file an information against several plate- button makers, for combining, by covenants, not to sell under a set rate. I Holt, Chief Justice. It is fit that all confederacies, by those of trade to raise their rates, should be suppressed. AN ACT AGAINST REGRATORS, FORESTALLERS AND INGROSSERS 5 & 6 Edw. VI, c. 14 (1552) Sec. 1. Be it enacted etc., . . . That whatsoever Person or Persons, that after the first Day of May next coming shall buy or cause to be bought, any Mer- chandise, Victual or any other Thing whatsoever, coming by Land or by Water toward any Market or Fair to be sold in the same, or coming toward any City, Port, Haven, Creek or Road of this Realm or Wales, from any Parts beyond the Sea to be sold; or make any Bargain, Contract or Promise, for the having or bujang of the same or any Part thereof so coming as is aforesaid, before the said Merchandise, Victuals or other Things, shall be in the Market, Fair, City, Port, Haven, Creek or Road, ready to be sold; or shall make any Motion by Word, Letter, Message or otherwise, to any Person or Persons, for 1 In the early Anonymous Case in Y. B., 2 Hen. V, f. 5, pi. 26, decided in 1414, there was an action of debt upon an obligation with a condition against the use of the art of dyer's craft within a town for a certain time. Hull [J.) interrupted counsel with: "In my opinion you might have demurred upon him, that the obhgation is void, for that the obhgation is against the common law, and by God if the plaintiff were here, he shoxild go to prison until he paid a fine to the king." SECT. Ill] KESTRAINT OF TRADE 69 the inhancing of the Price or dearer selling of any Thing or Things above- mentioned; or else disswade, move or stir any Person or Persons coming to the Market, or the Fair, to abstain or forbear to bring or convey any of the Things above rehearsed, to any Market, Fair, City, Port, Haven, Creek or Road to be sold, as is aforesaid, shall be deemed, taken, and adjudged a Fore- staUer. Sec. 2. Further be it enacted and declared by the Authority aforesaid. That whatsoever Person or Persons, that after the said first Day of May shall by any Means regrate, obtain, or get into his or their Hands or Possession, in any Fair or Market, any Corn, Wine, Fish, Butter, Cheese, Candles, TaJloW, Sheep, Lambs, Calves, Swine, Pigs, Geese, Capons, Hens, Chickens, Pigeons, Conies, or other dead Victual whatsoever, that shall be brought to any Fair or Market within this Realm or Wales to be sold, and do sell the same again in any Fair or Market holden or kept in the same Place, or in any other Fair or Market within four Miles thereof, shall be accepted, reputed and taken for a Regrator or Regrators. Sec. 3. And be it also enacted and declared by the Authority aforesaid, That whatsoever Person or Persons, that after the said first Day of May shall ingress or get into^^his or their Hands, by buying, contracting or promise-taking other than by Demise, Grant, or Lease of Land or Tithe, any Corn growing in the Fields, or any other Corn or Grain, Butter, Cheese, Fish, or other dead Victuals whatsoever, within the Realm of England, to the Intent to sell the same again, shall be accepted, reputed and taken an unlawful Ingrosser or Ingrossers.* . . . ACT FOR REPEALING CERTAIN LAWS AGAINST ENGROSSERS, FORESTALLERS AND REGRATORS 12 Geo. Ill, c. 71 (1772) Whereas it hath been found by experience, that the restraints laid by several statutes upon the dealing in com, meal, flour, cattle, and sundry other sorts of victuals, by preventing a free trade in the said commodities, have a tendency to discourage the growth, and to enhance the price of the same; which statutes, if put in execution, would bring a great distress upon the in- habitants of many parts of this kingdom, and in particular upon those of the cities of London and Westminster; be it therefore enacted . . . that an act, made ... in the fifth and sixth year of King Edward the Sixth, intituled, ' "It was upon conference and mature deliberation resolved by all the justices, that any merchant, subject, or stranger, bringing victuals or merchandize into this reahne, may sell them in grosse; but that vendee cannot sell them againe in grosse, for then he is an ingrosser according to the nature of the word, for that he buy ingrosse, and sell ingrosse, and may be indicted thereof at the common law, as for an offence that is malum in se. 2. That no merchant or any other may buy within the realme any victuaU or other merchandize in grosse, and sell the same in grosse againe, for then he is an ingrosser, and punishable, vi supra; for by this means the prices of victuals and other merchandize shall be enhanced, to the grievance of the subject; for the more hands they passe through, the dearer they grow, for every one thirsteth after gaine, vitiosum sitiunt lucrum." — Coke, Third Institute, p. 195 (1628). Upon the subject of forestalling, engrossing, and regrating, see Hawkins, P. C, Bk. I, Chap. 80; Stephen, History of the Crmiinal Law, vol. 3, pp. 199-202; Eddy, Combinations, sees. 36-70. 70 LEGALITY OF COMBINATION [CHAP. II An act against regrators, forestallers, and engrossers; . . . and all acts made for the better enforcement of the same being detrimental to the supply of the labouring and manufacturing poor of this kingdom, shall be, and the same are hereby declared to be repealed.' REX V. WADDINGTON King's Bench. 1801 1 East, 143 . . . The fourth count ^ charged that the defendant unlawfully en- grossed and got into his hands by buying a certain large quantity of hops, viz., 100 pockets of hops of one W. G. (and so on of above 30 other persons, naming them), at certain large prices, viz., 151. for each 100 cwt. with intent to re-sell the same for an unreasonable profit, and thereby to enhance the price of hops. ... Geose, J. The defendant has been found guilty upon an informa- ■ tion charging him with having put in practice divers methods specified in the several counts, for the purpose of enhancing the price of hops. It appears from the evidence, that he being a merchant living in a distant county (the county of Kent), in the months of March and April last went to the city of Worcester, where was held a considerable market for hops. That upon his arrival there the state of the market was, to use the expression of one of the witnesses and which is intel- ligible, very slack; that the stock of hops in that county was then very considerably more than sufficient to answer the current demand; and that there was then a prospect of their being lower. The price in the January preceding had been between 15Z. and 16Z. per cwt., the mar- ket price in March was from IIZ. to 131. per cwt. so low that the defendant thought fit to observe upon it, and state pubhcly in the market, which was very full, that the low price of hops was owing to a prosecution instituted against him. It appears that he then assured the by-standers, whether truly or not he best knew, that the prosecu- tion against him was dropped, and that of course hops must rise again. Nothing however of that sort was proved; and therefore the ground of the assertion, that hops would of course rise again, seems to have been not perfectly correct. He then further asserted, that the stock of hops in the hands of the brewers was nearly exhausted (an assertion for which there did not appear any foundation) ; and further, that very soon they must come to him or to the hop-planters for hops; ' "This act left the common law against forestalling and regrating, and all the Btatutes upon the subject older than Edward VI, in full force, nor did these laws become by any means a dead letter. Prosecutions for forestaUiug and regrating lasted into the present century." — Stephen, History of the Crim. Law, vol. 3, p. 201. The common law offences of "badgering, engrossing, forestalling, and regrating" were finally abohshed in England by the Act ef 7 & 8 Vict. c. 24 (1844). 2 Other counts are omitted. — Ed. SECT. Ill] RESTRAINT OF TRADE 71 that hops woxild be at 20Z. per cwt.; and that the hop-planters might depend on his assistance to keep them up. From thence it appears that the defendant had a stock of hops in hand; and that it was his intention not only to keep up the price in his own deaUngs, but to assist others in doing the Hke, until that commodity which was then be- tween 111. and IZl. per cwt. should rise to 201. per cwt. To effect this he entered iato contracts to purchase 200 pockets at 121. 10s. per cwt. that day, and 200 pockets each succeeding market advancing each market, tiU the price should arrive at 151. per cwt. ; and so become a purchaser of one fifth of the produce of Worcestershire and Hereford- shire at a much higher price than that at which hops were when he arrived at Worcester. In the present state of what is called paper credit, human ingenuity could not invent a more certain mode of enhancing the price of a commodity. And at the same time he urged the dealers in hops either not to bring them to market, or if they did, not to sell them at a less price than he offered to give, which was greater than any price asked on that day. This was done in an exten- sive market at Worcester, from whence, as it appeared, the northern markets principally received their supply. The consequences of such conduct might be easily foreseen, and were soon felt; hops which had been offered to be delivered on a day in May at 131. per cwt. were on the same day sold at Ibl.; and so the market continued to vary to the end of Jime. The sum then of the offence is, that the defendant, a merchant of credit and affluence in Kent, having a stock of hops in hand, went to the market at Worcester, not to buy hops, for that he disclaimed, nor to sell them, for upon the evidence it does not appear that he offered any for sale, but merely to speculate how he could en- hance the price of that conmiodity. And for that purpose he declared to the sellers that hops were too cheap, and to the hop-planters that they had not a fair price for their hops; and lest he should be defeated in his speculation to raise the price of a falling market, he contracted for one fffth of the produce of two counties, when he had a stock in hand, and admitted that he did not want to purchase. . . . In mitigation of punishment the Court has been repeatedly and strongly addressed upon the freedom of trade; as if it were requisite to support the freedom of trade that one man shall be permitted for his own private emolument to enhance the price of commodities become necessaries of life, and thereby possibly prevent a large portion of his majesty's subjects from purchasing those necessaries at all. The freedom of trade, like the liberty of the press, is one thing; the abuse of that freedom, like the licentiousness of the press, is another. God forbid that this court should do any thing that should interfere with the legal freedom of trade. In support of it the law has declared, and that law has repeatedly been acted upon, that to violate the freedom of trade by intercepting commodities in their way to market, taking them from the owner by force, or which is the same thing, obliging him to accept a less price than he demands, and carrying them away 72 LEGALITY OF COMBINATION [CHAP. II against his will, or committing the like violation upon him in the market, is a capital offence, for which men have forfeited their lives to the law; for the law so far protects the freedom of trade as to encourage men to bring their goods to market, by punishing those who by acts of violence deter others from so doing. But the same law that protects the proprietors of merchandize takes an interest also in the concerns of the public, by protecting the poor man against the avarice of the rich; and from all time it has been an offence against the pubhc to commit practices to enhance the price of merchandize coming to mar- ket, particularly the necessaries of hfe, for the purpose of enriching an individual. The freedom of trade has its legal limits. . . . Looking into our books, we find that the commission of the offence stated in the information is a crime entitled to the serious attention of a court of justice, and that we are bound to treat it as such. But it is urged that the defendant, knowing that the statutes of the 3 & 4 Ed. 6, and 5 & 6 of the same reign, and other subsequent statutes were repealed by the stat. 12 Geo. 3, c. 71, supposed that engrossing, forestalling, regrating, and every other offence by which men attempt wilfully and unnecessarily to enhance the price of neces- saries of life and other merchandizes, ceased to be offences in the eye of the law. This argument supposes him to have read that statute, and those which it repealed; and either to have considered the several laws upon the subject, or advised with others who have had a better opportunity so to do. Supposing him to have done this, the answer is, that that statute, of which he claims the benefit, does not apply to his case. That statute does not say that such acts as this defendant has committed shall cease to be criminal. The effect of it only is, that for the commission of certain crimes specified in certain statutes (which are declaratory statutes, and consider the crimes therein mentioned as crimes at common law), a man shall not be liable to certain penalties and punishments specified in those statutes. But this may be con- sidered as the answer of men bred to the law. A better answer is, that this information is not exhibited for any offence contained in the statutes repealed. That the offence of which the defendant has been convicted is a direct violation of the rules of just and honourable trade, which encourages every one to bring his goods to market and dispose of them to the best bidder. That the defendant has been guilty of using the undue means stated in the information for the purpose of obtaining an excessive and exorbitant price, higher than any that was demanded at the market, which he attended, for the commodity in which he dealt; by which means a temporary fictitious scarcity was likely to be produced, and the price of the commodity unnecessarily and unreasonably raised upon the public. And in truth it must have occurred to any person considering the effect of the statute 12 Geo. 3, how improbable if not impossible it was that the legislature of a great and populous kingdom, ever anxious to provide for the most neces- sitous objects in it, should have intended by this statute to have SECT. Iir] RESTRAINT OF TRADE 73 taken from the lower and middling classes of men that security against the unnecessary high price of provisions, which the common law in- tended to give them; and not only to open a door, but throw out a temptation to rich men to speculate upon the price of the necessaries of Ufe at the risk and expence of the poor. Any argument therefore derived from the defendant's consideration of the statute of Geo. 3, if duly considered, can operate little in mitigation of his sentence; especially when it is recollected that his attention to and conduct on the subject were awakened by the first application against him in this court; and that subsequent to it, in neglect at least if not in defiance of the consequences, the facts on which this prosecution is founded were committed. The Court ha-\'ing taken into consideration the nature and extent of the offence, and the time at which it was committed, when a pimishment is peculiarlj^ called for that may operate as an example to prevent others conmiitting the like crime which so materially concerns all classes of men, at the same time having respect to the imprison- ment the defendant has already suffered, do order and adjudge that he pay to the King a fine of 500 Z„ and be further imprisoned in the prison of this Court for one month, and imtil that fine be paid. . . . [The same defendant was tried two weeks later for other similar dealings in hops.] ^ Grose, J., now passed sentence upon the defendant; adverting to what he had before said upon the first indictment; and that it now appeared that the defendant had carried on these practices to a much greater extent; and that the particular offence of engrossing, which stiU remained an offence at common law, was calculated to create an artificial scarcity where none existed in reality, and to aggravate that calamity where it did exist. The defendant was therefore adjudged for this offence to pay a fine to the King of 5001. and to be further im- prisoned in the prison of this Court for three months, to be computed after the expiration of his former imprisonment, and further until the fine were paid. ARNOT V. PITTSTON AND ELMIRA COAL CO. Court of Appeals of New York. 1877 68 N. Y. 558 Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff entered upon the report of the referee. (Reported below, 2 Hun, 591.) ... Rapallo, J. This action is brought to recover the price of about 2,700 tons of coal, sold and delivered to the defendant by the Butler 1 Rex V. Waddington, 1 East, 167. 74 LEGALITY OF COMBINATION [CHAP. II Colliery Company in the month of August, 1869. The plaintiff claims under an assignment from the last-named company. The findings of the referee establish that this coal was delivered pursuant to a contract between the two companies, dated August 3, 1869, and the defence mainly rests upon the alleged illegality of that contract. The referee has found that the circumstances under which the contract was made were as follows: The Butler Colhery Company was a Pennsylvania corporation, en- gaged in mining and vending coal, at or near Pittston, Pennsylvania. The defendant was also a Pennsylvania corporation, engaged in the same business, but in- addition had a coal depot at Elmira, New York, where it was largely engaged in vending anthracite coal, the product of the Pittston mines, and in distributing it, by canal and railway, from Elmira, to dealers and consumers, through a very large extent of country north and West of that point. Eknira was connected with Pittston by canal, and was the chief market for coal in western New York, and prices of coal were there established for the extensive dis- trict before mentioned. The pvirpose of the defendant in making the contracts in question was so to control the shipment and supply of coal for the Elmira mar- ket as to maintain an unnaturally high price of coal in that market, and to prevent competition in the sale of coal therein, and, but for that purpose, the defendant would not have entered into the contract in question with the Butler Colliery Company. Of all these facts the Butler company had notice at the time of making the agreement. As a further means of accomplishing the same pm-pose, the defend- ant had made contracts adapted to promote it with all the other min- ing proprietors at Pittston. Of these contracts the Butler company did not have actual notice. The agreement in question, entered into for the purpose which has been stated, was as follows: The defendant agreed that it would take all the coal which the Butler company should desire to send north of the State line, not exceeding 2,000 tons per month, at the regular market-price estabhshed from time to time by the Wyoming Coal Exchange, less fifteen per cent per ton coromission, and that settle- ments should be made on the tenth of each month for aU the coal de- livered during the preceding month. The Butler Colliery Company agreed that it would not seU coal to any party other than the defendant, to come north of the State line, during the continuance of the agreement, which was during the season of canal navigation for 1869. The other provisions of the agreement related to mere matters of detail, not affecting the legal question involved. It is found as a fact in the case, that the product of the Butler Col- liery Company largely exceeded 2,000 tons per month. It cannot escape observation that by this agreement the Butler Colliery Company did not agree to sell or deliver to the defendant all SECT. Ill] RESTRAINT OF TRADE 75 of the product of its mines, nor any specific quantity or proportion thereof. It was entirely optional with it whether or not to deliver any coal to the defendant. But the defendant did agree to take all the coal which the Butler company might desire to send north, to the ex- tent of 2,000 tons per month. This undertaking would have been utterly void for want of mutuahty, had it not been for the agreement of the Butler company that it would not sell coal to any other party, to come north of the State line. The only consideration for the agree- ment of the defendant to take of the product of the Butler company to the extent of 2,000 tons per month, consisted in the stipulation of that company not to seU to any one but the defendant. Without that stipulation, the paper called a contract would have amounted to nothing. Neither party would have been bound to deUver or accept any coal. That stipulation was all that gave vitaUty to the con- tract. Bearing in mind the fact foimd, that the product of the Butler company's mines was largely in excess of 2,000 tons per month, the object of the agreement is plain. The defendant, without binding it- self to take the whole product of the mines of the Butler company, endeavored by this agreement to keep all of the coal of that company out of the market, except the limited amount which it agreed to take, and thus to artificially enhance the price of that necessary commodity. This purpose was the basis of the whole agreement, and, as is foxmd by the referee, was tmderstood by both parties at the time of entering into the contract. That a combination to effect such a purpose is inimical to the in- terests of the pubhc, and that all contracts designed to effect such an end are contrary to pubhc pohcy, and therefore illegal, is too weU settled by adjudicated cases to be questioned at this day. (Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. R. 173; People v. Fisher, 14 Wend. 9; 4 Denio, 352; 5 id. 434; 44 N. Y. 87, and cases cited.) Every producer or vendor of coal or other commodity has the right to use all legitimate efforts to obtain the best price for the article in which he deals. But when he endeavors to artificially enhance prices by supjH-essing or keeping out of market the products of others, and to accomplish that purpose by means of contracts binding them to with- hold their supply, such arrangements are even more mischievous than combinations not to sell under an agreed price. Combinations of that character have been held to be against pubhc policy and illegal. If they should be sustained, the prices of articles of pure necessity, such as coal, fiour and other indispensable commodities, might be arti- ficially raised to a ruinous extent far exceeding any naturally resulting from the proportion between supply and demand. No illustration of the mischief of such contracts is perhaps more apt than a monopoly of anthracite coal, the region of the production of which is known to be lunited. Parties entering into contracts of this description must de- 76 LEGALITY OF COMBINATION [CHAP. II pend upon each other for their execution, and cannot derive any assistance from the courts.' . . . The judgment should be reversed and a new trial ordered, with costs to abide the event. All concur; Miller, J., not sitting. Judgment reversed. MORRIS RUN COAL CO. v. BARCLAY COAL CO. StrPEEME Court of Pennsylvania. 1871 68 Pa. St. 173 Agnew, J. This was an action on a bill drawn upon one party in favor of another party to a contract between five coal companies, for a sum found due in the equalization of prices under the contract. It raises a question of great importance to the citizens of this state and the state of New York, where the contract was made, and was in part to be executed, to wit: whether the contract was illegal, as being con- trary to the statute of New York, or at common law, or against public policy. The instrument bears date the 15th day of February, 1866. The parties are five coal companies, incorporated under the laws of Pennsylvania, to wit: The Fall Brook Coal Company and Morris Run Coal Company, of the Blossbin-g coal region; and the Barclay Coal Company, Fall Creek Bituminous Coal Company, and To- wanda Coal Company, of the Barclay coal region. By the agreement the market for the bituminous coal from these two regions is divided among these parties in certain proportions. A committee of three is appointed to take charge and control of the business of all these com- panies, to decide all questions by a certain vote, and to appoint a general sales agent to be stationed at Watkins, New York. Provision is made for the mining and deHvery of coal, their kinds, and for its sale through the agent, subject, however, to this important restriction, that each party shall, at its own costs and expense, deliver its pro- portion of the different kinds of coal in the different markets at such times and to such parties as the committee shall from time to time direct. The committee is authorized to adjust the prices of coal in the different markets and the rates of freight, and also to enter into such an agree- ment with the anthracite coal companies as will promote the interest of these parties. Then comes an important provision that the com- panies may sell their coal themselves, but only to the extent of their proportion, and only at the prices adjusted by the committee. It is also provided that the general sales agent shall direct a suspension of shipment or deliveries of coal by any party making sales or de- liveries beyond its proportion, and thereupon such party shall suspend shipments until the committee shall direct a resumption. Detailed ' The remainder of the opinion, holding that because of the illegality of the contract the plaintiff was not entitled to recover even for coal actually delivered to the defendant, is omitted. — Ed. SECT. Ill] RESTRAINT OF TRADE 77 reports of the business are to be made by the companies to the general sales agent at fixed and short intervals, and settlements are to be made by the committee monthly, prices averaged, and payments made by the companies in excess to those in arrear; and finally, each party binds itself not to cause or -permit any coal to he shipped or sold other- wise than as the same has been agreed upon, an^ that all rules and regulations by the executive committee in relation to the business shall be faithfully carried out. In regard to the relation these companies hold to the public, the field of their mining operations, the markets they supply, the extent of their coal-fields, and the general supply of coal, the distinguished referee, Judge Elwell, finds as follows: "The Barclay and Bloss- burg coal-mines are the only coal-mines furnishing the kind of coal mined and shipped by these companies, except the Cumberland coal, which latter, in order to reach the same markets, north, would have to be shipped by tidewater. There was some of the same kind of coal mined in McKean and Elk counties, in this state, but in quantities so small as that it was not considered by these companies as coming into competition with them. The coal of the Blossburg and Barclay regions is adapted to mechanical purposes and for generating steam. Wherever sold it comes into competition with anthracite coal, and also with the Cumberland coal sent by tidewater to Troy, New York, to which point both kinds of bituminous coal are shipped." During the season of 1866 these companies made sales of coal at Oswego and Buffalo to parties who shipped to Chicago, Milwaukee and other western cities. It there came into competition to some ex- tent with Pittsburg coal. The latter is used for making gas, but the coal of these companies cannot be used for that purpose. The referee found that the statute of New York is, "if two or more persons shall conspire," first, "to commit any offence"; second, "to commit any act injiu-ious to the public health, to public morals, or to trade or commerce, they shaU be deemed guilty of a misdemeanor." The referee found, as his conclusion upon the whole case, that the contract was void by the statute, and void at common law, as against public policy. The restraint of the contract upon trade and its injury to the public is thus clearly set forth by the referee: "These corpora- tions (he says) represented almost the entire body of bituminous coal in the northern part of the state. By combination between them- selves they had the power to control the entire market in that district. And they did control it by a contract not to ship and sell coal other- wise than as therein provided. And in order to destroy competition they provided for an arrangement with dealers and shippers of an- thracite coal. They were thereby prohibited from selling under prices to be fixed by a committee representing each company. And they were obliged to suspend shipments upon notice from an agent that their allotted share of the market had been forwarded or sold. Instead of regulating the business by the natural laws of trade, to wit, those 78 LEGAIJTY OF COMBINATION [CHAP. II of demand and supply, these companies entered into a league, by which they could limit the supply below the demand in order to en- hance the price. Or if the supply was greater than the demand, they could nevertheless compel the payment of the price arbitrarily fixed by the joint committee. The restraint on the trade in bituminous coal was by this contract as wide and extensive as the market for the article. It already embraced the state of New York, and was intended and no doubt did affect the market in the Western States. It is ex- pressly stipulated that the parties to this contract shall not be con- sidered as partners. The agreement was not entered into for the purpose of aggregating the capital of the several companies, nor for greater facilities for the transaction of their business, nor for the pro- tection of themselves by a reasonable restraint, as to a limited time and space, upon others who might interfere with their business." The plaintiff in error's reply to this vigorous statement of the pxir- pose of the contract and its effect upon the pubHc interest, alleges that its true object was to lessen expenses, to advance the quality of the coal, and to deliver it in the markets it was to supply, in the best order, to the consumer. This is denied by the defendants; but it seems to us it is immaterial whether these positions are sustained or not. Admitting their correctness, it does not foUow that these advantages redeem the contract from the obnoxious effects so strikingly presented by the referee. The important fact is that these companies control this immense coal-field; that it is the great source of supply of bitu- minous coal to the state of New York and large territories westward; that by this contract they control the price of coal in this extensive market, and make it bring sums it woidd not command if left to the natural laws of trade; that it concerns an article of prime necessity for many uses; that its operation is general in this large region, and affects all who use coal as a fuel; and this is accomplished by a combination of all the companies engaged in this branch of business in the large region where they operate. The combination is wide in scope, general in its influence, and injurious in effects. These being its features, the, contract is against pubHc policy, illegal, and therefore void. . . . The effects produced on the pubhc interests lead to the considera- tion of another feature of great weight in determining the illegality of the contract, to wit: the combination resorted to by these five com- panies. Singly each might have suspended dehveries and sales of coal to suit its own interests, and might have raised the price, even though this might have been detrimental to the pubhc interest. There is a certain freedom which must be allowed to every one in the man- agement of his own affairs. When competition is left free, individual error or folly will generally find a correction in the conduct of others. But here is a combination of all the companies operating in the Bloss- burg and Barclay mining regions, and controlling their entire produc- tions. They have combined together to govern the supply and the price of coal in all the markets from the Hudson to the Mississippi SECT. Ill] RESTRAINT OP TRADE 79 rivers, and from Pennsylvania to the lakes. This combination has a power in its confederated form which no individual action can confer. The public interest must succumb to it, for it has left no competition free to correct its baleful influence. When the supply of coal is sus- pended, the demand for it becomes importunate, and prices must rise. Or if the supply goes forward, the price fixed by the confederates must accompany it. The domestic hearth, the furnaces of the iron master, and the fires of the manufacturer, all feel the restraint, while many dependent hands are paralyzed, and hungry mouths are stinted. The influence of a lack of supply or a rise in the price of an article of such prime necessity, cannot be measured. It permeates the entire mass of commmiity, and leaves few of its members untouched by its wither- ing blight. Such a combination is more than a contract, it is an offence. "I take it," said Gibson, J., "a combination is criminal whenever the act to be done has a necessary tendency to prejudice the pubhc or i>o oppress individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purpose of the latter, whether of extortion or of mischief." Commonwealth v. Car- lisle, Brightiy's Rep. 40. In aU such combinations where the pur- pose is injurious or unlawful, the gist of the offence is the conspiracy. Men can often do by the combination of many, what severally no one could accompHsh, and even what when done by one would be innocent. . . . Every "corner," in the language of the day, whether it be to affect the price of articles of commerce, such as breadstuffs, or the price of vendible stocks, when accomplished by confederation to raise or depress the price and operate on the markets, is a conspir- acy. The ruin often spread abroad by these heartless conspiracies is indescribable, frequently fiUing the land with starvation, poverty, and woe. Every association is criminal whose object is to raise or de- press the price of labor beyond what it would bring if it were left without artificial aid or stimulus: Rex v. Byerdike, 1 M. & S. 179. In ■/ the case of such associations the illegahty consists most frequently in the means employed to carry out the object. To fix a standard of prices among men in the same employment, as a fee biU, is not in itself criminal, but may become so when the parties resort to coercion, restraint or penalties upon the employed or employers, or what is worse, to force of arms. If the means be unlawful the combination is indictable: Commonwealth v. Hunt, 4 Mete. 111. A conspiracy of journeymen of any trade or handicraft to raise the wages by entering into combination to coerce journeymen and master workmen em- ployed in the same branch of industry to conform to rules adopted by such combination for the purpose of regulating the price of labor, and carrjring such rules into effect by overt acts, is indictable as a mis- demeanor: 3 Whart. C. L., citing The People v. Fishbee, 14 Wend. 9. Without multiplying examples, these are sufficient to illustrate the true aspect of the case before us, and to show that a combination such 80 LEGALITY OP COMBINATION [CHAP. II as these companies entered into to control the supply and price of the Blossburg and Barclay regions is illegal, and the contract therefore void.^ . . . HORNBY V. CLOSE Queen's Bench. 1867 _ L.R.2 Q. B. 153 Case stated by justices of the west riding of Yorkshire under 20 & 21 Vict. c. 43. An information was laid on the 12th of January, 1886, a,t Bradford, in the said riding, by John Hornby (the appellant), boilermaker, the president of the Bradford Branch Society of the United Order of Boilermakers and Iron Shipbuilders, on behalf of the said society, a copy of the rules of which society have been duly deposited with the registrar of friendly societies in England, pursuant to the statute, charging that Charles Close (the respondent), boilermaker, on the 16th of December, 1865, at Bradford aforesaid, being then and there a member of the said society, and having in his possession certain moneys of the said society, amounting to 24Z. 18s. 5|d., did then and there unlawfully withhold the same from the said society, contrary to the form of the statute (18 & 19 Vict. c. 63, s. 24). A summons upon the above information was issued, and on the hearing the charge against the respondent, as laid in the information, was fuUy proved. A copy of the "Rules and Regulations of the United Society of Boilermakers and Iron Shipbuilders of Great Britain and Ireland" was put in, and admitted to be correct. A copy of such rules was transmitted with the case. The following was the title-page of the rules: "Rules and Regula- tions to be observed and strictly enforced by the United Society of Boilermakers and Iron Shipbuilders of Great Britain and Ireland. Instituted for the purpose of mutual reUef of its members when out of employment, the relief of their sick, and burial of their dead, and other benevolent purposes, as inserted in their rules." . .* . It was contended for the respondent, that the society was not a society within sec. 44 of the 18 & 19 Vict. c. 63; and further, that it was a society established for purposes which are illegal, being against pubHc policy, in restraint of trade, and depriving the workman of the free exercise of his own will in the employment of his labour, and also in restraining him from getting employment or continuing in employ- ment, or obtaining employment for a non-member of the society; and lastly, that the society was an organization for, or tending to, the en- couraging and maintaining of strikes. In support of these objections, the following passages in the rules and regulations of the society were relied on: 1 Accord: Hunt v. Riverside Co-operative Club, 140 Mich. 538. SECT. Ill] KESTKAINT OF TEADE 81 Rule 28. Piece-work. — Piece-work disputes and benefits from contingent fund. Sec. 1. That in districts where members are com- pelled to work piece-work, and it be proved to the satisfaction of the executive council that the firm is reducing the prices below the usual and reasonable prices, they shall allow the men resisting the reduc- tion 7s. per week for two weeks, after being out six days; after which they shall receive their travelling cards, according to rule 20. Sec. 2. That any member or members in a shop, either on piece- work or day-work, where a dispute arises connected with our trade or society, no member or members shall be allowed to call at such shop or shops after being made acquainted with such dispute, or for doing so to be fined the sum of 10s. And that any member of this society, either angle-iron smith, plater, rivetter, or holder-up, en- couraging any holder-up or labourer to violate this rule, by allowing him to practise with his tools, or otherwise instructing him in other branches of the trade, contrary to these rules, shall, on proof thereof, be fined for the first offence 5s., for the second 10s., and for the third to be expelled the society. Rule 29. Disputes on day-work and benefits. Sec. 1. Should a dispute arise in any shop, the members of that shop shall make it known tO their branch, which, if it only affects the interest of two or three members, such branch to have power to settle it, and grant to members wishing to travel 12s. cards, or 12s. per week donation. But should a general dispute arise in any shop, which cannot be amicably settled by the branch, it shall be referred to the executive council, who shaU give them instructions on the subject. All members losing their employment through such disputes, after being sanctioned by the executive, shall receive the sum of 12s. per week, so long as they re- main out of employment. This rule to be applied to all disputes ex- cepting the settlement of piece-work prices. Rule 42, sec. 1 (part of). Any member using his influence to obtain employment for a non-member, shall be fined for such offence 10s. Rule 20, sec. 4. Any member leaving his em.plo3mient on his own responsibility, to seek for other employment, shall not be entitled to travelling rehef until he has again been in employment one month. The justices were of opinion that the objections urged on behalf of the respondent were vahd; that the society in question was not within the 44th section of the 18 & 19 Vict. c. 63; and that the rules of the society in question shewed or set forth an illegal purpose; and con- sequently they dismissed the complaint. • The question was, whether the determination upon the facts and grounds prewusly stated is or is not erroneous in point of law. . . . CocKBUBN, C. J. We ought not to hesitate a moment in saying that we think the magistrates were perfectly right in holding that this society did not come within the operation of the Friendly Socie- ties Act, so as to give the magistrates jurisdiction. I quite agree with Mr. Mellish that, supposing the main purpose of the society were 82 LEGALITY OP COMBINATION [CHAP. II within the 9th section, as being benevolent, it wotild not, by reason of one or two of the rules being beyond that purpose, cease to be a society within the act. It is therefore, iij each case, material to inquire what the purposes of the society were. Here we find the very pur- poses of the existence of the society not merely those of a friendly society, but to carry out the objects of a trades' union. Under that term may be included every combination by which men bind them- selves not to work except under certain conditions, and to support one another, in the event of being thrown out of employment, in carrying out the views of the majority. I am very far from saying that the members of a trades' union constituted for such purposes would bring themselves within the criminal law; but the rules of such a society would certainly operate in restraint of trade,'and would therefore, in that sense, be unlawful; and on the principle on which the Court of Error, in Hilton v. Eckersley,^ afiirming the decision of this Court held that a bond, given by masters to observe rules in their business which were in restraint of trade, was so far illegal that it could not be enforced in a court of law, we hold that these rules of a society of workmen being in restraint of trade are also so far illegal; that is to say, when we find one of the main objects of a society is that of a trades' union, many of its rules being in restraint of trade, so that if an action were brought to enforce a civil right in respect of any of them they would be held not enforceable at law, in the same sense we hold the society is not "for a purpose which is not illegal," and so not within the act. Therefore, for these two reasons we hold the present society not within sec. 44; first, because it is for a purpose not anal- ogous to that of a benevolent or friendly society such as is mentioned in sec. 9; and secondly, because those rules, although they may not be illegal in the sense of bringing the parties to them within the criminal law, are in restraint of trade, and so far illegal. Blackburn, J. I am of the same opinion. ... I do not say the objects of this society are criminal. I do not say they are not. But I am clearly of opinion that the rules referred to are illegal, in the sense that they cannot be enforced; and on this ground, also, I think the societj'- not within sec. 44, as not being "for a purpose not illegal." Whatever the inclination of my opinion, it is unnecessary to decide whether the illegality of any of the rules would taint the whole, be- cause here the illegal objects formed not a small part, but a principal, if not the whole, object of the society. Mellor, J. I am also of the same opinion. desire to express no opinion as to whether the rules referred to are illegal in the sense of being criminal. Some of the substantial objects of the society are those of a trades' union, and for the maintenance of its members when on strike, and these objects cannot be separated from the other objects, if any, of the society. Nor can I doubt that many members joined the society on the very footing that there were such rules and 1 6 E. & B. 66; 25 L. J. (Q. B.) 199. SECT. Ill] EESTRAINT OF TRADE 83 for the very sake of the illegal objects. As my Lord and my Brother Blackburn have said, although some of the objects of the society may be those of a friendly society, yet these other and substantial objects of a trades' union are not analogous to those of a friendly society, not being benevolent; and the rules not being legal in the sense of enforceable at law, on the principle of the decision in Hilton v. JEckersley,^ the society was not within the act, and the magistrates had no jurisdiction over the case. Lush. J. I am entirely of the same opinion. One main purpose of the society, if not the main purpose, was to form a trades' union. That being so, the purpose of the society was not analogous to that of a friendly society; and fmther, this purpose was illegal, in the sense it was a piirpose which could not be enforced in a court of law. Judgment for the respondent.^ RIGBY V. CONNOL Chancery Division. 1880 L. B. 14 Ch. Div. 482 This was an action by the plaintiff, who had been expelled from a trades union of which he was a member, against the committee and trustees of the union, claiming to be entitled to share in the benefits of the union, and that the defendants might be restrained from exclud- ing him therefrom. The statement of claim alleged that the "Journeymen Hatters' Fair Trade Union of Great Britain and Ireland" was a trade union of journeymen hatters duly registered under the Trades Union Act, 1871 (34 & 35 Vict. c. 31), and that the defendants were the trustees and committee of the union; that the said "Fair Trade Union" held its meetings at Denton, near Manchester, and was governed by rules; and that rule 73 was as follows : "Any journejmian binding his son in a foul shop shall be fined £5, and not be entitled to any benefit until he has paid his fine and con- tributed twenty-six weeks according to rule." A "foul shop" was, as was stated, a shop in which non-imionists were employed. 1 6 E. & B. 47, 66; 24 L. J. (Q. B.) 353; 25 L. J. (Q. B.) 199. ' Frederic Harrison, a, member of the Royal Commission of 1867, speaking of the decision of Hornby v. Close, wrote in The Beehive of Jan, 26, 1867 as follows: "The judgment lays down not merely that certain societies have failed to bring themselves within the letter of a certain Act but that Trade Unions, of whatever sort, are in their nature contrary to pubUc poliey, and that their olsject in itself will vitiate every association and every transaction into which it enters. ... In a word. Unionism becomes (if not according to the suggestion of the learned judge — criminal) at any rate something like betting and gambling, public nuisances and inmioral considerations — things condemned and suppressed by the law." (Quoted m Webb, History of Trade Unionism (1920 ed.), p. 262.) 84 LEGALITY OF COMBINATION [CHAP. II The statement of claim further alleged as follows : That a son of the plaintiff had been apprenticed by him to Messrs. Mason, of Denton, whose work was done by members of a trade miion called "The Hatters' Mutual Association"; but that, on the failure of this firm, the indentures were cancelled, and he shortly afterwards obtained employment with Messrs. Turner & Co., whose work was also done by members of the said "Hatters' Mutual Association": That on the 3d of May, 1878, the secretary of the "Journeymen Hatters' Fair Trade Union" wrote to the plaintiff that if he did not remove his son from Messrs. Turner & Co.'s, further proceedings would be taken against him by the committee at once; that the plaintiff declined to remove his son, whereupon the committee fined the plaintiff £5 under rule 73; that such fine was improperly imposed, as Messrs. Turner & Co.'s was not a "foul shop" within the meam'ng of rule 73, and that the plaintiff's son was not bound or apprenticed there: That the plaintiff having refused either to pay the fine or to remove his son the defendants had purported to expel the plaintiff from the union, and sent a note to his employers stating that the members of the union would refuse to work any longer with the plaintiff, where- upon the plaintiff was discharged by his employers and had been unable to obtain employment elsewhere. . . . The plaintiff claimed a declaration that as long as he should con- form to the rules of the said "Fair Trade Union," which he thereby offered to do, he was entitled to participate in the enjoyment of the property and effects of the trade union, and in its rights, privileges, and benefits, and that the pretended expulsion of the plaintiff from the said trade union was invalid, and that the defendants might be restrained by injunction from excluding the plaintiff from such partici- pation. There was also a claim for damages by reason of the plaintiff's alleged improper expulsion. The statement of claim did not allege that the said " Fair Trade Union " possessed any property. . . . The rules which governed the "Fair Trade Union" were not, except as before stated, set out in the statement of claim. These rules pro- vided that all the members should pay certain subscriptions, and should also be liable to certain fines, and that the moneys so raised should be applied for the piirposes mentioned in the rules, and for no other purpose. These purposes were partly for the benefit of the mem- bers of the union, including provision in case of sickness and of want of employment, payments to members on strike, payments in aid of the emigration of members, and in the event of death, payments in aid of the funeral expenses, and provisions for the widows and children of deceased members. The rules provided that any member admitted imder a fine should not be admitted to any benefit until he should have paid the whole fine and twenty-six weeks' contributions .^ . . . ' Part of the statement of facts is omitted. — Ed. SECT. Ill] EESTEAINT OF TRADE 85 Jessel, M. R.i . . . That being the position of the plaintiff, we must consider what the Trades Union Act, 1871, provides. That Act, no doubt, was passed primarily with a view to preventing the treasurers and secretaries and officers of these societies from robbing them; that was the chief object. It was discovered that some of these men, abus- ing the confidence reposed in them, took advantage of the law which made these societies illegal, by appropriating their funds and property to their own use. That, no doubt, was one of the principal objects, and therefore the Act was passed to get at these men. Another object was this: there was a great difficulty in suing and getting their prop- erty from third persons, and one object of the Act was to enable these societies to sue in respect of their property, and also to enable them to hold property, such as a house or office, but it was not intended that the contracts entered into by the members of the society should be made legal contracts inter se, so that Courts of Justice should inter- fere to enforce them. If that had been intended the result would have been this, that an agreement between a number of workmen once entered into, compelling them to work in a particular manner, or to abstain from working in a particular manner, would have been en- forceable according to law, and to a certain extent would have re- duced some portion of the workmen to a condition of something like serfdom and slavery. Of course the Legislature, by interfering, had no idea of doing anything of that sort. Again, the Act recognises the principle that men may enter into any contract they think fit: there is an exception in the case of a contract for borrowing in this country, and I hope that exception will always remain in whatever form that contract may be expressed. Then the Act goes on to provide, in sec. 2, that the purposes of a trades union shall not, by reason that they are in restraint of trade, be deemed to be unlawful so as to render the members criminally liable; and then, by sec. 3, for the same reason, that the purposes shall not be unlawful so as to render void or voidable any agreement or trust. That applies to the rules of this union, and does not render them unlawful for being in restraint of trade, and then there comes this provision in sec. 4 : " Nothing in this Act shall enable the Court to entertain any legal proceedings instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements." Then it specifies what they are, and one of them is, "any agreement for the application of the funds of a trades union to provide benefits for members." I am satisfied that the agreement contained in the rules is an agree- ment to provide benefits for member's, and that, if I decide in favour of the plaintiff, I directly enforce that agreement, because I declare him entitled to participate in the property of the union, and the only property they have is their subscriptions and fines, and I restrain the 1 That part of the opinion dealing with the jurisdiction of a court of equity to enjoin the plaintiff's expulsion is omitted. — Ed. 86 LEGALITY OF COMBINATION [CHAP. II society from preventing that participation. It seems to me that is directly enforcing that agreement, in fact, it is in substance directing and enforcing the specific performance of it, nothing more or less. The only question remaining, therefore, is whether the negative words in this Act, "nothing in this Act shall enable," really prevent me giving him any relief whatever, because those words do not say that the Court may not otherwise enforce; aU the section says is, "Nothing in this Act shall enable." The question, therefore, which I have to consiiler is, what would have happened without the Act? And it appears to me that without the Act it is clearly an unlawful association; it is an association by which men are not only restrained in trade, but they are bound to do certain acts under a penalty. Take the very act for which this man was expelled. He was expelled because he bound his son apprentice in a shop where the workmen did not belong to this union but to another union. That is the allegation. And the rule is that any man binding his son in a "foul shop," which, as it has been explained to me, includes a shop of this description, where the members employed belong to another union and not to this union, shall be fined £5, and so on according to the rules. I see a great nimaber of other stipulations of a character which are not only a restraint in trade, but so much in restraint of trade, limiting the subject of it, that I have no doubt that before this Act was passed these rules would have been altogether illegal; and if nothing in the Act, therefore, will assist the plaintiff, he must stiU be in the position of a member of an illegal association com- ing to a Court of Justice to assist him to enforce his rights imder that illegal association. If that is so, it is impossible for me, and I do not think it ever was intended by the Legislature, looking to the terms of the Act of Parlia- ment, to enable the Courts to interfere on behalf of the members of these societies for the piu"pose of getting relief inter se with respect to rights and liabilities contrary to the Act; and in construing the Act as I do, I believe I am not only fairly construing it, as is my habit, accord- ing to the literal meaning itself, but according to the manifest inten- tion of the Legislature. The action will therefore be dismissed with costs.i SNOW V. WHEELER Supreme Judicial Coubt of Massachusetts. 1873 113 Mass. 179 Bill in Equity brought by William A. Snow and five others, on be- half of themselves and other members of the North Brookfield Lodge, No. 28, of the order of the Knights of St. Crispin, against Daniel W. Wheeler, Cornelius Duggan, and the People's Savings Bank of Wor- 1 See Russell v. Amalgamated Society of Carpenters, [1912] A. C. 421. SECT. Ill] KESTKAINT OF TRADE 87 cester, to compel the defendants Wheeler and Duggan to draw an order upon the defendant bank to enable the plaintiffs to withdraw from the bank a deposit made by Wheeler and Duggan, in their names as trustees, but acting as a committee of the lodge. . . . The case was referred to a master, a part of whose report was as follows: "The North Brookfield Lodge, No. 28, of the order of the Knights of St. Crispin, is an unincorporated and voluntary association in the town of North Brookfield, in the county of Worcester, composed of persons employed as workmen in the manufacture of boots and shoes, but not including proprietors of boot and shoe manufacturing establishments who employ workmen, or their foremen. Each mem- ber upon being admitted to the association, subscribes his name to the constitution and by-laws, and also signs the following obligation: ' I will not teach or cause to be taught any new hand, any part or parts of the boot or shoe trade without the permission of the lodge of which I am a member.' . . ."^ Colt, J.^ This bill is brought on behalf of a voluntary association, the individual members of which are too numerous to be joined as plaintiffs, and it is therefore brought in the name of a few, for them- selves and aU the other members. Birmingham v. Gallagher, 112 Mass. 190. It is heard upon the pleadings and master's report. The individuals named as defendants were members of the associa- tion, and received its funds from the treasurer as a committee chosen to deposit the same for safe keeping in the bank, which is named as a co-defendant in the bill. The money was deposited in their names, as trustees, and they now refuse to restore it to the control of the associa- tion — the defendant bank refusing to pay without an order signed by the trustees, but submitting itseK to the decree of the court. The only question before us is, whether upon the facts stated in the master's report, and contained in the documents referred to, the trust set forth must have been assumed by the defendants for an illegal purpose. The plaintiffs are clearly entitled to recover their own money thus detained by parties who received it in a fiduciary capacity, unless it appears that the money was delivered to them, or must be held when recovered by the plaintiffs, for a purpose immoral, illegal or con- trary to public policy. The object and purposes of the association which the plaintiffs rep- resent are shown by the constitution and by-laws of the lodge, which are made part of the case; these are subscribed to by each member at the time of his admission, with an additional agreement "not to teach or cause to be taught any new hand any part or parts of the boot or shoe trade without the permission of the lodge of which I am a member." Its members are wholly composed of individuals employed ' Part of the statement of facts and of the master's report is omitted. — Ed. 2 This case was argued in writing, and considered by all the judges. 88 LEGALITY OF COMBINATION [CHAP. 11 as workmen in the manufacture of boots and shoes, but it does not include proprietors or their foremen. It is insisted that the agreements thus estabhshed between the members of the order are in unlawful restraint of trade, and therefore illegal, as being against public poHcy. But in the opinion of the court the point is not well taken. In the relations existing between labor and capital, the attempt by cooperation on the one side to increase wages by diminishing competition, or on the other to increase the profits due to capital, is within certain limits lawful and proper. It ceases to be so when unlawful coercion is employed to control the freedom of the individual in disposing of his labor or capital. It is not easy to give a definition which shall include every form of such coercion; it is enough that in the compact before us there is no evi- dence of any purpose to use such unlawful means in any form. . . . In Carew v. Rutherford, 106 Mass. 1, 14, it is said, "Every man has a right to determine what branch of business he will pursue, and to make his own contracts with whom he pleases and on the best terms he can." "He may refoise to deal with any man or class of men. And it is no crime for any number of persons, without an unlawful object in view, to associate themselves together and agree that they will not work for or deal with certain men or classes of men, or work imder a certain price, or without certain conditions." And in Commonwealth V. Hunt, 4 Met. Ill, 134, Shaw, C. J,, declares that the legality of such association will depend upon the means to be used for the ac- complishment of its objects and whether they be innocent or other- wise. In the case at bar there is no evidence afforded by the documents submitted to us that the purposes of this association are unlawful by the rule stated. Unlawful coercion certainly does not appear to»be intended. And the right of the members to instruct whom they choose in the mysteries of their trade cannot be denied. The case presented is not one where there is evidence to justify us in finding that the objects and purposes of the association are fraudulently and colorably declared as a cover for a secret unlawful agreement of its members. It wiU be time enough to deal with such a case when it arises. In this view, it is not necessary critically to examine the instances of alleged illegal conduct which it is said are found upon the records of the association, or to inquire whether they amount to illegal restraint of that freedom in trade which the law secures to all, because specific wrongful acts cannot be shown to defeat the plaintiffs' claim, unless it be also shown that such acts come within the scope and purpose of the organization. Each act of wrong, outside the declared and real purpose of the lodge, stands by itself, to be answered for only by those who join in its perpetration. Decree for the plaintiffs, with costs against the individwal defendants only. SECT. Ill] RESTRAINT OF TRADE 89 KEALEY V. FAULKNER Cuyahoga Court of Common Pleas. 1907 18 Ohio Dec. 498 Phillips, J. (orally). There is a demurrer to the petition and the amendment thereto, on the ground, first, that there is defect of parties defendant; second, that the petition and its amendment do not state a right of action. The action is a contest between the factions of the Amalgamated Window Glass Workers of America, which is an un- incorporated association of glass workers, designated as glass blowers, gatherers, flatteners and cutters, and comprising about six thousand men. The plaintiffs are representatives of the two trades, flatteners and cutters, who claim that they have not received fair treatment from the hands of the organization; that the organization is illegal; that they have contributed to its funds; and that the association now has a fund in excess of $100,000. They ask that the association be dissolved, that a receiver be appointed, and that this fund be dis- tributed among the members of the organization according to their respective individual rights in it. The plaintiffs aUege that they are representatives of the said two classes, in whose interest this action is brought, and they make the officers of the organization, and perhaps some other individual mem- bers, defendants. They allege that these officers control the funds of the association, and are in charge of the organization for the purpose of enforcing its by-laws, and conducting its internal regulations. In other words, it appears from the allegations of the petition that these persons who are made defendants are representatives of all the in- terests of the association not represented by the plaintiffs. No other persons are made defendants, so far as the merits of the action are concerned. Some others are made defendants because they are in possession of some of the funds of the association. . . . In support of the petition in matter of substance, it is claimed that the Amalgamated Window Glass Workers of America, by its ex- pressed purposes and its conceded methods, is a menace to the public welfare, and must therefore be dealt with as an organization that is opposed to the pubUc policy of the country. The demurrer to the petition cannot be disposed of, without deciding this question, — a question so important, not only in the instance, but upon principle as well, that I have given to its consideration all the care and contempla- tion that circumstances would allow; and in this labor I have been greatly helped by the zealous industry of counsel on both sides. I have endeavored, with what diligence I might, to discover the true criteria by which to determine whether an avowed purpose, or an adopted method, stands for or against the public policy. And I have tried to find out by what considerations we ought to determine the limits within which an association of men may rightfully control a 90 LEGALITY OF COMBINATION [CHAP. II productive industry, and to what extent the courts may interfere with attempted control. . . . The Amalgamated Window Glass Workers of America is composed of skilled workmen, — artisans, men trained to dexterity in the mak- ing of window glass. Because these men are skilled in the manufacture of an important article of commerce, they are able to contribute, in a special way, and in special measure, to the productive industry of the community. Therefore the community has a special interest in the industrial freedom of these men, and each of them. One of these men could not obUgate himself not to work at his trade. He might, of choice, decline to pursue his trade; but he could not obligate himself not to work at his trade ; and if he should enter into a contract never again to work at his trade, the courts would not enforce the contract. Such contract would be against public policy. It would impair the industrial freedom in which the public is interested, and which it is the duty of government to protect and promote. It is this indicium, the impairment of industrial freedom, that discriminates and vitiates such contract. Our Supreme Court has said of such engagement, that it tends to oppression by depriving the individual of the right to pursue a trade ' with which he is most familiar and by depriving the community of the services of a skiUed laborer; and it tends indirectly to affect the price of such things as would be produced by his labor. And for the same reasons that one man may not, by contractual obligation, impair or hmit his industrial freedom, any number of men may not. And the individual may not, by union with others, surren- der his right of industrial freedom to the association. The tendency of such impairment of the right of industrial freedom is against the general welfare, and is therefore against the public pohcy which is promotive of the public good. . . . It is clear that the thing that vitiates a contract, under a principle of the law which we call "public policy," is not an intent to injure the public, but a tendency to the prejudice of the public. Actual in- jtuy is never required to be shown; it is the tendency to the prejudice of the public good, which vitiates contractual relations. Within the limitations I have stated, men may combine and co- operate, for the advantageous marketing of their skUl and labor, or their capital. But this right is limited to an advantageous marketing of labor or capital, and it is limited by the right of the public to have industrial and commercial freedom maintained and promoted. What- ever of purpose or of method transcends these boimds, if in its tend- ency it is opposed to the public welfare, is under the ban of the law and its administration. The undoubted trend of modern business is for the combination, both of capital and of labor. Combinations of capital have become a necessity. The great business undertakings of these times could not be carried on without it. And most of the labor is now employed in SECT. Ill] EESTRAINT OF TRADE 91 large aggregations of men. There is as much right, and I think as much reason, for laborers to combine for their protection and benefit, as for capital to combine. This inevitable tendency to combine can neither be ignored or repressed, nor should it be. There is no law to compel a man or a body of men to work, and there is no law to prevent a man or a body of men from refusing to work. If there were such law, it would violate fundamental property rights. Any man, and any body of men, may work for, or refuse to work for, whom they will. And the same freedom belongs to the em- ployer of labor. These are fundamental principles, recognized in aU. the decisions that are authoritative. It is noticeable, that nowhere do the by-laws of this organization state, in terms, its aims and purposes. These are to be gathered from the several provisions, and the general trend of the by-laws, and from the averments of the petition, which, for the purposes of this demurrer, are admitted, so far as they are well pleaded. I think the leading general purpose of the association is, to protect and promote the interests of such window glass workers as may be members of the association, — a purpose that is not only lawful, but commendable, if the auxiliary purposes, and the methods to be em- ployed, are Ukewise lawfxil. First. It is one of the auxiliary purposes of this organization to pre- vent any one not a member thereof, or an apprentice authorized thereby, from working at the trade of window glass blower, gatherer, flattener or cutter. And I read from the by-laws that are made a part of the petition, Sec. 2, page 18, of the copy that has been furnished me: "No one not a member of the Amalgamated Window Glass Work- ers of America shall be allowed to work at any of the four trades, excepting our own apprentices." Of course, this poUcy, if enforced, would promote the individual advantage of the members of the association. But how as to the other side of the equation? If this policy is enforced, the right of industrial freedom is thereby limited and impaired, and the public is deprived of the right it has in the full and free enjoyment of industrial freedom by every member of the community. Second. This organization undertakes to limit the number of glass workers in this country. And I read from pages 8, 9, and 10, Sees. 3, 4, 5, 13, and 20: "Sec. 3. That aside from sons and brothers, not to exceed an ad- ditional 10 per cent of apprentices, per actual pot capacity in opera- tion, shall be granted to learn the trade of gathering, for blast of 1906-07. "Sec. 4. That not to exceed 10 per cent of the membership of flatteners shall be granted to learn to flatten, for blast of 1906-07. "Sec. 5. That not to exceed 10 per cent of the membership of the cutters shall be granted to learn to cut, for blast of 1906-07. 92 LEGALITY OF COMBINATION [CHAP. II " Sec. 13. Any member attempting to learn either of the f oiir trades, or making application, without the proper permission and papers, shall be fined $25. "Sec. 20. No apprentice certificate shall be granted to any one who is not a white male,, and has not attained the age of fifteen years, and must be of good moral character and able to read and write." Part of that section, I think, is right, and part of it I think is wrong. ... Now, the provisions that I have read, reach beyond the member- ship of this organization. They undertake to prohibit others outside of its own membership from learning the trade of glass worker. That is interfering with fundamental rights. It is against the public policy, because it is for the public good that aU men should be free to select, adopt and learn whatever trade they may desire, and then to pursue it. Now, interference with that is imlawful because it is against the public interest. Then this organization places restrictions upon the labor of its own members. And I read several sections on that point. Page 10, Sec. 25: "No member of Amalgamated Window Glass Workers of America shall be allowed to work at any nonunion works. For the violation of this law, they shall be subject to a fine at the discretion of the execu- tive board." Page 19, Sec. 7: "Any member signing an agreement of any kind to secure employ- ment, shall be fined $25 for first offense, $50 for second offense, and be suspended from membership for third offense." Page 21, Sec. 20: "No member of this association shall work for monthly wages, unless it be for guarantee to secure himself against loss or to retain himself in an undesirable position." I read a short extract from a case in 2 Law Reports, 622: "Every workman is entitled to dispose of his labor on his own terms; but that right is conditioned, by the right of every other work- man to do the like. In particular, each employe is, as I think, at lib- erty to decide for himself whether he will or wiU not work along with another individual in the same employ." Page 25, Sec. 18: "No blower or gatherer shall work faster than at the rate of nine rollers per hour, excepting in case of roller falling off or pipes breaking. No blower or gatherer shall be allowed to start on the ninth roller until fifty minutes are up ; this to also apply to the D. S. blower and gatherer according to their limit per hour, and that a fine of $10 be imposed on any and all preceptors for the nonenforcement of this law." Page27, Sec. 31: "No cutter shall be allowed to cut for more than 3| pots of S. S. and 3 pots of D. S." SECT. Ill] EESTBAINT OF TRADE 93 Page 32, Sec. 68: "Any blower or gatherer working more than forty hours per week, shall, for the first ofTense, be fined $50, and for the second offense be expelled from the organization." . . . On pages 29 and 30, Sees. 45 and 58, are other restrictions which have, by some courts been held to be lawful, but by the majority of decisions held to be illegal; I wiU not take time to read them. On page 30, Sec. 53, this organization places limitations upon its members as to working in factories where machinery is used : " That no member of this association will be allowed to assist or try to operate any iron man, machine or invention, for the purpose of making window glass, except it be under the protection of the execu- tive board or with the consent of the same. For violation of the above a member or members shall be fined, suspended or expelled from the association, as the executive board may decide." The use of machinery, when it multiplies the products of labor, is in the interest of labor, and is in the interest of the general welfare; any provision, any contractual obligation which stands athwart this principle stands athwart the policy that thef law enforces for the public welfare. I have heard it stated, — I do not know how true it is, — perhaps approximately right, — that the machine energy in use in the United States amounts to one hundred millions of horse power, doing the work of eight hundred millions of men, and that this machinery is operated by twenty millions of men. So that, by the use of machinery one man is enabled to do the work and make the production of forty men with- out machinery. This is in the interest of everybody, because it aug- ments the fund total, that is the product of labor. Then this organization undertakes to control the manufacturers. I read Sec. 9 on page 4 of the by-laws : "Every manufacturer engaging members of the Amalgamated Window Glass Workers of America, shall sign the agreement of the association before the member will be allowed to work." Page 27, Sec. 36: "Each manufacturer shall be compelled to employ a boss cutter; and said boss cutter to be a member of the Amalgamated Window Glass Workers of America, and he shall divide and distribute the orders among the cutters." Every manufacturer is compelled to employ a boss cutter who is to be subject to the direction of this association. And on page 28, Secs% 40 and 41 : "Any manufacturer introducing into his flattening house, blow furnace, tanks, or pots, new inventions, supposed improvements, shall, so long as said inventions or improvements continue to be an experi- ment, or until it shall have been demonstrated that it will not be a loss to the workmen whose work is, or may be, affected by said ma- chine or invention," etc. 94 LEGALITY OF COMBINATION [CHAP. II Section 41 : " All ten-pot furnaces shall be required to employ three flatteners, and no flattener shall flatten more than four pots, unless the president and executive board deem it absolutely necessary." Now, these provisions, if enforced, would impair the right of the employer to conduct his business according to his own notion of fit- ness. And it impairs the commercial freedom that belongs to the em- ployer just as industrial freedom belongs to the individual laborer. This is outside of the membership of this association, and beyond any legitimate purpose that it can have, to wit, the benefit of its member- ship. . . . The by-laws of this association contain a multitude of provisions, not referred to by me because it would take too long, that give the organization absolute control of every member as a glass worker, and places him in complete servility to it. Every member of this body has surrendered his individuality, and his industrial freedom, and is no longer a personal factor in the industrial world. This is violative of fundamental personal rights, and of public rights, and is therefore imlawful. This association undertakes to exclude all glass workers not mem- bers, and to limit manufacturers to employment of none but its members. This is deemed to constitute a monopoly. . . . I conclude, that the Amalgamated Window Glass Workers of /America, by its expressed purposes and its conceded methods, exerts an influence, and has a tendency, against the pubhc policy of the state, and is therefore an illegal organization. Finding that the Amalgamated Window Glass Workers of America is an unlawful organization, because its purposes and its methods tend against the public welfare, it is too plain to require comment, or the citation of authorities, that the plaintiffs are in pari delicto, and that they do not come into court with clean hands. Indeed, this was not seriously controverted in argument. Stating it in the ensemble, the attitude of the plaintiffs is about this: "We went into this- organization to co-operate in these unlawful purposes, by the use of these unlawful methods. We are getting the worst of it; and if we simply withdraw from the association, leaving it free to exert its power and enforce its tactics against us, we shall only make our situation worse. We therefore invoke the aid of the comt to puU down the structure that we have wrongfully helped to erect." Such attitude of plaintiffs does not commend them to the court; and if the scope of this case is limited to the granting of rehef to the plaintiffs, they must go out of court, and must be left to bear the ills which their own wrongs have helped to bring upon them. This doctrine is established in Kahn v. Walton, 46 Ohio St. 195, 207 [20 N. E. Rep. 203], which I will not now stop to read. SECT. Ill] RESTRAINT OF TRADE 95 But it is claimed that inasmuch as this action is not to enforce an illegal contract, but is in disaffirmance of an executory contract, the court should entertain the action, not for the benefit of the plaintiffs, but in the interest of the public. . . . I think the case made in this petition comes within that doctrine. It stands as an exception to the general rule that parties in pari de- licto cannot have relief in a court of justice. This contract is still executory; the whole thing is in fieri — the wrongs that may be com- mitted against public policy are still to be conxmitted; it is to be per- petuated; it is executory. And this action is not based upon any right of these plaintiffs as members of this association; it is not to perpetuate or to recognize or enforce this contract between the members of a society; it is in disaffirmance of a contract. It is to accomplish its destruction and thereby relieve the public, as well as these plaintiffs, from the consequences of a continuation of this society and the per- petuation of the wrongs against the public that its provisions would work. . . . For these reasons the d2murrer, in both branches, is overruled. January 24, 1908. This cause now coming on for trial, the plain- tiffs move for judgment on the petition. As the case now stands, the answer having gone out on demurrer, the petition stands without an- swer. There is no defense here, but perhaps there should be formal proof as to the material averments of the petition. There are two questions presented: First, what shall be the decree, so far as its effect upon the 5»ociety is concerned; and second, what shall be its effect, if any, upon the fund in the treasury of this society? It is claimed on behalf of the defendants that all that the court is interested in, and all that the court is authorized to do, looking now to the public interest, may be accomplished by eliminating the illegal features of this contractual relation, by injunction, and leaving the society intact. At the former hearing, certain provisions of the by-laws were pointed out as illegal, and as giving character to the whole contractual relation, — not aU that were held to be illegal or found to be illegal were adverted to at that time, and need not be now. Of course, there are provisions in the articles of amalgamation, and there are provi- sions in the by-laws, that are entirely legal. It is suggested that if these provisions be left standing, and only the noxious provisions be eliminated by enjoining the society from operating under them, or any of them, that will accomplish all that is now sought to be accom- plished by a decree. I do not think this can be done, and for several reasons. I think it would be in effect the making by the court of a new contract for the members of this organization. A contract expurgated in that way would not be the contract that they entered into. There would then stand only a fragmentary part of the contract that was agreed to. It 96 LEGALITY Or COMBINATION QCHAP. II would lack the consent of the members, which is an indispensable pre- requisite to a contract. No member of this organization has consented to enter into the contractual relations that would then exist; they could not be bound by it as their contract. The only jural relations these members have, is a contractual relation, arising from the terms and conditions contained in the documents to which they have con- sented. I think it would destroy the contract, and what would re- main, as I have said, would lack the indispensable contractual element of consent of the parties. The coiu't is never authorized to make a con- tract; the court may enforce a legal contract; the court may undo an illegal contract; and that is as far as it can go. Another objection to such form of decree would be, that there is no legal and vahd part of this contract. The contract was entered into as an entirety. All the documents, resolutions, etc., adopted and agreed to, enter into it and form the contract; on all of them rests the contractual relation among the members of this association. The iUegal features, the illegal provisions in this entire contract are so numerous, and they so permeate the whole contract that the entire contract is vitiated. It cannot be said that some of these things make a vahd contract. There never has been, and there is not now, any legal contract or part of a contract existing. There is no legal con- tractual relation here to be left undisturbed. There was no legal con- tract in the beginning; ergo, there was no contract in the beginning, and there is therefore no contract to leave in force. If any material part of this contract should be eliminated by injunction, then there is nothing left to which the members have consented^ there is nothing left that ever had in law any validity. You cannot inspire this con- tract with validity by elinoinating some parts of it. If such disposition of the case could be made, if I beheved it could be made, I would be glad to leave such portions of the contract as are not vulnerable, stand, and leave the organization intact, resting upon such parts of an at- tempted contract. I can see no ground upon which that can be done legally. It is not the illegal features of the contract that the law con- demns, it condemns the contract relation, because of its illegal fea- tiu-es. As I said, these illegal features permeate the whole contract, and give to it its illegal character. It is suggested (and I am reminded that on a former occasion I said) that labor organizations are to be fostered. I believe that not only are labor organizations legal, but I think it has come to be the poHcy of the law, and of the courts in the administration of the law, to foster and to promote labor organizations. I think they are indispensable. I think when they are legal they are promotive of pubhc good. They are not only a benefit to the membership of the organization, but in taking the broad view of the matter, I think they are really promotive of the pubhc welfare. I believe that it is the tendency of the law, and the tendency of its administration, to promote and foster such organ- izations. But a labor organization is promotive of the pubhc welfare, BBCT. IIT] EESTRAINT OF TRADE 97 and is to be protected and maintained in the administration of the law, only when it is a legal organization. If in its purposes and its methods it contravenes public policy, then of course it ought not to be promoted. I think that the view that has been suggested cannot be operative in this case, where it is found that the organization itself, in its funda- mental contractual basis, is against pubhc policy. And any decree that may be made in this case must not be mistaken as a decree aimed at labor organization; it can be aimed only at this organization, and because of the illegality that enters into its contractual basis. So I do not see how I can do otherwise than to dissolve this organ- ization. I would not make such decree if I did not feel compelled to do it. Taking the view of this case that I have taken, — and I have arrived at it after full argument and careful consideration, — I think it is the only decree that can be made. Nothing short of this will main- tain the law; nothing short of this will promote public policy in this instance. Then, subject to the hearing of proof, and if the proof shall sup- port the material allegations of the petition, the decree will be that this organization is dissolved. ' . . . Upon the hearing of evidence, the organization was dissolved, and a receiver appointed.^ Woodson, J., in STATE v. STANDARD OIL CO. 218 Mo. 1, 370-372 (1909) While it is true those statutes are limited in their scope and opera- tion to persons and corporations dealing in commodities, and do not include combinations of persons engaged in labor pxirsuits, yet it must be borne in mind that the differentiation between labor and property is so great that they do not belong to the same general or natural classification of rights, or things, and have never been so recognized by the common law, or by legislative enactments. They stand upon ' The remainder of the opinion dealing with the disposition of the money held by the organization is omitted. The Court held that this fund should be dis- tributed to the persons who paid it in "in some equitable proportion; probably in the ratio in which they contributed to it." — Ed. ' "Upon the question of the legaUty of trade unions per se there is general agreement among the courts. . . . The unions affiliated with the American Federation of Labor, however, have always been regarded as lawful organizations, except in two decisions, neither of which was rendered by a court of final juris- diction (Kealey v. Faulkner, 18 Ohio Sup. & Common Pleas Decisions, 498; Hitchman Coal & Coke Co. v. Mitchell, 202 Fed. 512 (1912)). The theory, en- tertained in England before 1871 that trade unions have no standing in court because they are illegal combinations in restraint of trade, never gained a foot- hold in the United States." — Commons and Andrews, Principles of Labor Legislation (1920 ed.), pp. 102, 103. Compare, however, Froehch v. Musicians, 93 Mo. App. 383, 391. 98 LEGALITY OF COMBINATION [CHAP. II entirely different footings, and the laws pertaining to the one are en- tirely different from those pertaining to the other. Labor has always been considered in the nature of an attribute to man, and partakes more or less of his individuality, and personal liberty, and is inseparable from his person. Labor and labor organiza- tions are controlled and protected by laws enacted to operate largely upon the individuals personally, and not so much as upon the products of their labor, called commodities; while, upon the other hand, com- modities are nothing but property, and have no personal connection with the owner whatever. Legislation affecting property and property rights will in no man- ner interfere with the personnel of the owner. But that is not true of laws regarding labor, for the reason that the moment you enact laws affecting labor, that moment and by that law you affect the personnel of the laborer. . . . This classification of the laws regarding labor a,nd property has al- ways been recognized, by all nations, in all ages; and those laws which apply to the one have never been considered or looked upon as being special and class-legislation, because they do not embrace both. . . . In the very nature of things a law could not be enacted which would be equally applicable to persons and things without interfering with the personnel and liberty of the laborer. The Legislature in enacting these anti-trust laws well knew of this natural classification of commodities and labor, and enacted laws only embracing the former, which in no manner deprives their owners of any of their legal or personal rights, while if they had also embraced labor combinations, they would have entrenched upon the personal rights of the labor. Viscount Haldane, L. C, in NORTH WESTERN SALT CO. Ltd. v. ELECTROLYTIC ALKALI CO. Ltd. [1914] A. C. 461, 469 (1914) Unquestionably the combination in question was one the purpose of which was to regulate supply and keep up prices. But an ill-regu- lated supply and unremunerative prices may, in point of fact, be dis- advantageous to the public. Such a state of things may, if it is not controlled, drive manufacturers out of business, or lower wages, and so cause unemployment and labour disturbance. It must always be a question of circumstances whether a combination of manufacturers in a particular trade is an evil from a public point of view. The same thing is true of a supposed monopoly. In the present case there was no atteihpt to establish a real monopoly, for there might have been great competition from abroad or from other parts of these islands than the part which was the field of the agreement. ^ 1 In the same case, Lord Parker of Waddington (p. 479) said: "The competi- tion between salt producers within the area covered by the agreement of September SECT. IVJ PERMANENT LABOR COMBINATIONS 99 Section 4. Legality of Permanent Labor Combinations in the United States CASE OF THE PHILADELPHIA CORDWAINERS Mayor's Court, Philadelphia, Pi. 1806 Commons & Gil-more, Doc. Hist, Vol. Ill, pp. 59-248 ' Indictment for conspiracy to raise wages. The defendants, journeymen cordwainers of the city of Phila- delphia, "contriving, and intending unjustly and oppressively, to in- crease and augment the prices and rates usually paid and allowed to them and other artificers" for their work and labor, were indicted for combining, conspiring, confederating and imlawfuUy agreeing to- gether not to work and labor for wages below a certain set schedule, fixed above the ordinary rates customarily paid. The indictment further charged that the defendants conspired and confederated "to prevent by threats, menaces, and other unlawful means," other artif- icers from working in the art and occupation of a cordwainer, for wages below the fixed schedule of rates; and that the defendants "un- lawfully, perniciously, and deceitfully designing and intending to form and unite themselves into a club and combination," assembling together for that purpose did "unjustly and corruptly conspire, com- bine, confederate, and agree" that none of them should after a certain date work for any master or person who should employ any cordwainer infringing or breaking any of their rules, orders, or by-laws, "and that they would by threats and menaces and other injuries, prevent any other workmen and journeymen from working for such master"; and that in pursuance of the aforementioned conspiracy the defendants have refused to work at the usual rates and prices given to artificers, workmen, and journeymen in the art and occupation of a cordwainer.^ Mb. Levy. ... If this enquiry had been confined to its proper ob- ject and its merits, it need not have been extended to the length to which it has been drawn out, but many circumstances foreign to the case have been brought into view. An attempt has been made to shew that the spirit of the revolution and the principle of the com- 11, 1906, either inter se or with salt producers outside this area may have been BO drastic that some combination limiting output and regulating competition within the area so as to secure reasonable prices may have been necessary, not only in the interests of the salt producers themselves, but in the interest of the public generally, for it cannot be to the public advantage that the trade of a large area should be ruined by a cut-throat competition." Compare Harwood v. Millar's Timber & Trading Co., [1917] 1 K. B. 305, 317. See Kales, Restraint of Trade, § 72. • A Documentary History of American Industrial Society, edited by Com- mons, Phillips, Gilmore, Sumner, and Andrews. Vols. 3 and 4 on Labor Con- spiracy Cases, edited by John R. Commons and Eugene A. Gilmore (The Arthur H. Clark Co., Cleveland, Ohio). * This short statement is substituted for the formal indictment. — Ed. 100 LEGALITY OF COMBINATION [CHAP. II mon law, are opposite in this case. That the common law, if applied in this case, would operate an attack upon the rights of man. The en- quiry on that point was unnecessary and improper. . . . It is proper to consider, is such a combination consistent with the principles of our law, and injurious to the pubhc welfare? The usual means by which the prices of work are regulated, are the demand for the article and the excellence of its fabric. Where the work is well done, and the demand is considerable, the prices will necessarily be high. Where the work is ill done, and the demand is inconsiderable, they will unquestionably be low. If there are many to consume, and few to work, the price of the article will be high: but if there are few to consume, and many to work, the article must be low. Much will de- pend too, upon these circtimstances, whether the materials are plenty , or scarce; the price of the commodity, will in consequence be higher or lower. These are the means by which prices are regulated in the nat- ural course of things. To make an artificial regulation, is not to regard the excellence of the work or quality of the material, but to fix a posi- tive and arbitrary price, governed by no standard, controuled by no impartial person, but dependant on the will of the few who are in- terested; this is the unnatural way of raising the price of goods or work. This is independent of the number of customers, or of the quality of the material, or of the number who are to do the work. It is an unnatm-al, artificial means of raising the price of work beyond its standard, and taking an undue advantage of the public. Is the rule of law bottomed upon such principles, as to permit or protect such con- duct? Consider it on the footing of the general commerce of the city. Is there any man who can calculate (if this is tolerated) at what price he may safely contract to deliver articles, for which he may receive orders, if he is to be regtilated by the journeymen in an arbitrary jump from one price to another? . . . What then is the operation of this kind of conduct upon the commerce of the city? It exposes it to in- conveniences, if not to ruin; therefore, it is against the public wel- fare. . . . Such a practice would take away all the excitement to excel in workmanship or industry. Consider the effect it would have upon the whole commimity. If the masters say they will not sell under certain prices, as the journeymen declare they will not work at certain wages, they, if persisted in, would put the whole body of the people into their power. Shoes and boots are articles of the first neces- sity. If they could stand out three or four weeks in winter, they might raise the price of boots to thirty, forty, or fifty dollars a pair, at least for some time, and until a competent supply could be got from other places. In every point of view, this measure is pregnant with public mischief and private injury . . . tends to demoraUze the workmen . . . destroy the trade of the city, and leaves the pockets of the whole community to the discretion of the concerned. If these evils were un- provided for by the law now existing, it would be necessary that laws should be made to restrain them. SECT. IV] PERMANENT LABOR COMBINATIONS 101 What has been the conduct of the defendants in this instance? They belong to an association, the object of which is, that every per- son who follows the trade of a journeyman shoemaker, must be a mem- ber of their body. The apprentice immediately upon becoming free, and the journeyman who comes here frpm distant places, are all con- sidered members of this institution. If they do not join the body, a term of reproach is fixed upon them. The members of the body will not work with them, and they refuse to board or lodge with them. The consequence is, that every one is compelled to join the society. It is in evidence, that the defendants in this action all took a part in the last attempt to raise their wages; . . . Keimer was their secre- tary, and the others were employed in giving notice, and were of the tramping conmiittee. If the purpose of the association is well under- stood, it will be found they leave no individual at liberty to join the society or reject it. They compel him to become a member. Is there any reason to suppose that the laws are not competent to redress an evil of this magnitude? . . . It is in the volimies of the common law we are to seek for informa- tion in the far greater number, as well as the most important causes that come before our tribunals. ... Its rules are the result of the wisdom of ages. It says there may be cases in which what one man may do with offence, many combined may not do with impunity. It distinguishes between the object so ainied at in different transactions. If the purpose to be obtained, be an object of individual interest, it may be fairly attempted by an individual. . . . Many are pro- hibited from combining for the attainment of it. What is the case now before us? ... A combination of workmen to raise their wages maybe considered in a two fold point of view: one is to benefit themselves . . . the other is to injure those who do not join their society. The rule of law condemns both. If the rule be clear, we are bound to conform to it even though we do not compre- hend the principle upon which it is founded. We are not to reject it because we do not see the reason of it. It is enough, that it is the will of the majority. It is law because it is their will — if it is law, there may be good reasons for it though we cannot find them out. But the rule in this case is pregnant with sound sense and all the authorities are clear upon the subject. Hawkins, the greatest authority on the criminal law, has laid it down, that a combination to maintaining one another, carrying a particular object, whether true or false, is criminal . . . the authority cited from 8 Mod. Rep. does not rest merely upon the reputation of that book. He gives you other authorities to which he refers. It is adopted by Blackstone, and laid down as the law by Lord Mansfield 1793, that an act innocent in an individual, is ren- dered criminal by a confederacy to effect it. . . . It is now, therefore, left to you upon the law, and the evidence, to find the verdict. If you can reconcile it to your consciences, to find the defendants not guilty, you will do so; if not, the alternative that remains, is a verdict of guilty. ... 102 LEGALITY OF COMBINATION [CHAP. II Vebdict. We find the defendants guilty of a combination to raise their wages. . . . And the court fined the defendants eight dollars each with costs of suit, and to stand committed till paid. PEOPLE V. MELVIN CotTET OF General Sessions, New York City. 1810 2 Wheeler C. C. {N. Y.) 262 The defendants were indicted for a conspiracy. The [first count of the] indictment stated that the defendants being workmen and jour- neymen in the art, mystery, and manual occupation of cordwainers, on the 18th October, 1809, etc., unlawfully, perniciously, and deceitfully designing and intending to form and unite themselves into an unlawful club and combination, and to make and ordain unlawful by-laws, rules, and orders among themselves, and thereby to govern them- selves and other workmen in the said art, and unlawfully and unjustly to extort great sums of money by means thereof, on the day and year aforesaid, with force and arms, at, etc., together with divers other workmen and journeymen in the same art, etc. (whose names to the jury are yet unknown), did unlawfully assemble and meet together, and being so, etc., did then and there, unjustly and corruptly con- spire, combine, confederate, and agree together, that none of them, the said conspirators, after the said 18th October, would work for any master or person whatsoever, in the said art, mystery, and occupation, who should employ any workman or journeyman, or other person in the said art, not being a member of the said club or combination, after notice given, etc., to discharge such workman, etc., from the employ of such master, etc., to the great damage and oppression not only of their said masters, employing them in said art, etc., but also of divers other workmen and journeymen in the said art, mystery, and occupa- tion, to the evil example, etc., and against the peace, etc. [Other similar counts followed.] . . . The charge of the court was then delivered by His Honour The Mayor, to the following effect. He observed there were two points of view in which the offence of a conspiracy might be considered; the one where there existed a com- bination to do an act, unlawful in itself, to the prejudice of other per- sons; the other where the act done, or the object of it, was not unlaw- ful, but unlawful means were used to accomplish it. As to the first, there could be no doubt that a combination to do an unlawful act was a conspiracy. The second depended on the common principle that the goodness of the end would not justify improper means to obtain it. If, therefore, in the present case, the defendants had confederated either to do an unlawful act, to the injury of others, or to make use of unlawful means to obtain their ends, they would be liable to the SECT, ir] PERMANENT LABOR COMBINATIONS 103 charge of a conspiracy. He observed, that the court did not mean to say, nor did the facts in the case require them to decide, whether an agreement not to work, except for certain wages, would amount to this offence, without any unlawful means taken to enforce it. Much has been said as to the application of the common law of England to the case. The absurdities of the ancient common law, and also of the statute law of England, had been exhibited in the strongest light. It was well known, that many of the ancient rules of the com- mon law on this and other subjects had been exploded or become obsolete, and that httle of the mass of absurdities complained of by the defendants' counsel, remained in force even in England. In this state the court could not be at a loss in deciding how far the common law of England was applicable. . . . No alteration having been made by our constitution or laws, the common law of England, as it existed at the period last mentioned, must be deemed to be applicable, and by that law the principles already stated appeared to be well established. No precedents, it was true, of convictions or judgments upon them had been produced from our own courts, but no strong inference could be drawn from that, as until lately such precedents had not been preserved, and no printed reports of adjudged cases had been pub- lished. The injury produced by imlawful combinations might affect any person or number of persons, as in the present case the master work- men, or the feUow journeyTnen of the defendants, or any other in- dividuals. It appeared in evidence, that the society of journeymen, of which the defendants were members, had established a constitution, or certain rules for its government, to which the defendants had as- sented, and which they had endeavoured to enforce. These rules were made to operate on all the members of the society, on others of their trade who were not members, and through them on the master work- men, and all were coerced to submit, or else the members of the soci- ety, which comprehend the best workmen in the city, were to stop the work of their employers. One of the regulations even required that every person of their trade, whom they thought worthy of notice, shoidd become a member of the society, and of course become subject to its rules, and in case of neglect or refusal, it imposed fines on the person guilty of disobedience. When the society determined on any measure, it found no difficulty in carrying it into execution. If its ordinary functions failed, it enforced obedience by decreeing what was called a strike against a particular shop that had transgressed, or a general turn out against all the shops in the city, terms which had been explained by the witnesses, and were sufficiently understood. These steps were generally decisive, and compelled submission in all con- cerned. Whatever might be the motives of the defendants, or their object, the means thus employed were arbitrary and unlawful, and their hav- ing been directed against several individuals in the present case, it was 104 LEGALITY OF COMBINATION [CHAP. II brought, in the opinion of the court, within one of the descriptions of the offence which has been given. The jury retired, and shortly after returned a verdict against the defendants. The sentence was then passed by His Honour The Mayor, who ob- served to the defendants, that the novelty of the case, and the general conduct of their body composed of members useful in the community, inchned the coiu-t to believe that they had erred from a mistake of the law, and from supposing that they had rights upon which to found their proceedings. That they had equal rights with all other members of the community was undoubted, and they had also the right to meet and regulate their concerns, and to ask for wages, and to work or re- fuse; but that the means they used were of a nature too arbitrary and coercive, and which went to deprive their fellow citizens of rights as precious as any they contended for. That the present object of the court was rather to admonish than to punish; but an adjudication upon the subject being now solemnly had, it was recommended to them so to alter and modify their rules and their conduct, as not to incur in future the penalties of the law. — They were fined each one dollar, with the costs.' COMMONWEALTH v. HUNT SuPEEME Judicial Couht of Massachusetts. 1842 4 MetcalJ, 111 Shaw, C. J. . . . The counsel for the defendants contended, and requested the court to instruct the jury, that the indictment did not set forth any agreement to do a criminal act, or to do any lawful act by any specified criminal means, and that the agreements therein set forth did not constitute a conspiracy indictable by any law of this Commonwealth. But the judge refused so to do, and instructed the jury, that the indictment did, in his opinion, describe a confederacy among the defendants to do an unlawful act, and to effect the same by unlawful means; that the society, organized and associated for the purposes described in the indictment, was an unlawful conspiracy, against the laws of this Commonwealth; and that if the jury believed, from the evidence in the case, that the defendants, or any of them, had engaged in such a confederacy, they were bound to find such of them guilty. We are here carefully to distinguish between the confederacy set forth in the indictment, and the confederacy or association contained in the constitution of the Boston Journeymen Bootmakers' Society, ' For a more complete account of this very interesting case, see Yates Select (N. Y.) Cases, 112-278; also Commons & Gilmore, Documentary Hist, of Am. Industr. Soc. vol. 3, pp. 251-385; also, American State Trials, vol. 13, pp. 576- 701 SECT. IV] PERMANENT LABOR COMBINATIONS 105 as stated in the little printed book, which was admitted as evidence on the trial. Because, though it was thus admitted as evidence, it would not warrant a conviction for any thing not stated in the indictment. It was proof, as far as it went to support the averments in the indict- "Inent. If it contained any criminal matter not set forth in the indict- ment, it is of no avail. The question then presents itself in the same form as on a motion in arrest of judgment. The first count set forth, that the defendants, with divers others un- known, on the day and at the place named, being workmen, and jour- neymen, in the art and occupation of bootmakers, unlawfully, perni- ciously and deceitfully designing and intending to continue, keep up, form, and unite themselves, into an imlawful club, society and com- bination, and make unlawful by-laws, rules and orders among them- selves, and thereby govern themselves and other workmen, in the said art, and unlawfully and unjustly to extort great sums of money by means thereof, did vmlawfully assemble and meet together, and being so assembled, did unjustly and corruptly conspire, combine, con- federate and agree together, that none of them should thereafter, and that none of them would, work for any master or person whatsoever, in the said art, mystery and occupation, who should employ any workman or journeyman, or other person, in the said art, who was not a member of said club, society or combination, after notice given him to discharge such workman, from the employ of such master; to the great damage and oppression, etc. Now it is to be considered, that the preamble and introductory mat- ter in the indictment — such as imlawf ully and deceitfully designing and intending unjustly to extort great siims, etc. — is mere recital, iind not traversable, and therefore cannot aid an imperfect averment ■of the facts constituting the description of the offence. The same may lae said of the concluding matter, which follows the averment, as to the great damage and oppression not only of their said masters, employ- ing them in said art and occupation, but also of divers other workmen in the same art, mystery and occupation, to the evil example, etc. If the facts averred constitute the crime, these are properly stated as the legal inferences to be drawn from them. If they do not constitute the charge of such an offence, they cannot be aided by these alleged consequences. Stripped then of these introductory recitals and alleged injurious ' consequences, and of the qualifying epithets attached to the facts, the \ averment is this; that the defendants and others formed themselves j into a society, and agreed not to work for any person, who should em- ploy any journeyman or other person, not a member of such society, after notice given him to discharge such workman. The manifest intent of the association is, to induce all those en- gaged in the same occupation to"become members of it. Such a pur- pose is not tmlawful. It would give them a power which might be exerted for useful and honorable purposes, or for dangerous and 106 LEGALITY OF COMBINATION [CHAP. 11 pernicious ones. If the latter were the real and actual object, and susceptible of proof, it should have been specially charged. Such an association might be used to afford each other assistance in times of poverty, sickness and distress; or to raise their intellectual, moral and social condition; or to make improvement in their art; or for other proper purposes. Or the association might be designed for purposes of oppression and injustice. But in order to charge all those, who be- come members of an association, with the guilt of a criminal conspir- acy, it must be averred and proved that the actual, if not the avowed object of the association, was criminal. An association may be formed, the declared objects of which are innocent and laudable, and yet they may have secret articles, or an agreement communicated only to the members, by which they are banded together for ptirposes injurious to the peace of society or the rights of its members. Such would un- doubtedly be a criminal conspiracy, on proof of the fact, however meritorious and praiseworthy the declared objects might be. The law is not to be hoodwinked by colorable pretences. It looks at truth and reality, through whatever disguise it may assume. But to make such an association, ostensibly innocent, the subject of prosecution as a criminal conspiracy, the secret agreement, which makes it so, is to be averred and proved as the gist of the offence. But when an association is formed for purposes actually innocent, and afterwards its powers are abused, by those who have the control and management of it, to purposes of oppression and injustice, it will be criminal in those who thus misuse it, or give consent thereto, but not in the other members of the association. In this case, no such secret agreement, varying the objects of the association from those avowed, is set forth in this count of the indictment. Nor can we perceive that the objects of this association, whatever they may have been, were to be attained by criminal means. The means which they proposed to employ, as averred in this count, and which, as we are now to presmne, were established by the proof, were, that they would not work for a person, who, after due notice, should employ a joiu'neyman not a member of then: society. Supposing the object of the association to be laudable and lawful, or at least not un- lawful, are these means criminal? The case supposes that these per- sons are not bound by contract, but free to work for whom they please, or not to work, if they so prefer. In this state of things, we cannot perceive, that it is criminal for men to agree together to exercise their own acknowledged rights, in such a manner as best to subserve their own interests. One way to test this is, to consider the effect of such an agreement, where the object of the association is acknowledged on all hands to be a laudable one. Suppose a class of workmen, impressed with the manifold evils of intemperance, should agree with each other not to work in a shop in which ardent spirit was furnished, or not to work in a shop with any one who used it, or not to work for an em- ployer, who should, after notice, employ a journeyman who habitually SECT. IV] PEKMANENT LABOE COMBINATIONS 107 used it. The consequences might be the same. A workman, who should still persist in the use of ardent spirit, would find it more diffi- cult to get employment; a master employing such an one might, at times, experience inconvenience in his work, in losing the services of a skilful but intemperate workman. Still it seems to us, that as the object would be lawful, and the means not unlawful, such an agree- ment could not be pronounced a criminal conspiracy. From this count in the indictment, we do not understand that the agreement was, that the defendants would refuse to work for an em- ployer, to whom they were bound by contract for a certain time, in violation of that contract; nor that they would insist that an employer should discharge a workman engaged by contract for a certain time, in violation of such contract. It is perfectly consistent with every thing stated in this count, that the effect of the agreement was, that when they were free to act, they would not engage with an employer, or con- tinue in his employment, if such employer, when free to act, should engage with a workman, or continue a workman in his employment, not a member of the association. If a large number of men, engaged for a certain time, should combine together to violate their contract, and quit their employment together, it would present a very different question. Suppose a farmer, employing a large nimiber of men, en- gaged for the year, at fair monthly wages, and suppose that just at the moment that his crops were ready to harvest, they should all combine to quit his service, unless he would advance their wages, at a time when other laborers could not be obtained. It would surely be a con- spiracy to do an unlawful act, though of such a character, that if done by an individual, it would lay the foundation of a civil action only, and not of a criminal prosecution. It would be a case very different from that stated in this coimt. The second count, omitting the recital of imlawful intent and evil disposition, and omitting the direct averment of an unlawful club or society, alleges that the defendants, with others unknown, did as- semble, 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-lawsj unless such workmen 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 Isaac B. Wait, a master cordwainer, to turn out of his employ one Jeremiah Home, a journeyman bootmaker, etc., in evil example, etc. So far as the averment of a conspiracy is concerned, all the remarks made in reference to the first covmt are equally applicable to this. It is simply an averment of an agreement amongst themselves not to work for a person, who should employ 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 108 LEGALITY OF COMBINATION [CHAP. It accomplishment of any purpose. It was an agreement, as tp the man- ner in which they would exercise an acknowledged right to contract with others for their labor. It does not aver a conspiracy or even an intention to raise their wages; and it appears by the bill of exceptions, that the case was not put upon the footing of a conspiracy to raise their wages. Such an agreement, as set forth in this count, would be perfectly justifiable under the recent English statute, by which this subject is regulated. St. 6 Geo. IV, c. 129. See Roscoe, Crim. Ev. (2d Amer. ed.) 368, 369. As to the latter part of this count, which avers that by means of said conspiracy, the defendants did compel one Wait to turn out of his employ one Jeremiah Home, we remark, in the first place, that as the acts done in pursuance of a conspiracy, as we have before seen, are stated by way of aggravation, and not as a Bubstantive charge; if no criminal or unlawful conspiracy is stated, it cannot be aided and made good by mere matter of aggravation. If the principal charge falls, the aggravation falls with it. State v. Rickey, 4 Halst. 293. But further; if this is to be considered as a substantive charge, it would depend altogether upon the force of the word " compel," which may be used in the sense of coercion, or duress, by force or fraud. It would therefore depend upon the context and the connexion with other words, to determine the sense in which it was used in the indict* ment. If, for instance, the indictment had averred a conspiracy, by the defendants, to compel Wait to turn Home out of his employment, and to accomplish that object by the use of force or fraud, it would have been a very different case; especially if it might be fairly con- strued, as perhaps in that case it might have been, that Wait was un- der obligation, by contract, for an unexpired term of time, to employ and pay Home. As before remarked, it would have been a conspiracy to do an unlawful, though not a criminal act, to induce Wait to violate his engagement, to the actual injury of Home. To mark the difference between the case of a journeyman or a servant and master, mutually bound by contract, and the same parties when free to engage anew, I should have before cited the case of the Boston Glass Co. v. Binney, 4 Pick. 425. In that case, it was held actionable to entice another per- son's hired servant to quit his employment, dm-ing the time for which he was engaged; but not actionable to treat with such hired servant, whilst actually hired and employed by another, to leave his service, and engage in the employment of the person making the proposal, when the term for which he is engaged shall expire. It acknowledges the estabUshed principle, that every free man, whether skilled laborer, mechanic, farmer or domestic servant, may work or not work, or work or refuse to work with any company or individual, at his own option, except so far as he is bound by contract. But whatever might be the force of the word "compel," unexplained by its connexion, it is dis- armed and rendered harmless by the precise statement of the means, by which such compulsion was to be effected. It was the agreement SECT. IV] PERMANENT LABOR COMBINATIONS 109 not to work for him, by which they compelled Wait to decline employ- ing Home longer. On both of these grounds, we are of opinion that the statement made in this second count, that the unlawful agreement was carried into execution, makes no essential difference between this and the first coxmt. The third count, reciting a wicked and unlawful intent to impov- erish one Jeremiah Home, and hinder him from following his trade as a bootmaker, charges the defendants, with others unknown, with an unlawful conspiracy, by wrongful and indirect means, to impoverish said Home and to deprive and hinder him, from his said art and trade and getting his support thereby, and that, in pursuance of said un- lawful combination, they did unlawfully and indirectly hinder and prevent, etc., and greatly impoverish him. If the fact of depriving Jeremiah Home of the profits of his business, by whatever means it might be done, would be unlawful and criminal, a combination to compass that object would be an unlawful conspir- acy, and it would be imnecessary to state the means. Such seems to have been the view of the court in The King v. Eccles, 3 Doug. 337, though the case is so briefly reported, that the reasons, on which it rests, are not very obvious. The case seems to have gone on the ground, that the means were matter of evidence, and not of averment; and that after verdict, it was to be presumed, that the means con- templated and used were such as to render the combination unlawful and constitute a conspiracy. Suppose a baker in a small village had the exclusive custom of his neighborhood, and was making large profits by the sale of his bread. Supposing a number of those neighbors, believing the price of his bread too high, should propose to him to reduce his prices, or if he did not, that they would introduce another baker; and on his refusal, such other baker should, under their encouragement, set up a rival estab- lishment, and sell his bread at lower prices; the effect would be to diminish the profit of the former baker, and to the same extent to im- poverish him. And it might be said and proved, that the purpose of the associates was to diminish his profits, and thus impoverish him, though the ultimate and laudable object of the combination was to reduce the cost of bread to themselves and their neighbors. The same thing may be said of all competition in every branch of trade and in- dustry; and yet it is through that competition, that the best interests of trade and industry are promoted. It is scarcely necessary to allude to the famihar instances of opposition lines of conveyance, rival hotels, and the thousand other instances, where each strives to gain custom to himself, by ingenious improvements, by increased industry, and by all the means by which he may lessen the price of commodities, and thereby diminish the profits of others. We think, therefore, 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 110 LEGALITY OF COMBINATION [CHAP. II 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 accomplish- ment. If it is to be carried into effect by fair or honorable and lawful means, it is, to say the least, innocent; if by falsehood or force, it may be stamped with the character of conspiracy. It follows as a necessary consequence, that if criminal and indictable, it is so by reason of the criminal means intended to be employed for its accomplishment; and as a further legal consequence, that as the criminality will depend on the means, those means must be stated in the indictment. If the same rule were to prevail in criminal, which holds in civil proceedings — that a case defectively stated may be aided by a verdict — -then a court might presume, after verdict, that the indictment was supported by proof of criminal or imlawful means to effect the object. But it is an established rule in criminal cases, that the indictment must state a complete indictable offence, and cannot be aided by the proof offered at the trial. The fourth count avers a conspiracy to impoverish Jeremiah Home, without stating any means; and the fifth alleges a conspiracy to im- poverish employers, by preventing and hindering them from employ- ing persons, not members of the Bootmakers' Society; and these re- quire no remarks, which have not been already made in reference to the other counts. . . . It appears by the bill of exceptions, that it was contended on the part of the defendants, that this indictment did not set forth any agreement to do a criminal act, or to do any lawful act by criminal means, and that the agreement therein set forth did not constitute a conspiracy indictable by the law of this State, and that the court was requested so to instruct the jury. This the court dechned doing, but instructed the jury that the indictment did describe a confederacy among the defendants to do an unlawful act, and to effect the same by unlawful means — that the society, organized and associated for the purposes described in the indictment, was an unlawful conspiracy against the laws of this State, and that if the jury believed, from the evidence, that the defendants or any of them had engaged in such con- federacy, they were bound to find such of them guilty. In this opinion of the learned judge, this court, for the reasons stated, cannot concur. Whatever illegal purpose can be found in the constitution of the Bootmakers' Society, it not being clearly set forth in the indictment, cannot be rehed upon to support this conviction. So if any facts were disclosed at the trial, which, if properly averred, would have given a different character to the indictment, they do not appear in the bill of exceptions, nor could they, after verdict, aid the indictment. But looking solely at the indictment, disregarding the qualifying epithets, recitals and immaterial allegations, and confining oiu-selves to facts so averred as to be capable of being traversed and put in issue, we cannot perceive that it charges a criminal conspiracy SECT. IV] PERMANENT LABOR COMBINATIONS HI punishable by law. The exceptions must, therefore, be sustained, and the judgment arrested. Several other exceptions were taken and have been argued; but this decision on the main question has rendered it unnecessary to consider them.i 1 For other early American cases, see Commonwealth v. Carlisle, Brightly N. P. (Pa.), 36; People v. Trequier, 1 Wheeler Cr. Cas. (N. Y.), 142; People v. Fisher, 14 Wendell (N. Y.), 9. See also interesting cases collected in Commons & Gilmore, Documentary History, vols. 3 and 4. — Ed. CHAPTER III FEDERAL JURISDICTION OVER LABOR DISPUTES. INTERFERENCE WITH INTERSTATE COMMERCE OR WITH UNITED STATES MAILS SHERMAN ANTI-TRUST ACT Act of July S, 1890, c. 647, Sections 1, 2, 7 ' Sec. 1. Every contract, combination in the form of trust or other- wise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceedihg five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 2. Every person who shall monopoUze, or attempt to monop- olize, or combine or conspire with any other person or persons, to monopohze any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a mis- demeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 7. Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee. UNITED STATES v. E. C. KNIGHT COMPANY Supreme Court of the United States. 1895 156 U. S. 1 . . . The material facts proved are that the American Sugar Refining Co., one of the defendants, is incorporated under the laws of New Jersey, and has authority to purchase, refine, and sell sugar; that the Frankhn Sugar Refinery, the E. C. Knight Co., the Spreckels Sugar Refinery, and the Delaware Sugar House, were incorporated under the ' U. S. Comp. Stats., sees. 8820, 8821, 8829. CHAP. Ill] FEDERAL JURISDICTION 113 laws of Pennsylvania, and authorized to purchase, refine, and sell sugar; that the four latter Pennsylvania companies were located in Philadelphia, and prior to March, 1892, produced about 33 per cent of the total amount of sugar refined in the United States, and were in active competition with the American Sugar Refining Co., and with each other, seUing their product wherever demand was found for it throughout the United States; that prior to March, 1892, the Ameri- can Sugar Refining Co. had obtained control of all refineries in the United States, excepting the four located in Philadelphia, and that of the Revere Co. in Boston, the latter producing about 2 per cent of the amount refined in this country; that in March, 1892, the American Sugar Refining Co. entered into contracts (on different dates) with the stockholders of each of the Philadelphia corporations named, whereby it purchased their stock, paying therefor by transfers of stock in its company; that the American Sugar Refining Co. thus obtained pos- session of the Philadelphia refineries and their business; that each of the pvirchases was made subject to the American Sugar Refining Co. obtaining authority to increase its stock $25,000,000; that this assent was subsequently obtained and the increase made; that there was no understanding or concert of action between the stockholders of the several Philadelphia companies respecting the sales, but that those of each company acted independently of those of the others, and in ignorance of what was being done by such others; that the stock- holders of each company acted in concert with each other, under- standing and intending that all the stock and property of the company should be sold; that the contract of sale in each instance left the sell- ers free to establish other refineries and continue the business if they should see fit to do so, and contained no provision respecting trade or commerce in sugar, and that no arrangement or provision on this sub- ject has been made since; that since the purchase the Delaware Sugar House Refinery has been operated in conjunction with the Spreckels Refinery, and the E. C. Knight Refinery in connection with the Franklin, this combination being made apparently for reasons of economy in conducting the business; that the amount of sugar refined in Philadelphia has been increased since the purchases; that the price has been slightly advanced since that event, but is still lower than it had been for some years before, and up to within a few months of the sales; that about 10 per cent of the sugar refined and sold in the United States is refined in other refineries than those controlled by the American Sugar Refining Co. ; that some additional sugar is produced in Louisiana and some is brought from Europe, but the amount is not large in either instance. The object in purchasing the Philadelphia refineries was to obtain a greater influence or more perfect control over the business of refining and seUing sugar in this country.^ ' The facts are given as summarized by Judge Butler in his opinion in the Circuit Court. — Ed. 114 FEDERAL JURISDICTION [CHAP. Ill The Circuit Court held that the facts did not show a contract, com- bination, or conspiracy to restrain or monopolize trade or commerce "among the several States or with foreign nations," and dismissed the bill. 60 Fed. Rep. 306. The cause was taken to the Circuit Court of Appeals for the Third Circuit, and the decree afl&rmed. 60 Fed. Rep. 934. This appeal was then prosecuted. . . . Me. Chief Justice Fuller, after stating the case, delivered the opinion of the court. By the purchase of the stock of the four Philadelphia refineries, with shares of its own stock, the American Sugar Refining Co. ac- quired nearly complete control of the manufacture of refined sugar within the United States. The bill charged that the contracts under which these purchases were made constituted combinations in re- straint of trade, and that in entering into them the defendants com- bined and conspired to restrain the trade and conmierce in refined sugar among the several States and with foreign nations, contrary to the act of Congress of July 2, 1890. The relief sought was the cancellation of the agreements under which the stock was transferred; the redelivery of the stock to the parties respectively; and an injunction against the further perform- ance of the agreements and further violations of the act. . . . The fundamental question is, whether conceding that the existence of a monopoly in manufacture is established by the evidence, that monopoly can be directly suppressed under the act of Congress in the mode attempted by this bill. It cannot be denied that the power of a State to protect the lives, health, and property of its citizens, and to preserve good order and the public morals, "the power to govern men and things within the limits of its dominion," is a power originally and always belonging to the States, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and es- sentially exclusive. The relief of the citizens of each State from the burden of monopoly and the evils resxilting from the restraint of trade among such citizens was left with the States to deal with, and this court has recognized their possession of that power even to the extent of holding that an employment or business carried on by private in- dividuals, when it becomes a matter of such public interest and im- portance as to create a conunon charge or burden up)on the citizen; in other words, when it becomes a practical monopoly, to which the citizen is compelled to resort and by means of which a tribute can be exacted from the commimity, is subject to regulation by state legisla- tive power. On the other hand, the power of Congress to regulate commerce among the several States is also exclusive. The Constitu- tion does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraints. Therefore it has been deter- CHAP. Ill] FEDEKAL JURISDICTION 115 mined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several States, and if a law passed by a State in the exercise of its acknowledged powers comes into conflict with that will, the Congress and the State cannot occupy the position of equal opposing sovereignties, because the Constitution declares its supremacy and that of the laws passed in pursuance thereof; and that which is not supreme must yield to that which is supreme. "Commerce, undoubtedly, is traffic," said Chief Justice Marshall, "but it is something more; it is intercourse. It describes the commercial intercourse between nations and parts of nations in aU its branches, and is regulated by prescribing rules for carrying on that intercomse." That which belongs to commerce is within the jurisdic- tion of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the State. Gibbons v. Ogden, 9 Wheat, 1, 189, 210; Brown v. Maryland, 12 Wheat. 419, 448; The License Cases, 5 How. 504, 599; Mobile v. Kimball, 102 U. S. 691; Bowman v. Chicago & N. W. Railway, 125 U. S. 465; Leisy v. Hardin, 135 U. S. 100; In re Rahrer, 140 U. S. 545, 555. The argument is that the power to control the manufacture of re- fined sugar is a monopoly over a necessary of life, to the enjoyment of which by a large part of the population of the United States interstate commerce is indispensable, and that, therefore, the general govern- ment in the exercise of the power to regulate commerce may repress such monopoly directly and set aside the instruments which have created it. But this argiunent cannot be confined to necessaries of life merely, and must include all articles of general consumption. Doubt- less the power to control the manufactin-e of a given thing involves in a certain sense the control of its disposition, but this is a secondary and not the primary sense; and although the exercise of that power may result in bringing the operation of commerce into play, it does not centrol it, and affects it only incidentally and indirectly. Commerce succeeds to manufacture, and is not a part of it. The power to regu- late commerce is the power to prescribe the rule by which commerce shall be governed, and is a power independent of the power to sup- press monopoly. But it may operate in repression of monopoly when- ever that comes within the rules by which commerce is governed or whenever the transaction is itseK a monopoly of commerce. . . . In Kidd v. Pearson, 128 U. S. 1, 20, 21, 22, . . . Mr. Justice La- mar remarked: "No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce. Manufacture is transformation — the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute com- merce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. . . . If it be 116 FEDEEAL JURISDICTION [CHAP. Ill held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive in- dustries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horti- culture, stock raising, domestic fisheries, mining — in short, every branch of hmnan industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the No'rthwest or the cotton planter of the South, plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago? The power being vested in Congress and denied to the States, it would follow as an inevitable result that the duty would devolve on Congress to regulate aU of these delicate, multiform and vital interests — interests which in their nature are and must be local in all the details of their successful man- agement. . . . The demands of such a supervision would require, not uniform legislation generally apphcable throughout the United States, but a swarm of statutes only locally applicable and utterly in- consistent. Any movement toward the estabUshment of rules of pro- duction in this vast country, with its many different climates and op- portimities, could only be at the sacrifice of the peculiar advantages of a large part of the localities in it, if not of every one of them. On the other hand, any movement toward the local, detailed and incongruous legislation required by such interpretation would be about the widest possible departiu-e from the declared object of the clause in question. Nor this alone. Even in the exercise of the power contended for, Con- gress would be confined to the regulation, not of certain branches of industry, however numerous, but to those instances in each and every branch where the producer contemplated an interstate market. These instances would be almost infinite, as we have seen; but still there would always remain the possibility, and often it would be the case, that the producer contemplated a domestic market. In that case the supervisory power must be executed by the State; and the inter- minable trouble would be presented, that whether the one power or the other should exercise the authority in question would be deter- mined, not by any general or intelligible rule, but by the secret and changeable intention of the producer in each and every act of produc- tion. A situation more paralyzing to the state governments, and more provocative of conflicts between the general government and the States, and less Ukely to have been what the framers of the Constitu- tion intended, it would be difficult to imagine." And see Veazie v. Moor, 14 How. 568, 574. In Gibbons v. Ogden, Brown v. Maryland, and other cases often cited, the state laws, which were held inoperative, were instances of direct interference with, or regulations of, interstate or international commerce; yet in Kidd v. Pearson the refusal of a State to allow CHAP. Ill] FEDERAL JURISDICTION 117 articles to be manufactured within her borders even for export was held not to directly affect external commerce, and state legislation which, in a great variety of ways, affected interstate commerce and persons engaged in it, has been frequently sustained because the inter- ference was not direct. Contracts, combinations, or conspiracies to control domestic enter- prise in manufacture, agriculture, mining, production in all its forms, or to raise or lower prices or wages, might xmquestionably tend to re- strain external as well as domestic trade, but the restraint would be an indirect result, however inevitable and whatever its extent, and such result would not necessarily determine the object of the contract, combination, or conspiracy. Again, all the authorities agree that in order to vitiate a contract or combination it is not essential that its result should be a complete monopoly; it is sufficient if it really tends to that end and to deprive the public of the advantages which flow from free competition. Slight reflection will show that if the national power extends to all contracts and combinations in manufacture, agriculture, mining, and other productive industries, whose ultimate result may affect external com- merce, comparatively little of business operations and affairs would be left for state control. It was in the light of well-settled principles that the act of July 2, 1890, was framed. Congress did not attempt thereby to assert the power to deal with monopoly directly as such; or to limit and restrict the rights of corporations created by the States or the citizens of the States in the acquisition, control, or disposition of property; or to regulate or prescribe the price or prices at which such property or the products thereof should be sold; or to make criminal the acts of per- sons in the acquisition and control of property which the States of their residence or creation sanctioned or permitted. Aside from the provisions applicable where Congress might exercise municipal power, what the law struck at was combinations, contracts, and conspiracies to monopolize trade and commerce among the several States or with foreign nations; but the contracts and acts of the defendants related exclusively to the acquisition of the Philadelphia refineries and the business of sugar refining in Pennsylvania, and bore no direct relation to commerce between the States or with foreign nations. The object was manifestly private gain in the manufacture of the commodity, but not through the control of interstate or foreign commerce. It is true that the bill alleged that the products of these refineries were sold and distributed among the several States, and that all the companies were engaged in trade or commerce with the several States and with foreign nations; but this was no more than to say that trade and commerce served manufacture to fulfil its function. Sugar was refined for sale, and sales were probably made at Philadelphia for consumption, and undoubtedly for resale by the first purchasers throughout Pennsyl- vania and other States, and refined sugar was also forwarded by the 118 FEDERAL JURISDICTION IICHAP. Ill companies to other States for sale. Nevertheless it does not foUow that an attempt to monopolize, or the actual monopoly of, the manu- factm-e was an attempt, whether executory or consummated, to monopolize commerce, even though, in order to dispose of the product, the instrimientality of commerce was necessarily invoked. There was nothing in the proofs to indicate any intention to put a restraint upon trade or commerce, and the fact, as we have seen, that trade or com- merce might be indirectly affected was not enough to entitle com- plainants to a decree. The subject-matter of the sale was shares of manufacturing stock, and the relief sought was the siurender of prop- erty which had already passed and the suppression of the alleged monopoly in manufacture by the restoration of the status qvo before the transfers; yet the act of Congress only authorized the Circuit Corn-ts to proceed- by way of preventing and restraining violations of the act in respect of contracts, combinations, or conspiracies in re- straint of interstate or international trade or commerce. The Circuit Court declined, upon the pleadings and proofs, to grant the relief prayed, and dismissed the bill, and we are of opinion that the Circuit Court of Appeals did not err in affirming that decree. Decree affirmed. Mb. Justice Harlan, dissenting.^ SWIFT AND COMPANY v. UNITED STATES Supreme Court of the United States. 1905 196 U. S. 375 Mr. Justice Holmes delivered the opinion of the court. This is an appeal from a decree of the Circuit Court, on demurrer, granting an injunction against the appellants' conunission of alleged violations of the act of July 2, 1890, c. 647, 26 Stat. 209, "to protect trade and commerce against unlawful restraints and monopolies." It will be necessary to consider both the bill and the decree. The biU is brought against a number of corporations, firms and individ- uals of different States and makes the following allegations: 1. The defendants (appellants) are engaged in the business of buying five stock at the stock yards in Chicago, Omaha, St. Joseph, Kansas City, East St. Louis and St. Paul, and slaughtering such live stock at their respective plants in places named, in different States, and converting the live stock into fresh meat for human consumption. 2. The defendants "are also engaged in the business of selUng such fresh meats, at the several places where they are so prepared, to dealers and consumers in divers States and Territories of the said United States other than those wherein the said meats are so pre- pared and sold as aforesaid, and in the District of Columbia, and in foreign countries, and shipping the same meats, when so sold from I The dissenting opinion of Harlan, J., is omitted. — Ed. CHAP. Ill] FEDERAL JURISDICTION 119 the said places of their preparation, over the several lines of trans- portation of the several railroad companies serving the same as com- mon carriers, to such dealers and consumers, pursuant to such sales." 3. The defendants also are engaged in the business of shipping such fresh meats to their respective agents at the principal markets in other States, etc., for sale by those agents in those markets to dealers and consumers. 4. The defendants together control about six- tenths of the whole trade and commerce in fresh meats among the States, Territories and District of Columbia, and, 5, but for the acts charged would be in free competition with one another. 6. In order to restrain competition among themselves as to the purchase of live stock, defendants have engaged ia, and intend to con- tinue, a combination for requiring and do and will require their respec- tive purchasing agents at the stock yards mentioned, where defendants buy their live stock (the same being stock produced and owned prin- cipally in other States and shipped to the yards for sale), to refrain from bidding against each other, "except perfunctorily and without good faith," and by this means compelling the owners of such stock to sell at less prices than they would receive if the bidding really was competitive. 7. For the same purposes the defendants combine to bid up, through their agents, the prices of live stock for a few days at a time, "so that the market reports will show prices much higher than the state of the trade will warrant," thereby inducing stock owners in other States to make large shipments to the stock yards to their dis- advantage. 8. For the same piuposes, and to monopolize the commerce pro- tected by the statute, the defendants combine "to arbitrarily, from time to time raise, lov/er, and fix prices, and to maintain uniform prices at which they wUl sell" to dealers throughout the States. This is effected by secret periodical meetings, where are fixed prices to be en- forced imtil changed at a subsequent meeting. The prices are main- tained directly, and by collusively restricting the meat shipped by the defendants, whenever conducive to the result, by imposing penalties for deviations, by establishing a uniform rule for the giving of credit to dealers, etc., and by notifying one another of the delinquencies of such dealers and keeping a black Hst of delinquents, and refusing to sell meats to them. 9. The defendants also combine to make uniform charges for cart- age for the delivery of meats sold to dealers and consumers in the mar- kets throughout the States, etc., shipped to them by the defendants through the defendants' agents at the markets, when no charges would have been made but for the combination. 10. Intending to monopolize the said commerce and to prevent competition therein, the defendants "have all and each engaged in and will continue" arrangements with the railroads whereby the de- fendants received, by means of rebates and other devices, rates less 120 FEDERAL JURISDICTION [CHAP. Ill than the lawful rates for transportation, and were exclusively to en- joy and share this unlawful advantage to the exclusion of competition and the public. By force of the consequent inabiUty of competitors to engage or continue in such commerce, the defendants are attempting to monopolize, have monopolized, and will monopolize the commerce in Uve stock and fresh meats among the States and Territories,, aijd with foreign coimtries, and, 11, the defendants are and have been in conspiracy with each other, with the railroad companies and others unknown, to obtain a monopoly of the supply and distribution of fresh meats throughout the United States, etc. And to that end defendants artificially restrain the commerce and put arbitrary regulations in force affecting the same from the shipment of the live stock from the plains to the final distribution of the meats to the consimiers. There is a prayer for an injunction of the most comprehensive sort, against all the foregoing proceedings and others, for discovery of books and papers relating directly or indirectly to the purchase or shipment of live stock, and the sale or shipment of fresh meat, and for an answer under oath. . . . To sum up the bill more shortly, it charges a combinatftn of a dominant proportion of the dealers in fresh meat throughout the United States not to bid against each other in the live stock markets of the different States, to bid up prices for a few days in order to in- duce the cattle men to send their stock to the stock yards, to fix prices at which they will sell, and to that end to restrict shipments of meat when necessary, to estabhsh a uniform rule of credit to dealers and to keep a black list, to make uniform and mproper charges for cartage, and finally, to get less than lawful rates from the railroads to the ex- clusion of competitors. . . . Although the combination alleged embraces restraint and monopoly of trade within a single State, its effect upon commerce among the States is not accidental, secondary, remote or merely probable. On the allegations of the bill the latter commerce no less, perhaps even more, than commerce within a single State is an object of attack. See Leloup V. Port of Mobile, 127 U. S. 640, 647; Crutcher v. Kentucky, 141 U. S. 47, 59; Allen v. PuUman Co., 191 U. S. 171, 179, 180. Moreover, it is a direct object, it is that for the sake of which the several specific acts and courses of conduct are done and adopted. Therefore the case is not like United States v. E. C. Knight Co., 156 U. S. 1, where the subject matter of the combination was manu- facture and the direct object monopoly of manufacture within a State. However likely monopoly of commerce among the States in the article manufactured was to follow from the agreement it was not a necessary consequence nor a primary end. Here the subject matter is sales and the very point of the combination is to restrain and monopolize commerce among the. States in respect of such sales. The two cases are near to each other, as sooner or later always must hap- CHAP. Ill] FEDERAL JURISDICTION 121 pen where lines are to be drawn, but the line between them is distinct. Montague & Co. v. Lowry, 193 U. S. 38. . . . For the foregoing reasons we are of opinion that the carrying out of the scheme alleged, by the means set forth, properly may be enjoined, and that the bill cannot be dismissed.^ . . . LOEWE V. LAWLOR Supreme Court of the United States. 1908 208 U. S. 274 Mr. Chief Justice Fuller deUvered the opinion of the court. This was an action brought in the Circuit Court for the District of Connecticut under sec. 7 of the Anti-Trust Act of July 2, 1890, c. 647, 26 Stat. 209, claiming threefold damages for injuries inflicted on plaintiffs by a combination or conspiracy declared to be unlawful by the act. Defendants filed a demurrer to the complaint, assigning general and special groimds. . . . The case comes up, then, on complaint and demurrer. . . . The question is whether upon the facts averred [in the complaint] and admitted by the demiu-rer this action can be maintained under the Anti-Trust Act. ... In our opinion, the combination described in the declaration is a combination "in restraint of trade or commerce among the several States," in the sense in which those words are used in the act, and the action can be maintained accordingly. And that conclusion rests on many judgments of this court, to the effect that the act prohibits a,ny combination whatev er to secure ac- - tion which essentia ]lyi_obs tructs the fi a ft flow nf^ nipmerfe between the States, o r rest ricts, in that regard, t he liberty of a trad er to engage in business. The combination charged falls within the class of restraints of trade aimed at compeUing third parties and strangers involuntarily not to engage in the course ^ trade except on conditioiis that the combina- tionTmp^es;'^and there is no doubt that (to quote from the well- known"WorE^of Chief Justice Erie on Trade Unions) "at conunon law every person has individually, and the public also has collectively, a right to require that the course of trade should be kept free from un- reasonable obstruction." But the objection here is to the jurisdiction, because, even conceding that the declaration states a case good at common law, it is contended that it does not state one within the statute. Thus, it is said, that the restraint alleged would operate to entirely destroy plaintiffs' business and thereby include intrastate trade as well; that physical obstruction is not alleged as contem- 1 Compare Hopkins v. United States, 171 U. S. 578. See also The United Mine Workers v. Tlie Coronado Coal Co.,— U. S. — , (decided June 5, 1922), infra, p. 533. 122 FEDERAL JUEISDICTION [CHAP. Ill plated; and that defendants are not themselves engaged in interstate trade. We think none of these objections are tenable, and that they are dis- posed of by previous decisions of this court. ... The averments here are that there was an existing interstate traffic between plaintiffs and citizens of other States, and that for the direct piu-pose of destroying such interstate traflBic defendants combined not merely to prevent plaintiffs from manufacturing articles then and there intended for transportation beyond the State, but also to pre- vent the vendees from reselling the hats which they had imported from Connecticut, or from further negotiating with plaintiffs for the pur- chase and inter-transportation of such hats from Connecticut to the various places of destination. So that, although some of the means whereby the interstate traffic was to be destroyed were acts within.a State, and some of them were in themse ves as a part of their obvious purpose and effect beyond the scope of Federal authority, stiU, as we have seen, the acts must be considered as a whole, and the plan is open to condemnation, notwithstanding a negligible amount of intrastate business might be affected in carrying it out. ^f the purposes of the combination were, as alleged, to prevent any interstate transportation at aU, the fact that the mean operated at one end before physical transportation commenced and at the other end after the physical transportation ended was immaterial. Nor can the act in question be held inapplicable because defendants were not themselves engaged in interstate commerce. The act made no distinction between classes. It provided that "every" contract, combination or conspiracy in restraint of trade was illegal. The rec- ords of Congress show that several efforts were made to exempt, by legislation, organizations of farmers and laborers from the operation of the act and that all these efforts failed, so that the act remained as we have it before us. In an early case, United States v. Workingmen's Amalgamated Council, 54 Fed. Rep. 994, the United States filed a bill under the Sherman act in the Circuit Court for the Eastern District of Louisiana, averring the existence of " a gigantic and widespread combination of the members of a multitude of separate organizations for the purpose of restraining the commerce among the several States and with foreign countries," and it was contended that the statute did not refer to combinations of laborers. But the court, granting the injunction, said : "I think the Congressional debates show that the statute had its origin in the evils of massed capital; but, when the Congress came to formulating the prohibition, which is the yardstick for measuring the complainant's right to the injunction, it expressed it in these words: ' Every contract or combination in the form of trust, or otherwise in restraint of trade or commerce among the several States or with for- eign nations, is hereby declared to be illegal.' The subject had so broadened in the minds of the legislators that the source of the evil was CHAP. Ill] FEDERAL JURISDICTION 123 not regarded as material, and the evil in its entirety is dealt with. They made the interdiction include combinations of labor, as well as of capital; in fact, all combinations in restraint of commerce, without reference to the character of the persons who entered into them. It is true thi^ statute has not been much expounded by judges, but, as it seems to me, its meaning, as far as relates to the sort of combinations to which it is to apply, is manifest, and that it includes combinations which are composed of laborers acting in the interest of laborers. " It is the successful effort of the combination of the defendants to intimidate and overawe others who were at work in conducting or carrying on the commerce of the country, in which the court finds their error and their violation of the st tute. One of the intended results of their combined action was the forced stagnation of all the commerce which flowed through New Orleans. This intent and combined action are none the less unlawful because they included in their scope the paralysis of all other business within the city as well." The case was affirmed on appeal by the Circuit Court of Appeals for the Fifth Circuit. 57 Fed. Rep. 85. . . . The only inquiry is as to the sufficiency of the averments of fact. We have given the declaration in fuU in the margin, and it appears therefrom that it is charged that defendants formed a combination to directly restrain plaintiffs' trade; that the trade to be restrained was interstate; that certain means to attain such restraint were contrived to be used and employed to that end; that those means were so used and employed by defendants, and that thereby they injured plaintiffs' property and business. At the risk of tediousness, we repeat that the complaint averred that plaintiffs were manufacturers of hats in Danbury, Connecticut, having a factory there, and were then and there engaged in an inter- state trade in some twenty States other than the State of Connecticut; that they were practically dependent upon such interstate trade to consume the product of their factory, only a small percentage of their entire output being consumed in the State of Connecticut; that at the time the alleged combination was formed they were in the process of manufacturing a large number of hats for the purpose of fulfilling engagements then actually made with consignees and wholesale dealers in States other than Connecticut, and that if prevented from carrying on the work of manufacturing these hats they would be un- able to complete their engagements. That defendants were members of a vast combination called The United Hatters of North America, comprising about 9,000 members and including a large nimiber of subordinate unions, and that they were combined with some 1,400,000 others int^ another association known as The American Federation of Labor, of which they were members, whose members resided in all the places in the several States where the wholesale dealers in hats and their customers resided and 124 FEDERAL JTJEISDICTION [CHAP. Ill did business; that defendants were "engaged in a combined scheme and effort to force all manufacturers of fur hats in the United States, including the plaintiffs, against their will and their previous policy of carrjdng on their business, to organize their workmen in the depart- ments of making and finishing, in each of their factories, into an or- ganization, to be part and parcel of the said combination known as The United Hatters of North America, or as the defendants and their confederates term it, to unionize their shops, with the intent thereby to control the employment of labor in and the operation of said fac- tories, and to subject the same to the direction and control of persons, other than the owners of the same, in a maimer extremely onerous and distasteful to such owners, and to carry out such scheme, effort and purpose, by restraining and destroying the interstate trade and com- merce of such manufacturers, by means of intimidation of and threats made to such manufacturers and their customers in the several States, of boycotting them, their product and their customers, using therefor all the powerful means at their command, as aforesaid, until such time as, from the damage and loss of business resulting therefrom, the said manufacturers should yield to the said demand to tmionize their factories." That the conspiracy or combination was so far progressed that out of eighty-two manufacturers of this country engaged in the production of fur hats seventy had accepted the terms and acceded to the demand that the shop should be conducted in accordance, so far as conditions of employment were concerned, with the will of the American Federa- tion of Labor; that the local imion demanded of plaintiffs that they should unionize their shop imder peril of being boycotted by this com- bination, which demand defendants declined to comply with; that thereupon the American Federation of Labor, acting through its official organ and through its organizers, declared a boycott. The complaint then thus continued: "20. On or about July 25, 1902, the defendants individually and collectively, and as members of said combinations and associations, and with other persons whose names are unknown to the plaintiffs, associated with them, in pursuance of the general scheme and purpose aforesaid, to force all manufacturers of fur hats, and particularly the plaintiffs, to so unionize their factories, wantonly, wrongfully, ma- liciously, unlawfully and in violation of the provisions of the ' Act of Congress, approved July 2, 1890,' and entitled ' An Act to Protect Trade and Commerce Against Unlawful Restraints and Monopolies,' and with intent to injure the property and business of the plaintiffs by means of acts done which are forbidden and declared to be unlawful, by said act of Congress, entered into a combination and conspiracy to restrain the plaintiffs and their customers in States other than Con- necticut, in carrying on said trade and commerce among the several States, and to wholly prevent them from engaging in and carrying on said trade and commerce between them and to prevent the plaintiffs CHAP. Ill] FEDERAL JUBISDICTION 125 from selling their hats to wholesale dealers and purchasers in said States other than Connecticut, and to prevent said dealers and cus- tomers in said other States from buying the same, and to prevent the plaintiffs from obtaining orders for their hats from such customers, and filling the same, and shipping said hats to said customers in said States as aforesaid, and thereby injure the plaintiffs in their property and business and to render imsalable the product and output of their said factory, so the subject of interstate commerce, in whosoever's hands the same might be or come, through said interstate trade and com- merce, and to employ as means to carry out said combination and con- spiracy and the purposes thereof, and accomplish the same, the fol- lowing measures and acts, viz. : " To cause, by means of threats and coercion, and without warning or information to the plaintiffs, the concerted and simultaneous with- drawal of all the makers and finishers of hats then working for them, who were not members of their said combination, The United Hatters of North America, as well as those who were such members, and thereby cripple the operation of the plaintiffs' factory, and prevent the plaintiffs from filling a large nimiber of orders then on hand, from such wholesale dealers in States other than Connecticut, which they had engaged to fill and were then in the act of filling, as was well known to the defendants; in connection therewith to declare a boy- cott against all hats made for sale and sold and deUvered, or to be so sold or deMvered, by the plaintiffs to said wholesale dealers in States other than Connecticut, and to actively boycott the same and the business of those who should deal in them, and thereby prevent the sale of the same by those in whose hands they might be or coflie through said interstate trade in said several States; to procure and cause others of said combinations united with them in said American Federation of Labor, in like maimer to declare a boycott against and to actively boycott the same and the business of such wholesale dealers as shoxild buy or sell them, and of those who should purchase them from such wholesale dealers; to intimidate such wholesale dealers from purchasing or dealing in the hats of the plaintiffs by informing them that the American Federation of Labor had declared a boycott against the product of the plaintiffs and against any dealer who should handle it, and that the same was to be actively pressed against them, and by distributing circulars containing notices that such dealers and their customers were to be boycotted; to threaten with a boycott those customers who should buy any goods whatever, even though union made, of such boycotted dealers, and at the same time to notify such wholesale dealers that they were at liberty to deal in the hats of any other non-union manufacturer of similar quality to those made by the plaintiffs, but must not deal in the hats made by the plaintiffs under threats of such boycotting; to falsely represent to_ said wholesale dealers and their customers, that the plaintiffs had discriminated against the union men in their employ, had thrown 126 FEDERAL JURISDICTION [CHAP. Ill them out of employment because they refused to give up their imion cards and teach boys, who were intended to take their places after seven months' instruction, and had driven their employees to extreme measures ' by their persistent, unfair and un-American policy of antagonizing imion labor, forcing wages to a starvation scale, and given boys and cheap, unskilled foreign labor preference over ex- perienced and capable imion workmen,' in order to intimidate said dealers from purchasing said hats by reason of the prejudice thereby created against the plaintiffs and the hats made by them among those who might otherwise purchase them; to use the said union label of said The United Hatters of North America as an instrument to aid them in carrying out said conspiracy and combination against the plaintiffs' and their customers' interstate trade aforesaid, and in con- nection with the boycotting above mentioned, for the purpose of describing and identifying the hats of the plaintiffs and singling them out to be so boycotted; to employ a large number of agents to visit said wholesale dealers and their customers, at their several places of business, and threaten them with loss of business if they should buy or handle the hats of the plaintiffs, and thereby prevent them from buy- ing said hats, and in connection therewith to cause said dealers to be waited upon by committees representing large combinations of per- sons in their several localities to make similar threats to them; to use the daily press in the localities where such wholesale dealers reside, and do business, to annoimce and advertise the said boycotts against the hats of the plaintiffs and said wholesale dealers, and thereby make the same more effective and oppressive, and to use the columns of their said paper, The Journal of the United Hatters of North America, for that purpose, and to describe the acts of their said agents in prose- cuting the same." And then followed the averments that the defendants proceeded to carry out their combination to restrain and destroy interstate trade and commerce between plaintiffs and their customers in other States by employing the identical means contrived for that purpose; and that by reason of those acts plaintiffs were damaged in their business and property in some 180,000. We think a case within the statute was set up and that the de- murrer should have been overruled. Judgment reversed and cause remanded with a direction to proceed accordingly.^ 1 See Montague & Co. v. Lowry, 193 U. S. 38 (combination of manufacturers). Whether the prohibitions of the Sherman Act were coincident with, or differed from, those of the common law as to restraint of trade, was a question upon which at first the courts differed. See, for instance, the cases of United States v. Patterson, 55 Fed. 605, and United States v. Workmgmen's Amalgamated Coun- cil, 54 Fed. 994. "Granted that the Act does apply to consolidated labor as well as to consol- idated capital, it cannot abridge the right of the men to combine and quit work for lawful purposes, or to do other lawful acts, even though by them interstate CHAP. Ill] FEDERAL JUKISDICTION 127 TOLEDO, ANN ARBOR, etc., RY. CO. v. PENNSYL- VANIA CO. et al. United States Cikcuit Court, N. D. Ohio. 1893 54 Fed. 730 Taft, Circuit Judge. This is a motion by the complainant, the Toledo, Ann Arbor & North Michigan Railway Co., for a temporary injunction, to remain in force pending this action, against P. M. Arthm-, the chief executive of the Brotherhood of Locomotive En- gineers, and a defendant herein, to restrain him from issuing, pro- mulgating, or continuing in force any rule or order of said brotherhood, which shall require or command any employes of any of defendant railway companies herein to refuse to handle and deliver any cars of freight in course of transportation from one state to another to the complainant, or from refusing to receive and handle cars of such freight which have been hauled over complainant's road; and also from in any way, directly, or indirectly, endeavoring to persuade any of the employes of the defendant railway companies whose lines con- nect with the railroad of complainant not to extend to said company the same f acihties for interchange of interstate traffic as are extended by said companies to other railway companies. A temporary restrain- ing order to this effect was issued by me against Arthur ex parte. A hearing has since been had, and the question now is whether, on the evidence produced, the order shall be continued in force until the final decision of the case. The original bill was filed against eight railway companies and the superintendents of two of them, and averred that the defendants, who were operating Hues of railway connecting with that of the com- plainant company at Toledo, had threatened to refuse to receive from and to deliver to the complainant company interstate freight on the ground that their locomotive engineers, who were members of the brotherhood, would refuse to haul or handle the same, because com- plainant employed on its line engineers who were not members of the brotherhood; and the bill further averred that if the threat was carried out it would work an irreparable injury to the complainant, for which damages could not be estimated, and the law afforded no adequate remedy. The prayer of the bill was for an order enjoining the defend- ant companies, their employes and servants, from refusing to receive and dehver complainant's interstate freight. A temporary order as prayed for was issued by Judge Ricks. An amendment to the bill was afterwards filed making two new defendants, P. M. Arthur and F. P. Sargent. Sargent, it subsequently appeared, was a non-resident commerce is crippled. The case of Waterhouse v. Comer (55 Fed. 149) alone intimates the contrary." — J. W. Bryan in 40 Am. Law Rev. 206. As illustra- tive of the truth of the foregoing statement, see In re Charge to Grand Jury, 62 Fed. 828, 833; Arthur v. Oakes, 63 Fed. 310, 327; United States v. Debs, 65 Fed. 210, 211; United States v. Cassidy, 67 Fed. 698. 128 FEDERAL JURISDICTION [CHAP. Ill of the district, and the bill as against him was dismissed for want of jurisdiction. As to Arthur, the amendment charges that he, as chief of the brotherhood, exercises a controlling influence upon its members in all matters treated by its rules and regulations; that one of its rules requires all of its members in the employ of any railway company, whenever an order to that effect shall be given by its said chief ofiicer, to refuse to receive, handle, or carry cars of freight from any other railroad company whose employes, members of said association, have engaged in a strike; that such a strike has been declared against the complainant by the members of the brotherhood, with Arthxir's con- sent and approval; that Arthur now publicly announces that, unless ' complainant shall submit to the demands of its striking employes, he will order the rule above stated enforced; that the rule is in direct contravention of the interstate conunerce law, and is intended to in- duce the employes of the defendant companies to violate that law and the previous order of this court; and that Arthur, with others, is con- spiring to that end. The jurisdiction of this court to hear and decide the case made by the bill cannot be maintained on the ground of the diverse citizenship of the parties, for the complainant and at least one of the defendante are citizens of the same state. If it exists, it must arise from the sub- ject-matter of the suit. The biU invokes the chancery powers of this court to protect the complainant in rights which it claims under the act of Congress passed February 4, 1887 (24 St. at Large, p. 379), known as the "Interstate Commerce Act,' and an act amending it passed March 2, 1889 (25 St. at Large, p. 855). . . . The Brotherhood of Locomotive Engineers is an association, organ- ized in 1863, whose members are locomotive engineers in active service in the United States, Mexico, and the dominion of Canada. Their number is 35,000. The engineers engaged with the defendant com- panies are most of them members of the brotherhood. The purpose of the brotherhood is declared in its constitution to be "more effectually to combine the interests of locomotive engineers, to elevate their standing as such, and their character as men." These ends are sought to be obtained by requiring that every member shall be a man of good moral character, of temperate habits, and a locomotive engineer in actual service with a year's experience, and by imposing the penalty of expulsion upon any member guilty of disgraceful conduct or drunk- enness, of neglect of duty, of injury to the property of the employer, or of eridangering the lives of persons. A mutual insurance asso- ciation is supported in coimection with the brotherhood, in which every member is required to carry a policy, and there is an efficient employment bureau for the members. A strong and complete organ- ization is maintained for the systematic government of the brother- hood, and its rules are well adapted to establishing and carrying out general and local plans with respect to the terms of employment of its members. Submission to these plans, when once adopted by requisite CHAP. Ill] FEDERAL JURISDICTION 129 vote, is required of every member on penalty of expulsion. The man- agement of controversies with employer companies is immediately -with a chairman of a standing general adjustment committee for the particular railroad system involved and afterwards with the gi-and chief. The grand chief has large judicial and executive powers. He is the ultimate authority always called in to adjust differences between members and their employer, and he is the one to whom appeals are made to settle disputes arising between members and subdivisions. He is also the head of the insurance company. Early last month the superintendent of complainant company re- fused to grant a demand by its engineers for higher wages. After some unsuccessful attempts at negotiation, Arthur, who had been called in, consented to the strike, which had previously been voted by two-thirds of the brotherhood men in complainant's employ. As soon as the men went out on March 7th, Arthur sent to eleven chairmen of the general adjustment committees on as many different railroad systems in Ohio and the neighboring states the following dispatch:' "There is a legal strike in force upon the Toledo, Arm Arbor & North Michigan Railroad. See that the men on your road comply with the laws of the brotherhood. Notify your general manager." A "legal" strike, in brotherhood parlance, means one consented to by the grand chief. His consent is necessary, imder the rules of the order, to entitle the men thus out of employment to the three months' pay allowed to striking members. Arthur admits that the particular law to which he referred in this dispatch was one adopted by the brotherhood at Denver three years ago, but which is not published in the printed copy of the constitution and by-laws. It is as fol- lows: "TweKth. That hereafter, when an issue has been sustained by the grand chief, and carried into effect by the B. of L. E., it shall be recog- nized as a violation of obhgation for a member of the Brotherhood of Locomotive Engineers Association who may be employed on a rail- road running in connection with or adjacent to said road, to handle the property belonging to said railroad or system in any way that may benefit said company in which the B. of L. E. is at issue until the grievance or issue of whatever nature or kind has been amicably settled." . . . The result of this was that engineers, members of the brotherhood, did refuse to handle complainant's freight on connecting lines for a short time, and in several instances quit the service rather than do so. On the 17th of March the temporary restraining order issued by me, and above referred to, was served on Arthur. He was therein com- manded to rescind any order he might have promulgated to engineers on connecting lines to refuse to handle complainant's freight. Under advice of counsel he obeyed, and sent a dispatch to committee chair- men rescinding his previous dispatch of March 16th. Thi^^had the effect to lift the "embargo," so-called. 130 FEDERAL JURISDICTION [CHAP. Ill The result of this evidence is that the members of the Brotherhood of Locomotive Engineers have by the adoption of rule 12 made an agreement among themselves that whenever any of their comrades, with the consent of Arthur, leave the employ of one company, because the terms of employment are imsatisfactory, the members employed by companies operating connecting lines will inflict an injury on the first company by preventing, as far as possible, the first company from doing any business as a common carrier, involving the inter- change of freight with connecting hues. The engineers of the connect- ing lines are to effect this purpose — first, by refusing to handle the freight of the offending company, and, second, if necessary, by quit- ting the service to avoid handling it, in order that the connecting companies, by fear of the evil effect of a strike upon their own business, will be compelled to join with their engineers in a refusal to handle the offending company's freight and inflict the injury which is the main purpose of the combination. In this connection should be noted, in Arthur's telegrams of March 7th and 16th, directing the enforcement of rule 12, the significance of the sentence, "Notify yotu- general manager," and the language of Watson's dispatch to the general man- ager of the Lake Shore system. These notifications were threats to the connecting companies, which it was hoped would lead them to assist in injuring the complainant company. No such notice was thought necessary when rule 12 was suspended. ... It will be convenient, in discussing the question whether any relief can properly be given to complainant against Arthur, to consider rule 12 and the acts done, or to be done, in pm-suance thereof — first, in the light of the criminal law; second, with reference to their char- acter as civil wrongs; and, third, with reference to the remedies which a court of equity may afford against them. 1. The complainant and defendant companies are common car- riers, subject to the provisions of the interstate commerce act, and the business exchanged between them is averred by the bill to be nearly all interstate freight. The second paragraph of the third section of the act provides that — ■ "All common carriers subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivery of passengers and property to and from their several fines and those connecting there- with, and shall not discriminate in their rates and charges between such connecting lines." 24 St. at Large, p. 379. In view of the foregoing section, it needs no argument to demon- strate that one common carrier is expressly required by the interstate commerce act to freely interchange interstate freight with another when their lines connect. Sec. 10 of the act, as amended (25 St. at Large, p. 855), provides that — CHAP. Ill] FEDERAL JITHISDICTION 131 "Any common carrier subject to the provisions of this act, or, when such common carrier is a corporation, any director or offieer thereof, or any receiver, trustee, or lessee, agent, or person acting for or em- ployed by such corporation, who alone or with any other corporation, company, person, or party, . . . shall willfully omit or fail to do any act, matter, or thing in this respect required to be done, or shall cause or willingly suffer or permit any act, matter, or thing, so directed or required by this act to be done, not to be done, or shall aid or abet such omission or failure, . . . shall be deemed guilty of a mis- demeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was comnoitted, be subject to a fine of not exceeding $5,000." By the foregoing section, a common carrier which is not a corpora- tion is made hable criminally for violations of the interstate com- merce law. But when the carrier is a corporation and violates the law, not the corporation, but its officers, agents, and persons acting for or employed by it who willfully do the wrongful work, are made liable. In re Peasley, 44 Fed. Rep. 271. The corporation is made civiUy liable imder sec. 8. As every locomotive engineer of the defendant companies is a "person employed by" a common carrier corporation subject to the provisions of the interstate commerce law, he is guilty of the offense described, and subject to the penalty imposed by sec. 10, if he, while acting as engineer for his corporation, refuses to handle interstate freight for the complainant, and thereby, in his discharge of a function of the company, willfully omits to do an act required by the law to be done; and it is inamaterial whether what he does or fails to do in violation of the statute is with or without the orders of his principal. U. S. v. Tozer, 37 Fed. Rep. 635. Arthur and all the members of the brotherhood engaged in enforcing rule 12, and in thereby aiding and abetting every such engineer to violate the section, are equally guilty with him as principals (U. S. v. Snyder, 14 Fed. Rep. 554) ; and they are thereby also guilty of con- spiring to commit an offense against the United States, and subject to the penalties of sec. 5440, Rev. St. (U. S. v. Stevens, 44 Fed. Rep. 132). But suppose that this view of sec. 10 is erroneous, and that the words, "person acting for or employed by such corporation," refer only to its managing officer or agent, the enforcement of rule 12, with its evident purpose, would still be a violation of law; for even then it is quite clear that any one, though not an ofi&cer or agent, successfully aiding, abetting, or procuring such officer or agent to violate the sec- tion, would be punishable under it as a principal. Thus, in U. S. v. Snyder, 14 Fed. Rep. 554, under a statute making it a crime for a post- master to render a false report to the government of his receipts, one who aided, abetted, and procured a postmaster to send such a report was foimd guilty as principal of violating the statute, and the convic- tion was sustained by Judges McCrary and Nelson, in an opinion 132 FEDEEAL JURISDICTION [CHAP. Ill citing authorities fully justifying their conclusion. It is therefore evident that Arthur and the other members of the brotherhood, if successful in procuring the managing officers of the defendant com- panies to refuse to handle interstate freight from complainant com- pany, would be guilty of violating sec. 10, and punishable as principals thereunder. Sec. 5440, Rev. St., proAddes that — "If two or more persons conspire ... to commit any offense against the United States, . . . and one or more parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than $10,000, or to imprison- ment for not more than two years, or to both fine and imprisonment, in the discretion of the court." All persons combining to carry out rule 12 of the brotherhood against the complainant company, if any one of them does an act in furtherance of the combination, are punishable imder the foregoing section. This is true, because, as already shown, the object of the conspiracy is to induce, procure, and compel the managing officers of the defendant companies to refuse equal facilities to the complainant for the interchange of interstate freight, which, as we have seen, is an offense against the United States by virtue of sec. 10, above quoted. For Arthur to send word to the committee chairmen to direct t he me n £o?ef use ^handle interstate freight of complainant, and to notify the managing officers of the defendant companies with the intention of procuring them to do so, all in execution of rule 12, is an act in furtherance of the conspiracy to procure the managing pi^cers^fthe defendant companies to commit a crime, and subjects him and all conspiring with him to the penalties of sec. 5440, Rev. St. Again, for the men, in furtherance of rule 12, either to refuse to FaSlle^the freight or to threaten to quit, or actually to quit, in order to prxicure or induce the officers of the defendant companies to violate the_pro- visions of the interstate commerce law, would constitute ^a^tsjii furtherance of the conspiracy, and would render them also liable to the penalty of the same section. But it is said that it cannot be unlawful for an employe eith er to threaten to quit or actually to quit the service when not i n violat ion of^his^contract, because a man has the inalienable right to bestow his labor where he will, and to withhold his labor as he wiU. Generally speaking, this is true, but not absolutely. If he use: the benefit which his labor is or" will be to another, by threatening to withhold jt. 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 unlawful or criminal act, the_ withholding or besjtoming of his labor for such a purpose is itself an unlawful and crinunal act. The same thing is true with regard to the exercise of the right of property. A man has the right to give or sell his property where he will, but if he give or sell it, or refuse to give or sell it, as a means of inducing or CHAP. Ill] FEDERAL JTTBISDICTION 133 compelling another to commit an unlawful act, his giving or selling it or refusal to do so is itseK unlawful. Herein is found the difference between the act of the employes.of the complainant company in combining to withhold the benefit of their labor from it and tb eact^o Tthe employes of the defendant com- pames in combining^ to withhold their lalDor from them; that is, the difference between the strike and the boycott. The one combination, so far as its character is shown in the evidence, was lawful, because it was for the lawful "piirpose of selling the labor of those engaged in it for the hi&hest price obtainable, and on the best terms. The probable inconvenience or los s whicE" its em ployes might impose on the com- plainant co mpany , by withholding their labor would, under ordinary circumstances, be a legitimate means available to them for inducing a compliance with their demands. BiAthe em£loyes of defendant com- panies arenatdigsatisfjed wi^thg^ terms of thHr einplbyment. So far as appears, those terms work a mutuallieiiefit to employer and em- ployed. What the employes threaten to do is to deprive the defend- ant companies of the benefit thus accruing from their labor, in order to induce, procure, and compel the companies and their managing officers to consent to do a criminal and. unlawful injury to the com- plainant. Neither law nor morals can give a man the right to labor or withhold his labor for such a purpose. . . . We have thus considered with some care the criminal character of rule 12 and its enforcement, not only because, as will presently be seen, it assists in determining the civil liabilities which grow out of them, but also because we wish to make plain, if we can, to the intelli- gent and generally law-abiding men who compose the Brotherhood of Locomotive Engineers, as well as to their usually conservative chief officer, what we cannot beUeve they appreciate, that, notwithstanding their perfect organization, and their charitable, temperance, and other elevating and most useful piu-poses, the existence and enforcement of rule 12, under their organic law, make the whole brotherhood a crim- inal conspiracy against the laws of their country. 2. We now come to the character of rule 12, and its enforcement as a civil wrong to complainant. Lord Justice Fry said in the case of Steamship Co. v. McGregor, 23 Q. B. Div. 598, 624: "I cannot doubt that whenever persons enter into an indictable conspiracy, and that agreement is carried into execution by the con- spirators by means of an unlawful act or acts which produce private injury to some person, that person has a cause of action against the conspirators." See also, Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y. 669, 12 N. E. Rep. 825; Steamship Co. v. McKenna, 30 Fed. Rep. 48; Carew v. Rutherford, 106 Mass. 1; and Moores v. Bricklayers' Union, 23 Wkly. Law Bui. 48. Under the principle above stated, Arthur and all the members of the brotherhood engaged in causing loss to the complainant are liable for 134 FEDEBAL JUBISDICTION [CHAP. Ill any actual loss inflicted in pursuance of their conspiracy. The gist of any such action must be not in the combination or conspiracy, but in the actual loss oc.casioned thereby. No civil liability arises simply because of the rule 12, or its attempted enforcement, unless injury is done. Ordinarily the only difference between the civil liability for acts in pursuance of a conspiracy and for acts of the same character done by a single person is in the greater probability that such acts when done by many in a combination will cause injury. If a single engineer of one of defendant companies, acting atone, and with intent to injure the complainant, should cause the complainant loss by refus- ing to handle its interstate freight, complainant could maintain a right of action against him for damages. The refusal on his part would be a wrongful and illegal act under the interstate commerce law, and, as said by Lord Justice Brett in Bowen v. Hall, 6 Q. B. Div. 333, 337: "Whenever a man does an act which in law and in fact is an vmlawful act, and such an act as may, as a natural and probable consequence of it, produce injury to another, and which in the particular case does produce such an injury, an action on the case will lie." And so, if a single engineer, with intent to injure complainant, could, by threaten- ing to quit or by actually quitting for the purpose, procure or induce the defendant company, in whose employ he is, to inflict a loss upon complainant by unlawfully refusing to interchange interstate freight, complainant could hold him civilly liable for the loss. By sec. 8 of the interstate commerce law the complainant is expressly given a cause of action in damages against any connecting conunon carrier company for such a loss, and it is clear upon the authorities that any one in- tentionally procuring the connecting company to inflict such loss would be equally liable. Thus in Walker v. Cronin, 107 Mass. 555, the supreme judicial court of that state sustained an action for dam- ages by the plaintiff, who was a shoe manufacturer, against the de- fendant, for inducing plaintiff's employes to break their contracts of service with him to his injiu-y. In Lumley v. Gye, 2 El. & Bl. 216, it was held that the plaintiff could recover damages from the defendant for procuring a third person, with whom the plaintiff had made a con- tract, to break the contract, when such procuring was with the inten- tion of injuring the plaintiff. The same principle was announced in Bowen v. Hall, 6 Q. B. Div. 333, 337, and has since been followed in other cases, and the doctrine has been applied, even where there was not a binding contract, but only the probability that one, though not binding, would be performed. See Rice v. Manley, 66 N. Y. 82, and Benton v. Pratt, 2 Wend. 385. If a person, with rights secured by a contract, may, in case of loss, recover damages from one not a party to the contract, who, with intent to injure him, induces a breach of it, a fortiori can one whose rights are secured by statute recover damages from a person who, with intent to injure him, procures the violation of those rights by another, and causes loss. The difficulty in supposing or stating any civil liability when the acts we have been discussing are CHAP. Ill] FEDERAL JUKISDICTION 135 done by a single engineer is in the improbability that either by singly refusing to handle the freight he could cause any injury to complain- ant, or by singly threatening to quit, or by quitting, he could procure his company to do so. But when we suppose that all, or nearly all, the engineers on the eight different defendant companies combine with their chief to do these unlawful acts for the purpose of injuring com- plainant, the intended loss becomes not only probable, but inevi- table.i ... The temporary injunction will be allowed, as prayed for.^ OBSTRUCTING THE MAIL United States Criminal Code, Section 201 ' Whoever shall knowingly and willfully obstruct or retard the pas- sage of the mail, or any carriage, horse, driver, or carrier, or car, steamboat, or other conveyance or vessel carrying the same, shall be fined not more than one hundred dollars, or imprisoned not more than six months, or both. UNITED STATES v. KIRBY Supreme Coukt of the United States. 1868 7 WaU. 482 The defendants were indicted for knowingly and wilfully obstruct- ing and retarding the passage of the mail and of a mail carrier, in the District Court for the District of Kentucky. The case was certified to the Circuit Coiirt for that district. ' The remainder of the opinion dealing with the power of a court of equity to afford relief by the issue of a preliminary injunction is omitted. — Ed. ^ Accord: Knudsen v. Benn, 123 Fed. 636 (interference with interstate com- merce by striking employees using force and violence to procure other employees to leave the service); United States v. Workingmen's Amalgamated Council of New Orleans, 64 Fed. 994 (intimidation and violence) ; Wabash R. Co. v. Hanna- han, 121 Fed. 563 (interference with interstate commerce by labor union officials inciting workmen to strike in breach of contract). The incidental interference with interstate commerce resulting from a strike for a lawful purpose does not constitute a violation of the federal Interstate Com- merce Act. This point was argued and disposed of in Wabash R. Co. v. Hanna- han, supra, where the Court says (p. 575) : "It is also argued that the union and concert of action of the Brotherhood of Locomotive Firemen and of Railroad Trainmen, as shown by the proof in this case, are evidence of the unlawful con- spiracy complained of. As already observed in another connection, this cannot be so. Their purpose being lawful — that is to say, to secure increased wages and better conditions of service — the concert of action is per se lawful and proper, and, in the absence of proof of a purpose to accomplish their object by unlawful means, the usual presumption should rather be indulged that they would not resort to unlawful means to accomplish it." See also In re Grand Jury, 62 Fed. 840; In re Charge to Grand Jury, 62 Fed. 828; In re Grand Jury, 62 Fed. 834; United States v. Cassidy, 67 Fed. 698. ' U. S. Comp. Stats., sec. 10371; formerly Revised Stat., sec. 3995. 136 FEDERAL JURISDICTION [CHAP. Ill The indictment was founded upon the ninth section of the act of Congress, of March 3, 1825, "to reduce into one the several acts establishing and regulating the post office department," which pro- vides "that, if any person shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same, he shall, upon conviction, for every such offence, pay a fine not exceeding one hundred dollars; and if any ferryman shall, by wilful neghgence, or refusal to transport the mail across the ferry, delay the same, he shall forfeit and pay, for every ten minutes that the same shall be so delayed, a sum not ex- ceeding ten dollars." 4 Stat, at Large, 104. The indictment contained four counts, and charged the defendants with knowingly and wilfully obstructing the passage of the mail of the United States, in the district of Kentucky, on the first of February, 1867, contrary to the act of Congress; and with knowingly and wilfully obstructing and retarding at the same time in that dis- trict, the passage of one Farris, a carrier of the mail, while engaged in the performance of his duty; and with knowingly and wilfully re- tarding at the same time in that district, the passage of the steamboat. General Buell, which was then carrying the mail of the United States from the city of Louisville, in Kentucky, to the city of Cincinnati, in Ohio. To this indictment the defendants, among other things, pleaded specially to the effect, that at the September Term, 1866, of the Circuit Comi; of Gallatin County, in the State of Kentucky, which was a court of competent jxirisdiction, two indictments were found by the grand jury of the county against the said Farris for mvuder; that by order of the court bench warrants were issued upon these indict- ments, and placed in the hands of Kirby, one of the defendants, who was then sheriff of the county, commanding him to arrest the said Farris and bring him before the court to answer the indictments; that in obedience to these warrants he arrested Farris, and was accom- panied by the other defendants as a posse, who were lawfully sum- moned to assist him in effecting the arrest; that they entered the steamboat Buell to make the arrest, and only used such force as was necessary to accomplish this end; and that they acted without any intent or purpose to obstruct or retard the mail, or the passage of the steamer. To this plea the district attorney of the United States demurred, and upon the argument of the demurrer two questions arose: First. Whether the arrest of the mail-carrier upon the bench war- rants from the Circuit Court of Kentucky was, under the circum- stances, an obstruction of the mail within the meaning of the act of Congress. Second. Whether the arrest was obstructing or retarding the pas- sage of a carrier of the mail within the meaning of that act. CHAP. Ill] FEDERAL JURISDICTION 137 Upon these questions the judges were opposed in opinion, and the questions were sent to this court upon a certificate of division. . . . Mh. Justice Field, after stating the case, delivered the opinion of the court, as follows: There can be but one answer, in our judgment, to the questions certified to us. The statute of Congress by its terms applies only to persons who "knowingly and wilfully" obstruct or retard the passage of the mail, or of its carrier; that is, to those who know that the acts performed will have that effect, and perform them with the intention that such shall be their operation. When the acts which create the obstruction are in themselves unlawful, the intention to obstruct will be imputed to their author, although the attainment of other ends may have been his primary object. The statute has no reference to acts lawful in themselves, from the execution of which a temporary delay to the mails unavoidably follows. . . . The public incon- venience which may occasionally follow from the temporary delay in the transmission of the mail caused by the arrest of its carriers upon such charges, is far less than that which would arise from extending to them the immunity for which the counsel of the government contends. Indeed, it may be doubted whether it is competent for Congress to exempt the employees of the United States from arrest on criminal process from the State courts, when the crimes charged against them are not merely mala prohihita, but are mala in se. But whether legisla- tion of that character be constitutional or not, no intention to extend such exemption should be attributed to Congress unless clearly mani- fested by its language. All laws should receive a sensible construction. General terms should be so limited in their appUcation as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter. The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted, "that whoever drew blood in the streets should be punished with the utmost sever- ity," did not extend to the sxirgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire — "for he is not be to hanged because he would not stay to be burnt." And we think that a like common sense wiU sanction the ruling we make, that the act of Congress which punishes the obstruction or re- tarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder. The questions certified to us must be answered in the negative; and it is So ordered. 138 FEDERAL JURISDICTION [CHAP. Ill Me. Justice Miller, having been absent at the hearing, took no part in this order. ^ IN RE DEBS Supreme Court of the United States. 1895 158 V. S. 564 On July 2, 1894, the United States, by Thomas E. Milchrist, dis- trict attorney for the Northern District of lUinois, under the direction of Richard Olney, Attorney General, filed their bill of complaint in the Circuit Court of the United States for the Northern District of Illinois against these petitioners and others. This bill set forth, among other things, the following facts: It named twenty-two railroad companies, and it alleged that they were engaged in the business of interstate commerce and subject to the provisions of the act of Congress of February 4, 1887, known as "the Interstate Commerce Act," and all other laws of the United States relating to interstate transportation of passengers and freight; that the niunber of passengers annually carried by them into the city of Chicago from other States than lUi- nois, and out of Chicago into other States than lUinois, was more than twelve millions, and in like manner that the freight so carried into and out of the city of Chicago, from and into other States than Illinois, amoimted to many milUons of tons; that each of the roads was under contract to carry, and in fact carrying, the mails of the United States; that all were by statute declared post roads of the government; that many were by special acts of Congress required at any and all times to carry the troops and military forces of the United States, and pro- visions, munitions, and general supplies therefor; and that two of them were in the hands of receivers appointed by the courts of the United States. It stated at some length the necessity of the continued and uninterrupted running of such interstate railroads for the bring- ing into the city of Chicago supphes for its citizens and for the carry- ing on of the varied industries of that city. The bill further averred that four of the defendants, naming them, were officers of an association known as the American Railway Union; that in the month of May, 1894, there arose a difference or dispute between the Pullman Palace Car Co., and its employees, as the result of which a considerable portion of the latter left the service of the car company; that thereafter the four officers of the railway union com- bined together, and with others, to compel an adjustment of such dis- pute, by creating a boycott against the cars of the car company; that, to make such boycott effective, they had already prevented certain of the railroads running out of Chicago from operating their trains, and were combining to extend such boycott against Pullman sleeping cars by causing strikes among employees of all railroads attempting to haul > Compare United States v. Cassidy, 67 Fed. 698, 699. See also, Church of the Holy Trinity v. United States, 143 U. S. 457. CHAP. Ill] FEDERAL JUBISDICTION 139 the same. It charged knowledge on the part of the defendants of the necessity of the use of sleeping cars in the operation of the business of the railroads as common carriers, of the contracts for such use between the railroad companies and the car company, of the contracts, laws, and regulations binding the raUway companies and the receivers to the carrying of the maUs; also of the fact that sleeping cars were and of necessity must be carried upon the trains of said carriers with cars containing the mails; that with this knowledge they entered into a combination and conspiracy to prevent the raiboad companies and the receivers, and each of them, from performing their duties as com- mon carriers of interstate comimerce, and in carrying into execution that conspiracy did induce various employees of the railway com- panies to leave the service of the companies, and prevent such com- panies and the receivers from securing other persons to take their places; that they issued orders, notifications, etc., to the members of the railway union to leave the service of the companies and receivers, and to prevent the companies and receivers from operating their trains; that they had asserted that they could and would tie up, paralyze, and break down any and every of said railway companies and receivers which did not accede to their demands; that in pursuance of the in- structions, commands, and requests of said officers large numbers of the employees of the railway companies and receivers left their service. Then followed these allegations: . . . "Your orator further avers that, pursuant to said combination and ■conspiracy, and under the direction as aforesaid of said officers and directors of said American Railway Union, said other defendants and other persons whose names are to your orator unknown, pro- ceeded by collecting together in large numbers, by threats, intimida- tion, force and violence at the station grounds, yards and right of way of said railroad companies, respectively, in the State of Illinois, to pre- vent said railroad companies from employing other persons to, fill the vacancies aforesaid; to compel others still employees of said railroad companies to quit such employment and to refuse to perform the duties of their service, and to prevent the persons remaining in such service and ready and willing to perform the duties of the same, from doing so. "Your orator further avers that said defendants, in pursuance of said combination and conspiracy, acting imder the direction of said officers and directors of said American Railway Union, did with force and violence at divers times and places within said State of Illinois and elsewhere, stop, obstruct and derail and wreck the engines and trains of said railroad companies, both passenger and freight, then and there engaged in interstate commerce and in transporting United •States mails, by locking the switches of the railroad of said railroad companies, by removing the spikes and rails from the track thereof, by turning switches and displacing and destroying signals, by assault- ing and interfering with and disabling the switchmen and other em- 140 FEDERAL JURISDICTION [CHAiP. Ill ployees of said railroad companies having charge of the signals, switches and tracks of said companies, and the movement of trains thereon, and in other manners by force and violence, depriving the employees of said raihoad companies in charge of such trains of the control and management of the same, and by these and other unlaw- ful means attempted to obtain and exercise absolute control and domination over the entire operations of said railroads." ^ . . . Fol- lowing these allegations was a prayer for an injunction. . . . On presentation of it to the court an injunction was ordered com- manding the defendants "and all persons combining and conspiring with them, and all other persons whomsoever, absolutely to desist and refrain from in any way or manner interfering with, hindering, ob- structing or stopping any of the business of any of the following named railroads " (specifically naming the various roads named in the biU), "as common carriers of passengers and freight between or among any States of the United States, and from in any way or manner inter- fering with, hindering, obstructing or stopping any mail trains, express trains or other trains, whether freight or passenger, engaged in inter- state commerce, or carrying passengers or freight between or among the States." 2 . . . This injunction was served upon the defendants — at least upon those who are here as petitioners. On July 17 the district attorney filed in the office of the clerk of said covirt an information for an at- tachment against the four defendants, officers of the railway union, and on August 1 a similar information against the other petitioners. A hearing was had before the Circuit Court, and on December 14 these petitioners were found guilty of contempt, and sentenced to im- prisonment in the county jail for terms varying from three to six months. 64 Fed. Rep. 724. Having been committed to jail in pur- suance of this order they, on January 14, 1895, appUed to this court for a writ of error and also one of habeas corpus. The former was, on January 17, denied, on the ground that the order of the Circuit Court was not a final judgment or decree. The latter is now to be con- sidered. . . . Mb. Justice Beeweh, after stating the case, delivered the opinion of the court. The case presented by the bill is this: The United States, finding that the interstate transportation of persons and property, as well as the carriage of the mails, is forcibly obstructed, and that a combina- tion and conspiracy exists to subject the control of such transportation to the will of the conspirators, applied to one of their courts, sitting as a court of equity, for an injunction to restrain such obstruction and prevent carrying into effect such conspiracy. Two questions of im- portance are presented : First. Are the relations of the general govem- ' Other allegations contained in the bill are omitted. — Ed. 2 The injunction will .be found on p. 751, infra. Only a portion of it is here given. — Ed. ^ CHAP. Ill] FEDEKAL JURISDICTION 141 ment to interstate commerce and the transportation of the mails such as authorize a direct interference to prevent a forcible obstruction thereof? Second. If authority exists, as authority in governmental affairs implies both power and duty, has a court of equity jurisdiction to issue an injunction in aid of the performance of such duty? First. What are the relations of the general government to inter- state commerce and the transportation of the mails? They are those of dir-ect supervision, control, and management. While under the dual system which prevails with us the powers of government are dis- tributed between the State and the Nation, and while the latter is properly styled a government of enumerated powers, yet within the limits of such enumeration it has all the attributes of sovereignty, and, in the exercise of those enumerated powers, acts directly upon the citizen, and not through the intermediate agency of the State. . . . Among the powers expressly given to the national government are the control of interstate commerce and the creation and management of a post office system for the nation. Article I, section 8, of the Con- stitution provides that "the Congress shall have power. . . . Third, to regulate conunerce with foreign nations and among the several States, and with the Indian tribes. . . . Seventh, to establish post offices and post roads." Congress has exercised the power granted in respect to interstate commerce in a variety of legislative acts. . . . Under the power vested in Congress to establish post offices and post roads. Congress has, by a mass of legislation, established the great post office system of the country, with all its detail of organiza- tion, its machinery for the transaction of business, defining what shall be carried and what not, and the prices of carriage, and also prescrib- ing penalties for all offences against it As, under the Constitution, power over interstate commerce and the transportation of the mails is vested in the national government, and Congress by virtue of such grant has assumed actual and direct control, itf ^ows that the jationaLgovernment may prevent any un- lawfu] _aiid forcible in terference therewith. But how shall this be ac- complished? Doubtless, it is^witEn the competency of Congress to prescribe by legislation ttiat any interference with these matters shall be offences against the United States, and prosecuted and punished by indictment in the proper courts. But is that the only remedy? Have the vast interests of the nation in interstate commerce, and in the transportation of the mails, no other protection than lies in the possible punishment of those who interfere with it? To ask the ques- tion is to answer it. By article 3, section 2, clause 3, of the Federal Constitution it is provided: "The trial of all crimes except in cases of impeachment shall be by jury; and such trial shall be held in the State where the said crime shall have been committed." If all the in- habitants of a State, or even a great body of them, should combine to obstruct interstate commerce or the transportation of the mails, pros- 142 FEDERAL JURISDICTION [CHAP. Ill ecutions for such offences had in such a community would be doomed in advance to failure. And if the certainty of such failure was known, and the national government had no other way to enforce the free- dom of interstate commerce and the transportation of the mails than bjf profecution and punishment for interference therewith, the whole interests of the nation in these respects would be at the absolute mercy of a portion of the inhabitants of that single State. But there is no such impotency in the national government. The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the national govermnent may be put forth to brush away all obstruc- tions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws. But passing to the second question, is there no other alternative than the use of force on the part of the executive authorities whenever obstructions arise to the freedom of interstate commerce or the trans- portation of the mails? Is the army the only instrument by which rights of the public can be enforced and the peace of the nation pre- served? Grant that any public nuisance may be forcibly abated either at the instance of the authorities, or by any individual suffering private damage therefrom, the existence of this right of forcible abate- ment is not inconsistent with nor does it destroy the right of appeal in an orderly way to the comts for a judicial determinatiom, and an exer- cise of their powers by writ of injunction and otherwise to accomplish the same result. . . . In the case before us, the right to use force does not exclude the right of appeal to the courts for a judicial determination and for the exercise of all their powers of prevention. Indeed, it is more to the praise than to the blame of the government, that, instead of deter- mining for itself questions of right and wrong on the part of these peti- tioners and their associates and enforcing that determination by the club of the policeman and the bayonet of the soldier, it submitted all those questions to the peaceful determination of judicial tribimals, and invoked their consideration and judgment as to the measure of its rights and powers and the correlative obligations of those against whom it made complaint. And it is equally to the credit of the latter that the judgment of those tribunals was by the great body of them respected, and the troubles which threatened so much disaster ter- minated. Neither can it be doubted that the government has such an interest in the subject-matter as enables it to appear as party plaintiff in this suit. It is said that equity only interferes for the protection of prop- erty, and that the government has no property interest. A sufficient reply is that the United States have a property in the mails, the pro- tection of which was one of the purposes of this bill. . . . CHAP. Ill] FEDERAL JURISDICTION 143 We do not care to place our decision upon this ground alone. Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general weKare, is often of itself sufficient to give it a standing in court. This proposition in some of its relations has hereto- fore received the sanction of this court. ... It is obvious that while it is not the province of the government to interfere in any mere matter of private controversy between individ- uals, or to use its great powers to enforce the rights of one against an- other, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitu- tion are entrusted to the care of the Nation, and concerning which the Nation owes the duty to all the citizens of securing to them their com- mon rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to .fully discharge those constitutional duties. The national government, given by the Constitution power to regulate interstate commerce, has by express statute assumed juris- diction over such commerce when carried upon railroads. It is charged, therefore, with the duty of keeping those highways of interstate com- merce free from obstruction, for it has always been recognized as one of the powers and duties of a government to remove obstructions from the highways under its control. . . . That the bill filed in this case alleged special facts calling for the exercise of all the powers of the court is not open to question. The picture drawn in it of the vast interests involved, not merely of the city of Chicago and the State of Illinois, but of all the States, and the general confusion into which the interstate commerce of the coun- try was thrown; the forcible interference with that conunerce; the attempted exercise by individuals of powers belonging only to gov- ernment, and the threatened continuance of such invasions of public right, presented a condition of affairs which called for the fullest exercise of all the powers of the courts. If ever there was a special exigency, one which demanded that the court should do all that courts can do, it was disclosed by this biU, and we need not turn to the public history of the day, which only reaffirms with clearest emphasis all its allegations. ... It must be borne in mind that this bill was not simply to enjoin a mob and mob violence. It was not a bill to command a keeping of the peace; much less was its purport to restrain the defendants from abandoning whatever employment they were engaged in. The right 144 FEDERAL JURISDICTION [CHAP. Ill of any laborer, or any number of laborers, to quit work was not chal- lenged. The scope and purpose of the bill was only to restrain forcible obstructions of the highways along which interstate commerce travels and the mails are carried. And the facts set forth at length are only those facts which tended to show that the defendants were engaged in such obstructions. . . . We have given to this case the most careful and anxious attention, for we realize that it touches closely questions of supreme importance to the people of this country. Summing up our conclusions, we hold that the government of the United States is one having jurisdiction over every foot of soil within its territory, and acting directly upon each citizen; that while it is a government of enumerated powers, it has within the limits of those powers all the attributes of sovereignty; that to it is committed power over interstate commerce and the trans- mission of the mail; that the powers thus conferred upon the na- tional government are not dormant, but have been assumed and put into practical exercise by the legislation of Congress; that in the exercise of those powers it is competent for the nation to remove all obstructions upon highways, natural or artificial, to the passage of interstate commerce or the carrjdng of the mail; that while it may be competent for the government (through the executive branch and in the use of the entire executive power of the nation) to forcibly remove all such obstructions, it is equally within its competency to appeal to the civil courts for an inquiry and determination as to the existence and character of any alleged obstructions, and if such are foimd to exist, or threaten to occur, to invoke the powers of those courts to remove or restrain such obstructions; that the jurisdiction of courts to interfere in such matters by injunction is one recognized from ancient times and by indubitable authority; that such jurisdiction is not ousted by the fact that the obstructions are accompanied by or consist of acts in themselves violations of the criminal law; that the proceeding by injunction is of a civil character, and may be enforced by proceedings in contempt; that such proceedings are not in execu- tion of the criminal laws of the land; that the penalty for a violation of injunction is no substitute for and no defence to a prosecution for any criminal offences committed in the course of such violation; that the complaint filed in this case clearly showed an existing obstruction of artificial highways for the passage of interstate commerce and the transmission of the mail — an obstruction not only temporarily existing, but threatening to continue; that under such complaint the Circuit Court had power to issue its process of injunction; that it having been issued and served on these defendants, the Circuit Court had authority to inquire whether its orders had been dis- obeyed, and when it found that they had been, then to proceed under sec. 725, Revised Statutes, which grants power "to punish, by fine or imprisonment, . . . disobedience, ... by any party ... or other person, to any lawful writ, process, order, rule, decree or command," CHAP. Ill] FEDERAL JURISDICTION 145 and enter the order of punishment complained of; and, finally, that, the Circuit Court, having full jurisdiction in the premises, its finding of the fact of disobedience is not open to review on habeas corpus in this or any other court. Ex parte Watkins, 3 Pet. 193; Ex parte Yarbrough, 110 U. S. 651; Ex parte Terry, 128 U. S. 289, 305; In re Swan, 150 U. S. 637; United States v. Pridgeon, 153 U. S. 48. We enter into no examination of the act of July 2, 1890, c. 647, 26 Stat. 209, upon which the Circuit Court relied mainly to sustain its jurisdiction. It must not be understood from this that we dissent from the conclusions of that court in reference to the scope of the act, but simply that we prefer to rest our judgment on the broader ground which has been discussed in this opinion, believing it of importance that the principles underlying it should be fully stated and affirmed. The petition for a writ of habeas corpus is Denied.^ CLAYTON ACT Act of Oct. 15, 1914, c. 323, Sections 6, 20 ' Sec. 6. The labor of a human Jbeing is not a commodity or article of commerce. Nothing contained in the anti-trust laws sha,ll be con- s trued to forbid the existence and op eration of labor, agricultural, o r horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to for- bid or restrain individual members of such organizations fr^m law- fully carrjii^ out the legitimate objects thereof; nor shall such orgamzations , or the members thereof, be held or construed to be illegal comblnatioi^ "or conspiracies in restraint of trade, under the anti-trust laws.~ Sec. 20. No restraining order or injunction shall be _granjgd_by any co urt of the Um ted States , or a judge or the judges thereof, i n any~case betw een an ern ployer and employees, or between em- ployers a nd employees, Q r"^etween emp loyees, or between persons e mployed and persons seeking employment, involving, or growing out_of^__adispute~cbncefni5g~ terms or conditions of employment, unless necesiaryTcT prevent irreparable injury to property, or to a property~rig Iit"7of the party making the application, for which in- j ury there is "no adequate remedy atlaw, and such property or prop- erty right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney. ' Debs was also proceeded against criminally, but the prosecution was later dropped. See United States v. Debs, 63 Fed. 436; United States v. Debs, 64 Fed. 724; United States v. Debs, 65 Fed. 210. With the principal case may be compared that of United States v. Frank J. Hayes et al., U. S. D. C, Ind., Nov. Term, 1919. In Equity, No. 312, Oct. 31, 1919, Nov. 8, 1919. See Injunction Order, p. 7.57, infra. See a discussion of this case in 34 H. L. R., 401-407. 2 U. S. Comp. Stats., sees. 8835f, 1243d. 146 FEDERAL JURISDICTION [CHAP. HI And no such restraining order or injunction sh^llOT^iibit_any person or persons, whether singly or in concert, from te rminating any relation of employment, or from ceasing to perfornfany work or labor, or from recommending, jidvising, or persuading others, by peaceful means so to do; or from attending at any place where any such person or persons may lawfully be, for the purpose of ^geaje- fully obtaining or communicating information, or from peac^Jly persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or fro m recomm endi ng, advising, or persuading others by peaceful andjaw- f 111 means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value; or from peaceably assembling in alagful manner, ajad for lawful purposes; or_fromdoing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shaU any of the acts specified in this paragraph be considered or held to be violations of any law of the United States. DUPLEX PRINTING PRESS CO. v. DEERING Supreme Court of the United States. 1921 254 U. S. 443 See infra, p. 440, for a report of the case THE UNITED MINE WORKERS v. THE CORONADO COAL CO. Supreme Court of the United States. 1922 — U. S.— See infra, p. 533, for a report of the case. CHAPTER IV LEGALITY OF MEANS USED BY LABOR ORGANIZATIONS Section 1. The Strike TUBWOMEN V. BREWERS OF LONDON Cited in 8 Mod. 10 (1721) The Court.' The indictment, it is true, sets forth, that the de- fendants refused to work under the wages which they demanded; but although these might be more than is directed by the statute, yet it is not for the refusing to work, but for conspiring, that they are indicted, and a conspiracy of any kind is illegal, although the matter about which they conspired might have been lawful for them, or any of them, to do, if they had not conspired to do it, as appears in the case of The Tubwomen v. The Brewers of London.^ Recordeh Levy m PHILADELPHIA CORDWAINERS' CASE Commons & Gilmare, Documentary History, Vol. Ill, p. 233 (1806) A combination of workmen to raise their wages may be considered in a twofold point of view; one is to benefit themselves . . . the other is to injure those who do not join their society. The rule of law condemns both. De MINICO v. CRAIG Supbeme Judicial Court of Massachusetts. 1911 207 Mass. 593 LoRiNG, J. This bill is brought by a member of the Milford Branch of the Granite Cutters' International Association of America against the president and secretary of the association and certain members of it who const tuted its adjustment committee. The plaintiff seeks to have the defendants enjoined from combining against his em- ' Extract from the opinion in Rex v. Journeymen Tailors of Cambridge, 8 Mod. 10. ^ AjQ exhaustive search has failed to reveal in the reports any such case as Tubwomen v. Brewers of London, here referred to but without citation or refer- ence. Many have doubted its existence. It has been generally conjectured that the case thus referred to is King v. SterUng, 1 Lev. 125, 1 Sid. 174, 1 Keb. 650. See Yates Select (N. Y.) Cases, pp. 164, 211, 212. The case is discussed in 3 Columbia Law Review, 447. 147 148 LEGALITY OP MEANS USED [CHAP. IV ployment as a foreman by Wells Brothers, and for damages. The case went to a master and is before us on his report. The plaintiff and one Ardolino had been employed by Wells Broth- ers as the foremen of their stone quarry at Hopkinton since March, 1909 (when work was begun there to furnish the stone for a building in process of erection in Boston), until the matters here complained of took place in the following June. On the evening of June 22, 1909, the Milford Branch of the association voted to refuse to continue at work under the plaintiff and Ardolino as foremen, and pursuant to that vote none of the men employed by Wells Brothers went to work on June 23, the next day. A meeting was had between Wells Broth- ers and the adjustment committee of the association on that next day, June 23, and the result of it was an agreement between Wells Broth- ers and the officers of the association by which the men went back to work on the following day, June 24, and the plaintiff and Ardolino were removed as foremen on Saturday night, June 26. The plaintiff thereafter worked as a journeyman for Wells Brothers until January 10, 1910, when work at the quarry ceased. The occasion for the strike was a discharge or a supposed discharge by the plaintiff of one Tronconi on the morning of June 22. There was a rule of WeUs Brothers forbidding the men to enter the black- smith shop. On the day in question Tronconi went into the black- smith shop to get some tools which were being sharpened for him and was ordered out by Ardolino, the other foreman. Later the plaintiff gave Tronconi some instructions which Tronconi understood to mean that he was discharged. But the plaintiff always denied that he in- tended to discharge Tronconi. Thereupon on the same day the pres- ident and two members of the adjustment committee of the asso- ciation had a conference with the plaintiff and Tronconi. At this conference Tronconi insisted that he had been unjustly discharged, the plaintiff denied that he had discharged him at all, and told him to go back to his work. The meeting of the association was held on the evening of that day, the strike followed the next day and was ended by the agreement reached on the afternoon of the second day, as we have already stated. We pass by. certain findings made by the master on issues raised by the pleadings which have now become immaterial, and come to his finding on the only issue now in dispute, namely. Was the strike for a justifiable purpose? The master begins the part of his report in which that question is considered with this finding: "I find . . . that the respondents in securing his [the plaintiff's] removal were actuated by personal ob- jections some of them had against his continuance in the office of foreman." . . . The master's further findings on this point are in substance as follows: "While it is probable that the complainant made some minor mistakes, I am of the opinion that his work as foreman was SECT. I] THE STRIKE 149 acceptable to Wells Brothers Co., and that he was sufficiently com- petent to fill the position to the satisfaction of the company. No workman lost any pay or otherwise suffered any actual damage by reason of any mistakes made by the complainant. In regard to the enforcement of the rules, I find that the rules were established by the company, and that it was the duty of the complainant as fore- man to see that they ^ere enforced. I am of the opinion that the real complaint of the majority of the men claiming to have a griev- ance against the complainant and his fellow foreman Ardolino, was because of their enforcement of these rules, and that they did enforce them more strictly than the men had been accustomed to having them enforced." The master then states the attempts made by the plaintiff and Ardolino to enforce the rules of their employers. Wells Brothers. He finds that they (1) had attempted to have the rule against going to the blacksmith shop strictly enforced; (2) to stop the men's knocking off work a few minutes before the working day ended; (3) to stop their using the compressed air to brush their clothes; and (4) in one instance to stop a man's eating his luncheon during working hours. . . . The master finds "that the strike was instigated by a comparatively few men who were successful in in- ducing other members to adopt their suggestions and join them in their purpose to secure the complainant's removal as foreman, al- though they testified that their purpose was to secure better con- ditions." We interpret this to be a finding that the purpose of this strike was not to "secure better conditions" for the workmen as distinguished from a purpose to get rid of a foreman who was dis- hked by some of the employees. To conclude the statement of the master's findings on the purpose of the strike he found that the rea- sons "for their dislike or objection" to the plaintiff and Ardolino were "trivial" and would not have received any consideration had it not been for the existence of the present case; and that these rea- sons "dislike and objection" were founded on a feeling of grievance because of the "enforcement of these rules . . . more strictly than the men had been accustomed to having them enforced." Whether the purpose for which a strike is instituted is or is not a legal justification for it, is a question of law to be decided by the court. To justify interference with the rights of others the strikers must in good faith strike for a piu-pose which the court decides to be a legal justification for such interference. To make a strike a legal strike it is necessary that the strikers should have acted in good faith in striking for a purpose which the court holds to have been a legal purpose for a strike, but it is not necessary that they should have been in the right in instituting a strike for such a purpose. On the other hand a strike is not a strike for a legal purpose because the strikers struck in good faith for a purpose which they thought was a sufficient justification for a strike. As we have said already, to make a strike a legal strike the purpose of the strike must be one which the 150 LEGALITY OF MEANS USED [CHAP. IV court as matter of law decides is a legal purpose of a strike, and the strikers must have acted in good faith in striking for such a purpose. The purpose of the strike here in question has been fovmd to have been to get rid of two foremen because some of the workmen had personal objections to and a dislike for them. Or, to use the words of their own counsel, because these foremen were "distasteful to [some of] the employees." We are of opinion that that is not a legal purpose for a strike. The plaintiff had a right to work and that right of his could not be taken away from him or interfered with by the defendants unless it came into conflict with an equal or superior right of theirs. The defendants' right to better their condition is such an equal right. But to humor their personal objections, .their Hkes and dislikes, or to escape from what "is distasteful" to some of them is not in our opinion a superior or an equal right. It is doubtless true that in a certain sense the condition of work- men is better if they work under a foreman for whom they do not have a personal dislike, that is to say, one who is not "distastefid" to them. But that is not true in the sense in which those words are used when it is said that a strike to better the condition of the work- men is a strike for a legal pm^pose. One who betters his condition only by escaping from what he merely dislikes and by securing what he likes does not better his condition within the meaning of those words in the rule that employees can strike to better their condition. The defense in the case at bar has not failed because a strike to get rid of a foreman never can be a strike for a legal purpose. We can conceive of such a case. If, for example, a foreman was in the habit of using epithets so insulting to the men that they could not maintain their self respect and work under him, la strike to get rid of him in our opinion would be a legal strike. It is not necessary in the case at bar to define such cases and lay down their limits. It is wiser, in our opinion, in matters such as we are now deahng with, to go no farther than to decide each case as it arises. What we have just said is said to prevent misapprehension as to what is now decided. What we now decide is that a strike to get rid of a foreman because some of the employees have a dislike for him is not a strike for a legal pur- pose. For these reasons a majority of the court are of opinion that the strike was not a legal one. . . . PARKINSON CO. v. BUILDING TRADES COUNCIL Supreme Court of California. 1908 154 Cd. 581 Beatty, C. J.i This is a suit to enjoin an alleged boycott. The plaintiff is the owner and proprietor of a lumber yard at Palo Alto in Santa Clara County, and also of a plumbing and tinning shop„ ' Only a small portion of the opinion is given. — Ed. SECT. I] THE STRIKE 151 mill, etc. It buys and sells lumber, building materials, and hard- ware, and employs laborers, teamsters, and mechanics. The prin- cipal defendant, the Building Trades Council, is a voluntary associa- tion composed of delegates from various labor unions of Santa Clara County. The other defendants are labor unions composed of arti- sans engaged in the various crafts concerned in building operations, the officers of the coimcil and of the several unions and a large number of members of said unions. . . . A preUminary injunction was issued and the cause subsequently tried by the court. . . . The findings were in favor of the plaintiff, and by the judgment and decree of the court, the defendants, all and each of them, were enjoined. . . . There was also a judgment for one dollar damages and costs taxed at $304.25. . . . [The defendants'] combination and conspiracy, if it can be called a conspiracy, was not inspired by any malicious purpose or feeling against the plaintiff; it embraced the world at large and consisted wholly in an agreement to which all the members were pledged that they would refuse to work for any person or firm who employed non- union men, and that they would refuse to work upon or handle any material supplied by an employer of non-union men. They were, in other words, organized for the purpose of enforcing in Santa Clara County what is known as the " closed shop," and the means by which they proposed to accomplish their object was to bind themselves by a mutual pledge to quit working for any one who should be declared "unfair," either because he employed non-union men, or because he required them to handle material supplied by an employer of such men. This being the situation on the first of February, 1904, the plaintiff corporation, which seems to have been conducting its busi- ness under some understanding with the council, to the effect that it would employ only union men, set some non-union men to work erecting sheds in its limiber yard at Palo Alto. . . . Plaintiff was then declared "unfair" and on the following day the business agent went upon plaintiff's premises and notified his union employees of that fact, reminding some of them of their pledge to quit work for any employer declared "unfair." He also mailed or delivered notices to all the contractors of Palo Alto employing union men as follows : "San Jose, February 10th, 1904. "To all whom it may concern: "You are hereby notified that J. F. Parkinson Co. has been placed on the unfair list of the Building Trades Council of Santa Clara County. And union men cannot work for, or handle any ma- terial furnished by said Parkinson until further notice." "Building Trades Council, "Per Chas. H. Harrison, Secretary." The effect of these notices was that all the union employees of plaintiff quit work and its mill was closed at noon on the tenth day 15^ LEGALITY OF MEANS USED [CHAP. IV of February, remaining closed until it secured a crew of non-union men. And most of the contractors who had formerly purchased building material from plaintiff ceased to deal with it upon receipt of the written notice addressed to them. ... All of the men who quit the emplojnment of plaintiff and of those contractors who disregarded the unfair notice did so peaceably and quietly. There -was no force, no threat, no violence or intimidation used against them aside from the reminder addressed to one or two individuals of their obligation to their respective unions. There was no force, violence, threat or intimidation used towards the non- union men employed in place of the strikers, and no attempt to ob- struct the plaintiff in his efforts to secure non-union men. There was not at any time any picketing of the plaintiff's premises or in- terference with its customers. The most serious act proved against the council was that its business agent in the course of the dispute over the Waterman affair told Mr. Parkinson that they — the coun- cil — would drive him out of business if he refused to observe their rules. This, however, was merely an expression of the business agent's opinion of the effect of declaring the plaintiff unfair; it was a warning, a caution, intended no doubt to force compliance with the council's demands, but evidently it did not have that effect, for Mr. Parkinson being of a different opinion stood his ground and accepted the consequences. . . . We may, therefore, in the further consideration of this case confine our attention to what the defendants did and threatened to do, and to the simple question whether those things were or were not, in themselves, lawful. The general objects of the union and •/the council being lawful, if they used no unlawful means for their attainment, the motives which inspired their action in this case are irrelevant to the question of conspiracy and iromaterial as affecting the cause of action. As to what are lawful acts in furtherance of such objects as were proposed by the defendants in this case, the consensus of recent judicial opinion, above referred to, cannot be better illustrated than by quoting the propositions upon which the majority and the mi- nority of the New York coiu-t of appeals, despite their opposite conclusions in National Protective Association v. Ctunmings, were entirely agreed. Chief Justice Parker at the outset of his opinion (170 N. Y., p. 320) [63 N. E. 369, 88 Am. St. Rep. 648], says: "I shall assume that certain principles of law laid down by Judge Yann are correct, namely: ' It is not the duty of one man to work for an- other unless he has agreed to, and if he has so agreed but for no fixed period, either may end the contract whenever he chooses. The one may work, or refuse to work, at will, and the other may hire or dis- charge at will. The terms of employment are subject to mutual agreement, without let or hindrance from any one. If the terms do not suit, or the employer does not please, the right to quit is abso- SECT. I] THE STRIKE 153 lute, and no one may demand a reason therefor. Whatever one man may do alone, he may do in combination with others, provided they have no unlawful object in view. Mere numbers do not ordinarily affect the quality of the act. Workingmen have the right to organize for the purpose of securing higher wages, shorter hours of labor or improving their relations with their employers. They have the right to strike; that is, to cease working in a body by pre-arrangement until a grievance is redressed, provided the object is not to gratify malice or inflict injury upon others, but to secure better terms of employment for themselves. A peaceable and ordinary strike, not to harm others, but to improve their own condition, is not in viola- tion of law.' " This is a most conservative statement of the law. It embraces nothing that is not conceded at this day by even the most deter- mined opponents of the principle of the strike, and contains in the concluding sentence a quahfication which the rule of Boyson v. Thorn '^ would compel us to disregard. In case of a peaceable and ordinary strike, without breach of contract, and conducted without violence, threats, or intimidation, this court would not inqmre into the mo- tives of the strikers — their acts being entirely lawful, their motives would be held immaterial. But taking the doctrine as stated by Justice Vann with aU its quahfications, it suffices for the decision of everything of real importance in the present controversy, so far as the council and its constituent unions are concerned. The rule that their members could not work with non-union men, or handle ma- terial supplied by an employer of non-union men, was adopted be- fore any difference had arisen between them and the plaintiff or its manager. It was a rule which they supposed would benefit them, and that was its sole pinrpose. Whatever others may think of the policy or justice of such a rule, that is a matter outside the province of the courts, and as with regard to other questions of economic or political aspect, the remedy, if a remedy is needed, must be found by the legislatm-e. In the meantime, and for present purposes, we must recognize the fact that this rule, as established by the council and the affiliated unions, was devised for the promotion of an object certainly not unlawful, that the occasion which called for its application was the voluntary act of plaintiff's agent, and that with two or three possible exceptions to be hereafter noticed, the defendants did noth- ing unlawful in their attempt to make it effective. Certainly it was not unlawful to call out the union men, and it was not unlawful for the men to cease work which they were bound by no contract to continue. . . . For the reasons above stated the judgment of the Superior Court is reversed. 1 98 CaJ. 578; infra, p. 244. 154 LEGALITY OF MEANS USED [CHAP. IV Section 2. Inducing Breach of Contract. Enticement of Servants ORDINANCE OF LABOURERS 23 Edw. in, c. 2 (1349) Item, If any reaper, mower, or other workman or servant, of what estate or condition that he be, retained in any man's service, do depart from the said service without reasonable cause or licence, before the term agreed, he shall have pain of imprisomnent. And that none imder the same pain prestmie to receive or to retain any such in his service.^ ANONYMOUS'' Common Pleas. 1409 Year Book, 11 Henry IV, f. 23, pi. 46 Thomas Frome brings a writ of trespass at common law against the defendant for his close broken, and one J. his servant taken out of his service. . . . Tremain [for the defendant]. ... As to the servant, we foimd him wandering in a certain place in another county; and there he came and offered his service to us, and made covenant with us to serve us. . . . Skrene [for the plaintff]. He has admitted that the servant was in our service, and that he has received him into his service; and so he has admitted our action, and we pray judgment, and that he be attainted. Hankford [J.].' When the servant was wandering, if the defend- ant had not cognizance that he was iri your service then this first receiver cannot be adjudged a wrong done by the defendant, but by the servant. And then Skrene said, that the same servant made a covenant with him [the plaintiff] to serve him in the office of "Berchier" * for an entire year, during which year he [the defendant] procured our servant to leave oiu- service by force of which procurement he left om- service during the same year and he [the defendant] retains him in his service; which matter we wish to aver, and demand judg- mcHt. . . . ' For a brief discussion of the nature of the action arising under this statute and of the later development of the law, see Wigmore, John H., Interference with Social Relations, 21 Am. L. Rev., pp. 764 et seq. ^ Part of the case is omitted. — Ed. ' WiUiam Hankford, Justice of the Common Pleas, May 6, 1398. Appointed Chief Justice of England on Jan. 29, 1414. For a brief biographical account, see Foss, Judges of England, vol. 4, p. 323. — Ed. * I. e., shepherd. — Ed. SECT. 11] INDUCING BREACH OF CONTRACT 155 Hill [J.].i His writ of trespass as to the servant does not lie upon the matter shown; for the plaintiff says that the defendant did nothing but to procure the servant to leave his [the plaintiff's] serv- ice, by which procurement he left his service, and was retained with the defendant, in which case action on the Statute of Labourers is given, and not this action. Skrene. If a man procures my servant to leave my service and retains him upon that, he does me wrong. Hankfokd [J.] and Hill [J.]. It is evident that he does you wrong; but you shall not have any remedy on such manner of writ as this is. . . . CuLPEPER [J.].^ This action is taken upon an action at common law as it was before the Statute of Labourers; and the actions which existed at common law before the same Statute of Labourers were not aboUshed by this statute. And if a man procures and abets my serv- ant to go with him in his service, action at common law lies well enough. Hill [J.]. No certes, action at common law of trespass does not lie in such a case; for such a procurement cannot be said in any way to go against the peace. . . .' BLAKE V. LANYON King's Bench. 1795 6 Term Reports, 221 The first count in the declaration stated that the plaintiff, who was a currier, had hired and retained W. Hobbs to be his servant and journeyman, etc., and that the defendant persuaded and enticed Hobbs to leave his service, etc. In the second count it was alleged that Hobbs, while he was so hired and employed by the plaintiff in his trade as such servant, etc., wilfully and without the leave or license and against the wiU of the plaintiff ,' departed and absented himself from and left the service of the plaintiff, etc., and then and there went to the defendant; yet the defendant well knowing Hobbs to be the servant of the plaintiff, and to have been and to be so re- tained, hired, and employed by the plaintiff, etc., but contriving, etc., "did then and there receive and harbour the said W. Hobbs, ' Robert Hill, appointed Justice of the Common Pleas on May 14, 1408. For a brief biographical account, see Foss, Judges of England, vol. 4, p. 326. — Ed. ' John Colepeper, appointed Justice of the Common Pleas on June 7, 1406. For a brief biographical account, see Foss, Judges of England, vol. 4, p. 202. — ^d. ' The remainder of the case is omitted. Thirning [C. J.] proceeded to draw a distinction between where a servant goes out of another's service and where he is taken out. "Thirning admits that, before the statute, if a servant went out of the service no action lay, but if he was taken trespass did; and then contends that the procuring in the case at bar was a taking and made the party guilty of trespass; in which he was clearly wrong." — Per Colendge, J., m Lumley v. Gye, 2 El. & Bl. 216, 258. — Ed. 156 LEGALITY OF MEANS USED [CHAP. IV and did then and there retain, keep, and employ the said Hobbs in his (defendant's) said service, and wholly refused to deliver him' to the plaintiff his master," although requested, etc., and unlawfully detained, entertained, and kept the said Hobbs, so then being the servant and journeyman of the plaintiff, in his (the defendant's) service, etc., whereby, etc. At the trial at the last Laimceston assizes it appeared that Hobbs, who was retained by the plaintiff to work by the piece, left the plaintiff's service on a dispute between them, the plaintiff having beaten him; that at the time of his departure he had some work in hand; that he then applied for work to the defendant, who was also a currier, and who employed him, not knowing of his engagement with the plaintiff; but that in the course of a few days afterwards the defendant, having been apprised by the plaintiff that Hobbs was his servant, and had left his work unfinished, and being threatened with an action in case he continued to employ Hobbs, requested the servant to return to his former master and finish his work: this Hobbs refused, and the defendant continued him in his service. No evidence being given in support of the first count, it was objected on behalf of the defendant that the action could not be supported on the second count, because it either imported that the defendant had retained Hobbs in his service, knowing him to be the servant of the plaintiff, which was not established in proof, or that he merely continued Hobbs in his service after he had notice of Hobbs's engagement with the plaintiff, for which no action could be maintained, it appearing that the defendant did not know that Hobbs was the plaintiff's servant at the time he first employed him. But Mr. J. Lawrence, before whom the case was tried, overruled the objection, saying that the plaintiff might recover upon the second count, if the jury were of opinion that the defendant continued to employ Hobbs after he knew that Hobbs was the plaintiff's servant. The jury having given a verdict for the plaintiff; Gibbs now renewed . his objection, and moved either to enter a non-suit, or to arrest the judgment; stating that great inconven- iences would result from a determination against the defendant, for that in such a case a person engaged in a great manufacture might be deprived of the benefit of the service of a journeyman, whom he had retained to do a particular piece of work, not knowing at the time of hiring that the journeyman was under any engagement with any other master, before the servant had finished his work, and at a moment when the materials then in work might be totally spoiled if left in an unfinished state. And he cited Adams v. Bafeald, 1 Leon. 240, where it was held by Tanfield, J., and Fenner, J., against the opinion of Gawdy, J., that an action does not lie for retaining the servant of another, unless he procure the servant to leave his first master. Sed peb Cuhiam. An action will lie for receiving or continuing to employ the servant of another after notice, without enticing him SECT. 11] INDUCING BREACH OE CONTRACT 157 away. Here no favilt could be imputed to the defendant for taking Hobbs into his service in the first instance, because then he had no notice of Hobbs's prior engagement with the plaintiff: but as soon as he had notice of that fact, he ought to have discharged him. A person who contracts with another to do certain work for him is the servant of that other till the work is finished, and no other person can employ such servant to the prejudice of the first master; the very act of giving him employment is affording him the means of keeping out of his former service. Rule refused. LUMLEY V. GYE Queen's Bench. 1853 2 El. & Bl. 216 Cbompton, J. The declaration in this case consisted of three counts. The two first stated a contract between the plaintiff, the proprietor of the Queen's Theatre, and Miss Wagner, for the per- formance by her for a period of three months at the plaintiff's theatre; and it then stated that the defendant, knowing the premises and with a malicious intention, whilst the agreement was in full force, and before the expiration of the period for which Miss Wagner was engaged, wrongfully and mahciously enticed and procured Miss Wagner to refuse to sing or perform at the theatre, and to depart from and abandon her contract with the plaintiff and aU service thereunder, whereby Miss Wagner wrongfully, during the full period of the engagement, refused and made default in performing at the theatre; and special damage arising from the breach of Miss Wag- ner's engagement was then stated. The third count stated that Miss Wagner had been hired and engaged by the plaintiff, then being the owner of Her Majesty's Theatre, to perform at the said theatre for a certain specified period as the dramatic artiste of the plaintiff for reward to her in that behalf, and had become and was such dramatic artiste for the plaintiff at his said theatre for profit to the plaintiff in that behalf; and that the defendant, well knowing the premises and with a malicious intention, whilst Miss Wagner was such artiste of the plaintiff, wrongfully and maliciously enticed and procured her, so being such artiste of the plaintiff, to depart from and out of the said employment of the plaintiff, whereby she wrongfully departed from and out of the said service and employ- ment of the plaintiff, and remained and continued absent from such service and employment until the expiration of her said hiring and engagement to the plaintiff by effluxion of time; and special damage arising from the breach of Miss Wagner's engagement was then stated. To this declaration the defendant demurred : and the ques- tion for our decision is, Whether all or any of the counts are good iii substance? 158 LEGALITY OF MEANS USED [CHAP. IV The effect of the two first counts is, that a person, under a binding contract to perform at a theatre, is induced by the malicious act of the defendant to refuse to perform and entirely to abandon her con- tract; whereby damage arises to the plaintiff, the proprietor of the. theatre. The third count differs, in stating expressly that the per- former had agreed to perform as the dramatic artiste of the plain- tiff, and had become and was the dramatic artiste of the plaintiff for reward to her; and that the defendant mahciously procured her to depart out of the employment of the plaintiff as such dramatic artiste; whereby she did depart out of the employment and service of the plaintiff; whereby damage was suffered by the plaintiff. It was said, in support of the demurrer, that it did not appear in the declaration that the relation of master and servant ever subsisted between the plaintiff and Miss Wagner; that Miss Wagner was not averred, especially in the two first counts, to have entered upon the service of the plaintiff; and that the engagement of a theatrical performer, even if the performer has entered upon the duties, is not of such a nature as to make the performer a servant, within the rule of law which gives an action to the master for the wrongftd enticing away of his servant. And it was laid down broadly, as a general proposition of law, that no action will lie for procuring a person to break a contract, although such procuring is with a mahcious inten- tion and causes great and immediate injury. And the law as to en- ticing servants was said to be contrary to the general rule and prin- ciple of law, and to be anomalous, and probably to have had its origin from the state of society when serfdom existed, and to be founded upon, or upon the equity of, the Statute of Labourers. It was said that it would be dangerous to hold that an action was main- tainable for persuading a third party to break a contract, unless some boundary or limits could be pointed out; and that the remedy for enticing away servants was confined to cases where the relation of master and ser /ant, in a strict sense, subsisted between the parties; and that, in all other cases of contract, the only remedy was against the party breaking the contract. Whatever may have beai the origin or foundation of the law as to enticing of servants, and whether it be, as contended by the plain- tiff, an instance and branch of a wider rule, or whether it be, as con- tended by the defendant, an anoma;ly and an exception from the generajl rule of law on such subjects, it must now be considered clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant by procuring the servant to depart from the master's service, or by harbouring and keeping him as servant after he has quitted it and during the time stipulated for as the period of service, whereby the master is injured, commits a wrongful act for which he is responsible at law. I think that the rule applies wherever the wrongful interruption operates to prevent the service during SECT. II] INDUCING BREACH OP CONTRACT 159' the time for which the parties have contracted that the service suall continue: and I think that the relation of master and servant sub- sists, sufficiently for the purpose of such action, during the time for which there is in existence a binding contract of hiring and serv- ice between the parties; and I think that it is a fanciful and tech- nical and imjust distinction to say' that the not having actually entered into the service, or that the service not actually continuing, can make any difference. The wrong and injury are surely the same, whether the wrongdoer entices away the gardener, who has hired himself for a year, the night before he is to go to his work, or after- he has planted the first cabbage on the first morning of his service; and I should be sorry to support a distinction so unjust, and so repugnant to common sense, unless bound to do so by some rule or authority of law plainly shewing that such distinction exists. . . . In Blake v. Lanyon ' the party, so far from being in the actual service of the plaintiff, had abandoned that service, and entered into the service of the defendant in which he actually was; but, inasmuch as there was a binding contract of service with the plaintiffs, and the defendant kept the party after notice, he was held liable to an action. Since this decision, actions for wrongfully hiring or harbouring serv- ants after the first actual service had been put an end to have been frequent. . . . But it was further said that the engagement, em- ployment or service, in the present case, was not of such a nature as to constitute the relation of master and servant, so as to warrant the application of the usual rule of law giving a remedy in case of enticing away servants. The nature of the injury and of the dam- age being the same, and the supposed right of action being in strict analogy to the ordinary case of master and servant, I see no reason for confining the case to services or engagements, under contracts for services of any particular description; and I think that the remedy, in the absence of any legal reason to the contrary, may well apply to all cases where there is an unlawful and malicious en- ticing away of any person employed to give his personal labour or service for a given time under the direction of a master or employer "^^ who is injiired by the wrongful act; more especially when the party is bound to give such personal services exclusively to the master or employer; though I by no means say that the service need be exclusive. . . . In deciding this case on the narrower ground, I wish by no means- to be considered as deciding that the larger ground taken by Mr. Cowhng is not tenable, or as saying that in no case except that of master and servant is an action maintainable for maliciously in- ducing another to break a contract to the injury of the person with whom such contract has been made. It does not appear to me to be a sound answer, to say that the act in such cases is the act of the party who breaks the contract; for that reason would apply 1 6 T. R. 221, supra, p. 155. 160 LEGALITY OF MEANS USED [CHAP. IV in the acknowledged case of master and servant. Nor is it an answer, to say that there is a remedy against the contractor, and that the party relies on the contract; for, besides that reason also applying to the case of master and servant, the action on the con- tract and the action against the malicious wrongdoer may be for a different matter; and the damages occasioned by such malicious injury might be calculated on a very different principle from the amount of the debt which might be the only sum recoverable on the contract. Suppose a trader, with a malicious intent to ruin a rival trader, goes to a banker or other party who owes money to his rival, and begs him not to pay the money which he owes him, and by that means ruins or greatly prejudices the party: I am by no means prepared to say that an action could not be maintained, and that damages, beyond the amount of the debt if the injury were great, or much less than such amount if the injury were less serious, might not be recovered. ... In this class of cases it must be assumed that it is the mahcious act of the defendant, and that malicious act only, which causes the servant or contractor not to perform the work or contract which he would otherwise have done. The servant or contractor may be utterly unable to pay anything like the amount of the damage sustained entirely from the wrong- ful act of the defendant: and it would seem imjust, and contrary to the general priaciples of law, if such wrongdoer were not responsible for the damage caused by his wrongful and malicious act. Several of the cases cited by Mr. Cowling on this part of the case seem well worthy of attention. Without Jiowever deciding any such more general question, I think that we are justified in appljang the principle of the action for enticing away servants to a case where the defendant maliciously procures a party, who is under a vaUd contract to give her exclusive personal services to the plaintiff for a specified period, to refuse to give such services during the period for which she had so contracted, whereby the plaintiff was injured. I think, therefore, that our judgment should be for the plaintiff. . . .^ Coleridge, J. ... It may simplify what I have to say, if I first state what are the conclusions which I seek to establish. They are these: that in respect of breach of contract the general rule of our law is to confine its remedies by action to the contracting parties, and to damages directly and proximately consequential on the act of him who is sued; that, as between master and servant, there is an ad- mitted exception; that this exception dates from the Statute of Labourers, 23 Edw. 3, and both on principle and according to author- ity is limited by it. If I am right in these positions, the conclusion wUl be for the defendant, because enough appears on this record to shew, as to the first, that he, and, as to the second, that Johanna Wagner, is not within the limits so drawn. * Concurring opinions were delivered by Erie, J., and Wightman, J. —Ed. SECT. II] INDUCING BREACH OF CONTRACT 161 First then, that the remedy for breach of contract is by the gen- eral rule of our law confined to the contracting parties. I need not argue that, if there be any remedy by action against a stranger, it must be by action on the case. Now, to found this, there must be both injury in the strict sense of the word (that is a wrong done), and loss resulting from that injury: the injury or wrong done must be the act of the defendant; and the loss must be a direct and natural, not a remote and indirect, consequence of the defendant's act. Un- less there be a loss thus directly and proximately connected with the act, the mere intention, or even the endeavour, to produce it will not found the action. The existence of the intention, that is the mahce, wiU in some cases be an essential ingredient in order to con- stitute the wrongfulness or injurious nature of the act; but it will neither supply the want of the act itself, or its hurtful consequence: however complete the injuria, and whether with malice or without, if the act be after all sine damno, no action on the case wiU lie. The distinction between civil and criminal proceedings in this respect is clear and material; and a recollection of the different objects of the two will dispose of any argument foimded merely on the allegation of malice in this declaration, if I shall be found right in thinking that the defendant's act has not been the direct or proximate cause of the damage which the plaintiiff alleges he has sustained. If a contract has been made between A and B that the latter should go supercargo for the former on a voyage to China, and C, however maliciously, persuades B to break his contract, but in vain, no one, I suppose, would contend that any action would he against C. On the other hand, suppose a contract of the same kind made between the same parties to go to Sierra Leone, and C urgently and horia fide advises B to abandon his contract, which on consideration B does, whereby loss results to A; I think no one will be found bold enough to maintain that an action would he aganast C. In the first case no loss has resulted; tho malice has been ineffectual; in the second, though a loss has resulted from the act, that act was not C's, but entirely and exclusively B's own. If so, let malice be added, and let C have persuaded, not bona fide but mala fide and maliciously, still, all other circumstances remaining the same, the same reason applies; for it is malitia sine damno, if the hurtful act is entirely and exclusively B's, which last circtmistance cannot be affected by the presence or absence of malice in C. Thus far I do not apprehend much difference of opinion: there would be such a manifest absurd- ity in attempting to trace up the act of a free agent breaking a con- tract to all the advisers who may have influenced his mind, more or less honestly, more or less powerfully, and to make them respon- sible civilly for the consequences of what after all is his own act, and for the whole of the hurtful consequences of which the law makes him directly and fully responsible, that I believe it will never be contended for seriously. . . . Certainly no subject could well be 162 LEGALITY OF MEANS USED [CHAP. IV more fruitful or important; important contracts are more com- monly broken with than without persuaders or procurers, and these often responsible persons when the principals may not be so. I am aware that with respect to an action on the case the argument primm impressionis is sometimes of no weight. If the circimistances under which the action would be brought have not before arisen, or are of rare occurrence, it will be of none, or only of inconsiderable weight; but, if the circumstances have been common, if there has been fre- quently occasion for the action, I apprehend it is important to find that the action has yet never been tried. Now we find a plentiful supply both of text and decision in the case of seduction of servants: and what inference does this lead to, contrasted with the silence of the books and the absence of decisions on the case of breach of or- dinary contracts? Let this too be considered: that, if by the com- mon law it was actionable effectually to persuade another to break his contract to the damage of the contractor, it woald seem on prin- ciple to be equally so to uphold him, after the breach, in continu- ing it. Now upon this the two conflicting cases of Adams v. Bafeald, 1 Leon. 240, and Blake v. Lanyon, 6 T. R. 221, are worth consider- ing. In the first, two judges against one decided that an action does not lie for retaining the servant of another, unless the defendant has first procured the servant to leave his master; in the second, this was overruled, and, although it was taken as a fact that the defendant had hired the servant in ignorance and, as soon as he knew that he had left his former master with work unfinished, re- quested him to return, which we must imderstand to have been a real, earnest request, and only continued him after his refusal, which we must take to have been his independent refusal, it was held that the action lay: and this reason is given: "the very act of giving him employment is affording him the means of keeping out of his former service." Would the judges who laid this down have held it ac- tionable to give a stray servant food or clothing or lodging out of charity? Yet these would have been equally means of keeping him out of his former service. The true ground on which this action was maintainable, if at all, was the Statute of Labourers, to which no reference was made. But I mention this case now as shewing how far courts of justice may be led if they allow themselves, in the pursuit of perfectly complete remedies for all wrongful acts, to trans- gress the bounds which our law, in a wise consciousness as I con- ceive of its hmited powers, has imposed on itself, of redressing only the proximate and direct consequences of wrongful acts. To draw a line between advice, persuasion, enticement and procurement is practically impossible in a court of justice; who shaU say how much of a free agents' resolution flows from the interference of other minds, or the independent resolution of his own? This is a matter for the casuist rather than the jurist; still less is it for the juryman. Again, why draw the line between bad and good faith? If advice given SECT. II] INDUCING BREACH OF CONTRACT 163 mala fide, and Ios§ sustained, entitle me to damages, why, though the advice be given honestly, but under wrong information, with a loss sustained, am I not entitled to them. According to all legal analogies, the bona fides of him who, by a conscious wilful act, directly injures me will not relieve him from the obligation to compensate me in damages for my loss. Again, where several persons happen to per- suade to the same effect, and in the result the party persuaded acts upon the advice, how is it to be determined against whom the action may be brought, whether they are to be sued jointly or severally, in what proportions damages are to be recovered? Again, if, in- stead of limiting our recourse to the agent, actual or constructive, we will go back to the person who immediately persuades or pro- cures him one step, why are we to stop there? The first mover, and the malicious mover too, may be removed several steps back- ward from the party actually induced to break the contract: why are we not to trace him out? Morally he may be the most guilty. I adopt the arguments of Lord Abinger and my brother Alderson in the case of Winterbottom v. Wright, 10 M. & W. 109; if we go the first step, we can shew no good reason for not going fifty. And, again, I ask how is it that, if the law really be as the plaiutiff con- tends, we have no discussions upon such questions as these in our books, no decisions in our reports? Surely such cases would not have been of rare occmrenoe: they are not of slight importance, and could hardly have been decided without reference to the Courts in Banc. Not one was cited in the argument bearing closely enough upon this point to warrant me in any further detailed examination of them. I conclude therefore what occurs to me on the first prop- osition on which the plaintiff's case rests. I come now to the second proposition, that the decisions in re- spect of master and servant, and the seducing of the latter from the employ of the former, are exceptions grafted on the general law traceable up to the Statute of Labourers. This is of course distinct from the question of the extent of the exception, that is, to what classes of servants it applies: but the enquiries are so connected together in fact, and the latter has so obvious a bearing in support of the former, that it will be better to take them both together. Now, in the fiirst place, I cannot find any instance of this action having been brought before the statute passed; the weight of which fact is much increased by finding that it was of common occurrence very soon after. The evidence for it is not merely negative; for the mischief and the cause of action appear to have been well known before, and the want of the remedy felt. . . . Any one, I am certain, who will go through the cases abstracted by Fitzherbert under the title Laborers, will be satisfied that at common law, before the Statute, such an action as the present could not be maintained. Under that title 61 cases are abridged: many of them are for the seduction of servants; but there is no instance 164 LEGALITY OF MEANS USED CCHAP. IV of any one in which the action at common law was sustained, unless an actual trespass was charged: and it is clear, from the case which I have cited at so much length, that the distinction between taking and procuring to go was familiar to the lawyers of that day. I can hardly imagine that this could have been said, if the common law would have given relief in such a case: and, if it could, the rapid growth of the action after the Statute of Labourers had passed would be difficult to accoimt for. I come then to the Statute of Labourers (23 Ed. 3); and my object now is to shew that nothing in the provisions or policy of that statute win warrant the action under the circimistances of this case; and that the older authorities are decidedly against it. . . . What- ever may be said of the uncertainty and often conflicting natm-e of decisions from the Year Books, and, however we may now smile at some of the reasonings of the judges, probably not without their weight when uttered, they seem to me satisfactorily to establish the principle, that actions framed on the statute were governed by a consideration of the object and language of the statute, and that these pointed only to the compulsion of labourers, handicraftsmen, and people of low degree who had nO means of their own to live upon, and who, if they did not live by wages earned by their labour, would be vagrants, mendicants or worse. If this be so, I appre- hend it is quite clear that Johanna Wagner could not have been compelled, while the statute was unrepealed, to serve the plaintiff in any of the capacities stated in this declaration. ... If Johanna Wagner be not within the statute, and could only have been sued, as at common law, upon her contract for the breach of it, it will follow, I conceive, that the present action could not have been main- tained against the defendant while the statute was in force, and of course cannot now, if, as I contend, the action arises from and is limited by the purview of the statute. . . . I conclude then that this action cannot be maintained, because: 1st. Merely to induce or procure a free contracting party to break his covenant, whether done maliciously or not, to the damage of another, for the reasons I have stated, is not actionable; 2d. That the law with regard to seduction of servants from their masters' employ, in breach of their contract, is an exception, the origin of which is known, and that that exception does not reach the case of a theatrical performer. . . . Judgment for plaintiff.'- ' The doctrine of Lumley v. Gye, tithough accepted by the weight of authority,, has been flatly rejected in a number of jurisdictions. See, for example, Boyson v. Thorn, 98 Cal. 578; Chambers v. Baldwin, 91 Ky. 121; Bourlier v. Macauley, 91 Ky. 135; Swann v. Johnson, 151 N. C. 93; Sleeper v. Baker, 22 N. D. 386. See also, Glencoe Land & Gravel Co. v. Commission Co., 138 Mo. 439 (doctrine re- jected except where the relation of master and servant exists) ; Kline v. Eubanks, 109 La. 241. The earlier position of the New York courts, at first expressly re- jecting the EngUsh doctrine of Lumley v. Gye, has been materially modified by later cases. As illustrative of the present attitude of New York courts, see Posner SECT, iri INDUCING BREACH OF CONTBACT 165 BEEKMAN v. MARSTERS Supreme Judicial Court of Massachusetts. 1907 195 Mass. 205 LoRiNG, J. This sviit came before the single justice on the report of a master to which no exceptions had been taken by either party, and was reserved by him for our consideration and determination without any ruling or decision having been made. The master fovmd that on November 21, 1906, a contract was made between the plaintiff and the Jamestown Hotel Corporation. That corporation is erecting or has erected a hotel within the grounds of the Jamestown Exposition to be held between April 26 and Novem- ber 30 of this year. This hotel is known as the Inside Inn, and is to be the only hotel within the exposition groimds. The plaintiff is the proprietor of a tourist agency, having an office at 293 Washington Street, Boston. By the contract between the plaintiff and the Hotel Corporation the plaintiff agreed to represent the Hotel Corporation throughout the New England States, to establish sub-agencies in that territory, and to use every possible endeavor personally and through his agents to book persons for the Inside Inn; and the de- fendant agreed: "That you [the plaintiff] shall be our exclusive agent in said territory"; to pay the plaintiff twenty-five cents a day for each person sent by him to the hotel; and to furnish the plaintiff with all necessary "Uterature." Immediately upon being thus appointed the exclusive agent of the Hotel Corporation the plaintiff prepared and issued a "Fall Edition" of his "Tickets and Tours," in which inter alia a description is given of the Jamestown Exposition and of the Inside Inn. Following this is the statement that the plaintiff has been appointed New England agent for the exposition "and exclusive representative of the Inside Inn." The defendant is found by the master to be a ticket and tourist agent, with an office at 298 Washington Street, Boston. On January 11, 1907, he went to Norfolk, Virginia, and called upon the officers of the Hotel Corporation there. At this time he "had seen the contract between the complainant and the hotel corporation, but had not read it, and knew that the company had practically consummated a contract making Beekman its sole representative in New England." The defendant at this interview told these officers "that it was a mis- take for the corporation to give an exclusive agency in New England to any one man, and that more business would be brought to the company if all agents were given equal terms," and to enforce his arguments stated that the business done by the plaintiff was insig- nificant and that the statement was false which was made in the sum- Co. V. Jackson, 223 N. Y. 325; Lamb v. Cheney, 227 N. Y. 418. The earlier New- York doctrine may be found in such cases as Daly v. Cornwell, 34 App. Div. 27; De Jong V. Behnnan Co., 148 App. Div. 37. 166 JjEGALITY of means used [chap. IV mer edition of his "Ticket and Tours" that certain persons therein named had his tickets and tours for sale. It appeared that the sum- mer edition of this catalogue had been shown to the Hotel Corpora- tion by the plaintiff when he made his contract with it. The master found that "As a result of the solicitations or repre- sentations made by the respondent, the Jamestown Hotel Corpora- tion on or about January 11, 1907, entered into an oral contract with him, whereby it was agreed that the respondent should have the same rights that had been given to the complainant, and that he should be paid by the corporation twenty-five cents per capita per day for each guest whom he should secure for the Inside Inn." The defendant then wrote to all men named in the plaintiff's cat- .alogue except those having places of business in Canada, "and two or three others who appeared to have an independent agency busi- ness," telling them that the plaintiff had not an exclusive agency for New England and suggesting to them that they could get paid on the same footing as that upon which the plaintiff and the defendant were to be paid, if they chose to act for themselves and not as sub-agents of the plaintiff. He also wrote to the New York, New Haven, and Hartford Railroad Co., calling attention to the fact that some of the local ticket agents of that railroad company were advertised by the plaintiff as having his tickets and tours on sale, and suggesting that the railroad company would prefer to have aU its agents strictly neutral in dealing with tourist concerns. With respect to these letters the master made this finding: "The purpose of the respondent in sending the letters above mentioned appears from the letters themselves. I do not find that the respond- ■ent was actuated by malice toward the complainant." The master further found that "The Jamestown Hotel Corpora- tion has never at any time rescinded, or attempted to rescind, its said ■contract with the complainant"; that "The complainant has never Tvaived any of his rights under the contract, and has never consented to any modification or alteration thereof except with reference to the bond" which is not material; and further, that "The Inside Inn is the only hotel which is located, or, under the contract of the com- pany with the exposition, can be located, within the exposition grounds. The exclusive right to act as agent for the Inside Inn within the New England territory is a valuable right." Lastly he has found: "There is a strong probability that a large tourist business will be done between Boston and New England and the Jamestown Exposition between April and the close of the ex- position in November, and that many passengers will arrange for tours through various tourist agencies. In all probability many more passengers will buy tours and tickets from the complainant if he is the exclusive agent in New England for the Inside Inn than will be the case if other tourist agents also book guests or issue coupons or other devices which are accepted by the Hotel Corporation for ac- SECT. II] INDUCING BREACH OF CONTRACT 167 commodations. The damage which he will sustain if the respondent or other persons are allowed to act as agents or to book guests or issue coupons in this manner is incapable of accurate ascertainment. The loss to the complainant will not be merely the loss of the commission of twenty-five cents per capita per day, which would otherwise be received from the hotel, but it will be the loss of profits on tours which he might otherwise be able to arrange." The result of the findings of the master must be taken to be that the defendant induced the Hotel Corporation to break its contract with the plaintiff, but that he did not do this to spite the plaintiff or for the purpose of injuring him, but for the purpose of getting for himself (the defendant) business which the plaintiff alone was en- titled to under the contract with the Hotel Corporation, that is to say, to get business which the defendant could not get if the Hotel Corporation kept its agreement with the plaintiff. Three defences have been set up by the defendant, namely: First, that he had a right to do what he did; second, that the plaintiff does not come into court with clean hands; and third, that the plaintiff has an adequate remedy at law by bringing an action for damages. 1. So far as the first defence is concerned, it is in effect that where A is under a contract to serve the plaintiff for a specified time, the defendant, knowing that contract to be in existence, is justified in hiring A away from the plaintiff before the expiration of that time, by giving him (A) higher wages if he (the defendant) thinks that to be for his (the defendant's) pecuniary benefit. The ground on which the defendant bases this contention is that he has a right to compete with the plaintiff and that the right of competition is a justification for thus hiring away the plaintiff's servant. We say that this is in effect the defence set up here because it has begn settled in Massachusetts that there is no distinction between a defendant's enticing away the plaintiff's servant and a defendant's inducing a third person to break any other contract between him and the plaintiff. That was decided by this court in Walker v. Cronin, 107 Mass. 555; see p. 567. See also Moran v. Dunphy, 177 Mass. 485. In other words, this court there adopted the conclusion reached by the majority of the judges of the Queen's Bench in Lumley v. Gye, 2 El. & Bl. 216. This is also the settled law of the Supreme Court of the United States. Angle v. Chicago, St. Paul, MinneapoHs & Omaha Railway, 151 U. S. 1. And it has been affirmed in England. Bowen v. Hall, 6 Q. B. D. 333. Read v. Friendly Society of Opera- tive Stonemasons, [1902] 2 K. B. 88. Glamorgan Coal Co. v. South Wales Miners' Federation, [1903] 2 K. B. 545; s. c. on appeal, svh nomine South Wales Miners' Federation v. Glamorgan Coal Co., [1905] A. C. 239. No case has been cited which holds that a right to compete justifies a defendant in intentionally inducing a third person to take away from the plaintiff his contractual rights. 168 LEGALITY OF MEANS USED [CHA.P. IV Not only has no case been cited in which that has been held, but no case has been cited in which that contention has been put for- ward. . . . The argument here urged by the defendant comes from not dis- tinguishing between two cases which not only are not the same but are altogether different so far as the question now under considera- tion is concerned. If a defendant by an offer of higher wages induces a laborer who is not under contract to enter his (the defendant's) employ in place of the plaintiff's, the plaintiff is not injured in his legal rights. But it is a quite different thing if the laborer was under a contract with the plaintiff for a period which had not expired and the defendant, knowing that, intentionally induced the laborer to leave the plain- tiff's employ by an offer of higher wages, to get his (the laborer's) services for his (the defendant's) benefit. A plaintiff's right to carry on business, that is, to make contracts without interference, is an altogether different right from that of being protected from interference with his rights under a contract already made. The existence of both rights and the difference be- tween the two is recognized by Wells, J., in Walker v. Cronin, 107 Mass. 555; the first count in that case went on the first right, and the second and third counts on the second right. Again, the existence of the two is recognized and stated by Holmes, J., in May v. Wood, 172 Mass. 11, 14, 15. ■ Where the plaintiff comes into court to get protection from inter- ference with his right of possible contracts, that is, of his right to pvirsue his business, acts of interference are justified when done by a defendant for the purpose of furthering his (the defendant's) in- terests as a competitor. . . . There are statements in opinions in Massachusetts and in England that a defendant is not Hable for interference with a plaintiff's rights in both of these two classes of cases unless he acts mahciously within the meaning of malice as used in these opinions. In the case at bar there was no necessity of proving spite or ill-wiU toward the plaintiff. This is not a case where there was an abuse of what, if done in good faith, would have been a justification, but a case where the defend- ant with knowledge of the contract between the plaintiff and the Hotel Corporation intentionally and without justification induced the Hotel Corporation to break it. That is proof of maUce within the meaning of that word as used in these opinions. South Wales Miners' Federation v. Glamorgan Coal Co., [1905] A. C. 239.i . . . 3. The finding of the master as to the damages which the plaintiff is likely to suffer shows that an action at law would not give him an adequate remedy. Where the plaintiff. proves that the defendant unlawfully interferes or threatens to interfere with his business or his 1 That part of the opinion dealing with the defence that the plaintiff did not ■come into court with clean hands is omitted. — Ed. SECT. II] INDUCING BREACH OF CONTRACT 169 rights under a contract, and further makes out in proof that dam- ages will not afford an adequate remedy, equity will issue an injunc- tion. The issuing of injunctions in Vegelahn v. Guntner, 167 Mass. ■92, and similar cases, the last of which is Pickett v. Walsh, 192 Mass. 572, are decisions directly in point. As to which see Sherry v. Perkins, 147 Mass. 212. The terms of the injunction should be in substance that the defend- ant be restrained from directly or indirectly acting as agent of the Hotel Corporation within the New England States, and from pre- venting or seeking to prevent, directly or indirectly, the plaintiff from acting as exclusive agent of the Hotel Corporation for that territory. So ordered. ' 1 HOMAN V. HALL SXJPBEME COUET OF NebBASKA. 1917 102 Neb. 70 MoEHissEY, C. J. From an order sustaining a demurrer to the petition and dismissing the action, plaintiff appeals. The petition alleges: That the plaintiff and one Bangs, now deceased, had, dur- 1 In Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509, where a ■combination of employing printers, in order to force an independent printer to •abide by the prices fixed and the regulations made by the combinatiion, induced the workmen of the independent printer to leave his employ and thus break their ■contracts of service with him, Evans, J., said in part (p. 519) : " Speaking for my- self, I believe the same reasons which support the principle that an action wiU lie for the malicious procurement of a breach of contract of personal service will ■cover every case where one person maliciously persuades and induces another to break any legal contract. In the case at bar the relation of master and servant did exist between the plaintiff and his employees, and even applying the common- law rule of liabiUty, the defendants would be answerable in damages to the plain- tiff for a maUcious procurement of the breach of contract by its employees. The term ' malicious,' used in this connection, is to be given a Uberal meaning. The act is maUcious when the thing done is with the knowledge of the plaintiff's rights, and with the intent to interfere therewith. It is a wanton interference with another's contractual rights. Ineffective persuasion to induce another to violate his contract would not, of itself, be actionable, but if the persuasion be used for the purpose of injuring the plaintiff, or benefiting the defendant at the ■expense of the plaintiff, with a knowledge of the subsistence of the contract, it becomes a malicious act, and if injury ensues from it a cause of action accrues to the injured party. Bowen u. Hall, supra. As wassaid by Compton, J., inLumley V. Gye, supra, 'it must now be considered as clear law that a person who wrong- fully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant, by procuring the servant to •depart from the master's service, ... is responsible at law.' See Doremus v. Hennessy, 176 111. 608." In An^e v. Chicago. St. Paul, etc., Ry., 151 U. S. 1, 13, Brewer, J., said: "It lias been repeatedly held that, if one maliciously interferes in a contract between two parties, and induces one of them to break that contract to the injury of the other, the party injured can maintain an action against the -wrongdoer." See also, Doremus v. Hennessy, 176 111. 608; The Jersey Citv Printing Co. v. Cassidy, 63 N. J. Eq. 759. 170 LEGALITY OF MEANS USED [CHAP. IV ing the lifetime of Bangs, entered into an agreement to marry; that they had agreed upon the date when the ceremony should be per- formed; and that each of the parties was capable of entering into the marriage relation. " That the said defendants each jointly and severally maliciously, wrongfully, unlawfully, and without just cause and to advance their own pecimiary interests, interposed objections to the said Stephen D. Bangs carrying out his said contract with plaintiff, and through threats that they would place him in a sanitarium and have him re- moved out of the circle of society in which he was known and had lived, and through falsely representing that plaintiff was of an imchaste character, and by unlawful restraint and xmdue influence, caused the said Stephen D. Bangs not to fulfil his said contract of marriage with plaintiff, and caused the said Stephen D. Bangs to breach and break his said contract of marriage with plaintiff; that on the 4th day of November, 1914, said Stephen D. Bangs was ready and will- ing to marry the plaintiff, and, but for the wrongful interference of the said defendants as aforesaid, he was then and there able to do so. "Plaintiff states: That, by reason of the said wrongful acts of the said defendants in causing the breach of the said contract of mar- riage, plaintiff sustained the loss of an advantageous matrimonial connection, the said Stephen D. Bangs being a man of wealth at the date set for the wedding and a man of social position; that plaintiff's affections have been disregarded and blighted, she has been dis- appointed in her affections, and her spirit and feelings woimded, resulting in great mental distress and hmmliation, and she has been damaged in the sum of $200,000, no part of which has been paid." The cause of action for slander was barred by the statute of limi- tations and is not reUed upon by plaintiff, but her action seems to be for enticement or alienation of her fianc6. We are cited to no authority that sanctions a recovery under such circimistances. Where the marriage relation exists and third parties entice away the spouse or ahenate the affections, a recovery is allowed, but the cause of ac- tion rests upon the right to the society, companionship, conjugal affections and fellowship of the estranged spouse. There is no such right in the fiancee. An alienation suit, therefore, is maintainable only for interference with the conjugal rights of the plaintiff. "The prevention of a marriage by the interference of a third person cannot, in general, in itself, be a legal wrong. Thus, if one, by solici- tations, or by the arts of ridicule or otherwise, shall induce one to break off an existing contract of marriage, no action- wiU he for it, however contemptible and blamable maybe the conduct. . . ." Cooley, Torts (2d ed.), P- 277. The right of engaged parties to ask advice of their friends and the right of the friends to give advice has never been denied. To hold that a third party may be subject to answer in damages for advising or inducing an engaged person to break the engagement might re- SECT. II] INDUCING BREACH OF CONTRACT 171 suit in a sviit by every disappointed lover against his successful rival. The state has an interest in the marriage relation, and until the mar- riage is solemnized no domestic rights exist, and therefore cannot be violated. The ruling of the trial court is without error, and the judgment is EoSE, J., not sitting. Affirmed.^ SOUTH WALES MINERS' FEDERATION v. GLA- MORGAN COAL CO., Ltd. House of Lokds, 1905 [1905] A. C. 239 The Glamorgan Coal Co., Limited, and seventy-three other plain- tiffs, owners of collieries in South Wales, brought this action against the South Wales Miners' Federation, its trustees and officers, and several members of its executive coimcil, claiming damages for wrongfully and maliciously prociuring and inducing workmen in the collieries to break their contracts of service with the plaintiffs, and alternatively for wrongfully and maliciously conspiring to do so. Evidence of the facts proved at the trial before Bigham, J., without a jury is set forth in the report of his judgment, [1903] 2 K. B. 546- 558, and the principal facts are stated by Lord James in this House. Briefly the case was as follows. The federation (which was registered as a trade union) was formed (inter alia) to consider trade and wages, to protect the workmen and regulate the relation between them and employers, and to call conferences. The wages were paid upon a sliding scale agreement, rising and falling with the price of coal.^ In November, 1900, the council of the federation, fearing that the action of merchants and middlemen would reduce the price of coal and consequently the rate of wages, resolved to order a "stop-day" on November 9, and informed the workmen. This order was obeyed by over 100,000 men, who took a holiday and thereby broke their- ' Accord: Leonard v. Whitestone, 34 Ind. App. 383; Guida v. PontrelK, 114 Misc. (N. Y.) 181, 186 N. Y. Supp. 147. See PoUock, Torts (8th ed.), p. 329; Cooley, Torts (2d ed.), p. 227. In Smithies v. Natl Ass'n of Operative Plasterers, [1909] 1 K. B. 310, Buckley, L. J., at page 337 says: "But, lastly, it is said that the act was justified. No doubt there are circumstances in which A is entitled to induce B to break a con- tract entered into by B with C. Thus, for instance, if the contract between B and C is one which B could not make consistently with his preceding contractual obligations towards A, A may not only induce him to break it, but may invoke the assistance of a court of justice to make him break it." Compare Legris v. Marcotte, 129 111. App. 67 (action to protect school children from exposure to disease). ^ Clause 23 of the sliding scale agreement reads as follows : " It is hereby agreed that all notices to terminate contracts on the part of the employers as well as employed, shall be given only on the first day of any calendar month, and to ter- minate on the last day of the same month." — ■ Ed- 172 LEGALITY OP MEANS USED [CHAP. IV contracts of service. At a conference held on November 12 between delegates of the men and the council a resolution was passed au- thorizing the council to declare a general hoMday at any time they might think it necessary for the protection of wages and of the in- dustry generally. In October and November, 1901, the council (as Bigham, J., found) ordered four stop-days for the same reason as before, and the men took a holiday on each of those days in breach of their contracts.^ . . . Bigham, J., concluded his findings of fact with the following statement: "The evidence satisfies me that the action of the fed- eration, and of the other defendants in 1901, was dictated by an honest desire to forward the interest of the workmen, and was not, in any sense, prompted by a wish to injure the masters. Neither the federation nor the other defendants had any prospect of personal gain from the operation of the stop-days. Having been requested by the men by. the resolution of November 12, 1900, to advise and direct them as to when to stop work, the federation and the other defendants, who were its officers, in my opinion, did to the best of their abihty advise and direct the men. Whether they advised them, wisely I cannot say, though I am inclined to think not. But I am satisfied that they advised them honestly, and without malice of any kind against the plaintiffs. " I have to decide, in these circumstances, whether an action in tort wiU He against the defendants. The advice and guidance of the defendants was solicited and given. If followed, it involved, as the defendants knew, the breaking of the subsisting contracts. It was followed, as the defendants wished it should be, and damage re- sulted to the masters; but there was no malicious intention to cause injury, no profit was gained for themselves by the defendants, and their sole object was to benefit the men, whom they were advising and directing." ^ . . . Bigham, J., accordingly, holding that the defendants had lawful justification or excuse for what they did, gave judgment for the de- fendants. This decision was reversed by the Court of Appeal (Ro- mer and Stirling, L.JJ., Vaughan Williams, L. J., dissenting), who entered judgment for the plaintiffs, the damages to be assessed. . . . Lord Macnaghten.' ... It is not disputed now — it never was disputed seriously — that the union known as the South Wales Miners' Federation, acting by its executive, induced and procured a vast body of workmen, members of the union, who were at the time in the employment of the plaintiffs, to break their contracts of 1 In accordance with a vote taken on Oct. 23, 1901, a " manifesto " to the work- men had been issued, stating that it had been resolved that the workmen shovild observe as general hoHdays the following Friday and Saturday. Subsequently two other stop-days were ordered, i. e., Oct. 31 and Nov. 6. — Ed. 2 This quotation is taken from the report of the case in [1903] 2 K. B. 556. — Ed. ' The opinion of the Earl of Halsbury, L. C, in favor of dismissing the appeal is omitted. — Ed. SECT, n] INDUCING BREACH OF CONTRACT 173^ service, and thus the federation acting by its executive knowingly and intentionally inflicted pecuniary loss on the plaintiffs. It is not disputed that the federation committed an actionable wrong. It is no defence to say that there was no malice or ill-will against the masters on the part of the federation or on the part of the workmen at any of the collieries thrown out of work by the action of the feder- ation. It is settled now that mahce in the sense of spite or ill-wiU is not the gist of such an action as that which the plaintiffs have in- stituted. StiU less is it a defence to say that if the masters had only known their own interest they would have welcomed the interfer- ence of the federation. It was argued — and that was the only argument — that although the thing done was prima fade an actionable wrong, it was justifiable under the circumstances. That there may be a justification for that which in itseK is an actionable wrong I do not for a moment doubt. And I do not think it would be difficvdt to give instances putting: aside altogether cases complicated by the introduction of moral con- siderations. But what is the alleged justification in the present case? It was said that the council — the executive of the federation — had a duty cast upon them to protect the interests of the members of the vmion, and that they could not be made legally responsible for the consequences of their action if they acted honestly in good faith and without any sinister or indirect motive. The case was argued with equal candour and ability. But it seems to me that the argument may be disposed of by two simple questions. How was the duty created? What in fact was the alleged duty? The alleged duty was created by the members of the union themselves, who elected or appointed the officials of the union to guide and direct their action; and then it was contended that the body to whom the members of the union have thus committed their individual freedom of action are not responsible for what they do if they act according to their honest judgment in furtherance of what they consider to be the interest of their constituents. It seems to me that if that plea were- admitted there would be an end of all responsibility. It would be idle to sue the workmen, the individual wrong-doers, even if it were practicable to do so. Their counsellors and protectors, the real au- thors of the mischief, would be safe from legal proceedings. The only other question is. What is the alleged duty set up by the federation? I do not think it can be better described than it was by Mr. Lush. It comes to this — it is the duty on all proper occasions, of which the federation or their officials are to be the sole judges, to counsel and procure a breach of duty. I agree with Romer and Stirling, L. JJ., and I think the appeal, must be dismissed. . . . Lord James. ... At the trial and at the bar of your Lordships' House the counsel for the appellants contended that their clients had good cause and excuse for the alleged unlawful act they com- 174 LEGALITY OF MEANS TJSED [CHAP. IV mitted. That such justification — such " good cause and excuse " — may exist is, I think, a sound proposition. . . . The facts upon which this attempted justification in this case is based are fully be- fore your Lordships and need not be recapitulated. I take the re- sults of them to be that in one sense the defendants acted in good faith. They, I think, honestly believed that the stoppage of work they resolved upon would increase the price of coal and so benefit both the workmen and the employers. Towards their employers the defendants entertained no mahce. At the same time they knew that the employers had given notice of their objection to any such stoppage of work. And so the federation not only advised, but re- solved and ordered that the workmen should break their contracts under conditions that would constitute an unlawful act in the men. As far as the defendants could exercise control the men were not allowed to make use of their own discretion. In order, therefore, to establish the existence of good cause and excuse all the defendants can say is, "We, the federation, had the duty cast upon us to advise the workmen. We did advise them to commit an unlawful act, but in giving that advice we honestly behaved that they would be in a better financial position than if they acted lawfully and fulfilled their contracts." Even if it be assumed that such allegations are correct in fact, I think that no justification in law is estabUshed by them. The intention of the defendants was directly to procure the breach of contracts. The fact that their motives were good in the interests of those they moved to action does not form any answer to those who have suffered from the unlawful act. During the arguments that have been addressed to your Lordships I do not think quite sufficient distinction was drawn between the intention and the mo- tives of the defendants. Their intention clearly was that the work- men should break their contracts. The defendants' motives, no doubt, were that by so doing wages should be raised. But if in carry- ing out the intention the defendants piuposely prociu'ed an milaw- ful act to be committed, the wrong that is thereby inflicted cannot be obliterated by the existence of a motive to secure a money benefit to the wrong-doers. For these reasons I think the judgment of the Court of Appeal should be affirmed. Lord Lindley. . . . The appellants' counsel did not deny that, in his view of the case, the defendants' conduct required justifica- tion, and it was contended (1) that aU which the officials did was to advise the men, and (2) that the officials owed a duty to the men to advise and assist them as they did. As regards advice, it is not necessary to consider when, if ever, mere advice to do an unlawful act is actionable when the advice is not libellous or slanderous. Nor is it necessary to consider those cases in which a person, whose rights will be violated if a contract is performed, is justified in endeavouring to procure a breach of such SECT. II] INDUCING BREACH OF CONTRACT 175 contract. Nor is it necessary to consider what a parent or guardian may do to protect his child or ward. That there are cases in which it is not actionable to exhort a person to break a contract may be admitted; and it is very difficult to draw a sharp line separating all such cases from all others. But the so-called advice here was much more than counsel; it was accompanied by orders to stop, which could not be disobeyed with impunity. A refusal to stop work as ordered would have been regarded as disloyal to the federation. This is plain from the speeches given in evidence on the trial; and in my opinion it is a very important element in the case which cannot be ignored. As regards duty the question immediately arises — duty to do what? The defendants have to justify a particular line of conduct, which was wrongful, i.e., aiding and abetting the men in doing what both the men and the officials knew was legally wrong. The constitution of the union may have rendered it the duty of the officials to advise the men what could be legally done to protect their own interests; but a legal duty to do what is illegal and known so to be is a contradiction in terms. A similar argument was urged without success in the case of the Friendly Society of Stonemasons, [1902] 2 K. B. 732. Then your Lordships were invited to say that there was a moral or social duty on the part of the ofiicials to do what they did, and that, as they acted bona fide in the interest of the men and without any ill-will to the employers, their conduct was justifiable; and your Lordships were asked to treat this case as if it were fike a case of libel or slander on a privileged occasion. My Lords, this contention was not based on authority, and its only merits are its novelty and ingenuity. The analogy is, in my opinion, misleading, and to give effect to this contention would be to legislate and introduce an en- tirely new law, and not to expound the law as it is at present. It would be to render many acts lawful which, as the law stands, are clearly unlawful. My Lords, 1 have purposely abstained from using the word "mal- ice." Bearing in mind that mafice may or may not be used to de- note ill-will, and that in legal language presumptive or implied mal- ice is distinguishable from express malice, it conduces to clearness in discussing such cases as these to drop the word "malice" altogether, and to substitute for it the meaning which is really intended to be conveyed by it. Its use maybe necessary in drawing indictments; but when all that is meant by malice is an intention to commit an ^ unlawful act without reference to spite or ill-feeling, it is better to drop the word malice and so avoid all misunderstanding. The appeal ought to be dismissed with costs. Order of the Court of Appeal affirmed arid appeal dismissed with costs} ' In contrast to the above decision, compare the remarks of Baker, J., in Iron Molders' Union v. Allis-Chalmers Co., 166 Fed. 45, 52, infra, p. 199. 176 LEGALITY OF MEANS USED [CHAP. IV HITCHMAN COAL & COKE CO. v. MITCHELL Supreme Couht of the United States. 1917 245 V. S. 229 See infra, p. 489, for a report of the case.! ENGLISH TEADE DISPUTES ACT, 1906, Section 3 See swpra, p. 24, for the text of the Act.^ CLAYTON ACT, Section 20 See swpra, pp. 145-146, for the text of this Section.^ BOSTON GLASS MANUFACTORY v. BINNEY Supreme Judicial Court of Massachusetts. 1827 4 Pick. 425 This was an action on the case, charging the defendants with en- ticing from the plaintiffs' employment certain workmen skilled in several departments of glass-making, and taking them into the serv- ice of the defendants, who were proprietors of a glass manufactory at Lechmere's Point in Cambridge. The plaintiffs proved that some of the workmen were in their em- ployment until the day when they were engaged in the employment of the defendants, and that it was mutually understood that neither party should withdraw from the engagement without giving a fort- night's notice. ... One of the men supposed to have been enticed, having been called as a witness by the defendants, testified that Parmenter, one of the defendants, agreed with him, the day after he had given notice to the plaintiffs that he should leave their service in a fortnight, to re- ceive him into the defendants' works; and it appeared that this man, and another who was called by the defendants, received pay from the defendants for the last fortnight while they were under pay from the plaintiffs; but it did not appear that any offer was made before notice had been given, and the men remained with the plaintiff s until the fortnight after notice had expired. The defendants contended that they had a right to make a bar- gain with the men during the continuance of their service with the See also, Citizens' Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 Fed. 553, 560-561. ' For a judicial interpretation of this legislation, see Conway v. Wade, [1908] 2 K. B. 844. 2 As to whether, after the passage of the Clayton Act, a federal court may issue an injunction to enjoin union officers from calling a strike in breach of con- tract, see Kinloch Telephone Co. v. Local Union No. 2, 265 Fed. 312, 275 Fed. 241. SECT. II] INDUCING BREACH OF CONTRACT 177 plaintiffs, to take effect only after the expiration of that service ac- cording to notice. But the chief justice instructed the jury, that while the actual employment continued, though after the notice to quit, it was not lawful for the defendants to make any bargain or any offer of employment to take effect at a future time, and that if the jury beUeved the witness, they must return a verdict against Par- menter, and such others of the defendants as they should be satis- fied participated in the transaction. A verdict was foimd for the defendants. ... If the foregoing instruction to the jury was correct, the Court were to judge whether a new trial should be granted on account of the verdict's being against the evidence on that point. . . . Wilde, J.^ . . . We are of opinion that the verdict is right. The evidence is clearly insufficient to support the action, as we under- stand the law. The defendants had a legal right to make a contract with the plaintiffs' labourers to take effect after the expiration of their term of service with the plaintiffs. The law is laid down cor- rectly by Lord Kenyon, in the case of Nichol et al. v. Martyn, 2 Esp. Rep. 732, that "to induce a servant to leave his master's serv- ice at the expiration of the time for which the servant had hired himseK, although the servant had no intention at the time, of quitting his master's service, was not the subject of an action." It is damnum absque injuria. The cases cited by the plaintiffs' counsel do not countenance a different doctrine. If the law were otherwise, it would lead to the most mischievous consequences, and woidd operate in- juriously both to labourers and their employers. Judgment according to the verdict.'^ THACKER COAL CO. v. BURKE Supreme Court of Appeals of West Virginia. 1906 59 W. Va. 253 Brannon, J. The Thacker Coal and Coke Co. filed a declaration in trespass on the case in the Circuit Court of Mingo county against Charles Burke and five others for damage for enticing servants from the plaintiff's service, which declaration upon demurrer was dis- missed, and the company sued out a writ of error. Certain legal principles control the case. In Transportation Co. V. Oil Co., 50 W. Va. 611, we find it stated, on authority there given, that "If one wantonly and maliciously, whether for his own benefit or not, induces a person to violate his contract with a third person to the injury of that third person, it is actionable." ' A portion of the opinion dealing with another matter is omitted. — Ed. ' Accord: Campbell v. Cooper, 34 N. H. 49; Nichol v. Martyn, 2 Esp. 732 (semble). 178 LEGALITY OF MEANS USED [CHAP. IV We find that holding confirmed in* Angle v. Chicago Railway, 161 U. S. 1, in the language following: "If one maUciously inter- feres in a contract between two parties, and induces one of them to break that contract to. the injury of the other, the party injiired can sustain an action against the wrongdoer. When a man does an act which in law and fact is a wrongful act, and injury to another results from it as a natural and probable consequence, an action on the case will lie." . . . The first count of the declaration alleges that the company is owner and operator of a coal mine, and was engaged on the 8th day of August, 1901, in the business of mining coal from the mine; that in order to carry on the business it was necessary for the plaintiff to employ, and it did employ, a large nxunber of men to work in the mine, who were engaged in the company's service in working the mine and loading coal on railroad cars for shipment to parties with whom the plaintiff had contracts to furnish coal; that the defend- ants well knowing these facts, but contriving and wickedly and ma- liciously intending to injure the plaintiff in its business, imlawfully, wrongfully, maliciously, without justifiable cause, without the con- sent and against the will of the plaintiff, molested, obstructed and hindered the plaintiff in its said business "by wilfully, wrongfully and maUciously persuading, inducing, enticing and procuring said servants of the plaintiff, employed as aforesaid, to absent them- selves and depart from the plaintiff's service"; that on pretext and by reason of such persuasion, enticement and procuration the said servants on the date aforesaid, without license and against the wiU and consent of the plaintiff, wrongfully absented thranselves and departed from said service, and continued to do so; that the plain- tiff was unable to employ other servants to work in its mine in the place of the servants so enticed away, and was thereby prevented from prosecuting and carrying on its business as extensively and profitably as it could and would have done, had not its servants been induced and enticed by the defendants to quit its service. The first count does not, in words, state an express contract for service between employer and employee. By the language used in the books a contract must exist. This count says the miners were "employed" by the plaintiff and in actual service. Now, if the law gives action for enticement of a servant, it is not conceivable that a third person can maliciously entice away a lot of employees, simply because there was no contract fixing term of service. The relation of master and servant exists. In such case there is a contract rec- ognized by law, an implied contract by which the employee can re- cover for his service. By entering such service the employee agrees, contracts to work. It is no difference that he can quit when he pleases. In Walker v. Cronin, 107 Mass. 555, was such a count and the court held it good. Frank v. Herold, 63 N. J. Eq. 443, meets SECT. 11] INDUCING BREACH OF CONTRACT 179 this objection. It says: "To make out the relation of master and servant, it is not necessary that there be any written, or even verbal, contract between the parties to work for any particular length of time, but the relation exists where one person is willing to work for another from day to day, and that other desires the labor and makes his business arrangements accordingly. Employers, where third parties interfere with their employees against the latter's consent, and endeavor by unlawful means to induce them to qxiit work, have a right to sue for relief." ... A party cannot have a justifiable cause to instigate, to move, the breach of a contract between mas- ter and servant. We repeat that the law says that where there is such a contract and a third party causes its violation, he is hable to an action. We do not have to say whether if the interference is with- out malice it is actionable, since the declaration avers a knowledge by the defendant of the existence of the contract, and avers that they mahciously and wrongfully caused its breach. We do not deny the principle that a man may do an act damaging another, even maliciously, when he has legal excuse or justification therefor; but we say that when his action, with knowledge on his part of a con- tract, causes, by intention, a breach of that contract, he is liable to damages even though he acts for the promotion of his own interest. But in the present case the declaration avers that the defendants had no justification. It does not intimate that their action was moved by a purpose to benefit their own business, their own trade, their own interest in any shape. On the contrary it avers that their action was characterized by a wilful intent to injure the plaintiff without justifiable cause. If they had justifiable cause for their ac- tion the declaration does not speak it, and we are governed, on de- murrer, by the declaration. Therefore, we hold that the first count of the declaration states a cause of action. We, however, say that it is defective in not specifying the servants who were enticed. The second count alleges that the plaintiff to secure miners from other states made special written contracts with certain miners, to wit: "WilUam Linder and eight others, residents of North Caro- lina, whereby these miners agree to come to plaintiff and enter into semce and engage in digging and shipping coal from its mine at a certain fixed rate per ton," specifying the rate, and that the com- pany paid their fares of 111-50 each from North Carolina to the mine under contract with the miners that the fares were to be re- paid the plaintiff out of the wages earned by the miners in mining for the plaintiff; that on the arrival near the mine the defendants, knowing of such contract, wrongfully, mahciously and with unlaw- ful purpose to injure the business of the plaintiff and against the consent of the plaintiff, induced and enticed said miners to break their several contracts of service and refuse to enter the service of the plaintiff according to the written contract, and persuaded and 180 LEGALITY OF MEANS USED [CHAP. IV induced and enticed them to depart, and that by reason of said per- suasion and enticement said miners, engaged \mder said written contract, wholly failed and refused to perform their contracts and enter the service of the plaintiff, and immediately departed from the place where they were employed to work without having en- tered the service of the plaintiff and without having paid the plain- tiff the money advanced for said railroad fare, and that none of the miners have returned to work in the said mine. Under the prin- ciples stated above this count shows a good cause of action. A third count alleges that the plaintiff being such operator of a coal mine made a written contract with Samuel Bowean whereby Bowean contracted to miiie for the plaintiff five hundred tons of coal, and Bowean had entered upon the performance of the con- tract, and that the defendants knowing of such contract, unlawfully, wrongfully, maliciously and with unlawful purpose to injure the business of the plaintiff, induced and enticed Bowean to break and disregard the contract, and that Bowean, by reason of such entice- ment, broke and refused to execute the contract. Under principles above stated this count shows a good cause of action. A fourth count says that the plaintiff, being owner and operator of such coal mine, made special written contracts with Alvin Hunter and other persons named, whereby each one of them obUgated him- self to mine for the plaintiff a certain fixed amount of coal at a specified rate per ton; that said Hunter and others had actually started upon the performance of their contracts, that the defendants well knowing thereof, contriving and falsely and maliciously intending to injure, vex, harass, oppress, impoverish and wholly ruin the plaintiff in its business, unlawfully and maliciously did agree, confederate, com- bine and form themselves into a conspiracy to persuade, entice and procure Hunter and others named to violate, break and wholly dis- regard their contracts with the plaintiff; that the defendants having so conspired and confederated under the name of the "United Mine Workers of America," contriving and intending as aforesaid, in pur- suance and execution of their conspiracy, on a day named, un- lawfully, wantonly, wrongfully and maUciously, without justifiable cause, and against the will of the plaintiff, molested, obstructed and hindered the plaintiff in its business of mining and shipping coal by wilfully, wantonly, wrongfully and maUciously persuading, enticing and procuring Hunter and the others named to break, violate and disregard their contracts, and that on pretext and because of such persuasion. Hunter and others, against the will, and without the consent of the plaintiff, without cause, violated their contracts by refusing to continue their work of mining coal as required by their contracts, and have not performed their contracts. Under principles above stated this count shows a good cause of action. Employing Club V. Doctor Blosser Co., 50 S. E. 353. . . . SECT. Ill] VIOLENCE — INTIMIDATION 181 We, therefore, reverse the judgment, overrule the demurrer, ex- cept as to the first count, and remand the case to the Circuit Court for further proceedings, with leave to amend the first count of the declaration. Reversed.^ Section 3. Violence, Intimidation REGINA V. DRUITT Centeial Ceiminal Coubt. 1867 10 Cox C. C. 592 Indictment for conspiring, by unlawful ways, contrivances, and stratagems, to impoverish Henry Poole and others in their trade and business, and to restrain the freedom of trade and of personal action. . . . The defendants were members of a tailors' trade union, which was demanding from their employers increased wages. At a union meet- ing held to discuss what action should be taken, and attended by the defendants Druitt, Adamson, and Lawrence, Druitt acted as president, Lawrence was the vice-president, and Adamson took an active part in the proceedings. After an address by Druitt, it was decided to declare a strike, and to carry out the strike by a system of picketing to dissuade other workmen, not members of the union, * In Allen v. Flood, [1898] A. C. 1, at page 121, Lord Herschel, discussing the decision in Temperton ». Russell said: "It seems to have been regarded as only a small step from the one decision to the other, and it was said that there seemed to be no good reason why if an action lay for maUciously inducing a breach of con- tract, it should not equally lie for maUciously inducing a person not to enter into a contract. So far from thinking it a small step from the one decision to the other, I think there is a chasm between them." See also, Loring, J., in Beekman v. Marsters, 195 Mass. 205 at 211. The early New York courts seemed to assume the existence of a right of action for the enticement of servants bound by no contract. But these cases have long siQce been overruled. Johnston Harvester Co. v. Meinhardt, 60 How. Pr. 168 (affd. in 24 Hun. 489); Rogers v. Evarts, 17 N. Y. Supp. 264 (affd. 144 N. Y. 189). New Jersey and a few southern states apparently still accept the doptrine sug- gested in the principal case. See, for instance, Frank v. Herold, 63 N. J. Eq. 443, 450. Outside of these the doctrine finds but little support. It seems diiEcult to defend the dictum of Pitney, J., in Hitchman Coal Co. v. Mitchell, 245 U. S. 229 at 252. In American Steel Foundries v. The Tri-City Central Trades Council, 257 U. S. — (U. S. Sup. Ct., Dec. 5, 1921), Taft, C. J., said: "The elements essential to sustain actions for persuading employees to leave an employer are first, the malice or absence of lawful excuse, and, second, the actual injury. The effect of cases cited as authority must be determined by an examination of the pleadings and facts to see how the malice or lack of lawful excuse was established, and whether there was not OegaUty present in the means used. Thus Walker v. Cronin, 107 Mass. 555, and Thacker Coal Co. v. Burke, 59 W. Va. 253, suits by an employer against members of a labor union in which the right of action for persuading was sustained, were heard on demurrer to the com- plaint. The element of malice was supplied by averment of the complaint, and was, of course, admitted by the demurrer." 182 LEGALITY OP MEANS USED [CHAP. IV from filling the places left vacant by the strikers. This plan was accordingly carried out. The consequence of the picketing was that every door of the masters' shops was besieged; every person who entered was watched, and every one who left the shop was followed. According to the prosecution, " the picket of six not infrequently ac- cmnulated to 400 and 500." According to the testimony of Joseph Lambert, a pensioned sergeant of the poUce, aU the workmen emerging from the shops were insulted, and called curs, cowards, and "dungs" by the pickets, and followed until the workers were met by other pickets who would in tiun follow them. Lambert further deposed that " In the evening, the pickets mustered ' all hands ' opposite the shops, and would say as each man left work, ' There he comes, the coward.' ' Is not he a dimg? ' ' That's him.' The men had been afraid to go away by themselves, and he accompanied them for about three-quarters of a mile. . . . He had seen all the defendants, with the exception of Lawrence, Adamson, and Druitt, on picket duty in the morning, at the middle of the day, and in the evenings when those crowds had been collected and bad language used." ^ Bbamwell, B., to the jury. A great number of irrelevant topics had been introduced into the inquiry in which they were engaged. All the talk they had heard about the struggle of capital against labour was quite misplaced, and the censvire passed on the masters in respect to the lock-out was perfectly idle. The men had a perfect right to strike, and if the whole body of the men struck against the masters, why should not the whole body of masters strike against the men? The jmy had heard a good deal about the power of the State, but the power of the State was no more brought against these men than it was used in their favour. The question was whether they were guilty of the particular offence with which they were charged. The jury had to consider — no matter whose interests might be affected — whether the defendants had done that which was illegal. He would address a few general observations to them, some of which might appear to be truisms. When the law gave, or rather acknowl- edged, a right, it provided a punishment or a remedy for the -vio- lation of that right. That was a cardinal rule, and an obvious one. The old expression that "there was no wrong without a remedy" might also be interpreted to mean that there was also no right with- out a remedy. Sometimes the remedy was by a criminal proceed- ing, sometimes by a civil action, sometimes by both. Having made those general remarks, he would make another, which was also familiar to all Englishmen — namely, that there was no right in this country under our laws so sacred as the right of personal liberty. No right of property or capital, about which there had been so much declamation, was so sacred or so carefully guarded by the law of this land as that of personal liberty. They were quite aware of the pains • The statement of facts has been framed from the arguments of counsel. — Ed. SECT. Iiq VIOLENCE — INTIMIDATION 183 taken by the common law, by the writ, as it was called, of habeas carpus, and supplemented by statute, to secure to every man his personal freedom — that he should not be put in prison without lawful cause, and that if he was, he should be brought before a com- petent magistrate within a given time and be set at liberty or un- dergo punishment. But that hberty was not Uberty of the body only. It was also a Uberty of the mind and will; and the liberty of a man's mind and will, to say how he should bestow himself and his means, his talents, and his industry, was as much a subject of the law's protection as was that of his body. Generally speaking, the way in which people had endeavoured to control the operation of the minds of men was by putting restraints on their bodies, and therefore we had not so many instances in which the Uberty of the mind was vindi- cated as was that of the body. StiU, if any set of men agreed among themselves to coerce that Uberty of mind and thought by compulsion and restraint, they would be guilty of a criminal offence, namely, that of conspiring against the Uberty of mind and freedom of will of those towards whom they so conducted themselves. He was re- ferring to coercion or compulsion — something that was impleasant and annoying to the mind operated upon; and he laid it down as clear and undoubted law that if two or more persons agreed that they would by such means cooperate together against that liberty they would be guilty of an indictable offence. The public had an inter- est in the way in which a man disposed of his industry and his cap- ital; and if two or more persons conspired by threats, intimidation, or molestation to deter or influence him in the way in which he should employ his industry, his talents, or his capital, they would -be guilty of a criminal offence. That was the common law of the land, and it had been in his opinion re-enacted by an act of ParUa- ment, passed in the 6th year of the reign of George IV, which pro- vided in effect that any person who should by threats, intimida- tion, molestation, or any other way obstruct, force, or endeavour to force, any journeyman to depart from his hiring, or prevent any journeyman from hiring, should be guilty of an offence. That act was passed forty-one years ago, and by a statute of 1859 it was en- acted that no workman merely by reason of his endeavom-ing peace- ably and in a reasonable manner, and without threat or intimidation, direct or indirect, to persuade others from working or ceasing to work should be guilty of an offence under the former act of Parlia- ment. In other words, the second act said that should not be so if they did what they did in a reasonable and peaceful manner for the purposes of persuasion. Now, the defendants were indicted for conspiring together to do that which was in opposition to the law and the statutes he had described. At the outset, he could not help remarking that the learned and eminent counsel who had addressed the jury for the defendants had aU said that they did not deny that their clients, Druitt, Adamson, and Lawrence had agreed that there 184 LEGALITY OF MEANS USED [CHAP. IV should be pickets. He was of opinion that if picketing cotild be donfe in a way which excited no reasonable alarm, or did not coerce or annoy those who were the subjects of it, it would be no offence in law. It was perfectly lawful to endeavour to persuade persons who had not hitherto acted with thena to do so, provided that persuasion did not take the shape of compulsion or coercion. What was the object of this picketing? Was it that the names and addresses of the non-striking workmen might be foimd out, with the view to their being addressed by reasonable argument and persuasion; or was it for the purpose of coercion and intimidation? Even if the jury should be of opinion that the picket did nothing more than his duty as a picket, and if that duty did not extend to abusive language and gestures such as had been described, stiU, if that was calculated to have a deterring effect on the minds of ordinary persons, by expos- ing them to have their motions watched, and to encounter black looks, that would not be permi ted by the law of the land. The probabihties were that it was known to the leading members of the association what the pickets were doing. It was in evidence that Druitt had visited the pickets from time to time. It would be very strange indeed if, while everybody else knew what they were doing, those who set the pickets to work should be the only persons who did not know what they were doing. There was very Uttle doubt that Adamson, Lawrence, and Druitt had authorised, by means of the resolution, the system of picketing. If the jury were satisfied that this system, though not carried beyond watching and obser- vation, was still so serious a molestation and obstruction as to have an effect upon the minds of the workpeople, then they ought to find these three men guilty. If they thought that the conduct of these men conduced to this effect, and that they knew it, then also they ought to find them guilty. If, upon the other hand, the jury should be of opinion that Adamson, Lawrence, and Druitt did not know what the pickets did, or that what the pickets did was not the nat- ural consequence of men placed in such a situation, then they ought to be acquitted. So much with regard to three of the prisoners. With reference to the other five, if the jury believed the evidence of Lambert, then these five ought to be found guilty. It was said that the whole of the prisoners in acting as they had acted supposed them- selves to be doing what was right. That might be so, but, even sup- posing it to be true, they were still subject to the law. The jury found Adamson, Lawrence, and Druitt, guilty, with a recommendation to mercy, and acquitted the rest.' ' As to the effect of this decision, see Stephen, History of the Crim. Law, vol. 3, pp. 221, 222. SECT. Ill] VIOLENCE — INTIMIDATION 185 THE BUTTERIC^ PUBLISHING CO. v. TYPO- GRAPHICAL UNION NO. 6 Supreme Court of New York. 1906 50 Misc. (N.Y.)1 Blanchard, J. This is a motion to continue during the pend- ency of this action a prehminary injunction granted in the order to show cause upon which this motion is made. The complaint alleges a conspiracy on the part of the defendant labor unions and individuals to injure the plaintiff's business by causing a strike among its employees, by picketing its places of business and boy- cotting its customers, by distributing libelous circulars, letters and posters regarding the plaintiff's relations with its employees, and by carrying into execution all of said acts with threats, intimidation, force and fraud; in conclusion the complaint prays for a permanent injunction. The details of the preliminary injunction heretofore granted are more fuUy discussed hereinafter; in effect it restrains substantially all the acts described in the complaint. Prior to about November 24, 1905, the plaintiff employed about 233 pressmen and feeders, and about 95 compositors, who were members of the respective defendant local unions. The defendant International Printing Pressmen and Assistants' Union was then the parent or- ganization of two of the defendant local unions, the Adams Cylinder and Web Press Printers' Association No. 51 and Ben. Frankhn Asso- ciation (feeders) No. 23. . . . Upon all the facts it appears that the plaintiff merely hired its employees by the week, and that no contract regarding the continuance of the rate of wages or conditions of labor existed between the plaintiff and its employees or any of the defendant •unions. On November 24, 1905, the compositors, members of No. 6, who were then working on a nine-hour day, ceased work because of the refusal of the plaintiff then to agree to an eight-hour day after January 1, 1906, and because the plaintiff had then employed foiu: non-union men who were willing to continue on a nine-hour day. . . . Through the solicitation of representatives of No. 6 the Hearst syndicate of newspapers has discontinued the pattern service of La Belle Fash- ion Co., a customer of the plaintiff's, to the damage of the plaintiff, who did the Fashion Co.'s printing work. The syndicate had agreed with the Fashion Co. to transmit for the latter such orders for pat- tern service as the members of the syndicate might choose to give; and the Fashion Co. agreed to supply such copy to the syndicate at certain rates. Since no member of the syndicate was under obliga- tion to order pattern service the solicitation by representatives of No. 6 was not an interference with the performance of the contract, but merely dissuasion of custom. Circulars, letters and placards, the contents and mode of address of which showed that they eman- ated from the defendant local unions, were distributed throughout 186 LEGALITY OF MEANS USED [CHAP. IV the United States and Canada for the purpose of dissuading cus- tomers from purchasing publications published by the plaintiff, or printed by the plaintiff for other publishers. Samples of the lan- guage of the circulars most complained of are as follows: "Stand- ard Dress Patterns, Martha Dean, La Belle, Little Folks and Ban- ner should equally be avoided." "No copy of The Designer, The New Idea Magazine, The Standard or the New Idea Patterns or other Butterick publications should be in the home of any union man or in the home of any of his friends." . . . "Wherever in this wide world there lives a union man, we shall endeavor to acquaint him with the contemptible act of the Butterick Co. You are hereby notified that the Butterick Publishing Co. has locked out all its union employees." ... In consequence of these circulars plaintiff has received from its agents and customers about 135 letters, either discontinuing subscriptions or begging the plaintiff to adjust its difficulties, and assigning as the reason for writing their sympathy with trade unions or their fear of loss of trade through continuing their subscriptions. Until the preliminary injunction was granted herein, the defendant local unions maintained pickets aggregating twenty -five or thirty men about the premises of the plaintiff's build- ing. When new employees were brought to the buildings in cabs, these pickets were frequently joined by other members of the de- fendant local unions, from their headquarters opposite the plain- tiff's building, and the crowds thus formed swarmed about the cabs in excited fashion and jostled and accosted in threatening maimer the newcomers. The plaintiff was obliged to maintain a special officer to keep back this crowd, and frequently to call upon the patrol- men in the vicinity to make a way into the building. An automobile which was used to take some of the new employees out for fresh air was followed some distance from the building by a hooting mob, in which certain members of the defendant local unions were con- spicuous, and was stoned by a similar mob upon its return. Several acts of assault and battery were committed by unidentified persons in the immediate neighborhood of the plaintiff's building upon new employees leaving the premises at night; at least one was committed by a member of one of the defendant local unions, and in the crowd that joined in another assault a number of members of No. 6 and No. 51 were conspicuous. These acts of violence were reported to the police, and the police captain of the precinct found it necessary to assign special details to prevent assaults when the employees were let out of the building, and to fiuriish officers to escort the employees .to their homes, and to direct the men to disperse the crowds which sometimes became so large about the building that traffic was in- terrupted. Derisive and threatening language was hurled by these crowds at the employees of the plaintiff when they appeared upon the streets. By reason of these acts the plaintiff has found it neces- sary, since the 1st of December, 1905, to board and lodge in its SECT. Ill] VIOLENCE — INTIMIDATION 187 biiilding a considerable number of its employees at an expense to it of $2,500 a week. Since the preliminary injunction was obtained herein no acts of violence or molestation have been reported; the streets have been free from crowds; and the employees have freely gone to and fro from plaintiff's mill to their homes. The preliminary injunction hereinbefore granted restrains the defendants from mak- ing any requests, giving any advice, or resorting to any species of persuasion, threats, int midation, force or fraud which operates to overcome the exercise of the free will of any employee or customer of the plaintiff. Specifically, the defendants are further restrained from accomplishing these purposes by picketing the plaintiff's place of business, by circulating defamatory publications or making oral communications to employees, customers, merchants and news- dealers handling the plaintiff's patterns and publications, or any persons who are about to become or might otherwise become such parties. When the plaintiff's right to the equitable relief sought is involved in doubt, the court will not grant an injunction pendente lite containing the same rehef that would ultimately be granted if the plaintiff succeeded upon the trial of the action. Cohen v. United Garment Workers, 35 Misc. Rep. 748, and cases cited; Kerbs v. Rosenstein, 56 App. Div. 619, 621. Upon the affidavits it does not appear that the International Union is chargeable with any of the acts complained of in the moving papers. As to this defendant and the individual defendants named as its officers, the preliminary in- junction is therefore vacated. Through the excessive activity of the pickets maintained by the defendant local unions and the zeal of the members of these unions to obtain their demands by discourag- ing persons from entering the plaintiff's employ, acts of violence have occurred. These acts occurred in some instances through the actual agency or connivance of the members of the defendant local unions, and in many other instances they were an almost inevitable consequence of the overzeal of pickets and members of the defend- ant local unions. Members of the defendant local unions have thronged the streets or caused the streets to be thronged with such crowds as to interrupt traffic and to intimidate the employees of the plaintiff. They have approached the plaintiff's employees in such numbers and in such threatening manner as to put them in fear of bodily harm. They have waited for plaintiff's employees and fol- lowed them and derided them with a persistence that exceeds the proper Hmits of persuasion and becomes an unwarranted annoyance and harassment. The right of the defendants to maintain pickets is well established, provided, however, that such picketing is, not accomphshed by acts expressing or implying threats, intimidation, coercion or force. Sun Printing & Pub. Assn. v. Delaney, 48 App. Div. 623, compare record; Mills v. U. S. Printing Co., 99 id. 605; Kerbs v. Rosenstein, supra; Levy v. Rosenstein, 66 N. Y. Supp. 101, affd., 56 App. Div. 618; Foster v. Retail Clerks' Protective Assn., 188 LEGALITY OF MEANS USED [CHAP. IV 39 Misc. Rep. 48; Rogers v. Evarts, 17 N. Y. Supp. 264. As was said in Rogers v. Evarts, supra: "The right to combine involves of necessity the right to persuade all colaborers to join in the combina- tion. The right to persuade colaborers involves the right to persuade new employees to join the combination." The strikers may freely strive to win over others to their support by reason, argiunents and proper appeal. Kerbs v. Rosenstein, supra. "Arguments, reason- ing and entreaty are proper weapons." People v. Kostka, 4 N. Y. Crim. 429, 435; People v. WUzig, 4 id. 403, 418. But picketing, argument, reasoning and entreaty must not be so practiced or car- ried to such extremes as to become in effect intimidation, threats, coercion or force. The jeering of pickets, it is said, may, under some circumstances, consitute intimidation. "Even persuasion and en- treaty may be used in such a manner, with such persistency, and with such environments as to constitute intimidation. Their use then becomes a violation of law." Rogers v. Evarts, supra; compare People V. Kostka, supra; People v. Wilzig, supra. Upon the affi- davits before the court it appears that the proper bounds of reason- ing and entreaty in dealing with the plaintiff's employees have been so exceeded by the defendant local unions and their members, and that the repetition of threats, intimidation, coercion and force, with the resulting damage to the plaintiff's business, is so likely that a con- tinuance of the injunction, in some respects, must be granted* As regards their relations to the plaintiff's employees, it is clear from what has already been stated that the defendant local imions and their members must be restrained from resorting to any threats, intimidation, force or fraud, whether through the means of picket- ing or otherwise. The defendants are free, with these exceptions, however, and within the limits already indicated, to make any re- quests or give any advice or resort to any persuasion for the pur- pose of winning support; and in so far as the preliminary injunction is inconsistent herewith it is vacated. The defendant local unions, through their representatives, have sought to dissuade customers who are not under contractual obligations, and persons who might otherwise become customers, from purchasing publications and patterns, published or printed by the plaintiff. Circulars, letters, placards and posters have emanated from the defendant local unions, containing several innuendoes of possible libelous character, and asking that members of unions and their friends refrain from purchasing such publications and patterns and from deahng with merchants who continue so to purchase. Upon the analogy of the principles already applied to the relation of the defendants to the plaintiff's employees, it appears that the defendants should not press any argument, reasoning or entreaty to such an extreme that it be- comes in effect a threat, intimidation, coercion or force. The plaintiff contends that the dissuasion practiced by the defendants, as shown in the moving affidavits, constitutes threats and intimidation. The SECT, ni] VIOLENCE — INTIMIDATION 189 authorities, however, do not warrant this conclusion. . . . Under the decisions above quoted, it appears that the dissuasion which the defendant local unions, through their representatives, have thus far du-ected against the plaintiff's customers cannot properly be described as threats, intimidation, coercion or force. ... As to the defend- ants' relation with the plaintiff's customers or persons who might otherwise become customers, the defendants, excepting only the International Union, must be restrained from resorting to any means of dissuasion in effect amounting to threats, intimidation, force or fraud; and in so far as the preliminary injunction proceeds further than this it must be vacated. Regarding the circulars, letters, placards and posters that have enamated from the defendants, the direction above made regarding dissuasion in general, is fully applicable. . . . The defendants were within their legal rights in publishing circulars setting forth the circumstances of the strike and requesting their friends to withhold their patronage from the plaintiff. Sinsheimer V. United Garment Workers, 77 Hun, 215; Cohen v. United Garment Workers, swpra; Foster v. Retail Clerks' Protective Assn., swpra. . . . Injunction modified and, as so modified, continued.* GARRET V. TAYLOR King's Bench. 1621 Croke Jac. 567 Action on the case. Whereas he was a free mason, and used to seU stones, and to make stone-buildings, and was possessed of a lease for divers years to come of a stone-pit in Hedington, in the county of Oxford, and digged divers stones there, as well to sell as to build withal; that the defendant, to discredit and to deprive him of the commodity of the said mine, imposed so many and so great threats upon his workmen, and all comers disturbed, threatening to mayhem and vex them with suits if they bought any stones; where- upon they all desisted from buying, and the others from working, etc. After judgment by nihil didt for the plaintiff, and damages found by inquisition to fifteen pounds, it was moved in arrest of judgment. That this action lay not; for nothing is alledged but only words, and no act nor insult: and causeless stiits on fear are no cause of action. Bed non allocatur: for the threatening to mayhem, and suits, whereby they durst not work or buy, is a great damage to the plain- » Accord: N. Y. C. Iron Works v. Brennan, 105 N. Y. Supp. 865; Hamilton- Brown Shoe Co. V. Saxey, 131 Mo. 212; Goldfield Consol. Mines Co. v. Miners' Union, 159 Fed. 500. Compare Boiler & Engine Co. v. Benner, 14 Ohio Dec. 357 (held, no injunction will issue because an adequate remedy is provided by the criminal law). 190 LEGALITY OF MEANS USED [CHAP. IV tiff, and his losing the benefit of his quarries a good cause of action: and although it be not shewn how he was possessed for years, by what title, etc., yet that being but a conveyance to this action, was held to be well enough. And adjudged for the plaintiff. TARLETON v. M'GAWLEY Nisi Pritjs. 1794 1 Peake N, P. Cases, 270 This was a special action on the case. The declaration stated that the plaintiffs were possessed and owners of a certain ship called the Tarletmi, which at the time of committing the grievance was lying at Calabar on the coast of Africa, under the command of Fairweather. That the ship had been fitted out at Liverpool with goods proper for trading with the natives of that coast for slaves and other goods. That also before the committing the grievance Fair- weather had sent a smaller vessel called the Bannister with a crew on board, under the command of one Thomas Smith, and loaded with goods proper for trading with the natives, to another part of the said coast called Cameroon, to trade with the natives there. That while the last-mentioned ship was lying off Cameroon, a canoe with some natives on board came to the same for the purpose of estabhshing a trade, and went back to the shore, of which defendant had notice. And that he well knowing the premises, but contriving and maliciously intending to hinder and deter the natives from trad- ing with the said Thomas Smith, for the benefit of the plaintiffs, with force and arms, fired from a certain ship called the Othello, of which he was master and commander, a certain cannon loaded with gunpowder and shot at the said canoe, and killed one of the na- tives on board the same. Whereby the natives of the said coast were deterred and hindered from trading with the said T. Smith for the benefit, etc., and plaintiffs lost their trade. Erskine, for the plaintiffs. ... So long since as the days of Brac- ton it was held that to constitute a duress in law it must not be "suspicio cujuslibet vani & meticulod hominis, sed talis qui possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitoe periculum, aut corporis crucintum, Brae. 1. 2, c. 5." But in this case the plaintiffs' loss was not occasioned by the vain fears of the negi-oes, or even the fear of a battery being committed on them, but a fear arising from the danger of life itself. The plaintiffs called Thomas Smith, who proved the facts stated in the declaration; and further, that the defendant had declared the natives owed him a debt, and that he would not suffer any ship to trade with them until that was paid; in ptirsuance of which declara- tion he committed the act complained of by the plaintiffs. . . . SECT. Ill] VIOLENCE — INTIMIDATION 191 Lord Kenton. This action is brought by the plaintiffs to recover a satisfaction for a civil injury which they have sustained. The in- jury complained of is, that by the improper conduct of the defend- ant the natives were prevented from trading with the plaintiffs. The whole of the case is stated on the record, and if the parties de- sire it, the opinion of the Court may hereafter be taken whether it- will support an action. I am of opinion it wiU. This case has been likened to cases which it does not at all resemble. It has been said that a person engaged in a trade violating >the law of the country cannot support an action against another for hindering him in that- illegal traf&ck. That I entirely accede to, but it does not apply to this case. This is a foreign law; the act of trading is not itself im- moral, and a jus positivum is not binding on foreigners. The king of the coimtry and not the defendant should have executed that law. Had this been an accidental thing, no action could have been main- tained, but it is proved that the defendant had expressed an inten- tion not to permit any to trade, until a debt due from the natives to himself was satisfied. If there was any court in that country to which he could have applied for justice he might have done so, but he had no right to take the law into his own hands. The plaintiffs had a verdict, and the parties agreed to refer the damages to arbitration. O'NEIL V. BEHANNA Supreme Court of Pennsylvania. 1897 182 Pa. St. 236 Bill in equity for an injunction against strikers, and to recover damages for injuries caused by the alleged illegal conduct of strik- ers. . . . Opinion by Mr. Justice Mitchell, July 15, 1897: We are obliged to differ wholly from the view of the facts re- ported by the learned master. It is totally irreconcilable with the testimony read in the light of experience and a knowledge of human nature. Nor can we agree entirely with the view of the court below, though it is more in accordance with the evidence and the law. 'The learned judge in his opinion says, "the testimony establishes the. fact that certain of the defendants overstepped these bounds and used annoyance, intimidation, ridicule, and coercion, to prevent- new men from engaging in work for the plaintiff. When the new men were followed and importuned not to work, from their point of embarkation to their destination, and there met by the strikers. in considerable numbers, and followed to their lodging places, all the time being pressed and entreated to return, and called ' scabs ' and ' blacklegs,' and sometimes surrounded, and the effort made to- puU them away, an imfriendly (at least) atmosphere about every- 192 LEGALITY OF MEANS USED [CHAP. IV where, it must be admitted that there was something more than mere argument and persuasion, and the orderly and legitimate con- duct of a strike. This was certainly serious annoyance and well cal- culated to intimidate and coerce. And that effect was apparently produced on more than one occasion. Nor did such acts entirely end when the men imported actually began work, but such men were, on occasions and in a less public manner, approached in a like manner in their intervals of labor, and advised that there would be trouble there, and they had better leave. No actual violence however was employed." This is a mild and judicially restrained statement of what the evidence clearly showed. The strikers and their counsel seem to think that the former could do anything to attain their ends, short of actual physical violence. This is a most serious misconception. The "arguments," and "persuasion" and "appeals" of a hostile and demonstrative mob have a potency over men of ordinary nerve which far exceeds the limits of lawfulness. The display of force tiiough none is actually used is intimidation, and as much unlawful as violence itself. An attempt is made to argue that the strikers only congregated at the place of arrival of the new men in accordance with the cus- tom at boat and train arrivals in small towns. But this disguise is too flimsy to hide the real purpose. If they desired in good faith to meet peaceably and lawfully for their own business, they should tave selected another place sufi&ciently remote to be free from the excitement and crowds which their own testimony admits attended the arrival of the new men, and also far enough away to avoid the intimidating ejEfect of a hostile crowd on the newcomers. But in truth they did not desire to avoid that effect. On the contrary that was what they were there for, and their presence indicates their real intentions too plainly for any verbal denials on their part to offset. It is further urged that the strikers through their committees only exercised ("insisted on" is the phrase their counsel use in this court), their right to talk to the new men, to persuade them not to go to work. There was no such right. These men were there pre- sumably under contract with the plaintiff, and certainly in search of work if not yet actually under pay. They were not at leisure, and their time, whether their own or their employer's, could not lawfully be taken up and their progress interfered with by these or any other outsiders on any pretense or under any claim of right, to argue or persuade them to break their contracts. Even therefore if the argimients and persuasion had been confined to lawful means, they were exerted at an improper time, and were an interference with the plaintiff's rights which made the perpetrators liable for any damages the plaintiff suffered in consequence. But in fact their efforts were not confined to lawful means. The result of the evidence, as stated by the learned judge, is that the new men were "followed SECT. Iiq VIOLENCE — INTIMIDATION 193 and importuned not to work, from their point of embarkation to their destination, and there met by the strikers in considerable num- bers, . . . called ' scabs ' and ' blacklegs,' and sometimes sur- rounded and the effort made to puU them away." This view is quite sufficiently favorable to the defendants, and, as already said, a hostile and threatening crowd does not need to resort to actual violence to be guilty of unlawful intimidation. The acts of these defendants "were an imlawful interference with the rights of the new men, and with those of the plaintiff. . . . We regard the testimony as demon- strating that the defendants were guilty of an unlawful combina- iion which, while professing the intention and trying to maintain an outward appearance of lawfulness, was carried out by violent and threatening conduct, which was equally a violation of the rights of the new men who came to work for plaintiff and of the plaintiff herself, and that they are liable in this suit for all the damages which plaintiff suffered thereby. . . . Not the least notable feature is the expression of surprise by the counsel and even by the court that the case was pushed after the strike was over. It appears to be a fact that the strike was less vio- lent and disorderly than others, which had preceded it and a senti- ment seems to have pervaded the community, even the court not being entirely exempt, that the strike being over, the subject had better be dropped. This is not law nor justice. A plaintiff who might have been hurt worse than he was may be inclined not to push his claim for compensation for the injmy actually received, but it is for him, and not for others, and especially not for courts, to make the choice, and there should be no judicial surprise if he in- sists on his rights, though other men may think discretion the bet- ter part of valor. Decree reversed, biU reinstated and damages directed to be as- certained in accordance with this opinion. Costs to be paid by the appellees.' » Accord: Cook v. Dolan, 19 Pa. County Ct. 401 (opprobrious epithets used by picketers). In the case of "Vis Compulsiva" (coercion through fear arising from threat of physical harm) may the person coerced have a tort action? To cover such a situation, the Roman law developed the well-recognized actio quod metus causa. Does the EngUsh common law ot torts give any such right of action? What Kind of Threats Constitutes Intimidation? "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 warning of your intention to do in that event, and thus allow the other person the chance of avoiding the consequences." — Per Holmes, J., in Vegelahn v. Guntner, 167 Mass. 92 at 107. "It appears sometimes to be thought that a mere threat in itself gives a cause of action; but this is not so. An indignant parent cannot be sued for threatening his son that he will be disinherited if he does not reform, even a.lthough the in- timation may lack'nothing in force and angry vigour. The reason is, that he is en- titled to disinherit his son, if he thinks fit; and he does not commit any legal wrong in informing his son of his intention, with such emphasis as he may con- sider desirable. Workmen are admittedly entitled to cease work for any reason. 194 LEGALITY OF MEANS USED [CHAP. IV Section 4. Peaceful Persuasion IRON HOLDERS' UNION v. ALLIS-CHALMERS CO. U. S. Circuit Couet of Appeals, Seventh Circuit. 1908 166 Fed. 45 The appeal is from a final decree in a strike injunction suit. . . . The final decree enjoins the defendants, four Wisconsin local unions of the national organization of iron molders and some sixty individuals who were officers and members, from doing the following: " (1) From in any manner directly interfering with, hindering, obstruct- ing, or stopping the business of the said complainant, or its agents, servants or employees, in the maintenance, conduct, management or operation of its business. "(2) From compelling or inducing or attempting to compel or induce by threats, intimidation, force or violence any of the said company's em- ployees to fail or refuse to work for it, or to leave its service. " (3) From preventing or attempting to prevent any person or persons by threats, intimidation, force or violence, from freely entering into or con- tinuing in the said company's service. "(4) And from congregating upon or about the company's premises or the streets, approaches and places adjacent or leading to said premises for the purpose of intimidating its employees or preventing or hindering them from fulfilling their duties as such employees or for the purpose of in such manner as to induce or coerce by threats, violence, intimidation or per- suasion, any of the said company's employees to leave its service or any person to refuse to enter its service. "(5) From congregating upon or about the company's premises or the sidewalk, streets, alleys or approaches adjoining or adjacent to or leading to said premises, and from picketing the said complainant's places of business or the homes or boarding houses or residences of the said complainant's employees. "(6) From interfering with the said company's employees in going to and from their work. good, bad, or indifferent; and employers are entitled to decline to continue work- men in their employment for any reason, whether good or bad. . . . No legal exception can be taken to the fact of the strike; yet it is sometimes contended that an action will lie for intimating to the employers that in certain circumstances that which the men are entitled to do will be done. If this be the law, nothing could be more inconvenient for both employer and workman, as the tendency would be to call the strike first, without waiting for negotiations which would give an opportunity to the employers to consider whether it was to their advantage to make the required concessions; and certainly those who objected to the so-called threat would be the first to protest against a strike which was made without due intimation that it was about to take place." — Per Peterson, J., in Hodges v. Webb, [1920] 2 Ch. 70, at page 88. See also, Wolstenhohne v. Ariss, [1920] 2 Ch. 403. Should iNTiwroATioN be Mbastjbed by a Subjective or by an Objectivb Test? See Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, at page 769. See also, Bracton, Book II, chap. 5. Compare Ejng v. Weiss & Lesh Mfg. Co., 266 Fed. 257 (colored men more easily intimidated than white). «ECT. IV] PEACEFUL PERSUASION 195 "(7) From going singly or collectively to the homes of the said com- pany's employees for the purpose of intimidating or threatening them or collectively persuading them to leave its service. " (8) From enforcing, maintaining or aiding any illegal boycott against ■the said company, its agents or employees. " (9) From endeavoring to illegally induce people not to deal with said company, its agents and employees. "(10) From preventing or attempting to prevent by threats, intimida- tion, persuasion or in any other manner any person or corporation from performing work for said complainant and from doing business with it. "(11) From intimidating or threatening in any manner the wives and fa mili es of said employees at their homes or elsewhere. "(12) From doing any of the aforesaid or any other acts for the purpose •of compelling and inducing or attempting to compel or induce the com- plainant by threats, intimidation, force or violence, against its will or the will of its officers, to employ or to discharge any person or persons whom- soever, and especially to employ members of said unions or discharge per- sons who are not members of said unions. "{13) From combining, associating, agreeing, mutually undertaking, concerting together or with other persons for the purpose of doing or caus- ing to be done any of the aforesaid prohibited acts. " (14) From combining, associating, agreeing, mutually undertaking, con- certing together or with other persons for the purpose of preventing [or hindering the complainant from doing or performing] any lawful act in the conduct of its aforesaid business or for the purpose of injuring the com- plainant in its aforesaid business, or of compelling the complainant against its win from doing or performing any lawful act or from injxu-ing the said complainant in its trade and business. "(15) From directing and abetting or counseUing any acts whatsoever or in any manner whatsoever the conspiracy and combination found by the court to exist, to prevent the complainant and its officers and employees in the free and uninterrupted control and direction of its business and affairs and to prevent the complainant from doing or performining any and all lawful acts in the conduct of its business and to compel the complainant against its will from doing and perfprming its lawful business and to pre- vent the complainant from doing or performing all lawful acts in the con- duct or management of its business. " (16) From by threats, intimidation, i)ersuasion, force or violence, com- pelling or attempting to compel or induce any of the apprentices in the em- ploy of the said complainant to break their contracts and leave the employ of the said complainant." ... Bakeb, Circuit Judge. . . . The evidence showed that appellee was entitled to injunctive relief. To keep other workmen out of appellee's foundries, some of the uiiion men went to the extent of using vile and abusive language, threats of violence, and actual as- saults. This was effective enough to damage appellee's business quite seriously, and was carried on under circumstances that might be held to indicate the imions' tacit approval. None of the appellants ever challenged by appeal the justice of the temporary injunction or of the punishments for its violation. And on this appeal from the 196 LEGALITY OF MEANS USED [CHAP. I\r final decree not a shadow of justification is found for these acts of violence and intimidation. The only substantial question is whether or not the trial court has stepped beyond the line of safeguarding the legal rights of appellee and has thereby deprived appellants of some of their legal rights. To organize for the purpose of securing improvement in the terms, and conditions of labor, and to quit work and to threaten to quit work as means of compelling or attempting to compel employers, to accede to their demands for better terms and conditions, are rights of workmen so well and so thoroughly established in the law (Thomas v. Rid. Co. [C. C] 62 Fed. 803; Arthur v. Oakes, 63 Fed. 320, 11 C. C. A. 209, 25 L. R. A. 414; Wabash Rid. Co. v. Hannahan [C. C] 121 Fed. 563), that nothing remains except to determine in successive cases as they arise whether the means used in the en- deavor to make the strike effective are lawful or unlawful. . . . The record shows that the local unions had a conference in re- gard to conditions in all the foundries in the city and county of Milwaukee; that they formulated demands respecting wages, over- time, double time on holidays, piecework, weekly pay day, limitation of the number of apprentices, and a joint arbitration board; that these demands were made alike upon all the foundry owners within that territory; and that when the demands were rejected the union men in all the foimdries struck. Nothing in the record indicates that there was any want of good faith in making these demands, or that the strike was imdertaken with any other purpose than to enforce them, or that appellee received or was singled out to receive different treatment from that dealt out to other foundry owners. So the employment of assault and duress in the progress of the strike should be attributed to a combination to accomphsh a law- ful end by unlawful means, rather than the employment of unlawful means should be taken as proof that the end sought to be accom- plished by such means was itself unlawful. And consequently the parts of the decree which prohibit the use of persuasion and picket- ing can be justified only on the basis that such means are not law- fully to be applied in a genuine struggle of labor to obtain better terms and conditions; for surely men are not to be denied the right to pursue a legitimate end in a legitimate way, simply because they may have overstepped the mark and trespassed upon the rights of their adversary. A barrier at the line, with punishment and dam- ages for having crossed, is all that the adversary is entitled to ask. So far as persuasion was used to induce apprentices or others (sec. 16 of the decree) to break their contracts to serve for definite times,, the prohibition was right. And the reason, we beheve, is quite plain. Each party to such a contract has a property interest in it. If either breaks it, he does a wrong, for which the other is entitled to a remedy. And whoever knowingly makes himself a party to a wrongful and injurious act becomes equally liable. But in the present case the SECT. IV3 PEACEFUL PERSUASION 197 generality of the men who took or sought the places left by the strikers were employed or were offered employment at will, as the strikers had been. If either party, with or without cause, ends an employment at will, the other has no legal ground of complaint. So if the course of the new men who quit or who dechned employ- ment was the result of the free play of their intellects and wills, then against them appellee had no cause of action, and much less against men who merely furnished information and arguments to aid them in forming their judgments. Now it must not be forgotten that the suit was to protect appellee's property rights. Regarding employ- ments at will, those rights reached their limit at this line: For the maintenance of the incorporeal value of a going business appellee had the right to a free access to the labor market, and the further right to the continuing services of those who accepted employment at will imtU such services were terminated by the free act of one or the other party to the employment. On the other side of this limit- ing hne, appellants, we think, had the right, for the purpose of main- taining or increasing the incorporeal value of their capacity to labor, to an equally free access to the labor market. The right of the one to persuade (but not coerce) the unemployed to accept certain terms is limited and conditioned by the right of the other to dissuade (but not restrain) them from accepting. For another thing that must not be forgotten is that a strike is one manifestation of the competition, the struggle for survival or place, that is inevitable in individualistic society. Dividends and wages must both come from the joint prod- uct of capital and labor. And in the struggle wherein each is seeking to hold or enlarge his ground, we believe it is fundamental that one and the same set of rules should govern the action of both contest- ants. For instance, employers may lock out (or threaten to lock out) employees at will, with the idea that idleness will force them to accept lower wages or more onerous conditions; and employees at wiU may strike (or threaten to strike), with the idea that idleness- of the capital involved will force employers to grant better terms. These rights (or legitimate means of contest) are mutual and are fairly balanced against each other. Again, an employer of molders, having locked out his men, in order to effectuate the pvirpose of his lockout, may persuade (but not coerce) other foundrymen not to employ molders for higher wages or on better terms than those for which he made his stand, and not to take in his late employees at all, so that they may be forced back to his foundry at his own terms;: and molders, having struck, in order to make their strike effective may persuade (but not coerce) other molders not to work for less wages or under worse conditions than those for which they struck, and not to work for their late employer at all, so that he may be forced to take them back into his foundry at their own terms. Here, also, the rights are mutual and fairly balanced. On the other hand, an employer, having locked out his men, will not be permitted, though. 198 LEGALITY OP MEANS USED [CHAP. IV it would reduce their fighting strength, to coerce their landlords and grocers into cutting off shelter and food; and employees, hav- ing struck, will not be permitted, though it might subdue their Jate employer, to coerce dealers and users into starving his business. The restraints, likewise, apply to both combatants and are fairly balanced. These illustrations, we believe, mark out the line that must be observed by both. In contests between capital and labor the only means of injuring each other that are lawful are those that operate directly and immediately upon the control and supply of ' work to be done and of labor to do it, and thus directly affect the apportionment of the common fund, for only at this point exists the •competition, the evils of which organized society wUl endure rather than suppress the freedom and initiative of the individual. But attempts to injure each other by coercing members of society who are not directly concerned in the pending controversy to make raids in the rear cannot be tolerated by organized society, for the direct, the primary, attack is upon society itself. And for the enforcement of these mutual rights and restraints organized society offers to both parties, equally, all the instrumentalities of law and of equity. With respect to picketing as well as persuasion, we think the de- cree went beyond the hne. The right to persuade new men to quit ■or decUne emplojnuent is of little worth unless the strikers may as- certain who are the men that their late employer has persuaded or is attempting to persuade to accept emplojmient. Under the name of persuasion, duress may be used; but it is duress, not persuasion, that should be restrained and punished. In the guise of picketing, ■strikers may obstruct and annoy the new men, and by insult and mienacing attitude intimidate them as effectually as by physical assault. But from the evidence it can always be determined whether the efforts of the pickets are limited to getting into communication with the new men for the purpose of presenting argvtments and ap- peals to their free judgments. Prohibitions of persuasion and picket- ing, as such, should not be included in the decree. Karges Furniture Co. V. Amalgamated Wood Workers' Union, 165 Ind. 421, 75 N. E. ■877, 2 L. R. A. (n. s.) 788; Everett-Waddy Co. v. Typographical Union, 105 Va. 188, 53 S. E. 273, 5 L. R. A. (n. s.) 792. We have not found anything in the evidence that justified the decree as to an "illegal boycott." No attempt was made to touch -appellee's deahngs or relations with customers and users of its goods. Oxley Stave Co. v. Coopers' International Union (C. C), 72 Fed. 695; Loewe v. Cal. State Federation of Labor (C. C), 139 Fed. 71; Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488. After the strike was on, appellee sent patterns, on which the strikers had been working, to foundries in other cities. The strikers procured the molders in those foundries, who also were members of the Iron Holders' Union of North America, to refuse to make appellee's •castings. Those molders notified their employers that they would SECT, ir] PEACEFUL PERSUASION 19& have to cancel their contracts to make castings for appellee, or they would quit work. Some employers discharged the notifiers, others refused to cancel and the union men struck, and others complied and the union men stayed. In those instances where the foundry- men fulfilled their contracts, appellee was not damaged; in those where foundrymen broke their contracts, there is no proof that appellee has not collected or cannot collect adequate damages. That might be taken as a reason why appellee on this branch of the case is not entitled to the aid of equity. But there is a more important reason. Appellants were aiming to prevent, and appellee to secure, the doing of certain work in which the skill of appellants' trade was necessary. Here was the groimd of controversy, and here the test of endurance. If appellee had the right (and we think the right was perfect) to seek the aid of fellow foundrjonen to the end that the necessary element of labor shoxild enter into appellee's product, appellant had the reciprocal right of seeking the aid of fellow molders to prevent that end. To whatever extent employers may lawfully combine and cooperate to control the supply and the conditions of work to be done, to the same extent should be recognized the right of workmen to combine and cooperate to control the supply and the conditions of the labor that is necessary to the doing of the work. In the fuUest recognition of the equality and mutuality of their rights and their restrictions lies the peace of capital and labor, for so they, like nations with equally well drilled and equipped armies and navies, will make and keep treaties of peace, in the fear of the cost and consequences of war. The decree is modified by striking out "persuasion" and "per- suading" from the 4th and 7th paragraphs; further modified by adding after' "picketing" in the 5th paragraph "in a threatening or intimidating manner"; vacated as to the 1st, 8th, 9th, 10th, 14th and 15th paragraphs; affirmed as to the 2d, 3d, 6th, 11th, 12th, 13th, 16th and the modified 4th, 5th and 7th paragraphs. Costs of this court to be divided equally.' ' "Apart from the question of plaintiff's right to maintain this bill, the order appealed from went too far in enjoining against ' interfering in any way or in any manner, directly or indirectly, with the plaintiff or the Delker Bros. Buggy Co. or the employees of the Delker Bros. Buggy Co. . . . and from picketing high- ways or means of ingress and egress to and from said plant of said buggy company ' — acts which do not necessarily constitute an unlawful interference. King v.. Manufacturing Co., 266 Fed. 257. "The order appealed from must be reversed, and the record remanded to the District Court, with directions to dismiss the bill." Davis v. Henry, 266 Fed. 261, 266. The doctrine of the principal case is supported by a long list of authorities. See especially Rogers v. Evarts, 17 N. Y. Supp. 264. See also, as typical cases, Jones V. E. Van Winkle Gin & Machine Works, 131 Ga. 336; Karges Furniture Co. V. Amalgamated Woodworkers' Union, 165 Ind. 421; Cumberland Glass- Mfg. Co. V. Glass Bottle Blowers' Assn., 59 N. J. Eq. 49; Jones v. Maher, 116 N. Y. Supp. 180; Everett-Waddey Co. v. Richmond Typographical Union, 105 Va. 188; Goldfield Consolidated Mines Co. v. Goldfield Miners' Union, 159 Fed. 600. 200 LEGALITY OF MEANS USED [CHAP. IV Section 5. Picketing FiTZHERBERT, New Natuea Brevitjm.' And there is another writ of trespass against those who lie near the plaintiff's house, and wiQ not suffer his servants to go into the house, nor the servants who are in the house to come out thereof. VEGELAHN v. GUNTNER Supreme Judicial Court of Massachusetts. 1896 167 Mass. 92 Bill in equity, filed December 7, 1894, against fourteen indi-vid- ual defendants and two trades unions. . . . The following decree was entered at a preliminary hearing upon the biU: "This cause came on to be heard upon the plaintiff's motion for a temporary injunction; and after due hearing, at which the several defendants were represented by counsel, it is ordered, ad- judged, and decreed that an injunction issue pendente lite, to remain in force until the further order of this court, or of some justice thereof , restraining the respondents and each and every of them, their agents and servants, from interfering with the plaintiff's business by pa- trolling the sidewalk or street in front or in the vicinity of the prem- ises occupied by him, for the purpose of preventing any person or persons who now are or may hereafter be in his employment, or ■desirous of entering the same, from entering it, or continuing in it; or by obstructing or interfering with such persons, or any others, in entering or leaving the plaintiff's said premises; or by intimidat- ing, by threats or otherwise, any person or persons who now are or may hereafter be in the employment of the plaintiff, or desirous of entering the same, from entering it, or continuing in it; or by any scheme or conspiracy among themselves or with others, organized for the purpose of annoying, hindering, interfering with, or pre- venting any person or persons who now are or may hereafter be in the employment of the plaintiff, or desirous of entering the same, from entering it, or from continuing therein." Hearing upon the bill and answers before Holmes, J., who re- ported the case for the consideration of the full court, as follows: "The facts admitted or proved are that, following upon a strike •of the plaintiff's workmen, the defendants have conspired to pre- vent the plaintiff from getting workmen, and thereby to prevent him from carrying on his business unless and until he will adopt a schedule of prices which has been exhibited to him, and for the pur- pose of compelling him to accede to that schedule, but for no other purpose. If he adopts that schedule he will not be interfered with • Page 87 N. The New Natura Brevium was first published in 1534. SECT. V] PICKETING 201 further. The means adopted for preventing the plaintiff from getting workmen are, (1) in the first place, persuasion and social pressure. And these means are sufficient to affect the plaintiff disadvanta- geously, although it does not appear, if that be material, that they are sufficient to crush him. I ruled that the employment of these means for the said purpose was lawful, and for that reason refused an injunction against the employment of them. If the ruling was wrong, I find that an injunction ought to be granted. "(2) I find also, that, as a further means for accomplishing the desired end, threats of personal injury or unlawful harm were con- veyed to persons seeking employment or employed, although no actual violence was used beyond a technical battery, and although the threats were a good deal disguised, and express words were avoided. It appeared to me that there was danger of similar acts in the future. I ruled that conduct of this kind shoidd be enjoined. "The defendants established a patrol of two men in front of the plaintiff's factory, as one of the instrumentalities of their plan. The patrol was changed every hour, and continued from half-past six in "the morning until half-past five in the afternoon, on one of the busy streets of Boston. The number of men was greater at times, and at times showed some Httle incUnation to stop the plaintiff's door, which was not serious, but seemed to me proper to be enjoined. The patrol proper at times went further than simple advice, not ■obtruded beyond the point where the other person was willing to listen, and conduct of that sort is covered by (2) above, but its main piirpose was in aid of the plan held lawful in (1) above. I "was satisfied that there was probability of the patrol being con- tinued if not enjoined. I ruled that the patrol, so far as it confined itself to persuasion and giving notice of the strike, was not vmlaw- ful, and limited the injunction accordingly. "There was some evidence of persuasion to break existing con- tracts. I ruled that this was tmlawful, and should be enjoined. "I made the final decree appended hereto. If, on the foregoing facts, it ought to be reversed or modified, such decree is to be en- tered as the fuU comrt may think proper; otherwise, the decree is to stand." The final decree was as follows: "This cause came on to be heard, and was argued by counsel; and thereupon, on consideration thereof, it is ordered, adjudged, and decreed that the defendants, and each and every of them, their agents and servants, be restrained and enjoined from interfering with the plaintiff's business by obstruct- ing or physically interfering with any persons in entering or leaving the plaintiff's premises numbered 141, 143, 145, 147 North Street in said Boston, or by intimidating, by threats, express or implied, of violence or physical harm to body or property, any person or persons who now are or hereafter may be in the employment of the plaintiff, or desirous of entering the same, from entering or con- 202 LEGALITY OF MEANS USED [CHAP. IV tinuing in it, or by in any way hindering, interfering with, or pre- venting any person or persons who now are in the employment of the plaintiff from continuing therein, so long as they may be bound so to do by lawful contract." The case was argued at the bar in March, 1896, and afterwards, was submitted on briefs to all the judges. . . . Allen, J. The principal question in this case is whether the de- fendants should be enjoined against maintaining the patrol. . . . The patrol was maintained as one of the means of carrying out the defendants' plan, and it was used in combination with social pressure, threats of personal injiury or unlawful harm, and per- suasion to break existing contracts. It was thus one means of in- timidation indirectly to the plaintiff, and directly to persons actually employed, or seeking to be employed, by the plaintiff, and of ren- dering such emplojonent unpleasant or intolerable to such per- sons. Such an act is an unlawful interference with the rights both of employer and of employed. . . . Intimidation is not limited tO' threats of violence or of physical injury to person or property. It has a broader signification, and there also may be a moral intimida- tion which is illegal. Patrolling or picketing, under the circum- stances stated in the report, has elements of intimidation like those \ which were found to exist in Sherry v. Perkins, 147 Mass. 212. It •was declared to be unlawful in Regina v. Druitt, 10 Cox C. C. 592; Regina v. Hibbert, 13 Cox C. C. 82; and Regina v. Bauld, 13 Cox C. C. 282. . . . The defendants contend that these acts were justifiable, because they were only seeking to secure better wages for themselves by compelling the plaintiff to accept their schedule of wages. This motive or purpose does not justify maintaining a patrol in front of the plaintiff's premises, as a means of carrying out their conspiracy. A combination among persons merely to regulate their own con- duct is within allowable competition, and is lawful, although others may be indirectly affected thereby. But a combination to do in- jurious acts expressly directed to another, by way of intimidation or constraint, either of himself or of persons employed or seeking to be employed by him, is outside of allowable competition, and is imlawful. . . . The present case falls within the latter class. . . . In the opinion of a majority of the court the injunction should be in the form originally issued. So ordered. Field, C. J. ... I am of opinion, on the facts reported, as I under- stand them, that the decree entered by Mr. Justice Holmes should be aflSrmed without modification.^ ... ' Field, C J., after an interesting discussion of the practice of issuing injunc- , tions in labor cases, concluded that in the present case there was no justification J for the issue of an injunction to prevent picketing and peaceful persuasion. — Ed. SECT, V] PICKETING 203 Holmes, J. . . . In the first place, a word or two should be said as to the meaning of the report. I assume that my brethren construe it as I meant it to be construed, and that, if they were not prepared to do so, they would give an opportunity to the defendants to have it amended in accordance with what I state my meaning to be. There was no proof of any threat or danger of a patrol exceeding two men, and as of covurse an injunction is not granted except with reference to what there is reason to expect in its absence, the question on that point is whether a patrol of two men should be enjoined. Again, the defendants are enjoined by the final decree from intimidating by threats, express or imphed, of physical harm to body or property, any person who may be desirous of entering into the employment of the plaintiff so far as to prevent him from entering the same. In order to test the correctness of the refusal to go further, it must be assumed that the defendants obey the express prohibition of the decree. If they do not, they fall vdthin the injunction as it now stands, and are liable to smnmary pimishment. The important difference between the preliminary and the final injunction is that the former goes further, and forbids the defendants to interfere with the plaintiff's business "by any scheme . . . organized for the purpose of . . . preventing any person or persons who now are or may hereafter be . . . desirous of entering the [plaintiff's em- ployment] from entering it." I quote only a part, and the part which seems to me most objectionable. This includes refusal of social in- tercourse, and even organized persuasion or argument, although free from any threat of violence, either express or implied. And this is with reference to persons who have a legal right to contract or not to contract with the plaintiff, as they may see fit. Interference with existing contracts is forbidden by the final decree. I wish to insist a little that the only point of difference which involves a difference of principle between the final decree and the preliminary injunction which it is proposed to restore, is what I have mentioned, in order that it may be seen exactly what we are to discxiss. It appears to me that the judgment of the majority turns in part on the assump- tion that the patrol necessarily carries with it a threat of bodily harm. That assimiption I think unwarranted, for the reasons which I have given. Furthermore, it cannot be said, I think, that two men walking together up and down a sidewalk and speaking to those who enter a certain shop do necessarily and always thereby convey a threat of force. I do not think it possible to discriminate, and to say that two workmen, or even two representatives of an organiza- tion of workmen, do, — especially when they are, and are known to be, under the injunction of this court not to do so. See Stimson, Handbook to Labor Law, sec. 60, esp. pp. 290, 298, 299, 300; Re- gina V. Shepherd, 11 Cox C. C. 325. I may add, that I think the more intelligent workingmen believe as fully as I do that they no more can be permitted to usurp the State's prerogative of force than can 204 LEGALITY OF MEANS USED [CE[AP. IV their opponents in their controversies. But if I am wrong, then the decree as it stands reaches the patrol, since it apphes to all threats of force. With this I pass to the real difference between the inter- locutory and the final decree. I agree, whatever may be the law in the case of a single defend- ant, Rice V. Albee, 164 Mass. 88, that when a plaintiff proves that several persons have combined and conspired to injure his business, and have done acts producing that effect, he shows temporal damage and a cause of action, unless the facts disclose, or the defendants prove, some ground of excuse or justification. And I take it to be settled, and rightly settled, that doing that damage by combined persuasion is actionable, as well as doing it by falsehood or by force. Walker v. Cronin, 107 Mass. 555. Morasse v. Brochu, 151 Mass. 567. Tasker v. Stanley, 153 Mass. 148. Nevertheless, in numberless instances the law warrants the in- tentional infliction of temporal damage because it regards it as jus- tified. It is on the question of what shall amount to a justification, and more especially on the nature of the considerations which really determine or ought to determine the answer to that question, that judicial reasoning seems to me often to be inadequate. The true grounds of decision are considerations of policy and of social advan- tage, and it is vain to suppose that solutions can be attained merely by logic and the general propositions of law which nobody disputes. Propositions as to pubhc policy rarely are unanimously accepted, and stUl more rarely, if ever, are capable of imanswerable proof. They require a special training to enable any one even to form aa intelligent opinion about them. In the early stages of law, at least, they generally are acted on rather as inarticulate instincts than as definite ideas for which a rational defence is ready. To illustrate what I have said in the last paragraph, it has been the law for centmies that a man may set up a business in a country town too small to support more than- one, although he expects and intends thereby to ruin some one already there, and succeeds in his intent. In such a case he is not held to act "unlawfully and with- out justifiable cause," as was alleged in Walker v. Cronin and Rice V, Albee. The reason, of course, is that the doctrine generally has been accepted that free competition is worth more to society than it costs, and that on this groimd the infliction of the damage is priv- ileged. Commonwealth v. Hunt, 4 Met. Ill, 134. Yet even this proposition nowadays is disputed by a considerable body of per- sons, including many whose intelligence is not to be denied, httle as we may agree with them. I have chosen this illustration partly with reference to what I have to say next. It shows without the need of further authority that the policy of allowing free competition justifies the intentional inflicting of temporal damage, including the damage of interference with a man's business, by some means, when the damage is done not SECT. V] PICKETING 205- for its own sake, but as an instrumentality 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 de- batable ground is the nature of the means by which such damage may be inflicted. We all agree that it cannot be done by force or threats of force. We aU agree, I presume, that it may be done by persuasion to leave a rival's shop and come to the defendant's. It' may be done by the refusal or withdrawal of various pecuniary ad- vantages which, apart from this consequence, are within the de- fendant's lawful control. It may be done by the withdrawal, or threat to withdraw, such advantages from third persons who have a right to deal or not to deal with the plaintiff, as a means of induc- ing them not to deal with him either as customers or servants. Com- monwealth V. Hunt, 4 Met. Ill, 132, 133. Bowen v. Matheson, 14 Men, 499. Heywood v. Tillson, 75 Maine, 225. Mogul Steam- ship Co. V. McGregor, [1892] A. C. 25. I pause here to remark that 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 warning: of your intention to do in that event, and thus allow the other per- son the chance of avoiding the consequences. So as to " compulsion," it depends on how you "compel." Commonwealth v. Hunt, 4 Met. Ill, 133. So as to "annoyance" or "intimidation." Connor v. Kent, Curran v. Treleaven, 17 Cox C. C. 354, 367, 368, 370. In Sherry v. Perkins, 147 Mass. 212, it was found as a fact that the dis- play of banners which was enjoined was part of a scheme to prevent workmen from entering or remaining in the plaintiff's employment, "by threats and intimidation." The context showed that the wordSj, as there used meant threats of personal violence, and intimidation by causing fear of it. i I have seen the suggestion made that the conflict between em- ployers and employed is not competition. But I venture to assume that none of my brethren would rely on that suggestion. If the poUcy 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 persons of the same class competing for the same end. It applies to all con- flicts of temporal interests. So far, I suppose, we are agreed. But there is a notion which latterly has been insisted on a good deal, that a combination of per- sons to do what any one of them lawfully might do by himself will make the otherwise lawful conduct unlawful. It would be rash to say that some as yet unformulated truth may not be hidden under this proposition. But in the general form in which it has been pre- 206 LEGALITY OF MEANS USED [CHAP. IV .sented and accepted by many courts, I think it plainly untrue, both on authority and on principle. Commonwealth v. Himt, 4 Met. 111. Randall v. Hazelton, 12 Allen, 412, 414. There was combina- tion of the most flagrant and dominant kind in Bowen v. Matheson and in the Mogul Steamship Co.'s case, and combination was essen- tial to the success achieved. But it is not necessary to cite cases; it is plain from the slightest consideration of practical affairs, or the most superficial reading of industrial history, that free competition means combination, and that the organization of the world, now ^oing on so fast, means an ever increasing might and scope of com- bination. It seems to me futile to set our faces against this tend- ency. Whether beneficial on the whole, as I think it, or detrimental, it is inevitable, unless the fundamental axioms of society, and even the fundatnental conditions of life, are to be changed. One of the eternal conflicts out of which Ufe is made up is that between the effort of every man to get the most he can for his serv- ices, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the neces- sary and desirable counterpart, if the battle is to be carried on in a fair and equal way. I am unable to reconcile Temperton v. Russell, [1893] 1 Q. B. 715, and the cases which follow it, with the Mogul Steamship Co. case. But Temperton v. Russell is not a binding authority here, and therefore I do not think it necessary to dis- cuss it. If it be true that workingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to getting the greatest possible return, it must be true that when combined they have the same liberty that combined capital has to support their interests by ar- gument, persuasion, and the bestowal or refusal of those advantages which they otherwise lawfully control. I can remember when many people thought that, apart from violence or breach of contract, strikes were wicked, as organized refusals to work. I suppose that intelli- gent economists and legislators have given up that notion today. I feel pretty confident that they equally wiU abandon the idea that an organized refusal by workmen of social intercourse with a man who shall enter their antagonist's employ is wrong, if it is dissoci- ated from any threat of violence, and is made for the sole object of prevailing if possible in a contest with their employer about the rate of wages. The fact, that the immediate object of the act by which the benefit to themselves is to be gained is to injure their antagonist, does not necessarily make it unlawful, any more than when a great house lowers the price of certain goods for the purpose, and with the effect, of driving a smaller antagonist from the business. In- deed, the question seems to me to have been decided as long ago as 1842 by the good sense of Chief Justice Shaw, in Commonwealth SECT. -VG PICKETING 207 V. Hunt, 4 Met. 111. I repeat at the end, as I said at the beginning, that this is the point of difference in principle, and the orJy one, between the interlocutory and the final decree. See Regina v. Shep- herd, 11 Cox C. C. 325; Connor v. Kent, Gibson v. Lawson, Curran V. Treleaven, 17 Cox C. C. 354. The general question of the propriety of dealing with this kind of case by injunction I say nothing about, because I understand that the defendants have no objection to the final decree if it goes no further, and that both parties wish a decision upon the matters which I have discussed.' POPE MOTOR CAR CO. v. KEEGAN United States Circuit Coubt, N. D. Ohio. 1906 150 Fed. 148 Tatleh, District Judge. On October 5, 1906, the complainant filed its bill against John J. Keegan, J. M. Keck, and some 270 other persons, charging a conspiracy among the defendants, and with other persons unknown to the complainant, to carry into execution a strike at the factory of the complainant at Toledo; that one of the objects of the strike was to compel the complainant to submit to the dicta- tion of Keegan and Keck, who were officials of the International Association of Machinists, as to the terms and conditions upon which the complainant should employ machinists; and that all of the defendants, except Keegan and Keck, had been in the employ of the complainant company, and, at the time of filing the bill, were out on strike. The bill proceeds to allege, in various forms, charges of threats, abuse, intimidation, and violence of which the defendants were guilty against men whom the complainant had employed to take the places of the strikers, and prays for an injunction restrain- ing the defendants from doing the acts charged against them. At the time of the filing of the bill, a temporary restraining order was allowed. An application for a prehminary injunction came up, and was heard on October 27th. A large number of affidavits were filed, and, by agreement of parties, testimony was taken orally; and we now have for determination the question as to whether or not a pre- liminary injunction, in the general terms of the restraining order heretofore allowed, shall be granted. There is little controversy among counsel as to the law applicable to a case of this kind; the chief contention arising as to the applica- tion of the law to the facts in this case. The rules of law which I conceive to be well established, and which I shall apply to the con- sideration and determination of the questions now before the court, are, substantially, as follows: To interfere, by violence, by threats or by intimidation, with others who are pursuing their natural and constitutional right to labor when and where they please, is always * See Holmes, O. W., Privilege, Malice, and Intent, 8 Harvard Law Review, 1. 208 LEGALITY OP MEANS USED [CHAP. IV wrong, and always unlawful. No sense of personal wrong, however great, however natural, or however excusable, can justify such in- terference. No offended sense of right, as, for instance, that an- other is unjustly "taking his job," gives warrant to such interference. The strikers themselves are entitled to no more rights than those whom they find working in their old places. Individual freedom is the chief of the rights of each. It cannot be said that a job is held except by mutual consent. It cannot be claimed by any intelligent man that one holds his job whether his employer desires it so or not. As well might we say that the workman, against his will, can be held to service by his employer. But nothing can be better settled, either in law, in conscience, or in common sense, than that every man may seek or refuse work wheresoever he will; that workmen may combine for their mutual advantage; that they may persuade fellow workmen, or others, to leave their emplojmient; but such persuasion must be such as to persuade by reason, and not compel by threat, or violence, or in- timidation. One of the forms of persuasion which, under proper circumstances, the law recognizes as permissible, is "picketing" by strikers; that is to say, the detachment of men in suitable places for the purpose of coming into personal relations with the new work- men, in order, if possible, to induce them, by means of peaceful argu- ment, to leave the places which they have taken, for such natural and proper reasons as may appeal to men in such circumstances. Much has been said by the courts, and by others, as to the peace- disturbing quahty of picketing; and it is claimed by many that picketing, though intended to be peaceable, and engaged in by no more than two or three at each station, necessarily results in violence or intimidation, and is itself intimidating. A learned judge, in 1867, said that, in his opinion, "it was impossible to have an effectual system of picketing without being guilty of that alarm, intimidation, and obstruction which is a breach of the law." Possibly that may still be true, but it cannot now be said without qualification, as it then could. In knowledge of their rights, in law-abiding spirit, in general intelligence, there has been a great advance, especially among skilled artisans. In this country, at least, they make up a large part of our intelligent and law-abiding citizens. If we can apprehend anything, we must observe that a better practice is prevailing, due, doubtless, to the increasing intelligence and good sense of those involved, and also to the fact that courts have come to be recognized as ready to protect persons in their rights, and to punish those who unlawfully interfere with them. Un- doubtedly violence and intimidation have, to some extent, been associated with picketing in this case; not always, though perhaps generally, at the hands of the strikers themselves. The idle, the dissolute, and the lawless are likely to take advantage of such a situation as this to commit unlawful acts, and the state of mind SECT. V] PICKETING 209 into which striking mechanics are likely to come, in such a case as we liave here, is more or less likely either to make them indifferent to these acts when committed by others, or, in some instances, to encom-age them. Nevertheless, I cannot beheve that, under proper circumstances, and with such a sense of self-restraint as men can exercise, picketing may not be properly conducted. A very instructive case in this connection is Karges Furniture Co. V. Amalgamated Woodworkers' Local Union et al. (Ind. Sup.) 75 N. E. 877, 2 L. R. A. (n. s.) 788. The Supreme Court of Indiana, in that case, say: "Whether picketing is lawful or unlawful depends, in each partic- ular case, upon the conduct of the pickets themselves. Under no circumstances have pickets the right to employ force, menaces, or intimidation of any kind, in their efforts to induce non-striking work- men to quit, or those about to take the strikers' places to refrain from doing so; neither have they the right, as pickets or otherwise, to assemble about the working place in such numbers or in such man- ner as to impress workmen employed, or contemplating employment, with fear and intimidation. It is, however, generally conceded in this cotmtry and in England that workmen, ^yhen free from contract obligations, may not only themselves, singly and in combination, cease to work for any employer, but may also, as a means of accom- plishing a legitimate purpose, use all lawful and peaceful means to induce others to quit or refuse employment. The law, having granted workmen the right to strike to secure better conditions from their employers, grants them also the use of those means and agencies, not inconsistent with the rights of others, that are necessary to make the strike effective. This embraces the right to support their contest by argument, persuasion, and such favors and accommodations as they have within their control. The law will not deprive endeavor and energy of their just reward, when exercised for a legitimate pur- pose and in a legitimate maimer. So, in a contest between capital and labor, on the one hand to secure higher wages, and on the other to resist it, argument and persuasion to win support and cooperation from others are proper to either side, provided they are of a character to leave the persons solicited feeling at liberty to comply or not, as they please. Likewise, a union may appoint pickets or a committee to visit the vicinity of factories for the purpose of taking note of the persons employed, and to secure, if it can be done by lawful means, their names and places of residence for the purpose of peaceful visita- tion." With the rule laid down in this case I am in full accord. I am no less anxious to protect striking workmen who are acting within their rights than I am determined to protect the rights of others who are seeking, or iengaged in, lawful employment. Some of the defendants named in this case are shown to have participated in violence and intimidation. As to most of the de- 210 LEGALITY OF MEANS USED [CHAP. IV fendants, there is a total absence of testimony respecting them. True, it is stated by some of the witnesses that large numbers of strikers were congregated in the neighborhood of the works, and used threat- ening and intimidating language to employees and officers of the complainant. Undoubtedly such conduct is unlawful. The presence of a large number of strikers, imder such circumstances,- is in itself intimidating. But no proof has been offered identifying any of the persons who made up this intimidating crowd of strikers. It is, as I have said, menacing and intimidating for any considerable num- ber of strikers to assemble for the purpose of "picketing" or "per- suading." And so, also, would be the establishing of many picketing stations in the same neighborhood, for the effect of the mass would be the same, in either case. No intelligent man fails to understand what is meant by picketing which is solely for the purpose of lawful persuasion. Some claim is made on the part of the complainant that, in view of the testimony of the general character to which I have just re- ferred, any injunction allowed in this case ought to reach all of the defendants named in the bUl; and the chief ground upon which the propriety of this claim is rested is that, except Keegan and Keck, all of the men went out on strike, and that, if they were law-abiding and did not intend to participate in acts of intimidation or violence, they would not be harmed by the issuance of an injunction against them. I cannot escape the conclusion that, under the circmnstances of this case, where the defendtots are made such in their individual capacity, and not in any organized capacity, it would be a gross in- justice to attach to persons who have not been shown to be partic- ipants in these transactions the stigma of an injunction, or to make them — as they might be without further order of the court — sub- ject to the payment of any costs which necessarily accrue in such a case. In the case in Indiana, to which reference has just been made, a somewhat similar situation arose, and there the injunction was allowed against such of the defendants as were shown to have partic- ipated in the violence or intimidation. Those who were not thus found to be unlawful participants in wrongful acts were not en- joined. That will be the order in this case. Nor is it necessary, in order to hold the defendants who are not enjoined to a strict com- pliance with the terms of such an injunction as wiU be issued in this case, that they should be named as defendants who ought to be en- joined. ... As to those who are parties to this bill, and not included by name within its terms as violators of the rights of others, they must be held to have knowledge of this opinion, and of the decree herein. Union Pacific Ry. Co. (C. C.) v. Ruef, 120 Fed. 116. I cannot help but believe that the officers of the International Association of Machinists, and the leading and influential spirits among the men who have gone on strike, wiU fully understand the views of the SECT. V] PICKETING 211 court as to their rights and duties, and that a real and successful effort will be made to keep the conduct of those with whom they are associated within the limits which are defined in this opinion. The propriety of the rule as to picketing as I have laid it down is, as to them, on trial. I find that the defendants Jacob Jeuk, John Martinek, Sam Eavou, W. M. Palmer, Hank Herman, and T. Snell ought to be enjoined; and an order may be entered, in the terms of the restraining order heretofcre issued, enjoining them, and all other persons, from in- terfering with the business of the complainant and its employees, or those who are proposing to enter its employment, as defined in such order. The apphcation for a preliminary injunction against the other defendants named is denied.^ 1 Legalitt op Peaceful Picketing. According to the weight of authority mere peaceful picketing, if it involves no intimidation, is not illegal. In Rogers v. Evarts, 17 N. Y. Supp. 264 (affd. 144 N. Y. 189), at pp. 268, 269, Smith, J., says: " The tendency of modern thought and judicial decision is to the enlargement of the right of combination, whether of capital or of labor. ... I think the law now permits workmen, at least within a limited territory, to com- bine together, and by peaceable means to seek any legitimate advantage in their trade. The increase of wages is such an advantage. The right to combine involves of necessity the right to persuade all co-laborers to join in the combination. This right to persuade co-laborers involves the right to persuade new employees to join the combination. This is but a corollary of the right of combination. . . . "It may be impossible to lay down a general rule as to what surrounding cir- cumstances will characterize persuasion and entreaty as intimidation. Each case must probably depend upon its own surroundings. But where the evidence pre- sents such a case as to convince the court that the employees are being induced to leave the employer by operating upon their fears rather than upon their judg- ments or their sympathy, the court will be quick to lend its strong arm to his protection." In Foster v. Retail Clerks' Assn., 39 Misc. (N. Y.) 48, holding that peaceful picketing was not per se unlawful, and that therefore the court would not enjoin it, Andrews, J., on page 57 says: "Mere picketing, therefore, if it is peaceful, if there is no threat or intimidation, if it is confined to simple persuasion, I do not regard in any sense as unlawful, whatever may be the motive of the picketers." So, in Groldfield ConsoUdated Mines Co. v. Union, 159 Fed. 500, 521, the court says: "Peaceful picketing, in theory, is not only possible, but permissible, and as long as it is confined strictly and in good faith to gaining information and to peace- ful persuasion and argument, it is not forbidden by law." Leading cases in accord are Karges Furniture Co. v. Amalgamated Wood- workers' Local Union, 165 Ind. 421, 430, 431; Jones v. Van Winkle Gin & Ma- chine Works, 131 Ga. 336, 340; Steffes v. Motion Picture Union, 136 Minn. 200; Root V. Anderson, 207 S. W. (Mo.) 255; Cumberland Glass Mfg. Co. v. Glass Bottle Blowers' Assn., 59 N. J. Bq. 49; Fletcher Co. v. Int. Assn. of Machinists, 65 Atl. (N. J.) 1077; Rogers v. Evarts, 17 N. Y. Supp. 264; Levy ti. Rosenstein, 66 N. Y. Supp. 101; Krebs v. Rosenstein, 31 Misc. 661; Foster v. Retail Clerks' Int. Prot. Assn., 39 Misc. 48; Mills v. U. S. Printing Co., 99 App. Div. (N. Y.) 605 (affd. 199 N. Y. 76); Searle Mfg. Co. v. Terry, 56 Misc. 265; Jones v. Maher, 62 Misc. 388; Michaels v. Hillman, 112 Misc. 395; McCormick v. Union, 13 Ohio Cir. Ct. (n. s.) 545; Greenfield v. Central Labor Council, 192 Pac. (Ore.) 783; Everett Waddey Co. v. Richmond Typographical Union, 105 Va. 188, 197; Gold- field ConsoUdated Mining Co. v. Goldfield Miners' Union, 159 Fed. 600, 621; 212 . LEGALITY OF MEANS USED [CHAP. IV ATCHISON, T. & S. F. RY. CO. v. GEE United States Circuit Couet, S. D. Iowa. 1905 139 Fed. 582 McPherson, District Judge.^ . . . But as to one phase of the case there is no denial, but practically a confession, with the alleged and boasted right to practice it. A system of "pickets," for more than a year, around and near by places to the shops of the company, has been kept up by aU the accused and others. The pretense of this picketing is the right to converse with the new employees and per- suade them to quit, and the further pretense that they desire to see who are at work. This picketing is done by details of pickets, as- signed by others; they taking tiu-n. At aU hours when men are going to and from work, morning, noon, and evening, the workmen must go through and by pickets, sometimes two, four, six, and more, at a place. At times the paths and walks are obstructed. At times the pickets are near by, making grimaces, and at times acting as if violence were intended, and at times uttering profanity and vulgarity. There is and can be no such thing as peaceful picketing, any more than there can be chaste vulgarity, or peaceful mobbing, or lawful lynching. When men want to converse or persuade, they do not organize a picket hne. When they only want to see who are at work, they go and see, and then leave, and disturb no one physically or mentally. But such picketing as is displayed in the case at bar by the evidence does, and is intended -to, annoy and intimidate. The argument seems to be that anything short of physical violence is lawful. One man can be intimidated only when knocked down. But the peaceful, law-abiding man can be and is intimidated by gesticu- lations, by menaces, by being called harsh names, and by being followed, or compelled to pass by men known to be unfriendly. Per- haps such a man may not be a buUy, but is frail in size and strength, or he may be a timid man; but such a man is just as much entitled to go and come in quiet, without even mental disturbance, as has the man afraid of no one and able with or without weapons to cope with all comers. The frail man, or the man who shuns disturbances, or the timid man, must be protected, and the company has the right to employ such. The test of manhood, and the rights of man or property, is not to be measured by braggarts or bullies, or vulgarity, or profanity, and the saloons must not be the place where supposed rights are to be decreed, as the evidence in this case shows has been attempted Iron Holders' Union v. Allis-Chalmers Co., 166 Fed. 45; Niles-Bement-Pond Co. V. Iron Holders' Union, 246 Fed. 851, 860. For cases cont'a, see note 1, p. 213, infra. As to right of employers to picket, see Atkins v. Fletcher Co., 65 N. J. Eq. 658. ' Only that part of the opinion which deals with the question of picketing is given. — Ed. SECT. V] PICKETING 213 many times by some of those on the strike. The evidence shows that many of the men out on the strike are peaceable and law-abid- ing men, who recognize all that I have said, and who have sought and obtained honorable employment, some in other lines of employ- ment in the city, and some elsewhere; but several prefer the course of staying about engaged in the so-called picketing, by which they mean to harass, provoke, and intimidate those who prefer work to idleness, and those who prefer the shop to the doggeries. This is done by some who give their time to intimidating hotel and board- ing housekeepers for boarding the workingmen. Such law-breaking is to the great injury of the workingmen and to the company; and such law-breaking must be broken up, else our laws are without force, and our courts and all in authority serve no useful purpose.^ . . . CLAYTON ACT. Section 20 See supra, p. 145, for the text of the Act. AMERICAN STEEL FOUNDRIES v. THE TRI-CITY CENTRAL TRADES COUNCIL Supreme Court of the United States. 1921 257 U. S.—^ Mr. Chief Justice Taft delivered the opinion of the court. The American Steel Foundries is a New Jersey corporation op- erating a large plant for the manufacture of steel products in Granite City, Illinois. In May, 1914, it filed a bill in the District Court for the Southern District of Illinois to_enioin the defendants, the Tri-City Central Trades Council, and fourteen individual defend- ants, some of them ofhcers of the Council, all of them citizens of other states than New Jersey, f rom ca rrying on a conspiracy to^pf e- vent complainant f rom jretajniiig^ a-nd obtaining skilled^ kborers to opera te" "its" plantTThebill charged that the conspiracy was being ^ecuted~ Ey organized picketing, accompanied by threats, intimida- tion and violence. , toward persons em'proyed~or seeking emplojnuent ' For further proceedings, see 140 Fed. 153. The doctrine that all picketing is illegal is followed in Califomia, Illinois, Michigan, and perhaps New Jersey, and is supported by occasional decisions in other states. Some of the leading cases are Pierce v. Stablemen's Union, 156 Cal. 70; Rosenberg v. Retail Clerks' Assn., 27 Cal. App. Dec. 769; Barnes v. Chicago Typographical Union, 232 111. 424; FrankUn Union v. People, 220 111. 355; Lyon & Healy v. Piano, etc., Workers' Union, 289 111. 176; Vegelahn v. Guntner, 167 Mass. 92 (but see dissenting opinions); Beck v. Ry. Teamsters' Union, 118 Mich. 497; Clarage v. Luphringer, 202 Mich. 612; Jonas Glass Co. v. Glass Blowers' Assn., 72 N. J. Eq. 653 (affd. 77 N. J. Eq. 219); Baldwin Lumber Co. v. Brother- hood of Teamsters, 91 N. J. Eq. 240. Compare Webb v. Cooks', etc.. Union, 205 S. W. (Tex.) 466 (acts amounting to intimidation); Baasch v. Cooks', etc., Union, 99 Wash. 378. 2 Decided Dec. 5, 1921; 42 Sup. Ct. 72. 214 LEGALITY OF MEANS USED [CHAP. IV there. The defendants in their answer admitted that the Central Trades Council had established a picket upon streets leading to the plant, with instructions to notify all persons entering it that a strike had been called because of reduction of wages, and to use all hon- orable means to persuade such persons not to take the places of the men on the strike; admitted the participation of individual de- fendants in the picketing, but denied threats of ipjury or violenc eor responsib ility for the violence that admijbtedly had occurred. After replication~was "filed, the cause was heard. A restraining order issued on filing of the bill, and a final decree was entered by which defend- ants were "perpetually restrained^ and enjoined from in any way or manner whatsoever by use of persuasiqn,_ threats, or perso nal injury, in- timidation, suggestion of danger or threats of violence of any En d, interfering with, hindering, obstructing or stopping, any person engaged in the employ of the American Steel Foundries in connec- tion with its business or its foundry in the City of Granite City^ County of Madison, State of Illinois, or elsewhere; and from in- terfering by persuasion, violence or threats of violence, in any man- ner with any person desiring to be employed by said American Steel Foundries in its said foundry or plant; and from inducing or attempting to compel or induce by persuasion, threats, intimida- tion, force or violence or putting in fear or suggestions of danger any of the employees of the American Steel Foundries or persons seeking employment with it so as to cause them to refuse to per- form any of their duties as employees of the American Steel Found- ries; and from preventing any person by persuasion, threats, in- timidation, force or violence, or suggestion of danger, or violence from entering into the employ of said American Steel Foundries; . . . and from picketing or maintaining at or near the premises of the com- plainant, or on the streetsjeading^to the premises of s aid complainant , any picket or pickets, and from doing any "acts '^or things whatever in furtherance of any conspiracy or combination among them, or any of them, to obstruct, or interfere with said American Steel Foundries, its officers, agents or employees, in the free and unre- strained control and operation of its plant, foundrj^ and property and the operation of its business." . . } The Circuit^Cqurt of Appeals modified the final de cree. bv stri k- ing out the"wor{i''persua,sion'' in' the four places in which it oc- curred, and by inserting after the clause restraining picketing_the following: "in a threatening or intimidatingmanner." 238 Fed. Rep". 7287 The Tri-City Central Trades Council is a labor organization com- posed of representatives of thirty-seven trade unions of Granite City, Madison and Venice, adjoin ing towns in Illi nois, includi ng among them^electricia-ns, cranemen/mlll hands, ma chinists, an d ' Part of the injunction is omitted. — Ed. SECT. V] PICKETING 215 stationary engineer s. In April, 1914, the complainant, which ordi- narily in full operation employed 1600 men, and whose plant had been shut down since November of the previous year, resumed oper- ations with about 350 of its regular men. . . . Half of the skilled workmen were given wages at rates from two cents to ten cents an hour below those paid before the plant had shut down. The Trades Coimcil was advised of this about April 15th, and appointed a com- mittee to secure reinstatement of the previous wages. The manager of the complainant told thpm that he ran an open shop, did not recognize organized labor and would not deal with the committee, but would entertain any complaint by an employee. The Council thereupon, on April 22d, declared a strike on compl ainant's plant. . . . Only t wo men, defend an ts Churchill a nd Cook, acted upon the or- d er to strike . Churchill was a member of ffie~MacIiinist3' Union. Cook was^^Fa^ member of any unLon7~T EeT]ouncil the n established aT picket, wKdi was carried oh for three or four weeks~without in- termission until the bill was filed on May 18th, and a restraining order issued. . . . The evidence showed that the pickets would stand about near the Wabash tracks, sometimes on the Foundries' side, sometimes on the depot side, sometimes on Niedringhaus Av- enue, and that there were t hree or four groups of th em varying from f our to a dozen in e ach group . The headquarters of all the groups was at the Wabash depot! There was an assault on April 30th, in which one Haefner, an em- ployee, was attacked by three of the picketers. On May 8t h, a man named Crabtree and four other e mployee s were attacked by a^group of more than seven of the pickets. On M ay 13t h, another jssault occurred, which deveio ped_into_a mob, and two witaeises for com- plainant swore positively that the President of the Trades Council, Galloway, was engaged in this disturbance and was throwing bricks. There were other assa ults, the last_one on May 18th before the re- straining order issued that day reached the picketers. Officers of the company testified that a number of men wounded in these as- saults were brought into the plant. All disturbances ceased after the restraining orders were served. Galloway testified he was present at the plant three mornings for about fifteen or twenty minutes, and four or five evenings for maybe half an hour; that he engaged in no violence while he was there and saw none; that the representatives of the Central Trades were there doing picket duty, and that the closest he saw them to the plant was 20 feet in front of Wabash depot; that the Central Trades did not instruct anybody to assault anyone, but told them to picket the streets leading to the plant, and ask the men not to go into the plant or take work under the reduced wages; . . . that the pickets were not authorized to commit an unlawful, act. ..." ~Hartbeck, who was business agent and secretary of the Black- smiths' Union, said that he acted on the picket line every time he 216 LEGALITY OF MEANS USED [CHAP. IV went over there, sometimes in the evening, sometimes at noon time. He said the pickets would approach a man and tell him the condi- tions and request him to come out; that he did that himself, but that he never threatened anyone and never used any violence of any kind. He said: "In my estimation the four or five witnesses who swore to my presence at different times to assault testified falsely." . . .1 It is clear from the evidence that from the outset, violent meth- ods were pursued from time to time in such a way as to characterize the attitude of the picketers as continuously threatening. A number of employees, sometimes fifteen or more, slept in the plant for a week during the trouble, because they could not safely go to their homes. The result of the campaign was to put employees and would- be employees in such fear that many abandoned work and this seriously interfered with the complainant in operating the plant until the issue of the restraining order. The first ques tionin the case is whether sec. 20 of the_ClaxJion Act, October 15^,^1914, chap. 323, "38 Sisit. 738, is to be appUe d in this case. ... The prohi bitions o f sec. 20, material here, are those which forbid an injunction against, first, r ecommending, advising o r persuading otEerF^Eyjg^icefiirmeans to cease emplovment and labor: second . attra^dmg_at any place where such person or persons m ay la wtulTy be for the pmrpose of peacefully obtaining or commu nicating i n- formation, or peacefully persuading any person to work or to abstain from working; third, peaceably_assembling in a lawful manner a nd for lawful purposes. This court has already Called attention in the Duplex case to theemj^iasis upon the words " peaceable " and "law - fi3" in this section. "iisTT. S. 443, 473. It is clear that Congress wishedto forbid the use by the Federal courts of their equ ity arm to prevent peaceable persuasion by employees, discharged or expectant, in promotion of their side of the dispute, and to secure them against judicial restraint in obtaining or communicating information in any place where they might lawfully be. This int roduces no new prin- ciple into the equity^ jurisprudence of those courts. It is merely declaratory of what was tEe^best pra ctice al wavs. Congress thought i^wTse to stabilize this rule of action and render it uniform. The object and problem of Congress in sec. 20, and indeed of courts of equity before its enactment, was to reconcile the rights of the employer in his business and in the access of his employees to his place of business and egress therefrom without !-ftitimidation or ob- struction, on the one hand, and the right of the employees, recent or expectant, to use peaceable and lawful means to induce present employees and would-be employees to join their ranks, on the other. If in their attempts at persuasion or comniunication with those whom they would enlist with them, those of the labor side adopt 1 Other evidence is omitted. — Ed. SECT. V] PICKETING 217 methods which however lawful in their announced purpose inevi- \ tably lead to intimidation and obstructi on, then it is the court's diit^ which~t he terms of sec. 20 do not m odify, so toliinit what the propagandisfe do as toTiime, manne Fand place [as shall jgrevent in- fiactions of the law and violations oFthe right of the^mployees, and of the em ployer tor whom theyiylsE'to work. How far may men go in persuasion and communication and still not violate the right of those whom they would influence? In going to and from work, men have a right to as free a passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege. We are a social people and the accost- ing by o ne of another in an inoffen sive way and an offer by one to commumc ate and discuss information with a view to influencing the other 's action are hot regarded as aggression or a violation of t hat other^ rights. If, however, the offer is' declined, as it may rightfully be, then persistence^i^importunity, following and dogging become tihjiisliiSaBIe 'annoyance and ob struction which is likely soon to savo r of in timidation. From all oFtEisTihe person sought to be influenced^Eas a fighT% be free and his employer has a right to have him free. The nearer this importunate intercepting of employees or would-be employees is to the place of business, the greater the obstruction and interference with the business and especially with the property right of access of the employer. Attempted discussion and argu- ment of this kind in such proximity is certain to attract attention and congregation of the curious, or, it may be, interested bystand- ers, and thus to increase the obstruction as well as the aspect of in- timidation which the situation quickly assumes. In the present case the three or four groups of picketers were made up of from four to twelve in a group. They constituted the picket line. Each union interested, electricians, cranemen, machinists and blacksmiths, had several representatives on the picket line, and assaults and violence i ensued;__Thejrbegan eariy and continued from time to time during i tEFthree^ weeks oFthe strike after the picketing began. All info r- mation tend ered, all arguments advanced and all persuasion used under such circumstances- were intimidation. They could not be otherwise."" It is idle to talk of peaceful communication in such a place ^nd under such conditions. The numbers of the_j)ickets in the groups constituted intimidation. The name "picket" indicated a militant purpqseT" inconsistent with peaceable persuasion. The cij ^wds they dre#Sl Bade the passage of the employees to gjidjrom me place of work'^^e^f runiiing"tEe gauntlet. Persuasion or com- munication attempted in such a presence and under such conditions was anything but peaceable and lawful. When one or more assaults or disturbances ensued , they charac terized th e whole campaign, which became effective because ot its intimidating character, in spite of the admonjtiflos. given by the leaders to the|r_Jollowers as to 218 LEGALITY OF MEANS USED [CHAP. IV lawfiil methods to be pursued, however sincere. Our conclusion is that picketing thus instituted is unlawful and cannot be peaceable and may be properly enjoined by the specific term because its mean- ing is clearly understood in the sphere of the controversy by those who are parties to it. We are supported in that view by many well reasoned authorities, although there has been contrariety of view. . . . A restraining order against _ picketi ng wiU advise earnest adv o- cates^ ona,bpr's cause that the law does not look with favor on an enforced discussion of the merits of the issue between ihdiviHuais who wish to work, and groups of those who do not, under conditions which subject the individuals who wish to work to a severe test of their nerve and physical strength and courage. But while this is so, we musthav e every regard to _the_congressional intention manifested m~tiie act"and to the principle of existing law which it declared, that ex-employe es and others properly acti ng with them shall have an opportimit y, so far as is consistent with peace and law, t o obs CTye who are stiU working for the employer^ to communicate with them and to persuade them to join the ranks of his opponents in a lawful economic struggle. Regarding as primary, the rights of the em- ployees to work for whom they will, and, undisturbed by annoying importunity or intimidation of numbers, to go freely to and from their place of labor, and keeping in mind the right of the employer incident to his property and business to free access of such employees, what can be done to reconcile the conflicting interests? Each case must turn on its own circumstances. It Js,j;_cagg.fQjrthe flexible remedial power of a court of equity which may try one mode of restraint, and if it fails or proves to be too drastic, may change it. We think that the strikers and their svmpathizers e ngaged in th e economic struggle should be limited to one representative for eac h point of ingress and egress in the plant or place of business^andthat aU others be enjoined from congregating or loitering at the plant or in the neighboring streets by which access is had to the plant, that such representatives should have the right of ob servation, com - muiiica,tion and persuasion^ut with special admoni tion that their coinmunication, arguments and appeals shall not b e abusive. li- belous or threatening, and that they shall not approach individuals together but singly, and shall not in their single efforts at com- munication or persuasion obstruct an unwilling Jfetener by impor- tunate following or dogging his steps. This is not laid down as a rigid rule, but only as one which should applj_to thisj::ase under the circumstances disclosed by the evidence and which may be varied in other cases. It becomes a question for the judgment of the Chan- cellor who has heard the witnesses, familiarized himself with the locus in quo and observed the tendencies to disturbance and con- flict. The purpose should be to prevent the inevitablejniunidation of the presence of groups of pickets, but to allow missionaries. SECT. V] PICKETING 219 With these views, it is apparent that we cannot sustain the qu ali- fication of the order of the District Court which the Circuit Court ot Appeals mad e. That court followed the case of Iron Holders- Union V. Alhs-Chalmers Co., 166 Fed. Rep. 45, and modified the order of the District Court which enjoined defendan ts "from picket- ing or maintaining at or near the premises of the complainant or on the streets leading to the premises of said complainant, any picket or pickets" by adding the words " in a threatening or in- tind dating manner." Th is qualification seems to us to be inade- quate. In actual result, it leaves compliance largely to the discretion of the pick ets. It ignores the necessary element of intimidation in the presence_ofgr6ups as pickets. It does not secure practically that wEcE the couft^must secure and to which the complainant and his workmen are entitled. The phrase really recognizes as legal that which bears the sinister name of "picketing" which it is to be ob- served Congress carefully refrained from using in sec. 20. There remains to consider, so far as defendants Chm-chill and Cook, the ex-employees, are concerned, the part of the decree of the District Court which forbade them by persuasion to induce em- ployees, or would-be employees to leave, or stay out of, complainant's employ. The effect of it is to enjoin persuasion by them at any time or place. This certainly conflicts with sec. 20 of the Clayton Act. The decree must be modified as to these two defendants by striking out the word "persuasion." The second important question in the case is as to the form of decree against the Tri-City Trades Council and the other defend- ants. What has been said as to picketing applies to them, of coiu-se, as ftilly as to the ex-employees, but how as to the injunction against persuasion? The argument mad e on behalf of the American Foundries in sup- port of enjoining persuasion is that the Tri-City Central Trades Coimcil and the other jiefendants being neither employees nor strikers were intruders into the^ controversy, " and were 'engaged witEouTexcuse in an unlawful conspiracy to injure the American Foundrie s by entiahglts employees, and, therefore, should be en- joined. . . . Is interference of a labor organization by persuasion and appeal to inducea strike against low wages, under such circimistances without lawfuTexcuse and malictOus?" We think not. Labor unions are recognized by the Clayton Act as legal when instituted for mutual Eelp"ahd lawfully carrying out their legitimate objects. They have long been thus recognized by the courts. They were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the em- ployer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and 220 LEGALITY OF MEANS USED [CHAP. IV unfair treatment. Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert in- fluence upon him and to leave him in a body in order bj;^ this incon- venience to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has in many years not been denied by any court. The strike became a lawful instrument in a lawful economic struggle or com- petition between employer and employees as to the share or division between them of the joint product of labor and capital To render this combination at aU effec tive, employees must make th eir com- bination extenJ beyond one shop. It is Kelpf iSrto have as many as may be in t he same trade in the same community united, becaiise in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood. There- fore, they may use all lawful propaganda to enlarge their member- ship and especially among those whose labor at lower wages will injure their whole guild. It is impossible to hold such persuasion and propaganda without more, to be without excuse and maUcious. The principle of the unlawfulness of mahciously enticing laborers still remains and action may be maintained therefor in proper cases, but to make it applicable to local labor unions, in such a case as this, seems to us to be unreasonable. . . . We think that the restraint from persuasion included within the injunction of the District Court was improper, and in that regard the decree must also be modified. In this we agree with the Circuit Court of Appeals. The decree of the Circuit Court of Appeals is reversed in part and affirmed in part and the case is remanded to the District Court for modification of its decree in conformity with this opinion. Mb. Justice Brandeis concurs in substance in the opinion and the judgment of the Court. ^VTe. Justice Clarke dissents.* TRUAX V. CORRIGAN Supreme Court or the United States. 1921 257 U.S. — ' Mr. Chief Justice Taft delivered the opinion of the court. The plaintiffs in error, who were plaintiffs below, and will be so- called, own, maintain and operate, on Main Street, in the city of Bisbee, Arizona, a restaurant, known as the "English Kitchen." 1 Accc"^.: Keuffel & Esser v. Internat. Assn. of Machinists, 116 Atl. (N. J.) 9 (but see strong dissenting opinions). 2 Decided, Dec. 19, 1921; 42 Sup. Ct. 124. SECT. V] PICKETING 221 The defendants are cooks and waiters formerly in the employ of the plaintiffs, together with the labor union and the trades assembly of which they were members. All parties are residents of the State of Arizona. The complaint set out the following case: In April, 1916, a dispute arose between the plaintiffs and the de- fendants' union concerning the terms and conditions of employment of the members of the union. The plaintiffs refused to yield to the terms of the union, which thereupon ordered a strike of those of its members who were in plaintiffs' employ. To win the strike and to coerce and compel the plaintiffs to comply with the demands of the imion, the defendants and others unknown to the plaintiffs entered into a conspiracy and boycott to injure plaintiffs in their restaurant and restaurant business, by inducing plaintiffs' customers and others theretofore well and favorably disposed, to cease to patronize or trade with the plaintiffs. The method of inducing was set out at length and included picketing, displaying banners, advertising the strike, denouncing plaintiffs as "imfair" to the union and appeab'ig to customers to stay away from the "English Kitchen," and the circulation of handbills containing abusive and libelous charges against plaintiffs, their employees and their patrons, and intimations of injury to future patrons. Copies of the handbills were set forth in exhibits made part of the complaint. In consequence of defendants' acts, many customers were induced to cease from patronizing plaintiffs, and their daily receipts, which had been in excess of the simi of $156 were reduced to $75. The complaint averred that if the acts were continued, the business would be entirely destroyed, and that the plaintiffs would suffer great and irreparable injury; that for the plaintiffs to seek to re- cover damages would involve a multiplicity of suits; that all the defendants were insolvent, and would be unable to respond in dam- ages for any injury resulting from their acts and the plaintiffs were therefore without any adequate remedy at law. The complaint further averred rhat the defendants were relying for immunity on Paragraph 1464 of the Revised Statutes of Ari- zona, 1913, which is in part as follows: "No restraining order or injunction shall be granted by any court of this state, or a judge or the judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving or growing out of a dispute con- cerning terms or conditions of employment, unless necessary to pre- vent irreparable injury to property or to a property right of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be de- scribed with particularity in the application, which must be in writ- ing and sworn to by the applicant or by his agent or attorney 222 LEGALITY OF MEANS USED [CHAP. IV "And no such restraining order or injunction shall prohibit any person or persons from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at or near a house or place where any person resides or works, or carries on business, or happens to be for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person, to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute; or from commending, advising or persuading others by peaceful means so to do; ..." The plaintiffs alleged that this paragraph if it made lawful de- fendants' acts contravened the Fourteenth Amendment to the Con- stitution of the United States by depriving plaintiffs of their prop- erty without due process of law, and by denying to plaintiffs the equal protection of the laws, and was, therefore, void and of no effect. Upon the case thus stated the plaintiffs asked a temporary, and a permanent injunction. The defendants filed a demurrer, on two grounds: First, that the complaint did not state facts sufficient to constitute a cause of action, in that the property rights asserted therein were not, vmder Para- graph 1464, Revised Statutes of Arizona, 1913, of such character that their irreparable injury might be enjoined, and secondly, that upon its face the complaint showed a want of equity. The Superior Court for Cochise County sustained the demurrer and dismissed the complaint, and this judgment was affirmed by the Supreme Court of Arizona. . . . The complaint and its exhibits make this case: The defendants conspired to injure and destroy plaintiffs' busi- ness by inducing his theretofore willing patrons and his would-be patrons not to patronize him and they influenced them to withdraw or withhold their patronage. (1) By having the agents of the union walk forward and back constantly during all the busmess hours in front of plaintiffs' res- taurant and within five feet thereof, displaying a banner announc- ing in large letters^hat the restaurant was unfair to cooks and waiters and their union. (2) By having agents attend at or near the entrance of the res- taurant dm-ing all business hours and continuously announce in a loud voice, audible for a great distance, that the restaurant was tmfair to the labor union. (3) By characterizing the employees of the plaintiffs as scab Mexican labor, and using opprobrious epithets concerning them in handbills continuously distributed in front of the restaurant to would-be customers. (4) By applying in such handbills abusive epithets to Truax, the senior member of plaintiffs' firm, and making libelous charges against SECT. V] PICKETING 223 him, to the effect that he .was tyrannical with his help, and chased then^ down the street with a butcher knife, that he broke his con- tract and repudiated his pledged word; that he had made attempts to force cooks and waiters to return to work by attacks on men and women; that a friend of Truax assaulted a woman and pleaded guilty; that plaintiff was known by his friends, and that Truax's treatment of his employees was explained by his friend's assault; that he was a "bad actor." (5) By seeking to disparage plaintiffs' restaurant charging that the prices were higher and the food worse than in any other res- taurant, and that assaults and slugging were a regular part of the bill of fare, with poHce indifferent. (6) By attacking the character of those who did patronize, say- ing that their mental calibre and moral fibre fell far below the Amer- ican average, and enquiring of the would-be patrons — Can you patronize such a place and look the world in the face? (7) By threats of similar injmy to the would-be patrons — by- such expressions as " AU ye who enter here leave all hope behind." ''Don't be a traitor to humanity"; by offering a reward for any of the ex-members of the tmion caught eating in the restaurant j by saying in the handbills: "We are also aware that handbills and. banners in front of a business house on the main street give the town a bad name, but they are permanent institutions until William Truax agrees to the eight hour day." (8) By warning any person wishing to purchase the business from the Truax firm that a donation would be necessary, amount to be fixed by the District Trades Assembly before the picketing- and boycotting would be given up. The result of this campaign was to reduce the business of the plaintiffs from more than $55,000 a year to one of 112,000. . . . The real question here is, were the means used illegal? The above recital of what the defendants did, can leave no doubt of that. The libelous attacks upon the plaintiffs, their business, their employees, and their customers, and the abusive epithets applied to them were palpable wrongs. They were uttered in aid of the plan to induce plaintiffs' customers and would-be customers to refrain from patron- izing the plaintiffs. The patrolling of defendants immediately in front of the restaurant on the main street and witkin five feet of plaintiffs' premises continuously during business hours, with the banners announcing plaintiffs' unfairness; the attendance by the picketers at the entrance to the restaurant and their insistent and loud appeals all day long, the constant circulation by them of the libels and epithets applied to employees, plaintiffs and customers,, and the threats of injurious consequences to future customers, all linked together in a campaign were an unlawful annoyance and a hurtful nuisance in respect of the free access to the plaintiffs' place of business. It was not lawful persuasion or inducing. It was not a. 224 LEGALITY OF MEANS USED CCHAP. IV mere appeal to the sjnnpathetic aid of would-be customers by a simple statement ot the fact of the strike and a request to withhold patron- age. It was compelUng every customer or would-be customer to run the gauntlet of most uncomfortable pubhcity, aggressive and annoying importunity, libelous attacks and fear of injurious con- sequences, illegally inflicted, to his reputation and standing in the community. No wonder that a business of $50,000 was reduced to only one-fourth of its former extent. Violence could not have been more effective. It was moral coercion by illegal annoyance and ob- struction and it thus was plainly a conspiracy. . . . A law which operates to make lawful such a wrong as is described in plaintiffs' complaint deprives the owner of the business and the premises of his property without due process, and cannot be held vaUd under the Fourteenth Amendment. ... It is argued that while the right to conduct a lawful business is property, the conditions surrounding that business, such as regula- tions of the State for maintaining peace, good order, and protection against disorder, are matters in which no person has a vested right. The conclusion to which this inevitably leads in this case is that the State may withdraw aU protection to a property right by civil or criminal action for its wrongful injury if the injury is not caused by violence. ... It is true that no one has a vested right in any par- ticular rule of the common law, but it is also true that the legislative power of a state can only be exerted in subordination to the fun- damental principles of right and justice which the guaranty of due process in the Fourteenth Amendment is intended to preserve, and that a purely arbitrary or capricious exercise of that power whereby a wrongful and highly injurious invasion of property rights, as here, is practically sanctioned and the owner stripped of all real remedy, is wholly at variance with those principles. It is to be observed that this is not the mere case of a peaceful secondary boycott as to the illegaUty of which courts have differed and states have adopted different statutory provisions. A secondary boycott of this kind is where many combine to injure one in his business by coercing third persons against their will to cease patron- izing him by threats of similar injury. In such a case the many have a legal right to withdraw their trade from the one, they have the legal right to withdraw their trade from third persons, and they have the right to advise third persons of their intention to do so when each act is considered singly. The question in such cases is whether the moral coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong. But here the illegality of the means used is without doubt and fun- damental. The means used are the libelous and abusive attacks on the plaintiffs' reputation, like attacks on their employees and cus- tomers, threats of such attacks on would-be customers, picketing and patrolling of the entrance to their place of business, and the SECT. Y] PICKETING 225 consequent obstruction of free access thereto — all with the pur- pose of depriving the plaintiffs of their business. To give operation to a statute whereby serious losses inflicted by such unlawful means are in effect made remediless, is, we think, to disregard fundamental rights of Hberty and property and to deprive the person suffering the loss of due process of law. . . . This brings us to consider the effect in this case of that provision of the Fourteenth Amendment which forbids any State to deny to any person the equal protection of the laws. . . . It is beside the point to say that plaintiffs had no vested right in equity relief and that taking it away does not deprive them of due process of law. If, as is asserted, the granting of equitable rem- edies falls within the police power and is a matter which the legis- lature may vary as its judgment and discretion shall dictate, this does not meet the objection under the equality clause which forbids the granting of equitable relief to one man and the denying of it to another under like circumstances and in the same territorial juris- diction. . . . Here is a direct invasion of the ordinary business and property rights of a person, unlawful when conamitted by any one, and remediable because of its otherwise irreparable character by equitable process, except when committed by ex-employees of the injured person. If this is not a denial of the equal protection of the laws, then it is hard to conceive what would be. . . . To sustain the distinction here between the ex-employees and other tort feasors in the matter of remedies against them, it is con- tended that the legislature may establish a class of such ex-employees for special legislative treatment. In adjusting legislation to the need of the people of a state, the legislature has a wide discretion and it may be fully conceded that perfect uniformity of treatment of all persons is neither practical nor desirable, that classification of persons is constantly necessary and that questions of proper classi- fication are not free from difficulty. But we venture to think that not in any of the cases in this Court has classification of persons of sound mind and full responsibility, having no special relation to each other, in respect of remedial procedure for an admitted tort been sustained. Classification must be reasonable. As was said in Gulf Ry. Co. V. Ellis, 165 U. S. 155, "Classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed and can never be made arbitrarily and without such basis." . . . Classifica- tion like the one with which we are here dealing is said to be the development of the philosophic thought of the world and is opening the door to legalized experiment. When fundamental rights are thus attempted to be taken away, however, we may well subject such experiment to attentive judgment. The Constitution was intended, its very purpose was, to prevent experimentation with the funda- mental rights of the individual. We said through Mr. Justice 226 LEGALITY OF MEANS USED [CHAP. IV Brewer, in Muller v. Oregon, 208 U. S. 412, that "it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking." . . . Our conclusion, that plaintiffs are denied the equal protection of the laws, is sustained by the decisions in this court in Truax v. Raich, 239 U. S. 33; Atchison & Santa Fe Ry. v. Vosburg, 238 U. S. 56; Southern Railway Co. v. Greene, 216 U. S. 400; Connolly «;., Union Sewer Pipe Co., 184 U. S. 540: Cotting v. Kansas City Stock Yards Co., 183 U. S. 79; Gulf Ry. Co. v. Ellis, 165 U. S. 150. . . . It is urged that in holding Paragraph 1464 invaUd, we are in effect holding invalid sec. 20 of the Clayton Act. Of course, we are not doing so. In the first place, the equality clause of the Fourteenth Amendment does not apply to congressional but only to state ac- tion. In the second place, sec. 20 of the Clayton Act never has been construed or applied as the Supreme Court of Arizona has con- strued and applied Paragraph 1464 in this case. We have but recently considered the clauses of sec. 20 of the Clay- ton Act, sometimes erroneously called the "picketing" clauses. American Steel Foundries v. Tri-City Trades Council, opinion an- nounced December 5th. They forbid an injunction in labor con- troversies "prohibiting any person from attending at any place where such person may lawfully be for the purpose of peacefully obtaining or communicating information, or from peacefully per- suading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute or from recommending, advising or persuading others by peaceful and law- ful means so to do." We held that under these clauses picketing was unlawful, and that it might be enjoined as such, and that peaceful picketing was a contradiction in terms which the statute sedulously avoided, but that, subject to the primary right of the employer and his employees and would-be employees to free access to his premises without obstruction by violence, intimidation, annoyance, importimity or dogging, it was lawful for ex-employees on a strike and their fellows in a labor union to have a single representative at each entrance to the plant of the employer to announce the strike and peaceably to persuade the employees and would-be employees to join them in it. We held that these clauses were merely declaratory of what had always been the law and the best practice in equity, and we thus applied them. The construction put upon the same words by the Arizona Supreme Court makes these clauses of Paragraph 1464 as far from those of sec. 20 of the Clayton Act in meaning as if they were in wholly different language. We conclude that the demurrer in this case should have been overruled, the defendants required to answer, and that if the evi- SECT. V] PICKETING 227 deuce sustain the averments of the complaint, an injunction should issue as prayed. . . . The judgment of the Supreme Court of Arizona is reversed and the case remanded for further proceedings not inconsistent with this opinion. Mr. Justick Holmes, dissenting. ... I cannot understand the notion that it would be unconstitutional to authorize boycotts and the like in aid of the employees' or the employers' interest by statute when the same result has been reached constitutionally without statute by Courts with whom I agree. See The Hamilton, 207 U. S. 398, 404. In this case it does not even appear that the business was not created imder the laws as they now are. Denny v. Bennett, 128 U. S. 489. I think further that the selection of the class of employers and employees for special treatment, deaUng with both sides alike, is beyond criticism on princioles often asserted by this Court. And especially I think that without legalizing the conduct complained of the extraordinary rehef by injunction may be denied to the class. Legislation may begin where an evil begins. If, as many intelligent people believe, there is more danger that the injunction will be abused in labor cases than elsewhere I can feel no doubt of the power of the legislature to deny it in such cases. . . . I must add one general consideration. There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments maj"- seem futile or even noxious to me and to those whose judgment I most respect. I agree with the more elaborate expositions of my brothers Pitney and Brandeis and in their con- clusion that the judgment should be affirmed. Mb. Justice Bhandeis, dissenting.' The first legislature of the State of Arizona adopted in 1913 a civil code. By Title 6, Chapter III it sets forth conditions and circumstances under which the courts of the State may or may not grant injunctions. Paragraph 1464 contains, among other things, a prohibition against interfering by injunction between employers and employees, in any case growing out of a dispute concerning terms or conditions of employment, unless interposition by injunction is necessary to protect property from injury through violence. Its main purpose was doubtless to prohibit the courts from enjoining peaceful picketing and the boy- cott. With the wisdom of the statute we have no concern. Whether Arizona in enacting this statute transgressed limitations imposed • Owing to lack of space, the valuable footnotes in the opinion of Mr. Justice Brandeis unfortunately have had to be omitted. — Ed. 228 LEGALITY OF MEANS USED [CHAP. IV upon the power of the States by the Fourteenth Amendment is the question presented for decision. The employer has, of course, a legal right to carry on his business for profit; and incidentally the subsidiary rights to secure and re- tain customers, to fix such prices for his product as he deems proper, and to buy merchandise and labor at such prices as he chooses to pay. This right to carry on business — be it called liberty or prop- erty — has value; and, he who interferes with the right without cause renders himself liable. But for cause the right may be inter- fered with and even be destroyed. Such cause exists when, in the pursuit of an equal right to further their several interests, his com- petitors make inroads upon his trade, or when suppliers of merchan- dise or of labor make inroads upon his profits. What methods and means are permissible in this struggle of contending forces is deter- mined in part by decisions of the courts, in part by acts of the legis- latures. The rules governing the contest necessarily change from time to time. For conditions change; and, furthermore, the rules evolved, being merely experiments in government, must be discarded when they prove to be failures. Practically every change in the law governing the relation of em- ployer and employee must abridge, in some respect, the liberty or property of one of the parties — if liberty and property be meas- ured by the standard of the law theretofore prevaiUng. If such changes are made by acts of the legislature, we call the modification an exercise of the police power. And, although the change may involve interference with existing liberty or property of individuals, the statute wiU not be declared a violation of the due process clause, unless the court finds that the interference is arbitrary or umeason- able or that, considered as a means, the measure has no real or sub- stantial relation of cause to a permissible end. Nor will such changes in the law governing contests between employer and employee -be held to be violative of the equal protection clause, merely because the liberty or property of individuals in other relations to each other (for instance, as competitors in trade or as vendor and pur- chaser) would not, under similar circumstances, be subject to like abridgment. Few laws are of universal appKcation. It is of the nature of our law that it has dealt not with man in general, but with him in relationships. That a pecuhar relationship of individuals may furnish legal basis for the classification which satisfies the re- quirement of the Fourteenth Amendment is clear. That the relation of employer and employee affords a constitutional basis for legisla- tion applicable only to persons standing in that relation has been repeatedly held by this Court. The questions submitted are whether this statutory prohibition of the remedy by injunction is in itself arbitrary and so unreasonable as to deprive the employer of liberty or property without due process of law; — and whether limitation of SECT. V] PICKETING 229" this prohibition to controversies involving employment denies him equal protection of the laws. Whether a law enacted in the exercise of the poHce power is justly- subject to the charge of being unreasonable or arbitrary, can ordi- narily be determined only by a consideration of the contemporary conditions, social, industrial and political, of the community to be affected thereby. Resort to such facts is necessary, among other things, in order to appreciate the evils sought to be remedied and the possible effects of the remedy proposed. Nearly all legislation involves a weighing of public needs as against private desires; and likewise a weighing of relative social values. Since government is not an exact science, prevailing public opinion concerning the evils and the remedy is among the important facts deserving con- sideration; particularly, when the public conviction is both deep- seated and widespread and has been reached after deliberation. What, at any particular time, is the paramount public need is, neces- sarily, largely a matter of judgment. Hence, in passing upon the validity of a law challenged as being unreasonable, aid may be de- rived from the experience of other countries and of the several States of our Union in which the common law and its conceptions of liberty and of property prevail. The history of the rules governing contests between employer and employed in the several English-speaking countries illustrates both the susceptibility of such rules to change and the variety of contemporary opinion as to what rules will best serve the public interest. The divergence of opinion in this difficult field of governmental action should admonish us not to declare a rule arbitrary and unreasonable merely because we are convinced that it is fraught with danger to the public weal, and thus to closa the door to experiment within the law. In England a workingman struggling to improve his condition, even when acting singly, was confronted until 1813 with laws limit- ing the amouat of wages which he might demand. Until 1824 he was punishable as a criminal .if he combined with his fellow work- men to raise wages or shorten hours or to affect the business in any way, even if there was no resort to a strike. Until 1871 members of a union who joined in persuading employees to leave work were liable criminally, although the employees were not under contract and the persuasion was both peaceful and unattended by picketing. Until 1871 threatening a strike, whatever the cause, was also a criminal act. Not until 1875 was the right of workers to combine in order to attain their ends conceded fully. In that year Parlia- ment declared that workmen combining in furtherance of a trade dispute should not be indictable for criminal conspiracy unless the act if done by one person would be indictable as a crime. After that statute a combination of workmen to effect the ordinary objects of a strike was no longer a criminal offense. But picketing, though. 230 LEGALITY OF MEANS USED CCHAP. IV peaceful, in aid of a strike, remained illegal; and likewise the boy- cott. Not until 1906 was the ban on peaceful picketing and the bringing of pressure upon an employer by means of a secondary strike or a boycott removed. In 1906, also, the act of inducing work- ers to break their contract of emplo3rment (previously held an ac- tionable wrong) was expressly declared legal. In England improve- ment of the condition of workingmen and their emancipation appear to have been deemed recently the paramount public need. In the British Dominions the rules governing the struggle between employer and employed were likewise subjected to many modifica- tions; but the trend of social experiment took a direction very differ- ent from that followed in the mother country. Instead of enabling the worker to pursue such methods as he might deem effective in the contest, statutes were enacted in some of the Dominions which forbade the boycott, peaceful picketing, and even the simple strike and the lockout; use of the injunction to enforce compliance with these prohibitions was expressly sanctioned; and violation of the statute was also made punishable by criminal proceedings. These prohibitions were the concomitants of prescribed industrial arbitra- tion through administrative tribunals by which the right of both employer and employee to liberty and property were seriously abridged in the public interest. AustraHa and New Zealand made compulsory both arbitration and compliance with the award. Can- ada limited the compulsion to a postponement of the right to strike until the dispute should have been officially investigated and re- ported upon. In these Dominions the uninterrupted pursuit of in- dustry and the prevention of the arbitrary use of power appear to be deemed the paramount public needs. In the United States the rules of the common law governing the struggle between employer and employee have likewise been sub- jected to modifications. These have been made mainly through judicial decisions. The legal right of workingmen to combine and to strike in order to secure for themselves higher wages, shorter hours and better working conditions received early general recog- nition. But there developed great diversity of opinion as to the means by which, and also as to the persons through whom, and upon whom pressure might permissibly be exerted in order to induce the em- ployer to yield to the demands of the workingmen. Courts were required, in the absence of legislation, to determine what the pubUc welfare demanded; — whether it would not be best subserved by leaving the contestants free to resort to any means not involving a breach of the peace or injury to tangible property; whether it was consistent with the public interest that the contestants should be permitted to invoke the aid of others not directly interested in the matter in controversy; and to what extent incidental injury to per- sons not parties to the controversy should be held justifiable. SECT. V] PICKETING 231 The earliest reported American decision on peaceful picketing appears to have been rendered in 1888;' the earliest on boycotting in 1886.2 By no great majority the prevailing judicial opinion in America declares the boycott as conunonly practiced an illegal means (see Duplex Printing Press Co. v. Deering, 254 U. S. 443), while it inclines towards the legality of peaceful picketing. See Amer- ican Steel Foimdries v. Tri-City Central Trades Council, 257 U. S. — . But in some of the States, notably New York, both peaceful picketing and the boycott are declared permissible. Judges, being thus called upon to exercise a quasi-legislative function and weigh relative social values, naturally differed in their copclusions on such questions. In_England, observance of the rules of the contest has been en- forced ^y_fche~6earfe^&QS'lj- wholly through the criminal law or through actions a t law for co mpensation. An injunction was granted in a labor dispute as earlyas 1868.' But in Engla nd resort to the i njunction has not been freque nt and it has played no app-'eciaBle part there in the conflict between capital and labor. In America the injunction did not secure recognition as a possihle_remedy uptil 1888.*^ When a few years later its use became extensive and con- spicuous, the controversy over the remedy overshadowed in bitter- ness the question of the relative substantive rights of the parties. In the storms of protest against this use many thoughtful lawyers joined. The equitable remedy, although applied in accordance with established practice, involved incidents which, it was asserted, en- dangered the personal liberty of wage-earners. The acts enjoined were frequently, perhaps usually, acts which were already crimes at common law or had been made so by statutes. The issues in litiga- tion arising out of trade disputes related largely to questions of fact. But in equity issues of fact as of law were tried by a single judge, sitting without a jury. Charges of violating an injunction were often heard on affidavits merely, without the opportunity of confronting or cross-examining witnesses. Men found guilty of contempt were committed in the judge's discretion, without either a statutory limit upon the length of the imprisonment, or the opportunity of effective review on appeal, or the right to release on bail pending possible re- visory proceedings. The effect of the proceeding upon the individ- ual was substantially the same as if he had been successfully prose- cuted for a crime; but he was denied, in the course of the equity • Sherry v. Perkins, 147 Mass. 212; but the doctrine was not established until eight years later, Vegelahn v. Guntner, 167 Mass. 92. ' The earhest reported cases seem to be People v. Wilzig, 4 N. Y. Grim. 403; and People v. Kostka, 4 N. Y. Grim. 429, both of which occurred in June, 1886,- the leading case of State v. Glidden, 55 Gonn. 46, came the next year. ' Springhead Spinning Go. » Riley, L. R. 6 E. 551. * The earliest case of importance was Sherry v. Perkins, 147 Mass. 212 (1888). But injunctions were granted four or five years earlier. Gommons, History of Labor in the United States, vol. 2, p. 504. 232 LEGALITY OF MEANS USED [CHAP, IV proceedings, those rights which by the Constitution are commonly .secured to persons charged with a crime. It_wa g asserted that i n these proceedings an a lleged danger to property, always incidental and at tim es ^signi Scant, was ofte n laid hold of to^ enable the penal ties of the Jcrimmal^law to_be en- I grced expeditiously . without ihat. protection to the libert y of t he individual wh|chjj]e Rill of Rights., was. .jJesigued -iflL afford ; that t'KfougK' such proceedings a single judge often usurped the functions not only of the jury but of the police department; that in prescrib- ing the conditions under which strikes were permissible and how they might be carried' out, he usurped also the powers of the legisla- ture; and that incidentally he abridged the constitutional rights of individuals to free speech, to a free press and to peaceful assembly. I t was ure:ed _that the real motive in seekin g the injunction w as not ordinarilytoprevent propertvTronrljeing injured nor to pro tect tEe^owner in its use, but to endow property wit h active, milit ant power which would make it dominant over men. In other words, that under the guise of protecting property rights, the employer ■was seeking sovereign power. And many disinterested men, solicitous ■only for the public welfare, believed that the law of property was not appropriate for deahng with the forces beneath social unrest; that in this vast struggle it was unwise to throw the power of the State on one side or the other according to principles deduced from that law; that the problem of the control and conduct of industry de- manded a solution of its own; and that pending the ascertainment of new principles to govern industry, it was wiser for the State not to interfere in industrial struggles by the issuance of an injunction. After the constitutionality and the propriety of the use of the in- junction in labor disputes was estabHshed judicially, those who opposed the practice sought the aid of Congress and of state legisla- tures. The bills introduced varied in character and in scope. Many dealt merely with rights; and, of these, some declared, in effect, that no act done in furtherance of a labor dispute by a combination of workingmen should be held illegal, unless it would have been so, if done by a single individual; while others purported to legalize specific practices, like boycotting or picketing. Other bills dealt merely with the remedy; and of these, some undertook practically to abolish the use of the injunction in labor disputes, while some merely limited its use either by prohibiting its issue under certain conditions or by denying power to restrain certain acts. Some bills undertook to modify both rights and remedies. These legislative proposals occupied the attention of Congress during every session but one in the twenty years between 1894 and 1914. Reports recom- mending such legislation were repeatedly made by the Judiciary Committee of the House or that of the Senate; and at some ses- sions by both. Prior to 1914, legislation of this character had at several sessions passed the House; and in that year Congress passed SECT. V] PICKETING 233 and the President approved the Clayton Act, sec. 20 of which is substantially the same as Paragraph 1464 of the Arizona Civil Code, Act of October 15, 1914, c. 323, 38 Stat. 730, 738. Such was the diversity of view concerning peaceful picketing and the boycott expressed in judicial decisions and legislation in English- speaking countries when in 1913 the new State of Arizona, in estab- lishing its judicial system, hmited the use of the injunction and when in 1918 its Supreme Coiu-t was called upon to declare for the first time the law of Arizona on these subjects. The case of Truax V. Bisbee Local No. 3S0, 19 Ariz. 379, presented facts identical with those of the case at bar. In that case the Supreme Court made its decision on four controverted points of law. In the first place, it held that the officials of the union were not outsiders with no justi- fication for their acts (19 Ariz. 379, 390). In the second place, re- jecting the view held by the federal coiu-ts and the majority of the state courts on the iUegaUty of the boycott, it specifically accepted the law of New York, Montana and California, citing the decisions of those States (19 Ariz. 379, 388, 390). In the third place it re- jected the law of New Jersey, Minnesota and Pennsylvania that it is illegal to circularize an employer's customers, and again adopted the rule declared in the decisions of the courts of New York, Montana, Cahfornia and Connecticut (19 Ariz. 379, 389). In deciding these three points the Supreme Court of Arizona made a choice between well-established precedents laid down on either side by some of the strongest courts in the country. Can this Court say that thereby it ■deprived the plaintiff of his property without due process of law? The fourth question requiring decision was whether peaceful picketing should be deemed legal. Here, too, each of the opposing views had the support of decisions of strong courts. If the Arizona Court had decided that by the common law of the State the defend- ants might peacefully picket the plaintiff, its decision, like those of the courts of Ohio, Minnesota, Montana, New York, Oklahoma and New Hampshire, would surely not have been open to objection under the Federal Constitution; for this Court has recently held that peaceful picketing is not unlawful. American Steel Foundries V, Tri-City Central Trades Council, supra. The Supreme Court of Arizona found it unnecessary to determine what was the common law of the State on that subject, because it construed Paragraph 1464 of the Civil Code as declaring peaceful picketing to be legal. In the case at bar, commenting on the earlier case, the Court said : "The statute adopts the view of a number of courts which have held picketing, if peaceably carried on for a lawful purpose, to be no ■violation of any legal right of the party whose place of business is picketed, and whether as a fact the picketing is carried on by peace- ful means, as against the other view taken by the federal courts and many of the state courts that picketing is per se unlawful." .Shortly before that decision the Criminal Court of Appeals of Okla- 234 LEGALITY OF MEANS USED [CHAP. IV homa had placed a similar construction upon a statute of that State, declaring that "the doctrine (that picketing is not per se unlawful) represents the trend of legal thought of modern times, and is specifi- cally reflected in the statute above construed." Ex parte Sweitzer, 13 Okl. Cr. 154, 160. See St. Louis v. Gloner, 210 Mo. 502. A State, which despite the Fourteenth Amendment possesses the power ta impose on employers without fault unlimited liability for injuries suffered by employees,^ and to limit the freedom of contract of some employers and not of others,'' surely does not lack the powey to select for its citizens that one of conflicting views on boycott by peaceful picketing which its legislature and highest court consider will best meet its conditions and secure the public welfare. The Supreme Court of Arizona, having held as a rule of substan- tive law that the boycott as here practiced was legal at common law; and that the picketing was peaceful, and hence, legal under the statute (whether or not it was legal at common law), necessarily denied the injunction, since, in its opinion, the defendants had com- mitted no legal wrong and were threatening none. But even if this Court should hold that an employer has a constitutional right to be free from interference by such a boycott or that the picketing prac- ticed was not in fact peaceful, it does not follow that Arizona would lack the power to refuse to protect that right by injunction. For it is clear that the refusal of an equitable remedy for a tort is not neces- sarily a denial of due process of law. And it seems to be equally clear that such refusal is not necessarily arbitrary and unreasonable when applied to incidents of the relation of employer and employee. The considerations which show that the refusal is not arbitrary or imreasonable show Hkewise that such refusal does not necessarily constitute a denial of equal protection of the laws merely because some, or even the same, property rights which are excluded by this statute from protection by injunction,^ receive such protection under other circumstances, or between persons standing in different re- lations. The acknowledged legislative discretion exerted in classi- fication, so frequently applied in defining rights, extends equally to the grant of remedies. It is for the legislature to say — within the broad limits of the discretion which it possesses — whether or not the remedy for a wrong shall be both criminal and civil and whether or not it shall be both at law and in equity. A state is free since the adoption of the Fourteenth Amendment, as it was before, not only to determine what system of law shall prevail in it, but, also, by what processes legal rights may be as- serted, and in what courts they may be enforced. Missouri v. Lewis, 101 U. S. 22, 31; Iowa Central Railway Co. v. Iowa, 160 U. S. 389. As a state may adopt or reject trial by jury, Walker v. Sauvinet, 92 U. S. 90; or adopting it may retain or discard its customary in- > Arizona Employers Liability Cases, 250 TJ. S. 400. 2 Dominion Hotel v. Arizona, 249 U. S. 265. SECT. V] PICKB,TnsrG 235 cidents, Hayes v. Missouri, 120 U. S. 68; Brown v. New Jersey, 175 U. S. 172; Maxwell v. Dow, 176 U. S. 581; as a state may grant or withhold review of a decision by appeal, Reetz v. Michigan, 188 U. S. 505; so it may determine for itself, from time to time, whether the protection which it affords to property rights through its courts shall be given by means of the preventive remedy or exclusively by an action at law for compensation. Nor is a state obliged to protect all property rights by injunction merely because it protects some, even if the attending circumstances are in some respects similar. The restraining power of equity might conceivably be applied to every intended violation of a legal right. On grounds of expediency its application is commonly denied in cases where there is a remedy at law which is deemed legally adequate. But an injunction has been denied on grounds of expediency, in many cases where the remedy at law is confessedly not adequate. This occurs whenever a dominant public interest is deemed to require that the preventive remedy, otherwise available for the protection of private rights, be refused and the injured party left to such remedy as covu^s of law may afford. Thus, courts ordinarily refuse, per- haps in the interest of free speech, to restrain actionable libels. Bos- ton Diatite Co. v. Florence Mfg. Co., 114 Mass. 69; Prudential Insurance Co. v. Knott, L. R. 10 Ch. App. 142. In the interest of personal liberty they ordinarily refuse to enforce specifically, by mandatory injunction or otherwise, obligations involving personal service. Arthur v. Oakes, 63 Fed. 310, 318; Davis v. Foreman, 1894, 3 Ch. 654, 657; Gossard v. Crosby, 132 Iowa, 155, 163, 164. In the desire to preserve the separation of governmental powers they have declined to protect by injunction mere political rights, Giles V. Harris, 189 U. S. 475; and have refused to interfere with the operations of the police department. Davis v. American Society for the Prevention of Cruelty to Animals, 75 N. Y. 362; Delaney V. Flood, 183 N. Y. 323; compare Bisbee v. Arizona Insurance Agency, 14 Ariz. 313. .. . Such hmitations upon the' use of the injunction for the protection of private rights have ordinarily been imposed in the interest of the public by the court acting in the exercise of its broad discretion. But, in some instances, the denial of the preventive remedy because of a public interest deemed paramount, has been expressly commanded by statute. Thus, the courts of the United States have been pro- hibited from staying proceedings in any court of a state. Judicial Code, sec. 265; and also from enjoining the illegal assessment and collection of taxes. Revised Statutes, sec. 3224; Snyder v. Marks, 109 U. S. 189; Dodge v. Osborn, 240 U. S. 118. What Congress can do in curtailing the equity power of the federal courts, state legis- latures may do in curtailing equity powers of the state courts; un- less prevented by the constitution of the state. In other words states are free since the adoption of the Fourteenth Amendment as they 236 LEGALITY OF MEANS USED [CHAP. TV were before, either to expand or to contract their equity jurisdiction. The denial of the more adequate equitable remedy for private wrongs is in essence an exercise of the police power, by which in the interest of the public and in order to preserve the liberty and the property of the great majority of the citizens of a state, rights of property and the liberty of the individual must be remoulded, from time to time, to meet the changing needs of society. For these reasons, as well as for others stated by Mr. Justice Holmes and Mr. Justice Pitney, in which I concur, the judgment of the Supreme Court of Arizona should, in my opinion, be aflirmed: — first, because in permitting damage to be inflicted by means of boycott and peaceful picketing Arizona did not deprive the plaintiff of property without due process of law or deny him equal protec- tion of the laws; and secondly, because if Arizona was constitu- tionally prohibited from adopting this rule of substantive law, it was still free to restrict the extraordinary remedies of equity where it considered their exercise to be detrimental to the public welfare, since such restriction was not a denial to the employer either of due process of law or of equal protection of the laws.' ENGLISH PICKETING LEGISLATION Combination Act, 1825 (6 Geo. IV, c. 129), Section 3 See supra, page 21. Act of 1859 (22 Vict, c, 34), Section 1 = Criminal Law Amendment Act, 1871 (34 & 35 Vict. c. 32), Section 1 See supra, page 22. Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86), Section 7 See supra, page 23.' Trade Disputes Act, 1906 (6 Edw. VII, c. 47), Section 2 See supra, page 24. ' Mr. Justice Pitney rendered a separate dissenting opinion, in which Mr. Justice Clarke concurred. The decision of Truax v. Corrigan has been widely criticized throughout the country. See 10 Cal. Law Rev. 237, 22 Columbia Law Rev. 252; 31 Yale Law Jour. 408. The case is also commented on in 94 Central Law Jour. 1, 55; 8 Va. Law Rev. 298, 374; 28 West Va. Law Quart. 144. Compare Bogni v. Perotti, 224 Mass. 152. ^ This Act provided that no workman should "by reason merely of his en- deavoring peaceably, and in a reasonable manner, and without threat or intimida- tion, direct or indirect, to persuade others to cease or abstain from work" be deemed or taken to be guilty of "molestation" or "obstruction" within the mean- ing of the Act of 1825. ' As to the law of picketing under this statute, see the leading EngUsh case of Lyons v. Wilkins, [1899] 1 Ch. 255. See also, Charnock v. Court, [1899] 2 Ch. 35; Walters v. Green, [1899] 2 Ch. 696. SECT. VT] VIOLENCE OP UNION MEMBERS 237 Section 6. Legality of Union Action as affected by Violence on the part of Union Members Sampson, J., in DIAMOND BLOCK COAL CO. v. UNITED MINE WORKERS 188 Ky. 477, 489 (1920) [In a suit ^ brought by the Diamond Block Coal Co., a Virginia corporation engaged in the mining of coal, to obtain a restraining order against the defendants, the United Mine Workers of America, and seventeen individuals named in the petition as defendants, and all persons working by, through or under them, or in their employ- ment, Sampson, J., in the course of his opinion, said:] ' It may be urged that there is evidence in this record sufficient to warrant the conclusion that certain of the persons named in the affidavits as making threats, or proposing injury to the plaintiff's employees or plant, were at the time members of the United Mine Workers of America, and therefore acting for and on behalf of the union. Even if it be granted that these men or any one or more of them were members of the union, and that they made the state- ments with which they are charged, no injunction would lie against the organization on account of such threats. The only way to reach such persons, vmder the facts of this case, is to make them defend- ants and if it had been shown that either of the defendants named had threatened to and was about to invade the premises of the plaintiff, intimidate, coerce or alarm its employees, injtu-e its prop- erty or property rights, or otherwise infringe upon its lawful rights the injunction would not be dissolved as to such person, if it were made to appear that the plaintiff would suffer irreparable injury and that it had no adequate remedy at law. But that is not the ease we have here. ... An order has been entered dissolving and setting aside the tem- porary injimction granted by the judge of the Circuit Court. Whole court sitting. Hadlet J., IN KARGES FURNITURE CO. v. AMALGAMATED WOODWORKERS' LOCAL UNION ^ 165 Ind. 421, 430 (1905) Hadley, J. . . . That fourteen of the six hundred members of the union did disregard the express instructions and declared policy of the union to conduct the strike peacefully, and of their own initia- tive indulged in acts of disorder calculated to, and did in fact, in- 'For the facts of the case, see infra, p. 504. * For the facts of the case, see infra, p. 264. 238 LEGALITY OP MEANS USED [CHAP. IV timidate the plaintiff's employees, is not of itself sufficient to con- demn the union as a body. The strike being properly conceived and conducted by the great majority of members, its purpose will not be defeated by the unlawful conduct of a few rowdies and law- breakers that may be found among them. "Where a combination or association is innocent in its inception," says a recent author, "but is afterwards perverted to unlawful ends, only those participat- ing in the perversion are held to be conspirators." 1 Eddy, Com- binations, sec. 368; Carew v. Rutherford (1870), 106 Mass. 1, 10; Commonwealth v. Hunt (1842), 4 Mete. Ill, 38 Am. Dec. 346, 355; Union Pac. R. Co. v. Ruef (1902), 120 Fed. 102.i HILL V. EAGLE GLASS & MFG. CO. U. S. Circuit Cotjbt of Appeals, Fourth Circuit. 1915 219 Fed. 719 Appeal from the District Court of the United States for the Northern District of West Virginia, at Philippi; Alston G. Dayton, Judge. ... Woods, Circuit Judge. In this suit for injunction by the Eagle Glass & Manufacturing Co. against Thomas B. Rowe, individually and as president, and a number of other officers of the American Flint Glass Workers' Union, individually and in their official capacity, all alleged to be residents of the State of Ohio, none of the defend- > In Parkinson Co. v. Building Trades Council, 154 Cal. 581, 603, Beatty, C. J., said: "I have not overlooked the fact that there was evidence that two or three individual members of the unions used threatening language in one or two in- stances towards other members who spoke of, returning to work, and there may lave been reason to conclude that they would continue to employ threats of the same character to deter others from seeking employment with the plaintiff. If .so, the court would have been justified in enjoining those individuals, but there was nothing to justify an injunction against the council or the unions, or their officers, or the large number of individual members who made no threats." See also Aluminum Castings Co. v. Local No. 84, 197 Fed. 221, 223; Denaby -& Cadeby Collieries v. Yorkshire Miners' Assn., [1906] A. C. 384 (liability of union for illegal acts ordered by branch local imion officials but not authorized by imion regulations). In Connett v. United Hatters of North America, 76 N. J. Eq. 202, 211, Howell, V. C, said: "I do not find in the affidavits any proof that the national association, as a body, engaged in encouraging the unlawful action of the local unions, and hence no injunction can run against that body. I do find, however, that John A. Moffit, the president of the association, not- withstanding his public utterances against disturbances, has encouraged the same, and, in fact, is in charge of the strike. His utterances on February 12th, are entirely inconsistent with those in which he counsels peace, and are sufficient in my opinion to make him Hable to be enjoined." Where, however, the union itself, as distinguished from unauthorized mem- bers of it, in the conduct of an otherwise lawful strike, authorizes or promotes acts of violence, an injunction may issue against the union to restrain, not the strike, but the illegal acts of violence. Cf. Jones v. Maher, 62 Misc. (N. Y.) 388, infra, p. 638. See also, the cases in Chap. XI, infra (pp. 617, et seq.). SECT. VI] VIOLENCE OF UNION MEMBERS 239 ants were served except Joseph Gillooly, a member of the executive board and one of the organizers of the union, who was found in the State of West Virginia. A temporary order was granted restraining the defendants from doing certain alleged illegal acts in furtherance of their alleged illegal scheme to unionize the plaintiff's plant. The fact that Gillooly was not a resident of the State of Ohio, but of the State of West Virginia, having been made to appear through his counsel, Mr. John A. Howard, the court dismissed the bill as to him and retained it as to the other defendants, on the ground that Mr. Howard had formally appeared for all the defendants. Mr. Howard having made a perfectly clear, uncontroverted showing to the court that he had no authority to represent the other defendants, and that he had appeared generally by inadvertence, when he intended to appear for Gillooly alone, the court upon the most obvious prin- ciples of right and common sense ordered the appearance as to the defendants other than Gillooly struck out. In the meantime, however, on November 27, 1913, an order was made allowing the plaintiffs to amend the bill by making Peter J. Glasstetter and others, members at Steubenville, Ohio, of the Ameri- can Flint Glass Workers' Union, defendants. The amended bill alleged that these members of the union were assisting the officers of the union named in the original bill "in the efforts to unionize plaintiff's employees and to force plaintiff to recognize said Ameri- can Flint Glass Workers' Union." The new parties defendant sub- mitted affidavits that they were only members, not officers, of a local union, that Rowe and others, who were the general officers of the imion, were not authorized to represent them in their alleged illegal acts, and that they knew nothing of their efforts to unionize plaintiff's factory. There was no showing whatever to the contrary. Under these conditions the court issued a temporary injunction against aU of the defendants named in the bill and the amended bUl, except Gillooly, as to whom the bill had been dismissed. We think this was error. Eowe and others, general officers of the union, were not served, and therefore no relief could be given against them, unless it could be said they were brought before the court by representation when Glasstetter and others, mere members of the local imion, were ordered to be made parties and appeared. This effect is asserted under equity rule 38 (198 Fed. 29, 115 C. C. A. 29): , "When the question is one of common or general interest to many persons, constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole." The union is a voluntary association, and its members are not re- sponsible for a tort of other members, unless they have authorized or participated in it, or have aided in some way in its perpetration after knowledge of the illegal purpose, or facts from which such 240 LEGALITY Or MEANS USED [CHAP. IV knowledge may be inferred. Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419; Lawlor v. Loewe, 209 Fed. 721, 126 C. C. A. 445. When the allegation of a general or common interest to many per- sons is denied, the duty devolves on the court to determine whether the common or general interest exists before decreeing against those who are alleged to be in court by representation. The plaintiff had no pretense of a case against Glasstetter and the other defendants, brought in by amendment for participating or aiding the defend- ants not served, in the alleged torts committed by them, and there- fore there was no such common or general interest as authorized the court's decree against the defendants served, by virtue of the serv- ice and appearance of the defendants brought in by amendment. . . . Reversed.' ' The holding of the Circuit Court of Appeals as to the liability of union mem- bers for unauthorized acts of other union members or oflBcers was affirmed by the U. S. Supreme Court (245 U. S. 275), Pitney, J., saying (page 280): "So far as the decision of the Circuit Court of Appeals dissolved the temporary in- junction upon the ground that the SteubenviUe defendants had denied, and plaintiff had not adduced sufficient evidence to sustain, the averment of the amended bUl that they had constituted GUlooly and the other original defend- ants their agents and representatives and had assisted and supported them in their efforts to unionize plaintiff's employees and force plaintiff to recognize the American Flint Glass Workers' Union, we see no reason to disturb the de- cision." The decree of the Circuit Court of Appeals, however, was reversed, on other grounds. In Carew v. Rutherford, 106 Mass. 1, 10, Chapman, C. J., says: "The doc- trine stated in Com. v. Hunt, 4 Metcalf, 111, 129, is vmquestionably correct, namely, that when an association is formed for purposes actually innocent, and afterwards its powers are abused by those who have the control and manage- ment of it, to purposes of oppression and injustice, it will be criminal in those who misuse it, but nof in the other members of the association. Upon the same principle, if the wrongful acts done are tortious, whether criminal or not, the persons who are guilty of the tortious acts will be civilly liable to those whom they have injured." In Lawlor v. Loewe, 187 Fed. 522, 526 (C. C. A.), the Court says: "It has been argued here that the mere fact that any individual defendant was a member of and contributed money to the treasury of the United Hatters' Association made him the principal of any and all agents who might be employed by its officers in carrying out the objects of the association, and responsible as principal if such agents used illegal methods or caused illegal methods to be used in undertaking to carry out those objects. We cannot assent to this proposition. The clause of the constitution of the United Hatters which provides that certain of its officers ' shall use all the means in their power to bring such shops (i. e., non-union shops) into the trade ' does not necessarily imply that these officers shall use other than lawful means to accompUsh such object. Surely the fact that an individual joins an association having such a clause in its constitution cannot be taken as expressing assent by him to the perpetration of arson or murder. Something more must be shown, as for instance, that with the knowledge of the members unlawful means had been so frequently used with the express or tacit approval of the association, that its agents were warranted in assuming that they might use such unlawful means in the future, that the association and its individual members would approve or tolerate such use whenever the end sought to be ob- tained might be best obtained thereby." The plaintiffs in this case thereafter SECT. VI] VIOLENCE OF UNION MEMBERS 241 petitioned the Supreme Court for a writ of certiorari, which was denied, 223 U. S. 729. In subsequent proceedings, in the case of Lawlor v. Loewe, 235 U. S. 522, 534, Holmes, J., said: "The court in substance instructed the jury that if these members paid their dues and continued to delegate authority to their officers unlawfully to interfere with the plaintiffs' interstate commerce in such circumstances that they knew or ought to have known, and such officers were warranted in the belief that they were acting in the matters within their dele- gated authority, then such members were jointly liable, and no others." In Pope Motor Car Co. v. Keegan, 150 Fed. 148, 151 (C. C), supra, p. 207, Tayler, J., rendering the opinion in the Circuit Court, said: "I cannot escape the conclusion that, under the circumstances of this case, where the defendants are made such in their individual capacity, and not in any organized capacity, it would be a gross injustice to attach to persons who have not been shown to be participants in these transactions the stigma of an injunction, or to make them — as they might be without further order of the court — subject to the payment of any costs which necessarily accrue in such a case." See also. United States V. Gomez, 8 Phil. 630, 651. Cf. Michaels v. HiUman, 183 N. Y. Supp. 195, 206. Liability fob Unauthorized Acts on the Ground op Ratification. In some cases imions have been held hable for the unauthorized illegal acts of union members where ratification or sanction of the illegal acts on the part of the unions could be proved. Such ratification may be imphed as well as express. Where the unauthorized, illegal acts are of a sufficiently serious nature, ratification has in some cases been imphed from the tacit acceptance by the union of the benefits of the illegal acts and the failure of union officers to whose attention the matter has been brought to disavow the illegal acts or discipline the offending mem- bers. See, in this connection. Union Pacific Ry. Co. v. Ruef, 120 Fed. 102; Alhs- Chahners Co. v. Iron Molders' Union No. 125, 150 Fed. 155; PhiUips Sheet & Tm Plate Co. V. Amalgamated Assn., 208 Fed. 335; Alaska Steamship Co. v. Inter- national Longshoremen's Assn., 236 Fed. 964; Kroger Co. v. Retail Clerks' In- ternational Protective Assn., 250 Fed. 890. As to the general habUity of a trade union and its individual members for the unauthorized acts of other members, see the cases infra. Chaps. XI and XII, pp. 517 ff., 608 ff. Legality of Strikes accompanied by Violence. The question of the legahty of the strike, called for a legal purpose but accompanied by unauthorized violence, is not to be confused with the foregoing kindred questions of the Ma- bility of the trade union or of ordinary trade union members for unauthorized illegal conduct attending such a strike. Where a strike is called for a legal end, for example, to secure higher wages, even though the strike leaders authorize violence, if the imion regulations or by-laws do not authorize such action, should the injunction be issued in such terms as to restrain the strike itself, or merely the use of violence or other specified illegal means in the conduct of the strike? "The purpose being lawful, if unlawful means are used to effectuate it, such means cannot be made to reach back and taint the purpose itself with unlawful- ness and thus render unlawful all the acts in its furtherance." Tri-City Central Trades Council v. American Steel Foundries, 238 Fed, 728, 732, CHAPTER V LEGALITY OF ENDS PURSUED THROUGH COLLEC- TIVE ACTION BY LABOR ORGANIZATIONS Section 1. General Principles (A) The Effect of Motive upon the Legality of Acts ' BROTHERS v. MORRIS SuPKEME Coukt of Vebmont. 1877 49 Yt. 460 Teespass for a ssault an d battery. Pleas, the general issue, and a special plea in bar, alleging that the plaintiff was unlawfully in the counting-room of which the defendant was lawfully possessed, making a great noise and disttirbance, and obstructing the defendant in the performance of his lawful duties, and that the defendant, thereupon requested him to depart, which he refused to do, where- upon the defendant gently laid his hands upon him in order to remove him from said room, and did remove him therefrom. RepUcation, de injuria, and joinder. Trial by jury, December Term, 1876, Powers, J., presiding. The facts are sufficiently stated in the opinion. The court charge d, among other things, as follows: What was the conduct of the plaintiff in the office towards the defendant, and what was the conduct of the defendant towards the plaintiff? The solution of that question may serve to deter- mine this whole matter. It may serve as a hinge upon which this whole thing turns. And, in order to determine precisely what the real fact was, you have the right to consider the prior relations of the parties. How did they stand towards each other — in a friendly or unfriendly attitude? Was the visit of the plaintiff a visit in good faith for a lawful purpose? Was it, on the other hand, a visit for the purpose of inviting a controversy? And on the part of the d e- fendant, what he said and did, was he in any way""actuate d by a ny prior hostile feehng then operating on his mind? Did lie at th at 1 See upon this subject Ames, How Far an Act May be a Tort Because of Wrongful Motive of Actor, 18 H. L. R. 411; Walton, Motive as an Element in Torts, 22 H. L. R. 501; Smith, Crucial Issues in Labor Legislation, 20 H. L. R. 451; German Civil Code, sec. 226; Planiol, Traits E16mentaire, vol. 2, sees. 870, 871. %_.„-. e . \\ Xy^„, ^v SECT. I] GENERAL PRINCIPLES 243 ti me, in what he d id, make the claim that he was defending his pos- session fo r the purpose of venting his spite and violence upon the plaintiff? " If he was^^ then he is not justified, because he says in his plea that he used this violence to defend his possession. But...if he only used the possession ajlT cover for his malice, and used this vio- lence maliciously towards the plaintiff, he cannot then go behind this cGum^of a'BSKn^ of possession and be justified. It must be an honSf d efenc e — just what he says it is. It must be honest as a defence of the possession, and not a mere malicious, inexcusable assault upon the plaintiff. To that portion of the charge, the defendant excepted. Verdict for plaintiff. " ~" ~~—~ PiERPOiNT, C. J. The only question involved in this case arises upon the charge of the court. It appears from the exceptions, that the defendant was the president of a corporation known as the Ottauqueechee Woolen Co., which owned a factory building at North Hartland, and manufactured goods there, having a counting- room, or office, in said building; that defendant was also the super- intendent of the works of said company, and had charge of the fac- tory building, office, etc. It also appears, that prior to January, 1875, the plaintiff had been president and superintendent of said com- pany, but at said time he ceased to be such, and the defendant was appointed to the place, which he held at the time of the acts com- plained of. It further appeared, that prior to the 14th day of De- cember, 1875, there had been a misunderstanding between the parties as to the business of the company, and that an ill feeling existed between them. On the last named day, the plaintiff went into the office of the company, where the defendant was engaged in business, and a verbal altercation arose between them, and the defendant! ordered the plaintiff' to leave the office. The plaintiff refused to go, but said he would when he had finished his business. The altercation continued, and the defendant again ordered the plaintiff to leave, which he refused to do, as before. The defendant then brought in assistance and removed the plaintiff from the build- ing, and in doing this, infficted the injury complained of. Under the pleadings and the facts developed upon the trial, the question was, whether the d efendant was justified in removing the plaintiff from the building in the manner he did; and this, of course, depended upon the question whether, under the circumstances of the case, he had the legal right to do so. If he had, and exercised that right in a proper manner, using no unnecessary' force, then he is justified; and his justification does not depend upon the motive or" the spirit in which the legal act was done. He may have been influenced by spite, ill will, or mahee; but if he only did that which he ta,d a riglit to do,'TreTs"n6t liable. " 1 The erroneous wording of the original report — "and the plaintiff ordered the defendant to leave" — has been here corrected. — Ed. 244 LEGALITY OF ENDS PURSUED [CHAP. V The^courtj_in^submitting_ti^^ to the jury, seem to have s o presented it that the jury would naturally understand that the motive with whicETKe' act was done was the controllin g consi3 er- ation;*'the point oh which they were to turn the case. It is to be noticed that the question was not whether the assault was made for the purpose of putting the plaintiff out of the building, or for the purpose of doing him an injury, and not to put him out. If it had been, the charge would have been more appropriate, and the case would have been similar to that of Watrous v. Steele, 4 Vt. 629. But here the whole case shows that the assault was made for the _£i^^Si~or putting the plaintiff out; and the substantial injury was done in executing that purpose. But it is said this court ought to presume that the other part of the charge was such as to cure the defect in the part given. There is nothing upon which to base such a presumption. We only know that the other part of the charge was not excepted to. In fact, it would be difficult to suppose a charge that would have such effect, as the court in this part present the motive of the defendant as the "hinge" upon which the whole case is to turn. Judgment reversed and cause remanded.^ BOYSON V. THORN Supreme Court of California. 1893 98 Cal. 578 Haynes, C. Defendant demurred to plaintiff's complaint, the demurrer was sustained, and judgment was thereupon rendered dismissing the action, from which judgment the plaintiff appeals. The complaint alleges that Frank G. Newlands is the owner and in possession and control of the Palace Hotel in the city of San Fran- cisco, and of a pubhc restaurant attached thereto, and conducted the same as a hotel and restaurant, and that the defendant during aU the times mentioned in the complaint was the agent of Newlands, and as such had charge of the business thereof and direction of, the servants therein; that immediately prior to November 1, 1889, Newlands entered into an agreement whereby plaintiff hired certain rooms in said hotel, as lodgings for himself and wife from Novem- ber 1, 1889, at the monthly rent of one himdred dollars; that they were to have their meals at said restaurant, or furnished from said restaurant to their said rooms, he paying therefor the usual rates; that they entered and occupied the rooms, and in all things complied with said agreement, but that on December 5, 1889, the "d efendan t maliciously and with intent to oppress, annoy, and dis turb"plaint iff in the occupancy of his lodgings, and to force him to' ab andon th e ' Accord: Smith v. Johnson, 76 Pa. St. 191; Humphrey v. Douglass, 11 Vt. 22; The South Royalton Bank v. The Suffolk Bank, 27 Vt. 505. SECT. I] GENERAL PRINCIPLES 245 same , and to deprive him of the comforts and conveniences which he was then and there enjoyi^ig, and to injure him in his profession, and to degrade and belittle him in the eyes of the guests of said hotel and of his friends and of the public in general, and in fraud of said agreement, caused a nd procured .Fj.G. Newlands then and there to demand that plaintiff and his wife forthwith vacate said lodgings." It IS further charged that "HSPendant maliciously caused and pro- cured Newlands to refuse to furnish meals, etc., and to instruct the servants to refuse their orders; and that on December 12, 1889, defendant maliciously caused and procured Newlands to threaten and attempt to forcibly eject plaintiff and his wife from said rooms, whereby his wife became ill, and he was compelled to and did em- ploy a nurse at an expense of sixty dollars, and also to hire men to protect his wife and retain possession, etc., at a further expense of sixty dollars, and prays for twenty-five thousand one hundred and twenty dollars damages. The action is against Thorn alone. The demurrer is that the facts st ated do not Const itute a cause of action against the defendant. The broad questi on presented is whether an action will lie against one who, from mahcious motives, but without threats, violence, fraud^Ta lsehood, deception, or benefit to himself, induces another to violate his contract with the plaintiff. We state the question thus because' it will be observed that the complaint does not state the means used to cause or procure Newlands to violate his contract with the plaintiff, but only that it was done "maliciously." The general rule is that only those who are parties to, or in some manner bound by a contract, are liable for a breach of it. To this general rule there are certain exceptions, as, for example, contracts for personal services involving the relation of master and servant; and there are also other cases that are sometimes classed as excep- tions, but which are not strictly so. . . . The facts alleged i n the complaint do not bring the case within the p rinciple govermng cases involving the relation of master and se rvant. noFort hose^ther cases where a contract is procured to be ISroken by f rau3, deceit, slander, or other actionable wrong, as in E,ice V. Manley^and other cases above noticed. It is conceded by appellant, and it is unquestionably true, that "one may advise a friend in all honesty, and without ill-will to the other contracting party, to abide the risks of breaking an onerous or mischievous con- tract, rather than those of performing it." In Bowen v. Hall, Law R. 6 Q. B. D. 338, Brett, L. J., said: "Merel y to persuade a person to br eak his contract may_not , be, wrongful in law or fact." This being true, will the fact that the advice or persuasion proceeds from malicious motives create a liability where the same advice or per- suasiori,Tf given from good motives, would not? * In considering this question the distinction between civil and criminal proceedings must not be overlooked. 246 LEGALITY OP ENDS PURSUED [CHAP. V In the dissenting opinion of Lord Coleridge, C. J., in Bowen V. Hall, Law R. 6 Q. B. D. 343, the .question above presented is answered thus: "It is, I believe, also admitted, except by Sir Wil- liam Erie, whom I think no one has ever followed, that if a man endeavors to persuade another to break his contract and succeeds in his endeavor, yet if he does this without what the law calls ' mal- ice,' the damage which results, however great, is not in itself a cause of action, I mean, of course, a cause of action against him; but if the damage which is not in itself actionable, be joined to a motive which is not in itself actionable, the two together form a cause of action. This seems a strange conclusion. . . . I do not know, ex - cepti]a _the case of Lumley v . Gye, 2 El. & Bl. 2 16, that it has eve r been held that the same person for doing the same thmgjindlrtije same circimistances, with the same result, is actionable or not action- a "51e"accord ing to whether his inward motive was selfishor unselfish for what He^Hidr I think the inquiries to which this view of the law would lead are dangerous and inexpedient inquiries for courts of justice; judges are not very fit for them, and juries are very unfit." Tt is a. t.riji^n of the law that an act which does not amount to a l egal injury cannot b e actionable because it is done with a bad in- tenti; that what oneTias a right to do another cannot complain of. It is conceded that one may lawfully persuade or procure another to break his contract with a third person, "if it be done from good motives." We think the qualification has no place in the proposi- tion. If it is right ,, and the means used to procure the breach are right, the motive cannot make it a wrong any more than a good motive would justify fraud, deceit, slander or violence ^to_eft'e ctthe same purpose. Suppose A, by fraudulent representations. Induces B to sell him a large quantity of goods upon credit, intending to defraud B of the entire value of the goods. C, knowing that the representations are false, and not caring whether B shall lose his goods or not, but of unmixed malice and ill-will toward A, procures B to refuse to deliver the goods by truthfully informing B of the falsity of the representations made by A, will it be said that C is liable in an action brought by A? In Cooley on Torts, 2d ed., p. 832, the learned author says: "Bad motive by itself, then, is no tort. Malicious motives make a bad act worse, but they cannot make that a wrong which in its own essence is lawful. When in legal pleadings the defendant is charged with having wrongfully done the act com- plained of, the words are only words of vituperation, and amount to nothing unless a cause of action is otherwise alleged." Again the same author, at page 836, says: "Motive generally becomes im- portant only when the damages for a wrong are to be estimated. It then comes in as an element of mitigation or aggravation, and is of the highest importance." . . . It may be questioned whether the omission to allege that Thorn knew of the contract between appellant and Newlands is not fatal SECT. I] GENEKAL PRINCIPLES ' 247 to the complaint, but, as we conclude that the demurrer was prop- erly sustained upon the principal point made, it is not necessary to consider it. We are of the opinion that the judgment appealed from should be affirmed. Temple, C, and Searls, C, concurred. For the reasons given in the foregoing opinion, the judgment appealed from is affirmed. " McFakland, J., De Haven, J., Fitzgerald, J. COBB V. CATER Supreme Court of South Carolina. 1900 59 S. C. 462 Action for damages for poisoning a setter dog by C. E. Cobb and W. H. Himiphreys against A. P. Cater. From judgment for defend- ant, plaintiffs appeal. Mb. Justice Gary delivered the opinion of the Court. . . . It will not be necessary to consider the other exceptions in de- tail, as they aU assign error to his Honor, the presiding judge, in stating the law as to the right of a person to put out poison on his premises for the protection of his property from prowling animals. The record contains the following statement: "After being out for some time, the jury returned to the court room for further instruc- tions. The Court asked the foreman whether the jury's difficulty was one of law or of fact, to which the foreman replied, ' we wish to know what you charged in reference to how near his dwelling a man may put the poison on his own premises? ' In response to this in- quiry, the Court charged that a man has a right to put out poison anywhere on his premises to protect them from the ravages or dep- redations of dogs, minks or other preying varmints, if he has due regard to the safety of human life; that he must have due care and exercise due caution not to injure human life; and if he puts out poison to protect his property, and a dog invades his premises and gets the poison, under such circumstances the owner would not be liable for damages; but if he puts out poison, not for the protection of his property, but with the intent to kill his neighbor's dog, then he would be liable for damages." The respondent's attorneys thus stated in their argument the substance of the charge on this subject: "The charge was sub st antially that a man had a righ t to put poison on his premises for~the protection rf his jproperty,' having a due regard for the safety of humanjife, and that if a neighbor's dog came trespassing~Mid got the poison, the defendant would not be liable. He further said that if he placed the poison out, not to protect his jyroperty, bufwE hlEe" intention to kill his neighbor's dog, then he would be liable^' There is a familiar and wholesome maxim of law. 248 LEGALITY OF ENDS PUBSUED [CEAP. V "sic ulere tuo ut alienum non laedas." When a person puts out poison on his premises, he knows that the natural — indeed, the intended — result is to destroy his neighbor's animals. Knowing and in- tending such to be the result, he should be guided by reason and prudence in thus destroying the property of others. The presidin g judge did not charge that a person had an absolute right to put out poiscm bn his premises, but that it was to be exercised with limita- tions which he stated. The rule which the law prescribes is that a person exercising the right to put out poison on his premises shall act wi th such care as might reasonably be expected of aman posse ss^ ing ordinary prudence under like circumstances. The fact that the anunal at the time it eats the poison may have been prowling or trespassing, is a circumstance to be considered by the jiiQr.in de- termining whether the person placing the poison acted with ordi- nary prudence; but the Court cannot charge without invading j the province o f the jury^ that this circumstance was s ufficient to ena ble them to find a verdict in favor of the defendant. The char ge of the presiding judge_^was not in accord with the r ule herembetb re_gtiated, and was, tEeri^ore, erroneous, in my opinion. The members of this Com't are, however, equally divided in opinion, and the judgment of the Circuit Court is affirmed.^ KEEBLE V. HICKERINGILL Queen's Bench. 1706 H East, 574, note Action upon the case. Plaintiff declares that he was, 8th Novem- ber in the second year of the Queen, lawfully possessed of a close of land called Minott's Meadow, et de quodam vivario, vocato a decoy pond, to which divers wild fowl used to resort and come: and the plaintiff had at his own costs and charges prepared and procured divers decoy ducks, nets, machines, and other engines for the decoy- ing and taking of the wild fowl, and enjoyed the benefit in taking them: the defendant knowing which, and intending to damnify the ■plaintiff in his vivary, and to fright and drive away the wild fowl used to resort thither, and deprive him of his profit, did, on the 8th of November, resort to the head of the said pond and vivary, and did discharge six guns laden with gunpowder, and with the noise and stink of the gunpowder did drive away the wild fowl then being in the pond: and on the 11th and 12th days of November the defendant, with design to damnify the plaintiff, and fright away the wild fowl, did place himself with a gun near the vivary, and there did discharge the said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wild ' Accord: McNary v. Chamberlain, 34 Conn. 384: Webb v. Drake, 52 La. Ann. 290. SECT. r\ GENERAL PRINCIPLES 249 fowl were frighted away, and did forsake the said pond. Upon not guilty pleaded, a verdict was found for the plaintiff and £20 damages. Holt, C. J. I am of opinion that this action doth lie. It seems to be new in its instance, but is not new in the reason or principle of it. For, first, this using or making a decoy is lawful. Secondly, this em- ployment of his ground to that use is profitable to the plaintiff, as is the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kiU and destroy wild fowl or tame cattle. Then when a man useth his art or his skill to take them, to sell and dispose of for his profit; this is his trade; and he that hinders another in his trade or livelihood is liable to an ac- tion for so hindering him. Why otherwise are scandalous words spoken of a man in his profession actionable, when without his pro- fession they are not so? Though they do not affect any damage, yet are they mischievous in themselves; and therefore in their own nature productive of damage; and therefore an action lies against him. Such are all words that are spoken of a man to disparage him in his trade, that may bring damage to him; though they do not charge him with any crime that may make him obnoxious to punish- ment; as to say a merchant is broken, or that he is failing, or is not able to pay his debts, 1 Roll. 60, 1; all the cases there put. How much more, when the defendant doth an actual and real damage to another when he is in the very act of receiving profit by his em- ployment. Now there are two sorts of acts for doing damage to a man's employment, for which an action lies; the one is in respect of a man's privilege; the other is in respect of his property. In that of a man's franchise or privilege whereby he hath a fair, market, or ferry, if another shall use the Hke liberty, though out of his limits, he shall be liable to an action; though by grant from the King. But therein is the difference to be taken between a liberty in which the public hath a benefit, and that wherein the public is not concerned. 22 H. 6, 14, 15. The other is where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood; there an action lies in all cases. But if a man doth him damage by using the same employment; as if Mr. Hickeringill had set up an- other decoy on his own ground near the plaintiff's, and that had spoiled the custom of the plaintiff, no action would lie, because he had as much liberty to make and use a decoy as the plaintiff. This is like the case of 11 H. 4, 47. One schoolmaster sets up a new school to the damage of an ancient school, and thereby the scholars are allured from the old school to come to his new. (The action was held there not to lie.) But suppose Mr. Hickeringill should lie in the 250 LEGALITY OF ENDS PURSUED [CHAP. V way with his guns, and fright the boys from going to school, and their parents would not let them go thither; sure that schoolmaster might have an action for the loss of his scholars. 29 E. 3, 18. A man hath a market, to which he hath toll for horses sold : a man is bring- ing his horse to market to sell: a stranger hinders and obstructs him from going thither to the market: an action hes, because it imports damage. Action upon the case lies against one that shall by threats fright away his tenants at will. 9 H. 7, 8; 21 H. 6, 31; 9 H. 7, 7; 14 Ed. 4, 7; Vide Rastal. 662; 2 Cro. 423. Trespass was brought for beating his servant, whereby he was hindered from taking his toll; the obstruction is a damage, though not the loss of his service.^ . . . (B) Trade Competition. Justification ANONYMOUS Common Pleas. 1410 Year Book, 11 Hm. IV, fol. 47, pi. 21 Two masters of a grammar school bring an action of trespass against another master, and count that whereas the presentment of the grammar school of Gloucester, time whereof memory does not run, belonged to the Prior of Lanton near Gloucester, the said Prior had made presentment to the said plaintiffs to have the govern- ment of the said schools and to teach the children and others, etc. 1 Accord: Carrington v. Taylor, 11 East, 571; Ibbottson v. Peat, 3 Hurl. & Coltman, 644. In an interesting case reported in Dalloz, 97, 2, 335, the keeper of a caf6 put up a notice in his establishment: "Le caf6 ne sert pas de byrrh." "Byrrh" is a certain beverage, manufactured by a particiilar firm and patented. The owners of it sued the caf6 keeper for damages. The court held there was no hability, because there was no proof of malevolence. In Aikensti. Wisconsin, 195 U. S. 194, at p. 204, Holmes, J., said: "It has been considered that, prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape. Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 613; s. c, [1892] A. C. 25. If this is the correct mode of approach it is obvious that justifications may vary in extent according to the principle of policy upon which they are founded, and that while some, for instance, at common law, those affecting the use of land, are absolute, Bradford v. Pickens, [1895] A. C. 687, others may depend upon the end for which the act is done. Moran v. Dunphy, 177 Mass. 485, 487; Plant V. Woods, 176 Mass. 492; Squires v. Wason Manuf. Co., 182 Mass. 137, 140, 141. See cases cited in 62 L. R. A. 673. It is no sufiicient answer to this line of thought that motives are not actionable and that the standards of the law are external. That is true in determining what a man is bound to foresee, but not necessarily in determining the extent to which he can justify harm which he has foreseen. Quinn v. Leathern, [1901] A. C. 495, 524." So, in Skinner & Co. v. Shaw, [1893] 1 Ch. 413, at p. 422, Lord Bowen said: "At common law there was a cause of action whenever one person did damage SECT. I] GENERAL PRINCIPLES 251 The defendant had set up a school in the same town by reason whereof while the plaintiffs were wont to take for a child for the quarter 40 pence or 2 shillings now they do not take beyond 12 pence, to the damage, etc. H or ton made full defense. Tillsley. His writ is of no avaU. Skrene. There is a good action on the case, and the plaintiffs have now shown sufficient matter how they are damaged, where- fore, etc. Hankford [J.] * Damnum may be without injuria. As if I have a mill, and my neighbor sets up another mill so that the profit of my miU is diminished, I have no action against him; still there is damage to me, which Thiening [C. J.] 2 conceded; and said that teaching children is a spiritual matter, and if one employs a master in his house to teach his children there will be damage to the common master of the town; still 1 think that he will not have an action. Skrene. The Master of Paul's claims that there should not be masters in the whole city of London except them. And afterwards, Horton asked whether the Court would take cogni- zance of the case. Skrene. You are too late. And then Horlon demurs that the action is not maintainable. Skrene. Insomuch as we will aver the title of the Prior as above and that we are damaged for that he has diverted our scholars and also where we were accustomed to take from a scholar 40 pence or 2 shilhngs by the quarter now we do not take beyond 12 pence we demand judgment and pray our damages. Hill [J.] ' The action fails fundamentally in this case for that the plaintiffs have no estate but a ministry * for the time being, and when another, who is also possessed of the faculty which the plain- tiffs have, comes to teach the children, it is a virtuous and charitable to another wilfully and intentionally, and without just cause or excuse." See the same judge's remarks in Mogul Steamship Co. v. McGregor, L. R., 23 Q. B. D. 598, at p. 613, infra,^ p. 254. The German Civil Code, Art. 226, provides that "the exercise of a right is not permitted when its only object can be to cause injury to another." The French Courts approach the subject from a slightly different angle, mak- ing illegal "the abusive exercise of a right." For an interesting criticism of this phrase, see Planiol, Traits EMmentaire (4th ed.), vol. 2, sees. 870, 871. • Wniiam Hankford, appointed judge of the Conunon Pleas, May 6, 1398; chief justice of King's Bench, March 29, 1413. See Foss, Judges of England, vol. 4, p. 323. ^ William Thiming, appointed judge of the Common Pleas, April 11, 1388; chief justice of the Common Pleas, Jan. 15, 1396. See Foss, Judges of England, vol. 4, p. 209. ' Robert Hill, or Hull, appointed judge of the Common Pleas, May 14, 1408. See Foss, Judges of England, vol. 4, p. 327. * Some manuscripts have "mystery."— Ed. 252 LEGALITY OF ENDS PURSUED [CHAP. V thing and a convenience to the people, for which he cannot be pun- ished by our law wherefore, etc. Thirning [C. J.]. Whether the Prior could have such present- ment of the school or not this Court cannot take cognizance, for that the teaching of children is a spiritual thing, and since the plaintiffs' have claimed the school by the presentment of the Prior and have founded their action upon this which is accessory and depends upon the title of the Prior, which is the principal thing, it seems that this action cannot be tried in this Court. Skrene. If a market is set up to the nuisance of my market I shall have an assize of nuisance; and in a common case if the comers to my market are disturbed or beaten whereby I lose my tolls, I shall have a very good action of trespass on my case — also here. Hankpord [J.]. It seems not; for that in your case you have free- hold and inheritance in the market, but here the plaintiffs have no estate in the schoolmastership, etc., but for the time not certain; and it would be against reason that a master should be disturbed from holding school where he pleased unless it was in case where a University was incorporated and schools founded upon ancient time; and in case of a mill (as I said before) if my neighbor sets up a mill [and if] others who are accustomed to go to my mill go to another mill whereby my tolls are lost, for this case I shall not have action; but if a miller disturbs the way of passage to my mill or does such manner of nuisance I shall have an action such as the law gives. And the opinion of the Court was that the writ did not lie : where- fore it was awarded that they take nothing, etc., in etc. THE MOGUL STEAMSHIP CO. v. McGREGOR, GOW & CO. Court of Appeal. 1889 L. R. 23 Q. B. D. 598 The plaintiffs claimed damages for a conspiracy to prevent them from carrying on their trade between London and China, and an injunction against the continuance of the alleged wrongful acts. . . . BowEN, L. J.i We are presented in this case with an apparent conflict or antinomy between two rights that are equally regarded by the law — the right of the plaintiffs to be protected in the legitimate exercise of their trade, and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others. The plaintiffs complain that the de- fendants have crossed the line which the common law permits; and inasmuch as, for the purposes of the present case, we are to assume some possible damage to the plaintiffs, the real question to be de- ' Only the opinion of Bowen, L. J., is given. Fry, L. J., rendered a concurring opinion and Lord Esher, M. R., a dissenting opinion. The decision was after- wards affirmed in the House of Lords. See [1892] A. C. 25. — En. SECT. I] GENERAL PRINCIPLES 253 cided is whether, on such an assumption, the defendants in the conduct of their commercial affairs have done anything that is un- justifiable in law. The defendants are a number of shipowners who formed themselves into a league or conference for the purpose of ultimately keeping in their own hands the control of the tea car- riage from certain Chinese ports, and for the purpose of driving the plaintiffs and other competitors from the field. In order to succeed in this object, and to discourage the plaintiffs' vessels from resorting to those ports, the defendants during the "tea harvest" of 1885 combined to offer to the local shippers very low freights, with a view of generally reducing or "smashing" rates, and thus rendering it unprofitable for the plaintiffs to send their ships thither. They offered, moreover, a rebate of 5 per cent to all local shippers and agents who would deal exclusively with vessels belonging to the Conference, and any agent who broke the condition was to forfeit the entire rebate on all shipments made on behalf of any and every one of his principals during the whole year — a forfeiture of rebate or allowance which was denominated as "penal" by the plaintiffs' counsel. It must, however, be taken as established that the rebate was one which the defendants need never have allowed at all to their customers. It must also be taken that the defendants had no per- sonal iU-will to the plaintiffs, nor any desire to harm them except such as is involved in the wish and intention to discourage by such measures the plaintiffs from sending rival vessels to such ports. The acts of which the plaintiffs particularly complained were as follows: — First, a circular of May 10, 1885, by which the defendants offered to the local shippers and their agents a benefit by way of rebate if they would not deal with the plaintiffs, which was to be lost if this condition was not fulfilled. Secondly, the sending of special ships to Hankow in order by competition to deprive the plaintiffs' vessels of profitable freight. Thirdly, the offer at Hankow of freights at a leval which would not repay a shipowner for his adventure, in order to "smash" freights and frighten the plaintiffs from the field. Fourthly, pressure put on the defendants' own agents to induce them to ship only by the defendants' vessels, and not by those of the plaintiffs. It is to be observed with regard to all these acts of which complaint is made that they were acts that in themselves could not be said to be illegal unless made so by the object with which, or the combination in the course of which, they were done; and that in reality what is complained of is the pursuing of trade competition to a length which the plaintiffs consider oppressive and prejudicial to themselves. We were invited by the plaintiffs' counsel to accept the position from which their argument started — that an action wiU lie if a man maliciously and wrongfully conducts him- self so as to injure another in that other's trade. Obscurity resides in the language used to state this proposition. The terms "mali- ciously," "wrongfully," and "injure" are words all of which have 254 LEGALITY OF ENDS PUESXJED [CHAP. V accurate meanings, well known to the law, but which also have a popular and less precise signification, into which it is necessary to see that the argument does not imperceptibly slide. An intent to "injure" in strictness means more than an intent to harm. It con- notes an intent to do wrongful harm. "Maliciously," in hke man- ner, means and implies an intention to do an act which is wrongful, to the detriment of another. The term "wrongful" imports in its turn the infringement of some right. The ambiguous proposition to which we were invited by the plaintiffs' counsel still, therefore, leaves unsolved the question of what, as between the plaintiffs and defendants, are the rights of trade. For the purpose of clearness, I desire, as far as possible, to avoid terms in their popiilar use so slippery, and to translate them into less fallacious language where- ever possible. The Enghsh law, which in its earlier stages began with but an imperfect Hne of demarcation between torts and breaches of con- tract, presents us with no scientific analysis of the degree to which the intent to harm, or, in the language of the civil law, the animus vicino nocendi, may enter into or affect the conception of a personal wrong; see Chasemore v. Richards, 7 H. L. C. 349, at p. 388. AU personal wrong means the infringement of some personal right. "It is essential to an action in tort," say the Privy Council in Rogers V. Rajendro Dutt, 13 Moore, P. C. 209, "that the act complained of should under the circumstances be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do a man harm in his interests, is not enough." What, then, were the rights of the plaintiffs as traders as against the defendants? The plain- tiffs had a right to be protected against certain kind of conduct; and we have to consider what conduct would pass this legal line or boundary. Now, intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's property or trade, is action- able if done without just cause or excuse. Such intentional action when done without just cause or excuse is what the law calls a mali- cious wrong (see Bromage v. Prosser, 4 B. & C. 247; Capital and Counties Bank v. Henty, per Lord Blackburn, 7 App. Cas. 741, at p. 772). The acts of the defendants which are complained of here were intentional, and were also calculated, no doubt, to do the plain- tiffs damage in their trade. But in order to see whether they were wrongful we have still to discuss the question whether they were done without any just cause or excuse. Such just cause or excuse the defendants on their side assert to be found in their own positive right (subject to certain limitations) to carry on their own trade freely in the mode and manner that best suits them, and which they think best calctilated to secure their own advantage. SECT. X] GENERAL PRINCIPLES 255' What, then, are the limitations which the law imposes on a trader in the conduct of his business as between himself and other traders? There seem to be no bm-dens or restrictions in law upon a trader which arise merely from the fact that he is a trader, and which are not equally laid on all other subjects of the Crown. His right to trade freely is a right which the law recognises and encourages, but- it is one which places him at no special disadvantage as compared with others. No man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrep- resentation. Intimidation, obstruction, and molestation are for- bidden; so is the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just, cause for it. The intentional driving away of customers by shew of violence: Tarleton v. M'Gawley, Peak, N. P. C. 270; the obstruc- tion of actors on the stage by preconcerted hissing: Clifford v. Bran- don, 2 Camp. 358; Gregory v. Brunswick, 6 Man. & G. 205; the disturbance of wild fowl in decoys by the firing of guns : Carrington V. Taylor, 11 East, 571, and Keeble v. Hickeringill, 11 East, 574, n.; the impeding or threatening servants or workmen: Garret v. Taylor, Cro. Jac. 567; the inducing persons under personal contracts to- break their contracts: Bowen v. Hall, 6 Q. B. D. 333; Lmnley v. Gye, 2 E. & B. 216; all are instances of such forbidden acts. But- the defendants have been guilty of none of these acts. They have done nothing more against the plaintiffs than pm'sue to the bitter end a war of competition waged in the interest of their own trade. To the argument that a competition so pursued ceases to have a^ just cause or excuse when there is ill-will or a personal intention to harm, it is sufficient to reply (as I have already pointed out) that- there was here no personal intention to do any other or greater harm to the plaintiffs than such as was necessarily involved in the desire to attract to the defendants' ships the entire tea freights of the ports, a portion of which would otherwise have fallen to the plain- tiffs' share. I can find no authority for the doctrine that such a commercial motive deprives of "just cause or excuse" acts done in the course of trade which would but for such a motive be justifiable. So to hold would be to convert into an illegal motive the instinct of self-advancement and self-protection, which is the very incentive to all trade. To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract business to his own shop, would be a strange and impossible counsel of perfection. But we were told that competition ceases to be the lawful exercise of trade, and so to be a lawful excuse for what will harm another, if carried to a length which is not fair or reasonable. The offering of reduced rates- by the defendants in the present case is said to have been "unfair." This seems to assume that, apart from fraud, intimidation, molesta- tion, or obstruction, of some other personal right in rem or in per- 256 LEGALITY OF ENDS PURSUED [CHAP. V S(mam, there is some natural standard of "fairness" or "reasonable- ness" (to be determined by the internal consciousness of judges and juries) beyond which competition ought not in law to go. There seems to be no authority, and I think, with submission, that there is no sufficient reason for such a proposition. It would impose a novel fetter upon trade. The defendants, we are told by the plain- tiffs' counsel, might lawfully lower rates provided they did not lower them beyond a "fair freight," whatever that may mean. But where is it established that there is any such restriction upon commerce? And what is to be the definition of a "fair freight"? It is said that it ought to be a normal rate of freight, such as is reasonably remu- nerative to the shipowner. But over what period of time is the average of this reasonable remunerativeness to be calculated? All commercial men with capital are acquainted with the ordinary ex- pedient of sowing one year a crop of apparently imfruitful prices, in order by driving competition away to reap a fuller harvest of profit in the future; and until the present argmnent at the bar it may be doubted whether shipowners or merchants were ever deemed to be found by law to conform to some imaginary "normal" stand- ard of freights or prices, or that Law Courts had a right to say to them in respect of their competitive tariffs, "Thus far shalt thou go and no further." To attempt to limit English competition in this way would probably be as hopeless an endeavour as the experiment of King Canute. But on ordinary principles of law no such fetter on freedom of trade can in my opinion be warranted. A man is bound not to use his property so as to infringe upon another's right. Sic utere tuo ut alienum non laedas. If engaged in actions which may involve danger to others, he ought, speaking generally, to take rea- sonable care to avoid endangering them. But there is surely no doc- trine of law which compels him to use his property in a way that judges and juries may consider reasonable: see Chasemore v. Rich- ards, 7 H. L. C. 349. If there is no such fetter upon the use of prop- erty known to the English law, why should there be any such a fetter upon trade? It is urged, however, on the part of the plaintiffs, that even if the acts complained of would not be wrongful had they been committed by a single individual, they become actionable when they are the result of concerted action among several. In other words, the plain- tiffs, it is contended, have been injured by an illegal conspiracy. . . ■ But what is the definition of an illegal combination? It is an agree- ment by one or more to do an unlawful act, or to do a lawful act by unlawful means: O'Connell v. The Queen, 11 CI. & F. 155; Reg. v. Parnell, 14 Cox, Criminal Cases, 508; and the question to be solved is whether there has been any such agreement here. Have the de- fendants combined to do an unlawful act? Have they combined to do a lawful act by unlawful means? A moment's consideration will be sufficient to shew that this new inquiry only drives us back to SECT. I] GENERAL PRINCIPLES 257 the circle of definitions and legal propositions which I have already- traversed in the previous part of this judgment. The unlawful act agreed to, if any, between the defendants must have been the in- tentional doing of some act to the detriment of the plaintiffs' busi- ness without just cause or excuse. Whether there was any such justification or excuse for the defendants is the old question over again, which, so far as regards an individual trader, has been al- ready solved. The only differentia that can exist must arise, if at all, out of the fact that the acts done are the joint acts of several capitalists, and not of one capitalist only. The next point is whether the means adopted were unlawful. The means adopted were com- petition carried to a bitter end. Whether such means were imlaw- ful is in Hke manner nothing but the old discussion which I have gone through, and which is now revived under a second head of inquiry, except so far as a combination of capitalists differentiates the case of acts jointly done by them from similar acts done by a single man of capital. But I find it impossible myself to acquiesce in the view that the English law places any such restriction on the combination of capital as would be involved in the recognition of such a distinction. If so, one rich capitalist may innocently carry competition to a length which would become unlawful in the case ■of a syndicate with a joint capital no larger than his own, and one individual merchant may lawfully do that which a firm or a part- nership may not. What limits, on such a theory, would be imposed by law on the competitive action of a joint-stock company limited, is a problem which might well puzzle a casuist. The truth is, that the combination of capital for purposes of trade and competition is a very different thing from such a combination of several persons ■against one, with a view to harm him, as falls under the head of an indictable conspiracy. There is no just cause or excuse in the lat- ter class of cases. There is such a just cause or excuse in the former. There are cases in which the very fact of a combination is evidence of a design to do that which is hurtful without just cause — is evi- dence — to use a technical expression — of malice. But it is per- fectly legitimate, as it seems to me, to combine capital for all the mere purposes of trade for which capital may, apart from combina- tion, be legitimately used in trade. To hmit combinations of capital, when used for purposes of competition, in the manner proposed by the argument of the plaintiffs, would, in the present day, be impos- sible — would be only another method of attempting to set bound- aries to the tides. Legal puzzles which might well distract a theorist may easily be conceived of imaginary conflicts between the selfish- ness of a group of individuals and the obvious well-being of other members of the community. Would it be an indictable conspiracy to agree to drink up all the water from a common spring in a time of drought; to buy up by preconcerted action all the provisions in a market or district in times of scarcity: see Rex v. Waddington, 258 LEGALITY OF ENDS PXJESUED [CHAP. V 1 East, 143; to combine to purchase all the shares of a company against a coming settling-day; or to agree to give away articles of trade gratis in order to withdraw custom from a trader? May two itinerant match-vendors combine to sell matches below their value in order by competition to drive a third match-vendor from the street? In cases like these, where the elements of intimidation, molestation, or the other kinds of illegality to which I have alluded are not present, the question must be decided by the application of the test I have indicated. Assume that what is done is intentional, and that it is calculated to do harm to others. Then comes the question. Was it done with or without "just cause or excuse"? If it was bona fide done in the use of a man's own property, in the exer-" cise of a man's own trade, such legal justification would, I think, exist not the less because what was done might seem to others to be selfish or unreasonable: see the summing-up of Erie, J., and the judgment of the Queen's Bench in Reg. v. Rowlands, 17 Q. B. 671. But such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without refer- ence to one's own lawful gain, or the lawful enjoyment of one's own rights. The good sense of the tribunal which had to decide would have to analyse the circmnstances and to discover on which side of the line each case fell. But if the real object were to enjoy what was one's own, or to acquire for one's self some advantage in one's prop- erty or trade, and what was done was done honestly, peaceably, and without any of the illegal acts above referred to, it could not, in my opinion, properly be said that it was done without just cause or excuse. One may with advantage borrow for the benefit of traders what was said by Erie, J., in Reg. v. Rowlands, 17 Q. B. 671, at p. 687, n., of workmen and of masters: "The intention of the law is at present to allow either of them to follow the dictates of their own will, with respect to their own actions, and their own property; and either, I believe, has a right to study to promote his own advantage, or to combine with others to promote their mutual advantage." Lastly, we are asked to hold the defendants' Conference or asso- ciation illegal, as being in restraint of trade. The term "illegal" here is a misleading one. Contracts, as they are called, in restraint of trade, are not, in my opinion, illegal in any sense, except that the law will not enforce them. It does not prohibit the making of such contracts; it merely declines, after they have been made, to recog- nise their validity. The law considers the disadvantage so imposed upon the contract a sufficient shelter to the public. The language of Crompton, J., in Hilton v. Eckersley, 6 E. & B. 47, is, I think, not to be supported. No action at common law will lie or ever has lain against any individual or individuals for entering into a con- tract merely because it is in restraint of trade. Lord Eldon's equity decision in Cousins v. Smith, 13 Ves. 542, is not very intel- ligible, even if it be not open to the somewhat personal criticism SECT. I] GENERAL PRINCIPLES 259 passed on it by Lord Campbell in his Lives of the Chancellors. If indeed it could be plainly proved that the mere formation of "conferences," "trusts," or "associations" such as these were al- ways necessarily injurious to the public — a view which involves, perhaps, the disputable assmnption that, in a country of free trade, and one which is not under the iron regime of statutory monopolies, such confederations can ever be really successful — and if the evil of them were not sufficiently dealt with by the common law rule, which held such agreements to be void as distinct from holding them to be criminal, there might be some reason for thinking that the common law ought to discover within its arsenal of sound com- mon-sense principles some further remedy commensurate with the mischief. Neither of these assumptions are, to my mind, at all evi- dent, nor is it the province of judges to mould and stretch the law of conspiracy in order to keep pace with the calculations of political economy. If peaceable and honest combinations of capital for pur- poses of trade competition are to be struck at, it must, I think, be by legislation, for I do not see that they are imder the ban of the common law. In the result, I agree with Lord Coleridge, C. J., and differ, with regret, from the Master of the RoUs. The substance of my view is this, that competition, however severe and egotistical, if unat- tended by circimistances of dishonesty, intimidation, molestation, or such illegalities as I have above' referred to, gives rise to no cause of action at common law. I myself should deem it to be a misfortime if we were to attempt to prescribe to the business world how honest and peaceable trade was to be carried on in a case where no such Ulegal elements as I have mentioned exist, or were to adopt some standard of judicial "reasonableness," or of "normal" prices, or "fair freights," to which commercial adventurers, otherwise in- nocent, were boimd to conform. In my opinion, accordingly, this appeal ought to be dismissed with costs. . Appeal dismissed} TUTTLE V. BUCK SUPBEME COUBT OF MINNESOTA. 1909 107 Minn. 145 Action in the District Court for Wright county to recover $10,000 damages. Defendant demurred to the complaint on the ground it did not state a cause of action. From an order, Buckham, J., over- ruling the demurrer, defendant appealed. Affirmed. This appeal was from an order overruling a general demurrer to a complaint in which the plaintiff alleged: That for more than ten years last past he has been and still is a ' See Citizens' Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 Fed. 553, 558-561. 260 LEGALITY OF ENDS PURSUED [CHAP. V barber by trade, and engaged in business as such in the village of Howard Lake, Minnesota, where he resides, owning and operating a shop for the purpose of his said trade. That until the injury herein- after complained of his said business was prosperous, and plaintiff was enabled thereby to comfortably maintain himself and family out of the income and profits thereof, and also to save a considerable sum. per annum, to wit, about $800. That the defendant, during the period of about twelve months last past, has wrongfully, unlaw- fully, and maliciously endeavored to destroy plaintiff's said business, and compel plaintiff to abandon the same. That to that end he has persistently and systematically sought, by false and maUcious re- ports and accusations of and concerning the plaintiff, by personally soliciting and urging plaintiff's patrons no longer to employ plain- tiff, by threats of his personal displeasiu-e, and by various other unlawful means and devices, to induce, and has thereby induced^ many of said patrons to withhold from plaintiff the employment by them formerly given. That defendant is possessed of large means, and is engaged in the business of a banker in said village of Howard Lake, at Dassel, Minnesota, and at divers other places, and is nowise interested in the occupation of a barber; yet in the pursuance of the wicked, malicious, and imlawful purpose aforesaid, and for the sole and only purpose of injuring the trade of the plaintiff, and of ac- complishing his purpose and threats of ruining the plaintiff's said business and driving him out 6f said village, the defendant fitted up and furnished a barber shop in said village for conducting the trade of barbering. That failing to induce any barber to occupy said shop on his own account, though offered at nominal rental, said defend- ant, with the wrongful and malicious purpose aforesaid, and not otherwise, has during the time herein stated hired two barbers in succession for a stated salary, paid by him, to occupy said shop^ and to serve so many of plaintiff's patrons as said defendant has been or may be able by the means aforesaid to direct from plaintiff's shop. That at the present time a barber so employed and paid by the defendant is occupying and nominally conducting the shop thus fitted and furnished by the defendant, without paying any rent therefor, and under an agreement with defendant whereby the in- come of said shop is required to be paid to defendant, and is so paid in partial return for his wages. That all of said things were and are done by defendant with the sole design of injiu-ing the plaintiff, and of destroying his said business, and not for the purpose of serving any legitimate interest of his own. That by reason of the great wealth and prominence of the defendant, and the personal and financial influence consequent thereon, he has by the means aforesaid, and through other unlawful means and devices by him employed, ma- terially injured the business of the plaintiff, has largely reduced the income and profits thereof, and intends and threatens to destroy the same altogether, to plaintiff's damage in the sum of $10,000. ^ SECT. I] GENERAL PRINCIPLES 261 Elliott, J. (after stating the facts as above). It has been said that the law deals only with externals, and that a lawful act cannot be made the foundation of an action because it was done with an evil motive. In Allen v. Flood, [1898] A. C. 1, 151, Lord Watson said that, except with regard to crimes, the law does not take into account motives as constituting an element of civil wrong. In Mayor v. Pickles, [1895] A. C. 587, Lord Halsbury stated that if the act was lawful, "however ill the motive might be, he had a right to do it." In Raycroft v. Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 225, 54 Am. St. 882, the court said that, "when one exercises a legal right only, the motive which actuates him is im- material.*' In Jenkins v. Fowler, 24 Pa. St. 308, Mr. Justice Black said that "malicious motives make a bad act worse, but they can- not make that wrong which, in its own essence, is lawful." This language was quoted in Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 233, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. 319, and in sub- stance in Ertz v. Produce Exchange, 79 Minn. 140, 143, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. 433. See also 2 Cooley, Torts (3d ed.), 1505; Auburn v. Douglass, 9 N. Y. 444. Such generalizations are of httle value in determining concrete cases. They may state the truth, but not the whole truth. Each, word and phrase used therein may require definition and limitation. Thus, before we can apply Judge Black's language to a particular case, we mvust determine what act is "in its own essence lawfvil." What did Lord Halsbury mean by the words "lawful act" ? What is meant by "exercising a legal right" ? It is not at all correct to say that the motive with which an act is done is always immaterial, providing the act itself is not unlawful. Numerous illustrations of the contrary will be found in the civil as well as the criminal law. We do not intend to enter upon an elaborate discussion of the sub- ject,- or become entangled in the subtleties connected with the words- "malice" and "malicious." We are not able to accept without, limitations the doctrine above referred to, but at this time content ourselves with a brief reference to some general principles. It must be remembered that the common law is the result of growth, and that its development has been determined by the social needs of the commimity which it governs. It is the resultant of con- flicting social forces, and those forces which are for the time dom- inant leave their impress upon the law. It is of judicial origin, and seeks to establish doctrines and rules for the determination, protec- tion, and enforcement of legal rights. Manifestly it must change as society changes and new rights are recognized. To be an efficient instrument, and not a mere abstraction, it must gradually adapt- itself to changed conditions. Necessarily its form and substance have been greatly affected by prevalent economic theories. For generations there has been a practical agreement upon the proposition that competition in trade and business is desirable, and 262 LEGALITY OF ENDS PURSUED [CHAP. V this idea has found expression in the decisions of the courts as well as in statutes. But it has led to grievous and manifold wrongs to individuals, and many courts have manifested an earnest desire to protect, the individual from the evils which result from unrestrained business competition. The problem has been to so adjust matters as to preserve the principle of competition and yet guard against its abuse to the unnecessary injury to the individual. So the principle that a man may use his own property according to his own needs and desires, while true in the abstract, is subject to many limitations in the concrete. Men cannot always, in civiUzed society, be allowed to use their own property as their interests or desires may dictate without reference to the fact that they have neighbors whose rights are as sacred as their own. The existence and well-being of society require that each and every person shall conduct himself consistently with the fact that he is a social and reasonable person. The purpose for which a man is using his own property may thus sometimes de- termine his rights, and applications of this idea are found in Still- -water Water Co. v. Farmer, 89 Minn. 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St. 541, Id., 92 Minn. 230, 99 N. W. 882, and Barclay V. Abraham, 121 Iowa, 619, 96 N. W. 1080, 64 L. R. A. 255, 100 Am. St. 365. Many of the restrictions which should be recognized and enforced result from a tacit recognition of principles which are not often stated in the decisions in express terms. Sir Frederick Pollock notes that not many years ago it was] difficult to find any definite authority for stating as a general proposition of Enghsh law that it is wrong to do a wilful wrong to one's neighbor without lawful justification or excuse. But neither is there any express authority for the gen- eral proposition that men must perform their contracts. Both prin- ciples, in this generality of form and conception, are modern and there was a time when neither was true. After developing the idea that law begins, not with authentic general principles, but with the enumeration of particular remedies, the learned writer continues: "If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm, subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is con- cerned, namely, to abstain from wilful injury, to respect the prop- erty of others, and to use due diligence to avoid causing harm to others, are all alike of a comprehensive nature." Pollock, Torts (8th ed.), p. 21. He then quotes with approval the statement of Lord Bowen that "at common law there was a cause of action whenever one person did damage to another, wilfidly and inten- tionally, without just cause or excuse." ... It is freely conceded that there are many decisions contrary to this view; but, when carried to the extent contended for by the ap- pellant, we think they are unsafe, unsound, and illy adapted to SECT. I] GENERAL PRINCIPLES 263 modern conditions. To divert to one's self the customers of a busi- ness rival by the offer of goods at lower prices is in general a legit- imate mode of serving one's own interest, and justifiable as fair competition. But when a man starts an opposition place of business, not for the sake of profit to himself, but regardless of loss to him- self, and for the sole purpose of driving his competitor out of business, and with the intention of himself retiring upon the accomplishment of his malevolent purpose, he is guilty of a wanton wrong and an actionable tort. In such a case he would not be exercising his legal right, or doing an act which can be judged separately from the mo- tive which actuated him. To call such conduct competition is a. perversion of terms. It is simply the application of force without legal justification, which in its moral quality may be no better than highway robbery. Nevertheless, in the opinion of the writer this complaint is insuffi- cient. It is not claimed that it states a cause of action for slander. No question of conspiracy or combination is involved. Stripped of the adjectives and the statement that what was done was for the sole purpose of injuring the plaintiff, and not for the purpose of serv- ing a legitimate purpose of the defendant, the complaint states facts- which in themselves amotmt only to an ordinary everyday business transaction. There is no allegation that the defendant was inten- tionally rimning the business at a financial loss to himself, or that- after driving the plaintiff out of business the defendant closed up or intended to close up his shop. From all that appears from the com- plaint he may have opened the barber shop, energetically sought business from his acquaintances and the customers of the plaintiff, and as a result of his enterprise and command of capital obtained it, with the result that the plaintiff, from want of capital, acquaintance, or enterprise, was imable to stand the competition and was thus driven out of business. The facts thus alleged do not, in my opinion, in themselves, without reference to the way in which they are char- acterized by the pleader, tend to show a malicious and wanton wrong to the plaintiff. A majority of the justices, however, are of the opinion that, on the principle declared in the foregoing opinion, the complaint states, a cause of action, and the order is therefore affirmed. Affirmed. Jaggakd, J., dissents. 264 LEGALITY OF ENDS PURSUED [CHAP. V Section 2. Strikes to Secure Higher Wages, Shorter Hours, or Improved Working Conditions KARGES FURNITURE CO. v. AMALGAMATED WOOD- WORKERS' LOCAL UNION Supreme Coubt of Indiana. 1905 165 Ind. 421 Hadlet, J. Appellant brought this suit against the appellees, the Amalgamated Woodworkers' Union No. 131 of Evansville, an unincorporated labor organization, and its members, to enjoin them,; isuch members being on a strike, from picketing, intimidating, and otherwise interfering with the plaintiff's employees and business. The complaint, in two paragraphs, was answered by a general denial. There was a trial, special findings, and injimction awarded against fourteen of the appellees, and finding and decree in favor of the re- maining appellees, including said amalgamated woodworkers' union. The real question presented by the record is the refusal of the court to enjoin the defendant union and aU its members from picket- ing and otherwise intermeddling with appellant's business.' . . . Do the findings show a conspiracy to injure the plaintiff? A con- spiracy is defined to be "a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose; or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means." Commonwealth v. Hunt (1842), 4 Mete. Ill, 123, 38 Am. Dec. 346; Spies v. People (1887), 122 111. 1, 213, 12 N. E. 865, 17 N. E. 898, 3 Am. St. 320; 3 Green- leaf, Evidence (16th ed.), sec. 89. It is disclosed by the special findings that the woodworkers' union of Evansville had about six hundred members, all employed in the ten furniture factories in said city, and of the appellees nine were non-members and the others were members of the union. On March 17, 1903, at a nieeting of the union, it was resolved by a free vote of the members — 330 to 17 — that all members should, on April 1, 1903, as a body, discontinue their work at their several places of employment, unless meanwhile the employers, including the plain- tiff, should agree to an advance in wages, to a shorter work-day, and to furnish a scale of prices to be paid piece workers. All of the appellees, except the non-members, either voted for the resolution or subsequently ratified it. By order of the union, notice of the demands, signed by the president and secretary, was, on March 21, delivered to the plaintiff. On April 1, the demands upon the em- ' That portion of the opinion holding that no action could be maintained againat an unincorporated society or association, and that therefore "the court committed no error in denying an injunction against the appellee the Amal- gamated Woodworkers' Local Union No. 131," is omitted. —Ed. SECT. II] STRIKES FOR BETTER CONDITIONS 265 ployers not having been granted, all the plaintiff's employees, ex- cept about twenty, non-members of the union, each one acting voluntarily in concert with others and in pursuance of the agree- ment and vote, quit their employment and left the plaintiff's factory. Soon after the strike was inaugurated, the union, with the par- ticipation or subsequent ratification of the other appellees, organized a picket system, whereby pickets were regularly and daily main- tained in the vicinity of all the factories affected by the strike. . . . The pickets were uniformly instructed by the president and other officers of the union before going on duty to take note of those en- tering and leaving the factory, to ascertain their names and places of residence, and, as far as they could, by fair and peaceful means, to influence those remaining at work to quit, and prevent new men from entering to take the places of those on strike. . . . The peace- able policy adopted by the union, and given as instructions to the pickets, was adopted and given in good faith, and the defendants individually and collectively as members of the union, at all times intended to effectuate the purposes of the strike by lawful means, and not by violence, threats or intimidation. . . . On the 7th and 8th of April, and on subsequent days, certain of plaintiff's employees, on their way home from work, were stopped and followed by groups of men, including in some one or more of the groups the defendants John Gebhardt, Harry Thomas, John Kramer, John Mandel, John Siemers, Robert Fisher, Charles Lipking, Frank Barnes, Henry Pittineier, Frank Gebhardt, John Stock, Fred Wil- helm and Leander Cook, who in one instance assaulted said em- ployees, and in all instances called said employees offensive names, and cursed and threatened them with violence if they did not quit work in plaintiff's factory. On many other occasions others of the defendants stopped and visited the plaintiff's employees, and argued with them the propriety of quitting work; but such argument and conversations were held in a fair and friendly spirit, and devoid of any form of intimidation or offense. The withdrawal of the plaintiff's workmen and its inability to secm-e others to take their places so seriously impaired the productive capacity of the factory that the plaintiff was unable to fill the orders it had accepted, and it was thereby damaged, and had reasonable grounds to expect further and continuing damages. The employees who remained at work in plain- tiff's factory, except a few who afterwards quit on account of the strike and its consequences, are still employed therein. At the time of the strike part of the plaintiff's workmen were employed with- out any contract as to duration of service, and the others were em- ployed by the piece. It was not shown in evidence that the violence and intimidation mentioned above was ever reported to the union, or that the union had knowledge of any such proceedings. The court stated as conclusions of law: (1) That the plaintiff is entitled to an injunction as prayed against the defendants last 266 LEGALITY OF ENDS PUKSUED [CHAP. V above named; and (2) plaintiff is not entitled to an injunction against the defendant Amalgamated Woodworkers' Local Union No. 131, nor against any of the defendants whose names are not set out in the findings. J' All combinations are not conspiracies. It is fundamental under our form of government that all citizens in the race of life have a free and equal chance; that one may pin-sue the path he chooses and do whatever he deems best for himself, so long as he does not infringe upon the rights of another exercising a Kke and equal free- dom. Every absolute right has its Hmits, and to the extent of those limits it is the correlative duty of every other person to respect and refrain from obstructing by force, fraud, intimidation, or any other artificial means. It is the invasion of another's rights that con- stitutes a legal wrong and gives a basis for damages. A tradesman, singly or in combination with others, may lawfully advertise his goods, undersell, solicit, and win the customers of his rival, know- ing that he is thereby ruining the latter's business. This is competi- tion, and is what the law commends as "the life of trade." In such case one loses his property by the acts of his neighbor, but it is dam,' num absque injuria. But the contest must be a fair and honest one. If the same tradesman, singly or with others, advertises his goods, undersells, solicits, and wins away the customers of his rival by false representation, intimidation or artifice — not to better him- self, but to injure his rival — he has committed an actionable wrong. 1 Eddy, Combinations, sec 262, and note; Jackson v. Stanfield (1894), 137 Ind. 592, 23 L. R. A. 588. Another principle: Whatever one man may do, all men may do, and what all may do singly they may do in concert, if the sole pur- pose of the combination is to advance the proper interests of the members, and it is conducted in a lawful manner. Curran v. Galen (1897), 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. 496; Macauley Bros. v. Tiemey (1895), 19 R. I. 255, 33 Atl. 1, 37 L. R. A. 455, 61 Am. St. 770; 1 Eddy, Combinations, sec. 523; Clem- mitt V. Watson (1895), 14 Ind. App. 38. It is illegal under all circumstances for either the employed or employer to violate a contract, and, in the absence of existing con- tracts, employees have the same right to strike, or cease working in a body, that the employer has to dismiss them in a body. It may, therefore, be said that employees, under no contractual restraint, may lawfully combine, and by prearrangement quit their employ- J ment in a body, for the purpose of secin-ing from their employers an advance in wages, shorter hours, or any other legitimate benefit, even though they know at the time that such action will be attended with injury and damage to the business of their employer, provided the strike is carried on in a lawful manner — that is in a manner free from force, intimidation and false representation. 1 Eddy, Combinations, sees. 521-523; Gray v. Building Trades Council SECT. II] STRIKES FOR BETTER CONDITIONS 267 (1903), 91 Minn. 171, 179, 97 N. W. 663, 63 L. R. A. 753, 103 Am. St. 477; Wabash R. Co. v. Hannahan (1903), 121 Fed. 563, 56S; State V. Stockford (1904), 77 Conn. 227, 58 Atl. 769; National Protective Assn. v. Gumming (1902), 170 N. Y. 315, 63 N. E. 369, 59 L. R. A. 135, 88 Am. St. 648; Longshore Printing Co. v. Howell (1S94), 26 Ore. 527, 38 Pac. 547, 28 L. R. A. 464, 46 Am. St. 640; Arthur v. Oakes (1894), 63 Fed. 310, 11 C. C. A. 209, 25 L. R. A. 414; Ames v. Union Pac. R. Co. (1894), 62 Fed. 7; Thomas v. Cin- cinnati, etc., R. Co. (1894), 62 Fed. 803; Erdman v. Mitchell (1903), 207 Pa. St. 79, 56 Atl. 327, 63 L. R. A. 534, 99 Am. St. 783; 3 Cur- rent Law, p. 726; Ray, Contractual Lim., 338, 378; Greenhood, Public PoHcy, 650; Wood, Master and Servant (2d ed.), sec. 241; Beach, Monopolies and Industrial Trusts, sec. 102. The finding of the court is that fourteen members of the union, whose names are set out, were guilty of various acts of intimidation and violence, not while serving as pickets, but while lounging in the street, and as against these the application for injunction was sustained, but as against the other defendants and members of the union the court finds that thej', as individuals, and collectively as members of the union, at aU times intended to effectuate the objects of the strike by peaceful means, and without violence, threats, in- timidation or other unlawful methods, and so far as the findings show they continued to carry out their peaceful policy. These facts, under the authorities above cited, characterize the combination and concert of the defendants in striking as lawful and not amenable to injunction. That fourteen of the six hundred members of the imion did dis- regard the express instructions and declared poHcy of the union to conduct the strike peacefully, and of their own initiative indulged in acts of disorder calculated to, and did in fact, intimidate the plaintiff's employees, is not of itself sufficient to condemn the union as a body. The strike being properly conceived and conducted by the great majority of members, its purpose will not be defeated by the unlawful conduct of a few rowdies and law-breakers that may be found among them. "Where a combination or association is innocent in its inception," says a recent author, "but is afterwards perverted to unlawful ends, only those participating in the perver- sion are held to be conspirators." 1 Eddy, Combinations, sec. 368; Carew v. Rutherford (1870), 106 Mass. 1, 10; Commonwealth v. Hunt (1842), 4 Mete. Ill, 38 Am. Dec. 346, 355; Union Pac. R. Co. V. Ruef (1902), 120 Fed. 102. . . . The law, having granted workmen the right to strike to secure better conditions from their employers, grants them also the use of those means and agencies, not inconsistent with the rights of others, that are necessary to make the strike effective. This embraces the right to support their contest by argument, persuasion, and such favors and accommodations as they have within their control. The 268 LEGALITY OF ENDS PURSUED [CHAP. V law will not deprive endeavor and energy of their just reward, when exercised for a legitimate purpose and in a legitimate manner. So, in a contest between employees and employers on the one hand to secure higher wages, and on the other to resist it, arguments and persuasion to win support and cooperation from others are proper to either side, provided they are of a character to leave the persons solicited feeling at liberty to comply or not, as they please.' . . . Judgment affirmed. Section 3. Strikes to Secure Increased Opportunity of Employment PICKETT V. WALSH Supreme Judicial Coukt op Massachusetts. 1906 192 Mass. 572 LoRrNG, J. . . . The bill was brought to enjoin the defendants from combining and conspiring to interfere with the plaintiffs in pursuing their trade of brick and stone pointers. The purpose of the bill as stated in the prayers for relief was to enjoin the defend- ants ... (3) from combining and conspiring to interfere with the said complainants, or any of them, in the practice of their trade and occupation, or to prevent them from obtaining further em- ployment thereat.^ The defendants were the officers of two unincorporated brick- layers' unions, to wit. Unions No. 3 and No. 27, and of one stone masons' union, to wit. Union No. 9. . . . The individual defendants were one Driscoll, the walking delegate of the Bricklayers' Union No. 3, one Walsh, the walking delegate of the Stone Masons' Union No. 9, and other persons who were officers of those two unions. It appears from the evidence that the trade of brick and stone pointing is a trade which, in the neighborhood of the city of Boston at any rate, has been carried on to some extent as a separate trade for nearly if not quite one hundred years. It further appears that there are now some forty-five men engaged in that trade in the vicinity of that city. The trade of a brick or a stone pointer consists in going over a. building (generally when it is first erected) to clean it and to put a. finish on the mortar of the joints. Apparently in the city of Wor- cester, and to some extent in the city of Boston, this work of point- ing is done by bricklayers and stone masons. The dispute which gave rise to the suit now before us had its origin in a set of rules adopted in January, 1905, by the Bricklayers' and ' That portion of the opinion holding that peaceful picketing is in no sense illegal is omitted. — Ed. ' Only that part of the prayer for relief which relates to the third cause of action is given. — Ed. SECT. Ill] STRIKES TO SECURE EMPLOYMENT 269' Masons' International Union of America, to which the two unions, here in question were subordinate. This set of rules contained a provision that bricklaying masonry should consist (inter alia) of "all pointing and cleaning brick walls," and that stone masonry should consist (inter alia) of the "cleaning and pointing of stone work." The practical working of the principles of brick and stone masonry as defined in these rules was left to the subordinate unions. . . . There was an executive committee of the two unions. On July 28, 1905, this executive committee voted "that beginning Septem- ber 18, 1905, no member of the Bricklayers' and Masons' unions of Boston and vicinity, will work on any building where the con- tractor will not agree to have the pointing done by bricklayers or masons." This action of the executive committee was formally adopted by the Bricklayers' Union No. 3, and seems to have been informally adopted by the Stone Masons' Union No. 9. In pm-suance thereof the following circular letter was issued: "The Bricklayers' and Masons' Unions of Boston and vicinity have voted that no brick- layer or mason will work for any firm or contractor who will not employ bricklayers or masons to do the pointing of brick, terra cotta and stone masonry. This action to go into effect September 18, 1905." In September, 1905, L. D. Willcutt and Son as general contrac- tors were erecting (among other buildings) a stone building on th& corner of Massachusetts Avenue and Boylston Street in Boston. On the eighteenth day of that month, Mr. L. D. Willcutt of that. firm was notified that if he did not discharge the pointers who were working for his firm in pointing that building all the masons and bricklayers working for his firm on other buildings in Boston (all of whom were union men) would strike. Thereupon he suspended the work which was being done by the pointers on the building on the corner of Massachusetts Avenue and Boylston Street. This evidence was admitted to show that there was a general scheme that where pointing was given to any one beside union bricklayers and stone masons there would be a strike. . . . This bill was filed in the Superior Court on November 21, 1905. It seems to have come on for hearing on December 5, 1905. As we have said, the evidence was taken by a commissioner, a final decree in favor of the plaintiffs on all three grounds was made on Decem- ber 11, without any special findings of fact, and the case is here on appeal from that decree. It appeared from the testimony of Parker F. Soule (an officer of the L. P. Soule and Son Co.) that it was cheaper to make a con- tract with pointers for the work of pointing and cleaning than to employ stone masons and bricklayers to do that work. It appeared from other evidence that the wages of a bricklayer or stone mason 270 LEGALITY OF ENDS PUKSXJED [CHAP. V "were fifty-five cents an hour, while pointers are paid three dollars for a day of eight hours, or thirty-seven and one-half cents an hour. It further appeared from Mr. Soule's testimony that he preferred to give the work to the pointers because in cleaning a building acid has to be used, and, if the acid is used to excess, stains are caused Tvhich in some instances it is impossible to "get out"; and that he did not think that the bricklayers and stone masons were competent to use these acids. He also preferred to give the work to the pointers because the work which is done by the pointers usually is done by contract, in which case the general contractor who employs the point- ers is relieved from responsibility on account of accidents which may occur because of the fact that the work is done on a swinging stage, at times at great heights. Again it appeared from the evi- dence that L. P. Soule and Son Co. were not the only contractors who thought that they got better work at a smaller cost and with less Hability by making a contract with stone pointers for the doing of this work than by employing stone masons and bricklayers to do it. . . . There was evidence that at the interview between DriscoU and Mr. Willcutt, Mr. Willcutt told DriscoU that he did not believe that, when there were twelve hundred men in the union and thirty pointers outside, all this fuss was being made to get the pointers' work for the union men; that he thought it was "simply a question of dictation to us"; and on Mr. Willcutt's asking him (DriscoU) "Do you reaUy want it or do you want to drive the men out of busi- ness?" DriscoU smiled and said: "That is a charitable way of look- ing at it." There seem to be three causes of action upheld by the decree.^ . . . FinaUy, the plaintiffs sought to be protected against a strike by the defendants in order to get the work of pointing for the members of their unions. . . . We will consider first the last of the three causes of action. The question, so far as this the third cause of action goes (apart from a question of fact which we will deal with later on), is whether the defendant unions have a right to strike for the piupose for which they struck; or, to put it more accurately and more narrowly, it is this : Is a union of bricklayers and stone masons justified in striking to force a contractor to employ them by the day to do cleaning and pointing at higher wages than pointers are paid, where the con- tractors wish to make contracts with the pointers for such work to be done by the piece because they think they get better work at less cost with no liability for accidents, and where the pointers wish to make contracts for that work with the contractors on terms satis- factory to them? ' The first and second causes of action dealt with what amounted to a second- ary boycott. Only that part of the opinion which deals with the third cause of .action is given. — Ed. SECT. Ill] STEIKES TO SECURE EMPLOYMENT 271 In other words, we have to deal with one of the great and press- ing questions growing out of the existence! of the powerful combina- tions, sometimes of capital and sometimes of labor, which have been instituted in recent years where their actions come into con- flict with the interests of individuals. The combination in the case at bar is a combination of workmen, and the conflict is between a labor imion on the one hand and several unorganized laborers on the other hand. It is only in recent years that these great and powerful combina- tions have made their appearance, and the limits to which they may go in enforcing their demands are far from being settled. It is settled however that laborers have a right to organize as labor unions to promote their welfare. I\irther, there is no question of the general right of a labor union to strike. On the other hand it is settled that some strikes by labor unions are illegal. . , . The right of laborers to organize unions and to utilize such or- ganizations by instituting a strike is an exercise of the common law right of every citizen to pursue his calling, whether of labor or business, as he in his judgment thinks fit. It is pointed out in Carew V. Rutherford, 106 Mass. 1, 14, that in the earlier days of the colony the government undertook to control the conduct of labor and busi- ness to some extent, but that later this policy of regulation was abandoned and aU citizens were left free to piu-sue their calling, whether of labor or business, as seemed to them best. . . . This right of one or more citizens to piu-sue his or their calling as he or they see fit is limited by the existence of the same right in all other citizens. . . . We now have arrived at the point where a labor union, being an organization brought about by the exercise on the part of its members of the right of every citizen to pursue his calling as he thinks best, is limited in what it can do by the existence of the same right in each and every other citizen to pursue his and their calKng as he or they think best. In addition to the limitation thus put on labor unions there is a fact which puts a f\u-ther limitation on what acts a labor union can legally do. That is the increase of power which a combination of citizens has over the individual citizen. Take for example the power of a labor union to compel by a strike compliance with its demands. Speaking generally a strike to be successful means not only coercion and compulsion but coercion and compulsion which, for practical purposes, are irresistible. A successful strike by laborers means, in many if not in most cases, that for practical purposes the strikers have such a control of the labor which the employer must have that he has to yield to their demands. A single individual may well be left to take his chances in a struggle with another individual. But 272 JjEgality of ends pursued [chap, v in a struggle with a number of persons combined together to fight an individual the individual's chance is small, if it exists at all. It is plain that a strike by a combination of persons has a power of coercion which an individual does not have. . . . These being the general principles, we are brought to the question of the legality of the strike in the case at bar, namely, a strike of bricklayers and masons to get the work of pointing, or,, to put it more accurately, a combination by the defendants, who are brick- layers and masons, to refuse to lay bricks and stone where the point- ing of them is given to others. The defendants in effect say we want the work of pointing the bricks and stone laid by us, and you must give us all or none of the work. The case is one of competition between the defendant unions and the individual plaintiffs for the work of pointing. The work of pointing for which these two sets of workmen are competing is work which the contractors are obliged to have. Cne peculiarity of the case therefore is that the fight here is necessarily a triangular one. It necessarily involves the two sets of competing workmen and the contractor, and is not confined to the two parties to the contract, as is the case where workmen strike to get better wages from their employer or other conditions which are better for them. In this respect the case is like Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598; s. c. on appeal, [1892] A. C. 25. The right which the defendant unions claim to exercise in carry- ing their point in the course of this competition is a trade advantage, namely, that they have labor which the contractors want, or, if you please, cannot get elsewhere; and they insist upon using this trade advantage to get additional work, namely, the work of point- ing the bricks and stone which they lay. It is somewhat like the advantage which the owner of back land has when he has bought the front lot. He is not boxmd to sell them separately. To be sure the right of an individual owner to sell both or none is not decisive of the right of a labor union to combine to refuse to lay bricks or stone unless they are given the job of pointing the bricks laid by them. There are things which an individual can do which a com- bination of individuals cannot do. But having regard to the right on which the defendants' organization as a labor union rests, the correlative duty owed by it to others, and the limitation of the defendants' rights coming from the increased power of organiza- tion, we are of opinion that it was within the rights of these unions, to compete for the work of doing the pointing and, in the exercise of their right of competition, to refuse to lay bricks and set stone unless they were given the work of pointing them when laid. See in this connection Plant v. Woods, 176 Mass. 492, 502; Berry v. Donovan, 188 Mass. 353, 357. The result to which that conclusion brings us in the case at bar ought not to be passed by without consideration. SECT. Ill] STRIKES TO SECURE EMPLOYMENT 273 The result is harsh on the contractors, who prefer to give the work to the pointers because (1) the pointers do it by contract (in which case the contractors escape the liability incident to the relation of employer and employee) ; because (2) the contractors think that the pointers do the work better, and if not weU done the buildings may be permanently injured by acid; and finally (3) because they get from the pointers better work with less liability at a smaller cost. Again, so far as the pointers (who cannot lay brick or stone) are con- cerned, the result is disastrous. But all that the labor unions have done is to say you must employ us for all the work or none of it. They have not said that if you employ the pointers you must pay us a fine, as they did in Carew v. Rutherford, 106 Mass. 1. They have not undertaken to forbid the contractors employing pointers, as they did in Plant v. Woods, 176 Mass. 492. So far as the labor unions are concerned the contractors can employ pointers if they choose, but if the contractors choose to give the work of pointing the bricks and stones to others the unions take the stand that the contractors will have to get some one else to lay them. The effect of this in the case at bar appears to be that the contractors are forced against their will to give the work of pointing to the masons and bricklayers. But the fact that the contractors are forced to do what they do not want to do is not decisive of the legality of the labor union's acts. That is true wherever a strike is successful. The contractors doubtless would have liked it better if there had been no competition between the bricklayers' and masons' unions on the one hand and the individual pointers dn the other hand. But there is competition. There being competition, they prefer the course they have taken. They prefer to give all the work to the imions rather than get non-union men to lay bricks and stone to be pointed by the plaintiffs. Further, the effect of complying with the labor unions' demands apparently will be the destruction of the plaintiffs' business. But the fact that the business of a plaintiff is destroyed by the acts of the defendants done in pursuance of their right of competition is not decisive of the illegality of the acts. It was well said by Ham- mond, J., in Martell v. White, 185 Mass. 255, 260, in regard to the right of a citizen to pursue his business without interference by a combination to destroy it: "Speaking generally, however, com- petition in business is permitted, although frequently disastrous to those engaged in it. It is always selfish, often sharp, and sometimes deadly." ... The application of the right of the defendant unions, who are composed of bricklayers and stone masons, to compete with the individual plaintiffs, who can do nothing but pointing (as we have said), is in the case at bar disastrous to the pointers and hard on the contractors. But this is not the first case where the exercise of the right of competition ends in such a result. The case at bar 274 LEGALITY OF ENDS PXJKSTJED [CHAP. V is an instance where the evils which are or may be incident to com- petition bear very harshly on those interested, but in spite of such evils competition is necessary to the welfare of the commmiity. . . . It follows that the third clause of the decree, which follows the third prayer of the bill, must be striken out.' . . . So ordered} 1 The remainder of the opinion deals with the first and second causes of ac- tion, which give rise to issues quite distinct from the first. "The firm of L. P. Soule & Son Co. were the general contractors for the erection of the Ford Build- ing; but they had nothing to do with the employment of 'pointers.' The pointing of that building was being done under a contract between the owners of the building and Pickett, a pointer who was one of the plaintiffs. Other build- ings were being erected for other owners, on which the Soide Co. were the gen- eral contractors, and as to which no complaint existed in reference to the point- ing. The bricklaying and masonry on these other buildings were being done by members of the defendants' imion. The defendant ofiicials induced all the bricklayers and masons to quit working for the Soule Co. on these other build- ings, because that company 'was doing work on another building [the Ford Building] in which work was being done by pointers, employed not by the L. P. Soule & Son Co. but [by] the owners of the building.' The evident purpose was to thus induce the Soule Co. to exert pressure on the owners of the Ford Building to discontinue the employment of the pointers (Pickett el als.). The court held that this conduct was not justifiable. The decision is not based on the ground that the defendants were intentionally inducing, or attempting to induce, a breach of contract; but on the broad ground that the forcing a neutral third person to exert a pressure on the plaintiff's employer was not a lawful means of competition." (Condensed statement of fact taken from 20 H. L. R. 446.) Loring, J., said (192 Mass. 587): "That strike has an element in it like that in a sympathetic strike, in a- boycott and in a blacklisting, namely: It is a refusal to work for A, with whom the strikers have no dispute, because A works for B, with whom the strikers have a dispute, for the purpose of forcing A to force B to yield to the strikers' demands. In the case at bar the strike on the L. P. Soule and Son Co. was a strike on that contractor to force it to force the owner of the Ford Building to give the work of pointing to the defendant unions. That passes beyond a case of competition where the owner of the Ford Building is left to choose between the two competitors. Such a strike is in effect compelling the L. P. Soule and Son Co. to join in a boycott on the owner of the Ford Building. It is a combination by the union to obtain a decision in their favor by forcing third persons who have no interest in the dispute to force the employer to decide the dispute in their (the defendant unions') favor. Such a strike is not a justi- fiable interference with the right of the plaintiffs to pursue their calling as they think best. In our opinion organized labor's right of coercion and compulsion is hmited to strikes against persons with whom the organization has a trade dis- pute; or to put it in another way, we are of opinion that a strike against A, with whom the strikers have no trade dispute, to compel A to force B to yield to the strikers' demands, is an unjustifiable interference with the right of A to pursue his calling as he thinks best." ' Accord: Minasian v. Osborne, 210 Mass. 250 (strike to secure the abolition of a system of work felt by the workers to be unjust). SECT. IV] STRIKE>S TO UNIONIZE SHOPS 275 Section 4. Strikes to Force the Discharge of Non-Union Men and to Unionize Shops ALLEN V. FLOOD House of Lords. 1897 [1898] A. C. I ■ The facts material to this appeal (omitting matters not now in question) were as follows : In April, 1894, about forty boiler-makers, or "iron-men," were employed by the Glengall Iron Co. in repairing a ship at the company's Regent Dock in Millwall. They were mem- bers of the boiler-makers' society, a trade union, which objected to the employment of shipwrights on ironwork. On April 12 the re- spondents Flood and Taylor, who were shipwrights, were engaged by the company in repairing the woodwork of the same ship, but were not doing ironwork. The boiler-makers, on discovering that the respondents had shortly before been employed by another firm (Mills & Knight) on the Thames in doing ironwork on a ship, be- came much excited and began to talk of leaving their employment. One of them, Elliott, telegraphed for the appellant Allen, the Lon- don delegate of the boiler-makers' society. Allen came up on the 13th, and being told by Elliott that the iron-men, or some of them, would leave at dinner-time, replied that if they took the law into their own hands he would use his influence with the council of the society that they should be deprived of all benefit from the society and be fined, and that they must wait and see how things settled. AUen then had an interview with Halkett, the Glengall Co.'s man- ager, and Edmonds the foreman, and the result was that the respond- ents were discharged at the end of the day by Halkett. An action was then brought by the respondents against Allen for maliciously and wrongfully and with intent to injure the plaintiffs procuring and inducing the Glengall Co. to break their contract with the plain- tiffs and not to enter into new contracts with them, and also mali- ciously, etc., intimidating and coercing the plaintiffs to break, etc., and also unlawfully and maliciously conspiring with others to do the above acts. At the trial before Kennedy, J., and a common jury Halkett and Edmonds were called for the plaintiffs, and gave their account of the interview with Allen. In substance it was this: Allen told them that he had been sent for because Flood and Taylor were known to have done ironwork in Mills & Knight's yard, and that unless Flood and Taylor were discharged all the members of the boiler-makers' society would be "called out" or "knock off" work that day; they could not be sure which expression was used; that ' Some of the opinions are omitted, and of those quoted only comparatively brief extracts are given. — Ed. 276 LEGALITY OF ENDS PURSUED [CHAP. V Halkett had no option; that the iron-men were doing their best to put an end to the practice of shipwrights doing ironwork, and where- ever these men were employed, or other shipwrights who had done ironwork, the boiler-makers would cease work — in every yard on the Thames. Halkett said that if the boiler-makers (about 100 in all were employed) had been called out it would have stopped the company's business, and that in fear of the threat being carried out he told Edmonds to discharge Flood and Taylor that day, and that if he knew of any shipwrights having worked on ironwork elsewhere, when he was engaging men, for the sake of peace and quietness for themselves he was not to employ them. Allen was caUed for the defence. His account of the interview is discussed in the judgment of Lord Halsbury, L. C. Kennedy, J., ruled that there was no evidence of conspiracy, or of intimidation or coercion, or of breach of contract. Flood and Taylor having been engaged on the terms that they might be discharged at any time. In the ordinary course their employment would have continued till the repairs were finished or the work slackened. In reply to questions put by Kennedy, J., the jury found that AUen maliciously induced the Glengall Co. (1) to discharge Flood and Taylor from their employment; (2) not to engage them; that each plaintiff had suffered 201. damages; and that the settlement of the dispute was a matter within Allen's discretion. After considera- tion Kennedy, J., entered judgment for the plaintiffs for 401. This decision was affirmed by the Court of Appeal (Lord Esher, M. R., Lopes and Rigby, L. JJ.).' Against these decisions Allen brought the present appeal. It was argued first before Lord Halsbury, L. C, and Lords Watson, HerscheU, Macnaghten, Morris, Shand, and Davey on December 10, 12, 16, 17, 1895, and again (the following judges having been summoned to attend — Hawkins, Mathew, Cave, North, Wills, Grantham, Lawrance and Wright, JJ.) on March 25, 26, 29, 30, April 1, 2, 1897 before the same noble and learned lords, with the addition of Lords Ashbovirne, and James of Hereford. . . . Dec. 14. LoKD Halsbury, L. C. . . . The first objection made to the plaintiffs' right to recover for the loss which they thus un- doubtedly suffered is that no right of the plaintiffs was infringed, and that the right contended for on their behalf is not a right recog- nised by law, or, at all events, only such a right as everyone else is entitled to deprive them of if they stop short of physical violence or obstruction. I think the right to employ their labour as they will is a right both recognised by the law and sufficiently guarded by its provisions to make any undue interference with that right an ac- tionable wrong. Very early authorities in the law have recognised the right; and, in my view, no authority can be found which questions or qualifies it. The schoolmaster who complained that his scholars were being 1 [1895] 2 Q. B. 21. SECT. IV] STRIKES TO UNIONIZE SHOPS 277 assaulted and brougKt an action, the quarry owner who complained that his servants were Being menaced and molested, were both held to have a right of action. And it appears to me that the im- portance of those cases, and the principle established by them, have not been sufficiently considered. It is said that threats of violence or actual violence were unlawful means : the lawfulness of the means I will discuss hereafter. But the point on which these cases are important is the existence of the right. It was not the schoolmaster who was assaulted; it was not the quarry owner who was assaulted or threatened; but, nevertheless, the schoolmaster was held entitled to bring an action in respect of the loss of scholars attending his school, and the quarry owner in respect of the loss of workmen to his quarry. They were third persons; no violence or threats were apphed to them, and the cause of action, which they had a right to insist on, was the indirect effect upon themselves of violence and threats applied to others. My Lords, in my view these are binding authorities to shew that the preliminary question, namely, whether there was any right of the plaintiffs to pursue their calling unmolested, must be answered in the afl&rmative. The question of what is the right invaded would seem to be reasonably answered, and the universality of the right to all Her Majesty's subjects seems to me to be no argument against its existence. It is, indeed, part of that freedom from restraint, that Uberty of action, which, in my view, may be found running through the principles of our law. ... First it is said that the company were acting within their legal rights in discharging the plaintiffs. So they were; but does that affect the question of the responsibility of the person who caused them so to act by the means he used? The scholars who went away from the school were entitled to do so. The miners were entitled to cease working at the quarry. The natives were entitled to avoid running the risk of being shot; but the question is. What was the cause of their thus exercising their legal right? The question must be whether what was done in fact, and what did in fact procure the dismissal of the plaintiff, was an actionable wrong or not. I have never heard that a man who was dismissed from his service by reason of some slander could not maintain an action against the slanderer because the master had a legal right to discharge him. . . . But the objection made by the defendants appears to be that the word "mahcious" adds nothing; that if the thing was lawful it was lawful absolutely; if it was not lawful it was unlawful — the addition of the word "mahcious" can make no difference. The fallacy appears to me to reside in the assumption that everything must be absolutely lawful or absolutely unlawful. There are many things which may become lawful or unlawful according to circum- stances. 278 LEGALITY OF ENDS PURSUED [CHAP. V In a decision of this House it has undoubtedly been held that whatever a man's motives may be, he may dig into his own land and divert subterranean' water which but for his so treating his own land might have reached his neighbour's land. But that is because the neighbour had no right to the flow of the subterranean water in that direction, and he had an absolute right to do what he would with his own property. But what analogy has such a case with the intentional inflicting of injmy upon another person's prop- erty, reputation, or lawful occupation? To dig into one's own land under the circumstances stated requires no cause or excuse. He may act from mere caprice, but his right on his own land is abso- lute, so-long as he does not interfere with the rights of others. But, referring to Bowen, L. J.'s, observation, which to my mind is exactly accurate, "in order to justify the intentional doing of that which is calculated in the ordinary coiu-se of events to damage, and which does, in fact, damage another in that other person's property or trade," you must have some just cause or excuse. Now, the word "malicious" appears to me to negative just cause or excuse; and without attempting an exhaustive exposition of the word itself, it appears to me that, if I apply the language of Bowen, L. J., it is enough to shew that this was within the meaning of the law "malicious." It appears to me that no better illustration can be given of the distinction on which I am insisting between an act which can be legally done and an act which cannot be so done because tainted with malice, than such a colloquy between the representative of the master and the representative of the men as might have been held on the occasion which has given rise to this action. If the rep- resentative of the men had in good faith and without indirect mo- tive pointed out the inconvenience that might result from having two sets of men working together on the same ship, whose views upon the particular question were so diverse that it would be in- expedient to bring them together, no one could have complained; but if his object was to punish the men belonging to another union because on some former occasion they had worked on an iron ship, it seems to me that the difference of motive may make the whole difference between the lawfulness or unlawfulness of what he did. . . . My Lords, I regret that I am compelled to differ so widely with some of your Lordships; but my difference is founded on the belief that in denying these plaintiffs a remedy we are departing from the principles which have hitherto guided our courts in the preserva- tion of individual liberty to all. . . . LoHD Watson. . . . The whole pith of the verdict, in so far as it directly concerns the appellant, is contained in the word "mali- ciously" — a word which is susceptible of many different mean- ings. The expression "maliciously induce," as it occurs upon the face of the verdict, is ambiguous : it is capable of signifying that the SECT. IV] STRIKES TO TJNIONIZE SHOPS 279 appellant knowingly induced an act which of itself constituted a civil wrong, or it may simply mean that the appellant procured, with intent to injure the respondents, an act which, apart from motive, would not have amounted to a ciyil wrong; and it is, in my opinion, material to ascertain in which of these senses it was used by the jury. Although the rule may be otherwise with regard to crimes, the law of England does not, according to my apprehension, take into account motive as constituting an element of civil wrong. Any in- vasion of the civil rights of another person is in itself a legal wrong, carrying with it liabihty to repair its necessary or natural conse- quences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad, or indifferent. But the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due. A wrongful act, done knowingly and with a view to its injurious consequences, may, in the sense of law, be malicious; but such malice derives its essential character from the circumstance that the act done constitutes a violation of the law. . . . The root of the principle is that, in any legal question, malice depends, not upon evil motive which influenced the mind of the actor, but upon the illegal character of the act which he contem- plated and committed. In my opinion it is alike consistent with reason and common sense that when the act done is, apart from the feeUngs which prompted it, legal, the civil law ought to take no cognizance of its motive. It does not appear to me to admit of doubt that the jury, in find- ing the action of the company to have been maliciously induced by the appellant, simply meant to affirm that the appellan,t was in- fluenced by a bad motive, namely, an intention to injure the respond- ents in their trade or calling of shipwrights. . . . It is, in my opinion, the absolute right of every workman to exer- cise his own option with regard to the persons in whose society he wiU agree or continue to work. It may be deplorable that feefings of rivalry between different associations of working men should ever run so high as to make members of one union seriously object to continue their labour in company with members of another trade union; but so long as they commit no legal wrong, and use no means which are illegal, they are at perfect liberty to act upon their own views. That the boiler-makers who were employed at the Regent Dock, MniwaU, did seriously resent the presence among them of the respondents very plainly appears from the evidence of the respond- ents themselves; and that they would certainly have left the dock had the respondents continued to be employed appears to me to be an undoubted fact in the case. They were not under any con- tinuing engagement to their employers, and, if they had left their work and gone out on strike, they would have been acting within 280 LEGALITY OF ENDS PtTRSIJED , [CHAP. V their right, whatever might be thought of the propriety of the pro- ceeding. Not only so; they were, in my opinion, entitled to inform the Glengall Iron Co. of the step which they contemplated, as well as of the reasons by which they were influenced, and that either by their own mouth, or, as they preferred, by the appellant as their representative. ... Having come to the conclusion with the majority of your Lord- ships who have heard the appeal, that the doctrine advanced by the respondents is neither sound in principle nor supported by authority, I move that the order appealed from be reversed, and judgment entered for the appellant. . . . Lord Heeschell. . . . The Master of the Rolls declined in the present case to define what was meant by "maliciously": he con- sidered this a question to be determined by a jury. But if acts are, or are not, unlawful and actionable, according as this element of malice be present or absent, I think it is essential to determine what is meant by it. I can imagine no greater danger to the community than that a jury should be at liberty to impose the penalty of pay- ing damages for acts which are otherwise lawful, because they choose, without any legal definition of the term, to say that they are mali- cious. No one would know what his rights were. The result would be to put all our actions at the mercy of a particular tribimal whose view of their propriety might differ from our own. However malice may be defined, if motive be an ingredient of it, my sense of the danger would not be diminished. ... If the fact be that malice is the gist of the action for inducing or procuring an act to be done to the prejudice of another, and not that the act induced or procured is an unlawful one as being a breach of contract or otherwise, I can see no possible ground for confining the action to cases in which the thing induced is the not entering into a contract. It seems to me that it must equally lie in the case of every lawful act which one man induces another to do where his purpose is to injure his neigh- bour or to benefit himself at his expense. I cannot hold that such a proposition is tenable in principle, and no authority is to be found for it. I should be the last to suggest that the fact that there was no precedent was in all cases conclusive against the right to maintain an action. It is the function of the courts to apply established legal principles to the changing circumstances and conditions of human life. But the motive of injuring one's neighbour or of benefit- ing oneself at his expense is as old as human nattire. It must for centuries have moved men in countless instances to persuade others to do or to refrain from doing particular acts. The fact that under such circumstances no authority for an action founded on these ele- ments has been discovered does go far to shew that such an action cannot be maintained. I think these considerations (subject to a point which I will presently discuss) are sufficient to shew that the present action cannot be maintained. . . . SECT. IV] STRIKES TO UNIONIZE SHOPS 281 I understood it to be admitted at the Bar, and it was indeed stated by one of the learned judges in the Court of Appeal, that it would have been perfectly lawful for all the ironworkers to leave their employment and not to accept a subsequent engagement to work in the company of the plaintiffs. At all events, I cannot doubt that this would have been so. I cannot doubt either that the appellant or the authorities of the union would equally have acted within his or their rights if he or they had "called the men out." They were members of the union. It was for them to determine whether they would become so or not, and whether they would follow or not fol- low the instructions of its authorities, though no doubt if they had refused to obey any instructions which under the rules of the union it was competent for the authorities to give they might have lost the benefits they derived from membership. It is not for your Lord- ships to express any opinion on the policy of trade unions, member- ship of which may imdoubtedly influence the action of those who have joined them. They are now recognised by law; there are com- binations of employers as well as of employed. The members of these imions, of whichever class they are composed, act in the in- terest of their class. If they resort to unlawful acts they may be indicted or sued. If they do not resort to unlawful acts they are entitled to further their interests in the manner which seems to them best, and most likely to be effectual. . . . Whether we approve or disapprove of such attempted trade restrictions, it was entirely within the right of the ironworkers to take any gteps, not unlawful, to prevent any of the work which they regarded as legitimately theirs being entrusted to other hands. . . . The object which the defendant, and those whom he represented, had in view through- out was what they believed to be the interest of the class to which they belonged; the step taken was a means to that end. The act which caused the damage to the plaintiffs was that of the iron com- pany in refusing to employ them. The company would not sub- ordinate their own interests to the plaintiffs. It is conceded that they could take this course with impunity. Why, then, should the defendant be liable because he did not subordinate the interests of those he represented to the plaintiffs'? Self interest dictated alike the act of those who caused the damage, and the act which is found to have induced them to cause it. . . . I do not doubt that everyone has a right to pursue his trade or employment without "molestation" or "obstruction" if those terms are used to imply some act in itself wrongful. This is only a branch of a much wider proposition, namely, that everyone has a right to do any lawful act he pleases without molestation or obstruction. 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 excused or justified, I say that such a proposition in my opinion has no solid foundation in reason to rest upon. A man's 282 LEGALITY OF ENDS PURSUED [CHAP. V right not to work or not to pursue a particular trade or calling, or to determine when or where or with whom he will work is in law a right of precisely the same nature, and entitled to just the same pro- tection as a man's right to trade or work. They are but examples of that wider right of which I have already spoken. That wider right embraces also the right of free speech. A man has a right to say what he pleases, to induce, to advise, to exhort, to command, provided he does not slander or deceive or commit any other of the wrongs known to the law of which speech may be the medium. Un- less he is thus shewn to have abused his right, why is he to be called upon to excuse or justify himself because his words may interfere with some one else in his calling? . . . The notion that there may be a difference in this respect between acts affecting trade or employment and other acts seems to be largely founded on certain dicta of Bowen, L. J., in the case of the Mogul Steamship Co. ... In that case the very object of the defendants was to induce shippers to contract with them, and not to contract with the plaintiffs, and thus to benefit themselves at the expense of the plaintiffs, and to injure them by preventing them from getting a share of the carrying trade. Its express object was to molest and interfere with the plaintiffs in the exercise of their trade. It was said that this was held lawful because the law sanctions acts which are done in furtherance of trade competition. I do not think the decision rests on so narrow a basis, but rather on this, that the acts by which the competition was pursued were aU lawful acts, that they were acts not in themselves wrongful, but a mere exercise of the right to contract with whom, and when, and under what circumstances and upon what conditions they pleased. I am aware of no groimd for saying that competition is regarded with special favour by the law; at all events, I see no reason why it should be so regarded. It may often press as hardly on individuals as the defendant's acts are alleged to have done in the present case. But if the alleged exception could be established, why is not the present case within it? What was the object of the defendant, and the workmen he represented, but to assist themselves in their competition with the shipwrights? A man is entitled to take steps to compete to the best advantage in the employment of his laboiu-, 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. The inducement the appellant used to further his end was the prospect that the members of his union would not work in company with what they deemed unfair rivals in their calling. What is the difference between this case and that of a imion of shipowners who induce merchants not to enter into con- tracts with the plaintiffs, by the prospect that if at any time they employ the plaintiffs' ships they will suffer the penalty of being made to pay higher charges than their neighbours at the time when SECT. IV] STRIKES TO UNIONISE SHOPS 283 the defendants' ships alone visit the ports? In my opinion there is no difference in principle between the two cases. . . . For the reasons I have given I think the judgment should be re- versed, and judgment entered in the action for the defendant with costs. . . . Lord Macnaghten. My- Lords, I am sorry to say that I must begin by recapitulating the facts of the case. For the findings of the jury, taken by themselves, do not convey to my mind any def- inite meaning. The jury have found that the appellant Allen "mah- ciously induced" the Glengall Iron Co. to discharge the respondents from their service, and they have awarded damages in consequence. I do not know what the jury meant by the word "induced"; I am not sure that I know what they meant by the word "maliciously." Sometimes, indeed, I rather doubt whether I quite understand that unhappy expression myself. I am therefore compelled to turn for help to the evidence at the trial. . . . So we see now, I think, what the findings of the jury come to if they are to be treated as being in accordance with the evidence. They must mean that Allen induced the company to discharge the plaintiffs, by representing to the manager, not otherwise than in accordance with the truth, the state of feeKng in the yard, and the intentions of the workmen, and that he did so "maliciously," be- cause he must have known what the issue of his communication to the manager would be, and naturally perhaps he was not sorry to see an example made of persons obnoxious to his union. But is his conduct actionable? It would be very singular if it were. No ac- tion would lie against the company for discharging the two ship- wrights. No action would lie against the iron-men for striking against them. No action would lie against the officers of the union for sanctioning such a strike. But if the respondents are right the person to answer in damages is the man who happened to be the medium of communication between the iron-men and the company — the most innocent of the three parties concerned, for he neither set the "agitation" on foot, nor did he do anything to increase it, nor was his the order that put an end to the connection between employer and employed. It seems to me that the result would have been just the same if Edmonds had told Mr. Halkett what was going" on in the yard, or if Mr. Halkett had learned it from Flood and Taylor themselves. Even if I am wrong in my view of the evidence and the verdict, if the verdict amoimts to a finding that Allen's conduct was mali- cious in every sense of the word, and that he procured the dismissal of Flood and Taylor, that is, that it was his act and conduct alone which caused their dismissal, and if such a verdict were warranted by the evidence, I should still be of opinion that judgment was wrongly entered for the respondents. I do not think that there is 284 LEGALITY OF ENDS PURSUED [CHAP. V any foundation in good sense or in authority for the proposition that a person who suffers loss by reason of another doing or not doing some act which that other is entitled to do or to abstain from doing at his own will and pleasure, whatever his real motive may be, has a remedy against a third person who, by persuasion or some other means not in itself unlawful, has brought about the act or omission from which the loss comes, even though it could be proved that such person was actuated by malice towards the plaintiff, and that his conduct if it could be inquired into was without justification or excuse. . . . Suppose a customer, not content with taking away his own cus- tom, says something not slanderous or otherwise actionable or even improper in itseK to induce a friend of his not to employ the trades- man any more. Neither the one nor the other is liable for taking away his own custom. Is it possible that the one can be made liable for inducing the other not to employ ,the person against whom he has a grudge.'' If so, a fashionable dressmaker might now and then, I fancy, be plaintiff in a very interesting siiit. The truth is that questions of this sort belong to the province of morals rather than to the province of law. Against spite and malice the best safeguards are to be found in self-interest and public opinion. Much more harm than good would be done by encouraging or permitting in- quiries into motives when the immediate act alleged to have caused the loss for which redress is sought is in itself innocent or neutral in character, and one which anybody may do or leave undone without fear of legal consequences. Such an inquisition would, I think, be intolerable, to say nothing of the probability of injustice being done by juries in a class of cases in which there would be ample room for speculation and wide scope for prejudice. ... I cannot, there- fore, agree with the late Master of the Rolls in thinking that the act complained of was "wrongful" because it was "malicious," and that if there be a malicious act, and loss resulting from that act, it does not matter whether there has been a violation of right or not. I am of opinion that jugdment should be entered for the appel- lant. . . . Lord Shand. My Lords, I am of opinion that the judgment com- plained of should be reversed, and judgment entered for the defend- ant with costs. . . . If anything is clear on the evidence, it seems to me to be this — that the defendant was bent, and bent exclusively, on the object of furthering the interests of those he represented in all he did — that this was his motive of action, and not a desire, to use the words of the learned judge, "to do mischief to the plaintiffs in their lawful calling." The case was one of competition in labour, which, in my opinion, is in all essentials analogous to competition in trade, and to which SECT. IV] STRIKE3S TO UNIONIZE SHOPS 285 the same principles must apply; and I ask myself what would be the thought of the application of the word "malicious" to the con- duct of a tradesman who induces the customer of another trades- man to cease making purchases from one with whom he had long dealt, and instead to deal with him, a rival in trade. The case be- fore the jury was, in my view, in no way different, except that in the one case there was competition in labour — in the other there would be competition in trade. Some of the learned consulted judges speak of Allen's conduct as having been caused by a desire to inflict "punishment" on the shipwrights for past acts, and indicate that, if the shipwrights had been actually working at ironwork on the vessel at the time, the case would have been different. I cannot agree in any such view. "Punishment" in a wide and popular sense may possibly be used, though incorrectly, to describe the boiler-makers' action; but it is quite clear that what they were resolved to do, and really did, was, while marking their sense of the injury which they thought (rightly or wrongly is not the question) the shipwrights were doing to them in trenching on their proper line of business, to take a practical meas- ure in their own defence. Their object was to benefit themselves in their own business as working boiler-makers, and to prevent a recurrence in the future of what they considered an improper in- vasion on their special department of work. How this could pos- sibly be regarded as "mahcious," even in any secondary sense that can reasonably be attributed to that ter.-n, I cannot see. . . . Coming now directly to the merits of the question in controversy in the case, the argument of the plaintiffs and the reasons for the opinions of the majority of the consulted judges seem to me to failj. because, although it is no doubt true that the plaintiffs were entitled to pursue their trade as workmen "without hindrance," their right to do so was qualified by an equal right, and indeed the same right, on the part of other workmen. The hindrance must not be of ah unlawful character. It must not be by unlawful action. Amongst the rights of all workmen is the right of competition. In the like manner and to the same extent as a workman has a right to pursue his work or labour without hindrance, a trader has a right to trade without hindrance. That right is subject to the right of others to trade also, and to subject him to competition — competition which is in itself lawful, and which cannot be complained of where no unlawful means (in the sense I have already explained) have been employed. The matter has been settled in so far as competition in trade is concerned by the judgment of this House in the Mogul Steamship Co. Case, [1892] A. C. 25. I can see no reason for saying that a different principle should apply to competition in labour. In the course of such competition, and with a view to secure an advan- tage to himself, I can find no reason for saying that a workman is not within his legal rights in resolving that he will decline to work 286 LEGALITY OF ENDS PURSUED [CHAP. V in the same employment with certain other persons, and in intimat- ing that resolution to his employers.^ . . . Order of the Court of Appeal reversed and judgment entered for the appellant with costs here and below including the costs of the trial; cause remitted to the Queen's Bench Division, QUINN V. LEATHEM House of Loeds. 1901 [1901] A. C. 495 This was an action, tried before FitzGibbon, L. J., at the Bel- fast Summer Assizes, 1896, brought against tiie defendants for damages for maliciously and wrongfully procuring certain persons to break contracts into which they had entered with the plaintiff, and not to enter into other contracts with the plaintiff; and for maliciously and wrongfully enticing and procuring certain work- men in the employment of such persons to leave the service of their employers, and to break their contracts of service, with intent to injure the plaintiff, and to prevent such persons from carrying out their contracts with the plaintiff, and from entering into other con- tracts with the plaintiff; and for maliciously and wrongfully in- timidating such persons, and coercing them to break their contracts with the plaintiff, and not to enter into other contracts with the plaintiff; and intimidating such servants in their employ, and coerc- ing them to leave the service of their employers, to the injury of the plaintiff; and for unlawfully conspiring, together with other per- sons, to do the acts aforesaid, with intent to injure the plaintiff. . . . The following facts were proved. The plaintiff was a butcher at Lisburn, in the county of Antrim, about eight miles from Belfast, where he had carried on business for a nimiber of years. He had in his employment one Robert Dickie, his foreman, who had been with him for ten years. The plaintiff had been in the habit of sending large quantities of meat to Andrew Munce, a butcher in Belfast, and had been doing so for some twenty years. There was no con- tract in writing between them; but, whatever amount the plaintiff sent, Munce took and paid for — the amount being, on an average, of the value of £30 a week. The defendants John Craig, John Davey, and Joseph Quinn, were butchers' assistants in Belfast; and the defendants, Henry Dornan and Robert Shaw, butchers' assistants in Lisburn. In the spring of 1895 these defendants and several others in the same oc- cupation formed themselves into an association, which was duly registered under the Trade Union Acts, 1871 and 1876, under the title ' The opinions of Lord Ashbourne and Lord Morris, concurring with Lord Halsbury, and those of Lord Davey and Lord James of Hereford, in favor of reversing the order of the Court of Appeal are omitted. — Ep. SECT. IV] STRIKES TO UNIONIZE SHOPS 287 of "The Belfast Journeymen Butchers Assistants' Association,'" of which the defendant Davey became the secretary. The plaintiff's men were not members of the association. At the commencement of July, 1895, the defendants' association required the plaintiff to dismiss Robert Dickie from his employment, which he refused to do. Upon that the defendants' society threatened to withdraw the plaintiff's men from his service. A deputation was sent down to meet the plaintiff at Lisburn, and a meeting was held in Magill's public-house, Lisburn, on the 9th July, at which the defendants Craig, Quinn, Dornan, and Shaw were present — Craig being in the chair. The plaintiff stated that he had come on behalf of his men, and was ready to pay all fines and demands against them, and asked to have them adnytted into the society. The defendant Shaw ob- jected, and said that the plaintiff's men should be punished, and should be put out to walk the streets for twelve months. The plain- tiff objected to this, as Dickie was a married man with a family. Shaw moved and Morgan seconded a resolution that the plaintiff's assistants should be called out, and it was carried. The defend- ants stated that they could pick out plenty of men to work for the plaintiff from their hst; the plaintiff replied that they were not suitable for his business, and refused to put his own men out. Craig then said that the plaintiff's meat would be stopped at Mxmce's, if the plaintiff would not comply with their wishes. The plaintiff still refused. The defendants then called out some of the plain- tiff's employees. Edward Dickie, a servant of the plaintiff was brought to a meeting of the defendants' society, held over Dornan's shop in Lisburn, and was ordered to leave the plaintiff, the society undertaking to pay him the same wages as he had been receiving from the plaintiff. Dickie, yielding to this order, left the plaintiff without notice. . . . On the 18th September, Davey wrote to Andrew Mimce: "Have submitted your letter to committee. They are of opinion that in the main it is unsatisfactory, but thanking you kindly for your recommendation to Mr. Leathem, with whom we have en- deavoured to make a satisfactory arrangement, but have failed, so therefore have no other alternative but to instruct your employees, to cease work inmaediately Leathem's beef arrives." On the 19th September Munce telegraphed to Leathem: "Unless you arrange with society you need not send any beef this week, as men are ordered to quit work." Munce ceased to deal with the plaintiff, and the plaintiff was obliged to sell off the meat he had on hand at a heavy loss at any price he could get. In consequence of these transactions the plain- tiff's business was ruined. The case was tried before FitzGibbon, L. J., at the Summer Assizes of 1896, at Belfast. The defendants did not offer any evi- dence, their counsel asking for a direction on the grounds, — 1, that 288 LEGALITY OF ENDS PURSUED [CHAP. V io sustain the action a contract made with Leathern must be proved to have been made and broken through the acts of the defendants, and that there was no evidence of such contract or breach; 2, that there was no evidence of pecuniary damage to the plaintiff through the acts of the defendants; 3, that the ends of the defendants and the means taken by them to promote those ends as appearing in evidence were legitimate, and there was no evidence of actual dam- age to the plaintiff. The learned Lord Justice declined to withdraw the case from the jury, and left to them the following questions : 1. Did the defendants, or any of them, wrongfully, and maliciously induce the customers or servants of the plaintiff named in the evi- dence to refuse to deal with the pla-intiff? ^ — Answer: Yes. 2. Did the defendants, or any two or rnore of them, maliciously •conspire to induce the plaintiff's customers or servants named in the evidence, or any of them, not to deal with the plaintiff or not to continue in his employment; and were such persons so induced not so to do ? — Answer: Yes. . . . FitzGibbon, L. J., in summing up, told the jury that pecuniary . loss, directly caused by the conduct of the defendants, must be proved in order to establish a cause of action, and he advised theim "to require to be satisfied that such loss to a substantial amount had been proved by the plaintiff. He declined to tell them that, if actual and substantial pecuniary loss was proved to have been directly caused to the plaintiff by the wrongful acts of the defendants, they were bound to limit the amount of damages to the precise sum so proved. He told them that, if the plaintiff gave the proof of actual and substantial loss necessary to maintain the action, they were at liberty in assessing damages to take all the circumstances of the case, including the conduct of the defendants, reasonably into ac- count. The Lord Justice did not tell the jury that the Habihty of the defendants depended on any question of law. He told them that the questions left to them were questions of fact to be deter- mined on the evidence, but that they included questions as to the intent of the defendants, and, in particular, their intent to injure the plaintiff in his trade as distinguished from the intent of legit- imately advancing their own interests. The Lord Justice did not tell the jury that the defendants could be directly asked what their own intention was, but he did tell them that their intention was to be inferred from their acts and conduct as proved, and that, in act- ing upon the evidence given by the plaintiff, they were at liberty to have regard to the fact that the defendants, who might have given the best evidence on the subject, had not been produced to explain, qualify, or contradict, any of the evidence given for the plaintiff as to their own acts. Upon the meaning of the words "wrongfully and maUciously" in the questions, the Lord Justice told the jury that they had to consider whether the intent and actions of the defendants SECT. IV] STRIKES TO UNIONIZE SHOPS 289 -went beyond the Tmits which would not be actionable, namely, se^iiring or advancing their own interests, or those of their .trade, by reasonable means, including lawful combination, or whether their acts, as proved, were intended and calculated to injure the plaintiff in his trade, through a combination, and with a common purpose, to prevent the free action of his customers and servants in deaHng with him, with the effect of actually injuring him as dis- tinguished from acts legitimately done to secure or advance their own interests. Finally he told the jury that acts done with the object of increasing the profits or raising the wages of any combina- tion of persons such as the society to which the defendants belonged, whether employers or employed, by reasonable and legitimate means, were perfectly lawful and were not actionable so long as no wrongful act was maliciously — that is intentionally — done to injure a third party. To constitute such a wrongful act for the purposes of this case, the Lord Justice told the jury that they must be satisfied that there had been a conspiracy, a conmion intention, and a combination, on the part of the defendants to injure the plain- tiff in his business; and that acts must be proved to have been done by the defendants in furtherance of that intention which had in- flicted actual money loss upon the plaintiff in his trade; and that whether the acts of the defendants were or were not in that sense actionable, was the question which the jury had to try upon the evidence. The jury found for the plaintiff with £250 damages, of which £50 was separately assessed for damages on the cause of action relating to the "black list," and £200 for damages on the other causes of action; and judgment was thereupon entered for the plaintiff for £250 damages and costs. The defendants now moved to set aside the verdict and judg- ment so had, and that judgment should be entered for them on the ground of misdirection; or for a new trial, on the ground that the damages were excessive. "^ . . . ' In the Irish Court of Appeal (Lord Ashbourne, L. C, Porter, M. R., Walker and Holmes, L. JJ.) the decision below was affirmed with costs, the judgment for the plaintiff being amended by omitting the part as to the recovery of 501. damages. Quinn alone brought the present appeal. . . . Aug. 5. Eael of Halsbubt, L. C.^ My Lords, in this case the plaintiff has by a properly framed statement of claim complained of the defendants, and proved to the satisfaction of a jury that the ' This statement of fact is taken from the report of the case in L. R., Ireland (1899), 2 Q. B. & Ex. Div. 667. ' Only comparatively brief portions of the opinions are given. Separate opinions in favor of dismissing the appeal were rendered by Lord Chancellor Halsbury, and by Lords Macnaghten, Shand, Brampton, Robertson, and Lindley. — Ed. 290 LEGALITY OF ENDS PURSUED [CHAP. V defendants have wrongfully and maliciously induced customer^ and servants to cease to deal with the plaintiff, that the defendants did this in pursuance of a conspiracy framed among them, that in pursuance of the same conspiracy they induced servants of the plaintiff not to continue in the plaintiff's employment, and that all this was done with malice in order to injure the plaintiff, and that it did injure the plaintiff. If upon these facts so found the plaintiff could have no remedy against those who had thus injured him, it could hardly be said that our jurisprudence was that of a civihzed community, nor indeed do I understand that any one has doubted that, before the decision in Allen v. Flood, [1898] A. C. 1, in this House, such fact would have established a cause of action against the defendants. . . . Now, the hypothesis of fact upon which Allen v. Flood was decided by a majority in this House was that the defendant there neither uttered nor carried into effect any threat at all: he simply warned the plaintiff's employers of what the men themselves, without his persuasion or influence, had determined to do, and it was certainly proved that no resolution of the trade union had been arrived at at all, and that the trade imion official had no authority himself to call out the men, which in that case was argued to be the threat which coerced the employers to discharge the plaintiff. It was further an element in the decision that there was no case of conspiracy or even combination. What was alleged to be done was only the independ- ent and single action of the defendant, actuated in what he did by the desire to express his own views in favour of his fellow mem- bers. . . . Now, in this case it cannot be denied that if the verdict stands there was conspiracy, threats, and threats carried into execution, so that loss of business and interference with the plaintiff's legal rights are abundantly proved. . . . This case is distinguished in its facts from those which were the essentially important facts in Allen V. Flood. . . . Lord Macnaghten. ... I do not think that the acts done by the defendants were done "in contemplation or furtherance of a trade dispute between employers and workmen." So far as I can see, there was no trade dispute at all. Leathern had no difference with his men. They had no quarrel with him. For his part he was quite willing that all his men should join the union. He offered to pay their fines and entrance moneys. What he objected to was a cruel punishment proposed to be inflicted on some of his men for not having joined the union sooner. There was certainly no trade dispute in the case of Munce. But the defendants conspired to do harm to Munce in order to compel him to do harm to Leathem, and so enable them to wreak their vengeance on Leathem's servants who were not members of the union. I also think that the provision in the Conspiracy and Protection SECT. IV] STRIKES TO UNIONIZE SHOPS 291 of Property Act, 1875, which says that in certain cases an agree- ment or combination is not to be "indictable as a conspiracy," has nothing to do with civil remedies. . . . Lord Shand. ... As to the vital distinction between Allen v. Flood and the present case, it may be stated in a single sentence. In AUen v. Flood the purpose of the defendant was by the acts com- plained of to promote his own trade interest, which it was held he was entitled to do, although injurious to his competitors, whereas in the present case, while it is clear there was combination, the pur- pose of the defendants was "to injure the plaintiff in his trade as distinguished from the intention of legitimately advancing their own interests." . . . The ground of judgment of the majority of the House, however varied in expression by their Lordships, was, as it appears to me, that Allen in what he said and did was only exercising the right of himself and his fellow workmen as competitors in the labour mar- ket, and the effect of injury thus caused to others from such com- petition, which was legitimate, was not a legal wrong. It is only necessary to add that the defendants here have no such defence as legitimate trade competition. Their acts were wrongful and malicious in the sense found by the jury : — that is to say, they acted by conspiracy, not for any purpose of advancing their own interests as workmen, but for the sole purpose of injuring the plain- tiff in his trade. I am of opinion that the law prohibits such acts as im justifiable and illegal; that by so acting the defendants were guilty of a clear violation of the rights of the plaintiff, with the re- sult of causing serious injury to him, and that the case of Allen v. Flood, as a case of legitimate competition in the labour market, is essentially different, and gives no ground for the defendant's argu- ment. I concur with your Lordships in holding that there is not sufficient ground for disturbing the verdict on the question of damages, and in holding that the special provision of the 3d section of the Con- spiracy Act of 1875 has no application to the circumstances of this case. . . . LoHD BK-iMPTON. ... In this case the alleged cause of action is very different from that in Allen v. Flood. It is not dependent upon coercion to break any particular contract or contracts, though such causes of action are introduced into the claim; but the real and substantial cause of action is an unlaivful conspiracy to molest the plaintiff, a trader in carrying on his business, and by so doing to invade his undoubted right, thus described by Alderson, B., in delivering the judgment of the Exchequer Chamber in Hilton v. Eckersley, 6 B. & B. 74: "Prima facie it is the privilege of a trader in a free country in aU matters not contrary to law to regulate his own mode of carrying it on according to his own discretion and choice. If the law has in any matter regulated or restrained his 292 LEGALITY OF ENDS PURSUED [CHAP. V mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion." ... I cannot suppose any intelligent person reading the evidence adduced on the trial of this case failing to come to the conclusion that the acts complained of amounted to a serious and wrongful invasion of the plaintiff's trade rights, and I am at a loss to com- prehend upon what ground it is that the defendants seek to justify or excuse their action towards him. . . . My noble friend, the Lord Chancellor, accurately siumned up the position of things in the Mogul Case, [1892] A. C. 25, in these words: "What legal right was interfered with? What coercion of the mind, wiU, or person is effected? All are free to trade on what terms they will, and nothing has been done except in rival trading which could be supposed to interfere with the appellant's interests." But I wiU not Hnger upon a consideration of what may be done in competition, for competition is not even suggested as a justifica- tion of the acts now complained of — acts of wanton aggression the outcome of a malicious but successful conspiracy to harm the plain- tiff in his trade. It cannot be — it was not even suggested — that these acts were done in furtherance of any of the lawful objects of the association as set forth in their registered rules, according to the statutory re- quirement, or in support of any lawful right of the association or any member of it, or to obtain or maintain fair hours of labour or fair wages, or to promote a good understanding between employers and employed and workman and workman, or for the settlement of any dispute, for none had existence. It would, indeed, be a strange mode of promoting such good understanding to coerce a tradesman's customers to leave him because he would not, at the bidding of the association, dismiss workmen who desired to continue in his service and whom he wished to retain to make way for others he did not want. I will deal now with the conspiracy part of the claim. . . . It has often been debated whether, assuming the existence of a conspiracy to do a wrongful and harmful act towards another and to carry it out by a number of overt acts, no one of which taken singly and alone would, if done by one individual acting alone and apart from any conspiracy, constitute a cause of action, such acts would become unlawful or actionable if done by the conspirators acting jointly or severally in pursuance of their conspiracy, and if by those acts substantial damage was caused to the person against whom the conspiracy was directed: my own opinion is that they would. ... It is at all times a painful thing for any individual to be the object of the hatred, spite, and ill-will of any one who seeks to do him harm. But that is as nothing compared to the danger and alarm created by a conspiracy formed by a number of unscru- pulous enemies acting under an illegal compact, together and sep- SECT. IV] STRIKES TO UNIONIZE SHOPS 293 arately, as often as opportunity occurs regardless of law, and actuated by malevolence, to injure him and all who stand by him. Such a- conspiracy is a powerful and dangerous engine, which in this case has, I think, been employed by the defendants for the perpetration of organized and ruinous oppression. I think the judgment in the court below ought to be affirmed and this appeal dismissed with costs. . . . Lord Lindley. My Lords, the case of Allen v. Flood has so im- portant a bearing on the present appeal that it is necessary to as- certain exactly what this House reaUy decided in that celebrated case. ... My Lords, this decision, as I imderstand it, establishes two prop- ositions: one a far-reaching and extremely important proposition of law, and the other a comparatively unimportant proposition of mixed law and fact, useful as a guide, but of a very different char- acter from the first. The first and important proposition is that an act otherwise law- ful, although harmful, does not become actionable by being done, maliciously in the sense of proceeding from a bad motive, and with intent to annoy or harm another. This is a legal doctrine not new or laid down for the first time in AUen v. Flood; it had been gaining ground for some time, but it was never before so fully and authori- tatively expounded as in that case. In applying this proposition care, however, must be taken to bear in mind, first, that in Allen v. Flood criminal responsibility had not to be considered. It would revolutionise criminal law to say that the criminal responsibility for conduct never depends on intention. Secondly, it must be borne in mind that even in considering a person's liability to civil proceed- ings the proposition in question only applies to "acts otherwise lawful," i. e., to acts involving no breach of duty, or, in other words, no wrong to any one. I shall refer to this matter later on. The second proposition is that what Allen did infringed no right of the plaintiffs, even although he acted maliciously and with a view to injure them. I have already stated what he did, and all that he did, in the opinion of the majority of the noble Lords. If their view of the facts was correct, their conclusion that Allen infringed no right of the plaintiffs is perfectly intelligible, and indeed unavoid- able. Truly, to inform a person that others will annoy or injiire him unless he acts in a particular way cannot of itself be action- able, whatever the motive or intention of the informant may have been. . . . I will pass now to the facts of this case, and consider (1) what the plaintiff's rights were; (2) what the defendants' conduct was; (3) whether that conduct infringed the plaintiff's rights. For the sake of clearness it will be convenient to consider these questions in the first place apart from the statute which legalises strikes, and in. the next place with reference to that statute. 294 LEGALITY OF ENDS PURSUED [CHAP. V 1. As to the plaintiff's rights. He had the ordinary rights of a British subject. He was at hberty to earn his own Uving in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved liberty to deal with other persons who were willing to deal with him. This liberty is a right recognised by law; its correlative is the general duty of every one not to pre- vent the free exercise of this liberty, except so far as his own liberty of action may justify him in so doing. But a person's liberty or right to deal with others is nugatory, unless they are at hberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justi- fiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it ha.9 nisually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffered from such wrongs. But if the interference is wrongful and is intended to damage a third per- son, and he is damaged in fact — in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified — the whole aspect of the case is changed : the wrong done to others reaches him, his rights are infringed although indirectly, and dam- age to him is not remote or unforeseen, but is the direct consequence of what has been done. Our law, as I tmderstand it, is not so defec- tive as to refuse him a remedy by an action under such circumstances. The cases collected in the old books on actions on the case, and the illustrations given by the late Bowen, L. J., in his admirable judg- ment in the Mogul Steamship Co.'s Case, 23 Q. B. D. 613, 614, may be referred to in support of the foregoing conclusion, and I do not Understand the decision in Allen v. Flood to be opposed to it. If the above reasoning is correct, Lumley v. Gye, 2 E. & B. 216, was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, nor indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him. . . . 2. I pass on to consider what the defendants did. The appel- lant and two of the other defendants were the officers of a trade union, and the jury have found that the defendants wrongfully and maliciously induced the customers of the plaintiff to refuse to deal with him, and maliciously conspired to induce them not to deal with him. There were similar findings as to inducing serv- ants of the plaintiff to leave him. What the defendants did was to threaten to call out the union workmen of the plaintiff and of his customers if he would not discharge some non-union men in SECT. IV] STRIKES TO UNIONIZE SHOPS 295 his employ. In other words, in order to compel the plaintiff to dis- 'charge some of his men, the defendants, threatened to put the plain- tiff and his customers, and persons lawfully working for them, to all the inconvenience they could without using violence. The de- fendants' conduct was the more reprehensible because the plaintiff offered to pay the fees necessary to enable his non-union men to become members of the defendants' union; but this would not satisfy the defendants. The facts of this case are entirely different from those which this House had to consider in Allen v. Flood. In the present case there was no dispute between the plaintiff and his men. None of them wanted to leave his employ. Nor was there any dispute between the plaintiff's customers and their own men, nor between the plaintiff and his customers, nor between the men they respectively employed. . . . 3. The remaining qusstion is whether such conduct infringed the plaintiff's rights so as to give him a cause of action. In my opinion, it plainly did. The defendants were doing a great deal more than exercising their own rights; they were dictating to the plaintiff and his customers and servants what they were to do. The defendants were violating their duty to the plaintiff and his customers and servants, which was to leave them in the undisturbed enjoyment of their liberty of action as already explained. What is the legal justification or excuse for such conduct? None is alleged, and none can be found. This violation of duty by the defendants resulted in damage to the plaintiff — - not remote, but immediate and in- tended. The intention to injure the plaintiff negatives all excuses and disposes of any question of remoteness of damage. Your Lord- ships have to deal with a case, not of damnum absque injuria, but of damnum cum injuria. ... In this country it is now settled by the decision of this House in the case of the Mogul Steamship Co. that no action for a conspiracy lies against persons who act in concert to damage another and do damage him, but who at the same time merely exercise their own rights and who infringe no rights of other pepple. Allen v. Flood emphasises the same doctrine. The prin- ciple was strikingly illustrated in the Scottish Cooperative Society V. Glasgow Fleshers' Association, 35 Sc. L. R. 645, which was re- ferred to in the course of the argument. . . . The cardinal point of distinction between such cases and the pres- ent is that in them, although damage was intentionally inflicted on the plaintiffs, no one's right was infringed — no wrongful act was committed; whilst in the present case the coercion of the plaintiff's customers and servants, and of the plaintiff through them, was an infringement of their liberty as well as his, and was wrongful both to them and also to him, as I have already endeavoured to shew. Intentional damage which arises from the mere exercise of the rights of many is not, I apprehend, actionable by our law as now settled. To hold the contrary would be unduly to restrict the liberty ^96 LEGALITY OF ENDS PUKSUED [CHAP. V of one set of persons in order to uphold the liberty of another set. According to our law, competition, with all its drawbacks, not only between individuals, but between associations, and between them and individuals, is permissible, provided nobody's rights are in- fringed. The law is the same for all persons, whatever their callings: it applies to masters as well as to men; the proviso, however, is all- important, and it also applies to both, and limits the rights of those who combine to lock-out as well as the rights of those who strike. . . . I pass now to consider the effect of the statute, 38 & 39 Vict. c. 86.' This Act clearly recognises the legality of strikes and lock-outs up to a certain point. It is plainly legal now for workmen to combine not to work except on their own terms. On the other hand, it is clearly illegal for them or any one else to use force or threats of violence to prevent other people from working on any terms which they think proper. But there are many ways short of violence, or the threat, of it, of compelling persons to act in a way which they do not like. . . . Assuming that there was a trade dispute within the meaning of sec. 3, and that an indictment for conspiracy could not be sustained in a case like this, the difference between an indictment for a conspiracy and an action for damages occasioned by a conspiracy is very marked and is well-known. An illegal agreement, whether carried out or not, is the essential element in a criminal case ; the damage done by several persons acting in concert, and not the criminal conspiracy, is the im- portant element in the action for damages.^ In my opinion, it is quite clear that sec. 3 has no application to civil actions: it is confined en- tirely to criminal proceedings. . . . The appellant seeks by means of Allen V. Flood, and by logical reasoning based upon some passages in the judgments given by the noble Lords who decided it, to drive your Lordships to hold that boycotting by trades unions in one of its most objectionable forms is lawful, and gives no cause of action to its victims although they may be pecuniarily ruined thereby. My Lords, so to hold would, in my opinion, be contrary to well- settled principles of English law, and would be to do what is not yet a.uthorised by any statute or legal decision. In my opinion this appeal ought to be dismissed with costs. Order appealed from affirmed and appeal dismissed with costs. COMMONWEALTH v. HUNT Supreme Judicial Court of Massachusetts. 1842 4 Meicalf, 111 See supra, page 104, for a report of the case. ' See giipra, p. 23. ^ See 1 Wm. Saund. 229"'b, 230, and Barber v. Lesiter, 7 C. B. (n. s.) 175. SECT. IV] STRIKES TO UNIONIZE SHOPS 297 BOWEN V. MATHESON Supreme Judicial Court of Massachusetts. 1867 14 Allen, 499 Tort. The declaration was as follows: "And the plaintiff says that on the 17th day of July curreni, and for thirty years previous thereto, he had followed the business and calling of shipping-master and agent in Boston; had acquired great experience therein, and a numerous and valuable set of customers and employers; and, from the pursuit thereof, had acquired great gains, and had established a valuable and lucrative business; all of which was well known to the defendants. Yet the defendants heretofore, to wit, on the first day of June, 1863, and from that time forward to the present time, un- lawfully and maliciously conspired together, and with others whose names are to the plaintiff unknown, for their own private good and ends, and to injure the plaintiff in his business and calling, and to control the business of the shipping-masters of Boston, for their own private good and ends, by compelling them to ship all their seamen from them, and their fellow-conspirators, and at rates established by them, and to destroy the business and calling of such shipping- masters and agents as disregarded their terms, rates and rules, a copy of which is hereto annexed. And now the plaintiff avers that he dis- regarded said conspirators, and their rates and rules, pursued his. said business as aforetime, and according to law; and that the said defendants, pursuing their said conspiracy, counselled and agreed among themselves and their fellow-conspirators that they and their fellow-conspirators should and would prevent the plaintiff's obtain- ing any seamen as shipping-master, and counselled and agreed among themselves, as aforesaid, to refuse to ship any seamen to him as shipping-master; and to refuse to allow any seamen boarding at their houses to ship with him at his shipping-office, to prevent his obtain- ing any seamen; to prevent any seamen going in any ship for which he was acting as shipping-master and agent; and publicly to notify merchants and ship-masters not to employ him; and publicly give notice that said plaintiff had been ' laid on the shelf,' meaning thereby that they, the said conspirators and their fellow-conspirators, were acting against him, as aforesaid. And the plaintiff avers that the said defendants, with their fellow-conspirators as aforesaid, in pur- suance of their conspiracy as aforesaid, did each and every of the above acts and things against the plaintiff; did take their men out of ships because the plaintiff's men were in the same; did refuse to furnish and ship men to him; did prevent men from shipping with him; did notify the public that they had laid him on the shelf; did publicly notify his customers and friends that he could not ship sea- men for them; did interfere with his business, as aforesaid; did pre- vent his getting seamen to ship; did prevent his getting employ as 298 LEGAI.ITY OF ENDS PURSUED [CHAP. Y shipping-master; and did break up the plaintiff in his business and caUing by their conspiracy, acts and doings, as aforesaid, and compel him to abandon his said business." . . . The defendants filed a general demurrer; and the case was re- served, by Gray, J., for the determination of the whole court. Chapman, J. The gist of the plaintiff's action is not the con- spiracy alleged in the declaration, but the damage done to the plain- tiff by the alleged acts of the defendants; and the averment that the acts were done in pursuance of a conspiracy does not change the nature of the action. Parker v. Huntington, 2 Gray, 124. In order to be good, the declaration must allege against the defendants, the commission of illegal acts. Its allegations must be analyzed, to. ascertain whether they contain a sufficient statement of such acts. The first allegation as to what they did is very loose and general, namely, that, in pursuance of their conspiracy as aforesaid, they did each and every of the above acts and things against the plaintiff. Then follows an enumeration of the acts. (1) "Did take their men out of ships because the plaintiff's men were in the same." We can- not see that this act is in itself unlawful. It does not appear that they were under any obligation to keep their men on board the same ship with the plaintiff's men, or violated the rights of the plaintiff or of any other person in taking them out. (2) "Did refuse to furnish and ship men to him." Such refusal is lawful in the absence of any legal obligation to furnish and ship men to him, and no such obliga- tion is stated. (3) "Did prevent men from shipping with him."^ This might be done in many ways which are lawful and proper, and as no illegal methods are stated the allegation is bad. (4) "Did notify the public that they had laid him on the sheff." In another part of the declaration this is alleged to mean that the defendants "were acting against him as aforesaid." It does not appear to be slanderous, and therefore is not actionable. (5) "Did publicly notify his customers and friends that he could not ship seamen for them." This is not actionable, because it does not appear that he had a right to ship seamen for them. (6) "Did interfere with his business as aforesaid; did prevent his getting seamen to ship; did prevent his getting employ as shipping-master; and did break up the plaintiff in his business and calling by their conspiracy, acts and doings, as aforesaid, and compel him to abandon his said business." All this adds nothing to the substantial allegations of acts done by the defendants, but is to be regarded as alleging the consequences of the acts before alleged. If we look at the allegations of acts done in connection with the intent set forth, we must look into the rules and regulations referred to, a copy of which is annexed to the declaration. They are entitled "Constitution and By-laws of the Seamen's Mutual Benefit Asso- ciation of the city of Boston." No person can be a member who does not keep a regular seaman's boarding-house. Members are SECT. IV] STRIKES TO UNIONIZE SHOPS 299 forbidden to ship seamen for less than certain specified rates of wages. They are to use their best endeavors to prevent their boarders from shipping in any vessel when any of the crew are shipped from boarding-houses that are not in good standing with the association. Other articles relate to the duties of the members towards each other, in endeavoring to secure payment of board-bills, and not taking ad- vantage of each other. We can see nothing criminal in any of these stipulations;, see Commonwealth v. Hunt, 4 Met. Ill; and nothing illegal. 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 transact- ing business often destroy the business of those who adhere to old methods. Sometimes associations break down the business of in- dividuals, and sometimes an individual is able to destroy the busi- ness of associated men. It would be nothing novel if the plaintiff in the exercise of his ingenuity should in his turn adopt some improve- ment that shall compel the defendants to dissolve their connection. As the declaration sets forth no illegal acts on the part of the defend- ants, the demurrer must be sustained.* STATE V. DONALDSON Supreme Coukt of New Jerset. 1867 32 N. J. L. 151 This was a motion to quash an indictment charging a conspiracy, which had been brought into this court by certiorari. The substantial facts constituting the alleged crime were these, viz., that the defendants, and divers other evil disposed persons, etc., being journeymen workmen employed by Richmond Ward, John C. Little, and others, who then and there were engaged together in the manufacture of patent leather, and as curriers, maliciously, to control, injure, terrify, and impoverish their said employers, and force and compel them to dismiss from their said employment cer- tain persons, to wit, Charles Beggan and William Pendergrast, then and there retained by their said employers as journeymen and work- men for them, and to injure said Charles and William, and without having any lawful cause of objection to said Charles and William, unlawfully did conspire, combine, confederate, and agree together to quit, leave, and turn out from their said employment, until and unless the said last mentioned journeymen and workmen should be dismissed by their said employers. The indictment then further charged, that in pursuance of such conspiracy, they gave notice of their agreement to their said employers, and required them to dis- charge the said Charles and WiUiam, which, being refused, they ' Compare Brewster v. Miller's Sons Co., 101 Ky. 368. 300 LEGALITY OF ENDS PUKSIIED [CHAP. T quitted their said employment, and remained away until their demand was complied with. The motion was argued before the Chief Justice, and Justices Bedle and Dalrimple. The opinion of the court was delivered by Beasley, C. J. There is, perhaps, po crime, an exact definition of which it is more difficult to give than the offence of conspiracy. That a combination of persons to effect an end, itself of an indict- able nature, will constitute this crime, is clear; nor is there any more doubt that, though the purpose the confederacy is designed to accomplish be not cruninal, yet if the means adopted be of an in- dictable character, this offence is likewise committed. Thus far the limits are clearly defined, and embrace, without exception, all cases which fall within them. But when we proceed one step be- yond the lines thus marked out, the cases which have been adjudged to be conspiracies appear to stand apart by themselves, and are devoid of that analogy to each other which would render them suscep- tible of classification. It is certain, however, that there are a num- ber of cases, in which neither the purpose intended to be accomplished nor the means designed to be used were criminal, which have been regarded to be indictable conspiracies. And yet it is obvious that, in the nature of things, it cannot be every collusion between two or more persons to do an unlawful act, or an indifferent act by unlaw- ful means, which will constitute an offence of a public nature; for if this were so, a large portion of the transactions which, in the or- dinary course of litigation between party and party, comes before the courts, would assume a criminal aspect, in which the state would have an interest. Indeed, I think it may be said that there are, comparatively, but few cases of combinations in which indictability does not attach, either to the end in view, or to the instrumentalities devised, which are punishable by a public prosecution. ... In the case of The State v. Norton, 3 Zab. 44, . . . Chief Justice Green, in stating his conclusion, after an examination of the subject, re- marks, "the great weight of authority, the adjudged cases, no less than the most approved elementary writers, sustain the position, that a conspiracy to defraud individuals or a corporation of their property, may, in itself, constitute an indictable offence, though the act done, or proposed to be done in pursuance of the conspiracy, be not, in itself, indictable." The rule of law thus enunciated appears to me to be the correct one. There are a number of cases which cannot be sustained upon any other doctrine. To this class belongs the decision that it was a conspiracy to induce a young female, by false representations, to leave the protection of the house of her parent, in order to facilitate her prostitution. Rex v. Lord Grey, 3 Hargrave's State Trials, 519; Rex V. Sir Francis Deleval and others, 3 Burr. 1434. So a conspiracy to impoverish a tailor, and prevent him, by indirect means, from SECT. IV] STRIKES TO UNIONIZE SHOPS 301 carrying on his trade, The King v. Eccles, 3 Dougl. 337. So a con- spiracy to marry paupers, with a view to charge one parish and exonerate another. Rex v. Tarrent, 4 Burr. 2106; or to charge a man with being the father of a bastard, Rex v. Armstrong, 1 Vent. 304; Rex v. Kimberty, 1 Lev. 62; Rex v. Timberly, Sid. 68; or a combination to impoverish a class of persons. Rex v. Sterhng, 1 Lev. 125; s. c, Sid. 174. These are all cases, it will be noticed, in which the act which formed the foundation of the indictment would not, in law, have constituted a crime, if such act had been done by an individual, the combination being alone the quality of the trans- actions which made them respectively indictable. I conclude, then, that there is no uncertainty in this legal topic to this extent, in addition to the principles before adverted to, that cases may occur in which the pm-pose designed to be accomplished becomes punitive, as a public offence, solely from the fact of the ex- istence of a confederacy to effect such- purpose. It is certainly not to be denied, however, that great practical difficulty is experienced whenever any attempt is made to lay down any general rules by which to discriminate that class of combinations which becomes thus punishable, from those which are to be regarded in their results- as mere civil injuries, remediable by private suit. It may be safely said, nevertheless, that a combination will be an indictable con- spiracy, whenever the end proposed, or the means to be employed are of an highly criminal character; or where they are such as in- dicate great malice in the confederates; or where deceit is to be^ used, the object in view being unlawful; or where the confederacy, having no lawful aim, tends simply to the oppression of individuals- A careful analysis of the cases which have been heretofore adjudged, will reveal the presence of one or more of the qualities here enumer- ated; to this extent, therefore, they may be relied on as safe criteria, whereby to test new emergencies as they may be presented for ad- judication. In view, then, of these general deductions, and guided by the de- cisions above cited, let us turn orn- attention to the particular in- dictment now before us. The substantial offence charged is, that the defendants combined to compel their employer to discharge certain of their fellow work- men, the means adopted to enforce this concession being an an- nounced determination to quit their employment in a body and by a simultaneous act. ... It appears to me that it is not to be denied, that the alleged aim of this combination was unlawful; the effort was to dictate to this y employer whom he should discharge from his employ. This was an unwarrantable interference with the conduct of his business, and it seems impossible that such acts should not be, in their usual effects, highly injurious. How far is this mode of dictation to be held law- ful? If the manufacturer can be compelled in this way to discharge; 302 LEGALITY OF ENDS PURSUED [CHAP. V two or more hands, he can, by similar means, be coerced to retain such workmen as the conspirators may choose to designate. So his customers may be proscribed, and his business in other respects con- trolled. I cannot regard such a course of conduct as lawful. It is no answer to the above considerations to say, that the employer is not compelled to submit to the demand of his employees; that the penalty of refusal is simply that they wiU leave his service. There is this coercion: the men agree to leave simultaneously, in large numbers and by preconcerted action. We cannot close our eyes to the fact, that the threat of workmen to quit the manufacturer, un- der these circumstances, is equivalent to a threat, that unless he yield to their unjustifiable demand, they will derange his business, and thus cast a heavy loss upon him. The workmen who make this threat imderstand it in this sense, and so does their employer. In such a condition of affairs, it is idle to suggest that the manufacturer is free to reject the terms which the confederates offer. In the natural position of things, each man acting as an individual, there would be no coercion; if a single employee should demand the discharge of a co-employee, the employer would retain his freedom, for he could entertain or repel the requisition without embarrassment to his concerns; but in the presence of a coalition of his employees, it would be but a waste of time to pause to prove that, in most cases, he must submit, under pain of often the most ruinous losses, to the conditions imposed on his necessities. It is difficult to beheve that a right exists in law, which we can scarcely conceive can produce, in any posture of affairs, other than injurious results. It is simply the right of workmen, by concert of action, and by taking advan- tage of their position, to control the business of another. I am un- willing to hold that a right which cannot, in any event, be advan- tageous to the employee, and which must be always hurtful to the employer, exists in law. In my opinion, this indictment sufficiently shows that the force of the confederates was brought to bear upon their employer for the purpose of oppression and mischief, and that this amounts to a conspiracy. I also think this result is sustained by aU the judicial opinion which has heretofore been expressed on this point. In substance, the indictment in this case is similar to that in Rex v. Ferguson and Edge, 2 Stark. R. 489. ... So in Rex v. Rickerdyke, 1 M. & Rob. 179, the same doctrine was maintained. . . . These two cases, it will be observed, sustain with entire aptness the opinion above expressed, and I have not found any of an opposite tendency. As to the case of The Commonwealth v. Hunt, 4 Met. Ill, it is clearly distinguishable, and I concur entirely, as well with the principles embodied in the opinion which was read in the case, as in the re- sult which was attained. The foundation of the indictment in that case, was the formation of a club by journeymen boot-makers, one of the regulations of which was, that no person belonging to it should SECT. rv3 STRIKES TO UNIONIZE SHOPS 303 work for any master worlcmen who should employ any journeyman or other workman who should not be a member of such club. Such a combination does not appear to possess any feature of illegality, for the law will not intend, without proof, that it was formed for the accomplishment of any illegal end. "Such an association," says Chief Justice Shaw, in his opinion, "might be used to afford each other assistance in times of poverty, sickness, and distress; or to raise their intellectual, moral, or social condition; or to make improvements in their art; or for other purposes." The force of this association was not concentrated with a view to be exerted to oppress any individual, and it was consequently entirely unlike the case of men who take advantage of their position, to use the power, by a concert of action, which such position gives them, to compel their employer to a certain line of conduct. The object of the club was to establish a general rule for the regulation of its members; but the object of the combination, in the case now before this court, was to occasion a particular resxilt which was mischievous, and by means which were oppressive. The two cases are not parallel, and must be governed by entirely different considerations. The motion to quash should not prevail^ NATIONAL PROTECTIVE ASSOCIATION OF STEAM FITTERS AND HELPERS v. GUMMING Court of Appeals op New York. 1902 170 N. Y. 315 Pabker, Ch. J. The order of the Appellate Division should be affirmed, on the ground that the facts found do not support the judg- ment of the Special Term. In the discussion of that proposition I shall assume that certain principles of law laid down in the opinion of Judge Vann are correct, namely: "It is not the duty of one man to work for another unless he has agreed to, and if he has so agreed but for no fixed period, either may end the contract whenever he chooses. The one may work, or re- fuse to work, at will, and the other may hire or discharge at will. The terms of employment are subject to mutual agreement, without let or hindrance from any one. If the terms do not suit, or the em- ployer does not please, the right to quit is absolute, and no one may demand a reason therefor. Whatever one man, may do alone, he may do in combination with others, provided they have no unlaw- ' "The doctrine of the old cases, of which we have in New Jersey an interest- ing example in State v. Donaldson . . . which placed the employee when acting in combination with his fellow-workmen at a tremendous disadvantage as com- pared with his employer, I think may be regarded as entirely exploded." Jersey CSty Printing Co. v. Cassidy, 63 N. J. Eq. 759 at p. 762 (1902). Compare People v. Smith, 6 N. Y. Crim. Rep. 509 (1887) (criminal conspiracy). 304 LEGALITY OF ENDS PURSUED [CHAP. V ful object in view. Mere numbers do not ordinarily affect the quality of the act. Workingmen have the right to organize for the purpose of securing higher wages, shorter hours of labor or improving their relations with their employers. They have the right to strike; that is, to cease working in a body by pre-arrangement until a grievance is redressed, provided the object is not to gratify malice or inflict injury upon others, but to secure better terms of employment for themselves. A peaceable and orderly strike, not to harm others, but to improve their own condition, is not in violation of law." Stated in other words, the propositions quoted recognize the right of one man to refuse to work for another on any ground that he may regard as sufficient, and the employer has no right to demand a reason for it. But there is, I take it, no legal objection to the em- / ployee's giving a reason, if he has one, and the fact that the reason ^ given is, that he refuses to work with another who is not a member of his organization, whether stated to his employer or not, does not affect his right to stop work nor does it give a cause of action to the workman to whom he objects because the employer sees fit to dis- charge the man objected to rather than lose the serdces of the ob- jector. The same rule applies to a body of men who, having organized for purposes deemed beneficial to themselves, refuse to work. Their /reasons may seem inadequate to others, but if it seems to be in their /interest as members of an organization to refuse longer to work, it is their legal right to stop. The reason may no more be demanded, as a right, of the organization than of an individual, but if they elect to state the reason their right to stop work is not cut off because the reason seems inadequate or selfish to the employer or to organized society. And if the conduct of the members of an organization is legal in itself, it. does not become illegal because the organization directs one of its members to state the reason for its conduct. The principles quoted above recognize the legal right of members of an organization to strike, that is, to cease working in a body by pre-arrangement until a grievance is redressed, and they enumerate some things that may be treated as the subject of a grievance, namely, the desire to obtain higher wages, shorter hours of labor or im- proved relations with their employers, but this enumeration does not, I take it, purport to cover all the grounds which will lawfully justify members of an organization refusing, in a body and by pre- arrangement, to work. The enumeration is illustrative rather than comprehensive, for the object of such an organization is to benefit all its members and it is their right to strike, if need be, in order to secure any lawful benefit to the several members of the organiza- tion as, for instance, to secure the re-employment of a member they regard as having been improperly discharged, and to secure from an employer of a number of them employment for other members of their organization who may be out of emplo-ment, although the SECT. IV3 STEIKES TO UNIONIZE SHOPS 305 effect wUl be to cause the discharge of other employees who are not raembers. And whenever the courts can see that a refusal of members of an organization to work with non-members may be in the interest of the several membersj it will not assimie, in the absence of a finding to the contrary, that the object of such refusal was solely to gratify malice and to inflict injury upon such non-members. A number of reasons for the action of the organization will at once suggest themselves in a case hke this. One reason apparent from the findings in this case, as I shall show later, is the desire of the organization that its own members may do the work the non- members are performing. And another most important reason is suggested by the fact that these particular organizations, associa- tions of steam fitters, required every applicant for membership to pass an examination testing his competency. Now, one of the ob- jections sometimes urged against labor organizations is that un- skillful workmen receive as large compensation as those thoroughly competent. The examination required by the defendant associa- tions tends to do away with the force of that objection as to them. And again, their restriction of membership to those who have stood a prescribed test must have the effect of securing careful as well as skillful associates in their work, and that is a matter of no small importance in view of the state of the law, which absolves the mas- ter from liability for injuries sustained by a workman through the carelessness of a co-employee. So long as the law compels the em- ployee to bear the burden of the injury in such cases it cannot be open to question but that a legitimate and necessary object of socie- ties like the defendant associations would be to assure the lives and limbs of their members against the negligent acts of a reckless co- employee, and, hence, it is clearly within the right of an organization to provide such a method of examination and such tests as will secure a careful and competent membership, and to insist that protection of life and hmb requires that they shall not be compelled to work with men whom they have not seen fit to admit into their organiza- tion, as happened in the case of the plaintiff McQueed. While I purpose to take the broader ground, which I deem fully justified by the principles quoted, as well as the authorities, that the defendants had the right to strike for any reason they deemed a just one, and further, had the right to notify their employer of their purpose to strike, I am unable to see how it is possible to deny the right of these defendant organizations and their members to refuse to work with non-members, when, in the event of injury by the carelessness of such co-employees, the burden would have to be borne by the injured, without compensation from the employer and with no financial responsibility, as a general rule, on the part of those causing the injury; for it is well known that some men, even in the presence of danger, are perfectly reckless of themselves 306 LEGALITY OF ENDS PURSUED [CHAP. V and careless of the rights of others, with the result that accidents are occurring ahnost constantly which snuff out the lives of work- men as if they were candles, or leave them to struggle through life mained and helpless. These careless, reckless men are known to their associates, who not only have the right to protect themselves from such men, but, in the present state *bf the law, it is their duty, through their organizations, to attempt to do it, as to the trades affording special opportunities for mischief arising from recklessness. I know it is said in another opinion in this case that "workmen cannot dictate to employers how they shall carry on their business, nor whom they shall or shall not employ"; but I dissent absolutely from that proposition, and assert that, so long as workmen must assume aU the risk of injury that may come to them through the carelessness of co-employees, they have the moral and legal right to say that they will not work with certain men, and the employer must accept their dictation or go without their services. . . . Now, before taking up the findings of fact for analysis in the light of the principles quoted above, and with the view of show- ing that they do not sustain the judgment of the Special Term, I wish to again call attention to the rules quoted, and particularly to so much of them as intimates that if the motive be unlawful or be not for the good of the organization or some of its members, but prompted wholly by mahce and a desire to injure others, then an act, which would be otherwise legal, becomes unlawful. To state it concretely, if an organization strikes to help its members, the / strike is lawful. If its purpose be merely to injure non-members, it is unlawful. If the organization notifies the employer that its mem- bers will not work with non-members, and its real object is to benefit the organization and secure employment for its members, it is law- ful. If its sole purpose be to prevent non-members working, then it is unlawful. I do not assent to this proposition, although there is authority for it. It seems to me illogical and little short of absurd to say that the every-day acts of the business world, apparently within the domain of competition, may be either lawful or unlawful according to the motive of the actor. If the motive be good, the act is lawful; if it be bad, the act is unlawful. Within all the authorities upholding the principle of competition, if the motive be to destroy another's business in order to secure business for yourself, the mo- tive is good; but, according to a few recent authorities, if you do not need the business, or do not wish it, then the motive is bad; and some court may say to a jury, who are generally the triers of fact, that a given act of competition which destroyed A's business was legal if the act was prompted by a desire on the part of the defend- ant to secure to himself the benefit of it, but illegal if its purpose was to destroy A's business in revenge for an insult given. But for the purpose of this discussion I shall assrnne this prop- osition to be sound, for it is clear to me that, applying that rule SECT. IV] STRIKES TO UNIONIZE SHOPS 307 to the facts found, it will appear that the Appellate Division order should be sustained. While I shall consider every fact found by the learned trial judge I shall consider the findings in a different order, because it seems to me the more logical order. He finds "that the defendants Gum- ming and Nugent, while acting in their capacity of walking dele- gates for their respective associations and members of the Board of Delegates, caused the plaintiff McQueed and other members of the plaintiff association to be discharged by their employers from various pieces of work upon buildings in the course of erection, . . . by threatening the . . . employers that if they did not discharge the members of the plaintiff association and employ the members of the Enterprise and Progress associations in their stead, the said walking delegates would cause a general strike of all men of other trades employed on said buildings, and that the defendant Gum- ming, as such walking delegate, did cause strikes, ... in order to prevent the members of the plaintiff association from continuing with the work they were doing at the time the strike was ordered, and that said employers by reason of said threats and the acts of the defendants Gumming and Nugent, discharged the members of the plaintiff association and employed the members of the Enter- prise and Progress associations in their stead." Now there is not a fact stated in that finding which is not lawful within the rules which I have quoted supra. Those principles con- cede the right of an association to strike in order to benefit its mem- bers; and one method of benefiting them is to secure them employ- ment, a method conceded to be within the right of an organization to employ. There is no pretense that the defendant associations or their walking delegates had any other motive than one which the law justifies of attempting to benefit their -members by securing their employment. Nowhere throughout that finding will be found even a hint that a strike was ordered or a notification given of the intention to order a strike for the purpose of accomplishing any other result than that of securing the discharge of the members of the plaintiff association and the substitution of members of the defendant associations in their place. Such a purpose is not illegal within the rules laid down in the opinion of Judge Vann, nor within the authorities cited therein; on the contrary, such a motive is con- ceded to be a legal one. It is only where the sole purpose is to do injury to another, or the act is prompted by mahce, that it is in- sisted that the act becomes illegal. No such motive is alleged in that finding. It is not hinted at. On the contrary, the motive which always underlies competition is asserted to have been the animating one. It is beyond the right and the power of this court to import into that finding, in contradiction of another finding or otherwise, the further finding that the motive which prompted the conduct of defendants was an unlawful one, prompted by malice 308 LEGALIITT OF ENDS PUKSTJED [CHAP. V and a desire to do injury to plaintiffs without benefiting the mem- bers of the defendant associations. I doubt if it would ever have occurred to any one to claim that there was anything in that finding importing a different motive from that specially alleged in the finding, had not the draftsman characterized the notice given to the employers by the associations of their intention to strike as "threats." The defendant associations, as appears from the finding quoted, wanted to put their men in the place of certain men at work who were non-members working for smaller pay, and they set about doing it in a perfectly lawful way. They determined that if it were neces- sary they would bear the burden and expense of a strike to accom- plish that result, and in so determining they were clearly within their rights, as all agree. They could have gone upon a strike without offering any explanation until the contractors should have come in distress to the officers of the associations asking the reason for the strike. Then, after explanations, the non-members would have been discharged and the men of defendant associations sent back to work. Instead of taking that com-se, they chose to inform the contractors of their determination and the reason for it. It is the giving of this information, a simple notification of their determination, which it was right and proper and reasonable to give, that has been characterized as "threats" by the Special Term, and which has led to no inconsiderable amount of misunderstanding since. But the sense in which the word was employed by the court is of no consequence, for the defendant associations had the abso- lute right to threaten to do that which they had the right to do. Having the right to insist that plaintiff's men be discharged and defendants' men put in their place if the services of the other mem- bers of the organization were to be retained, they also had the right to threaten that none of their men would stay unless their members could have all the work there was to do. The findings further stated that the defendants Gumming and Nugent were the walking delegates of the defendant associations and as such were members of the board of delegates of the building trades in New York and were, therefore, in control of the matters in their respective trades. The trial court also found "that the de- fendant Cmnming threatened to cause a general strike against the plaintiff association and against the plaintiff McQueed wherever he found them at work, and that he would not allow them to work at any job in the city of New York, except some small jobs where the men of the Enterprise Association were not employed, and that he and the defendant Nugent threatened to drive the plaintiff asso- ciation out of existence." Now this finding should be read in connection with, and in the light of, the other findings which I have already read and com- mented on and which show that the purpose of the strike was to SECT. IV] STRIKES TO UNIONIZE SHOPS 309 secure the employment of members of the defendant associations in the places filled by the members of plaintiff's association, who were willing to work for smaller wages, a perfectly proper and legit- imate motive, as we have seen. But if the other findings be driven from the mind while considering this one, which the opinions of the Appellate Division indicate was not justified by the evidence, it will be found that it fairly means no more than that the defendant associations did not purpose to allow McQueed and the members of his association to work upon any jobs where members of defend- ant associations were employed; that they were perfectly willing to allow them to have small jobs, fitted perhaps for men who were willing to work for small wages, but that the larger jobs where they could afford to pay, and would pay the rate of wages demanded by defendant associations, they intended to secure for their members alone — a determination to which they had a perfect right to come, as is conceded by the rules which I have quoted. Having reached that conclusion, defendants notified McQueed, who had organized an association when he failed to pass the de- fendants' examination, that they would prevent him and the men of his association from working on a certain class of jobs. They did not threaten to employ any illegal method to accomplish that re- sult; they notified them of the purpose of the defendants to secure this work for themselves and to prevent McQueed and his associates from getting it, and in doing that they but informed them of their intention to do what they had a right to do, and when a man pur- poses to do something which he has the legal right to do, there is no law which prevents him from telling another, who will be affected by his act, of his intention. A man has a right under the law to start a store and to sell at such reduced prices that he is able in a short time to drive the other store- keepers in his vicinity out of business, when, having possession of the trade, he finds himself soon able to recover the loss sustained while ruining the others. Such has been the law for centuries. The reason, of course, is that the doctrine has generally been accepted that free competition is worth more to society than it costs, and that, on this ground, the infliction of damages is privileged. (Com- monwealth y. Hunt, 4 Metcalf, 111, 134.) Nor could this storekeeper be prevented from carrying out his scheme because, instead of hiding his purpose, he openly declared to those storekeepers that he intended to drive them out of business in order that he might later profit thereby. Nor would it avail such storekeepers, in the event of their bringing an action to restrain him from accomplishing their ruin by underselling them, to persuade the trial court to characterize the notification as a "threat," for on review the answer would be : A man may threaten to do that which the law says he may do, provided that, within the rules laid down in those cases^ his motive is to help himself. 310 LEGALITY OF ENDS PURSUED [CHAP. V A labor organization is endowed with precisely the same legal right as is an individual to threaten to do that which it may law- fully do. Having finished the discussion of the facts, I reiterate that, within the rules of law I have quoted, it must appear, in order to make out a cause of action against these defendants, that in what they did they were actuated by improper motives, by a malicious desire to injure the plaintiffs. There is no such finding of fact, and there is no right in this court to infer it, if it would, and from the other facts found, it is plain that it should not, if it could. The findings conclude with a sentence which commences as fol- lows: "I find that the threats made by the defendants and the acts of the said walking delegates in causing the discharge of the mem- bers of the plaintiff association by means of threats of a general strike of other workmen, constituted an illegal combination and conspiracy." — That is not a finding of fact, but a conclusion of law that the trial court erroneously, as I think, attempted to draw from the facts found, which I have already discussed, and which clearly, in my judgment, require this court to hold that the defend- ants acted within their legal rights. In the last analysis of the findings, therefore, it appears that they . declare that members of the organizations refused to work any longer (as they lawfully might) ; that they threatened to strike (which was also within their lawful right), but without any suggestiioji what- ever in the findings that they threatened an illegal or unlawful act. And such findings are claimed to be sufficient to uphold a judgment that absolutely enjoins the defendant associations and their mem- bers from striking. This is certainly a long step in advance of any decision brought to my attention. I have refrained from discussing the authorities because it seemed unnecessary, for the reason already stated in this opinion. But it seems not out of place to suggest that the decisions of the English courts upon questions affecting the rights of workmen ought, at least, to be received with caution, in view of the fact that the later ones are largely supported by early precedents which were entirely consistent with the policy of the statute law of England, but are hostile not only to the statute law of this country, but to the spirit of our institutions. . . . The order should be affirmed and judgment absolute ordered for defendants on the plaintiffs' stipulation, with costs. Gray, J. I express my concurrence with the conclusion, which has been reached by the chief judge in his opinion, that the order of the Appellate Division should be affirmed; ... It appears that the appellant, McQueed, having failed to pass the required examina- tion to become a qualified member of the respondents' association, proceeded to organize an association of his own. Regarded either as an effort to secure only the employment of efficient and approved SECT, rv] STRIKES TO UNIONIZE SHOPS 311 workmen, or as a mere struggle for exclusive preference of employ- ment, on their own terms and conditions, from either standpoint how can it be said to be within the condemnation of the law, or of any statute, when there was no force employed, nor any unlawful act committed? Our laws recognize the absolute freedom of the individual to work for whom he chooses, with whom he chooses and to make any contract upon the subject that he chooses. There is the same freedom to organize, in an association with others of his craft, to further their common interests as workingmen, with re- spect to their wages, to their hours of labor, or to matters affecting their health and safety. They are free to secure the furtherance of their common interests in every way, which is not within the pro- hibition of some statute, or which does not involve the commis- sion of illegal acts. The struggle on the part of individuals to prefer themselves, and to prevent the work which they are fitted to do from being given to others, may be keen and may have unhappy results in individual cases; but the law is not concerned with such results, when not caused by illegal means or acts. I concur with the chief judge in his analysis of the decision of the trial court and that the facts, as therein stated, do not compel the legal conclusion which the learned trial judge reached. I vote for the affirmance of the order of the Appellate Division. . . . Vajsw, J., dissenting.! O'Brien, Haight, JJ., (and Gray, J., in memorandum), concur with Parker, Ch. J.; Baktlett and Martin, JJ., concur with Vann, J. Ordered accordingly. ' The dissenting opinion of Vann, J., is omitted. — Ed. Legality of Strike to Compel the Discharge op Non-Union Emplotbes. The doctrine that a strike to compel the discharge of non-union employees is not per se illegal is followed in the majority of jurisdictions in which the question has come before the courts, and seems to be the view generally adopted by those juris- dictions where the question is still a new one. It seems to be law in CaUfomia, Connecticut, Illinois, Indiana, Minnesota, New York, and Oklahoma, and ap- parently also in Florida, Nebraska, North Carolina, and Texas. Some of the lead- ing cases in accord with National Protective Assn. v. Gumming are Pierce v. Stablemen's Union, 156 Cal. 70; Parkinson v. Building Trades Council, 154 Cal. 581; Cohn & Roth Electric Co. v. Bricklayers' Union, 92 Conn. 161 (in practical effect overruling the opposite doctrine announced in Wyeman v. Deady, 79 Conn. 414, and followed in Connors v. Connolly, 86 Conn. 641) ; Jetton-Dekle Lumber Co. V. Mather, 53 Fla. 969; Kemp v. Division No. 241, 255 111. 213 (practically overruling the opposite doctrine announced in O'Brien v. People, 216 lU. 354); Glemmitt v. Watson, 14 Ind. App. 38; Grant Construction Co. v. St. Paul Bldg. Trades Council, 136 Minn. 167; Gray v. Bldg. Trades Council, 91 Minn. 171, 185; State v. Employers of Labor, 102 Neb. 768, 774; Kissam v. United States Printing Co., 199 N. Y. 76; Bossert v. Dhuy, 221 N. Y. 342; Michaels v. Hillman, 183 N. Y. Supp. 195, 202, 204; State v. Van Pelt, 136 N. C. 633 {se-mble); Roddy V. United Mine Workers, 41 Okla. 621; Sheehan v. Levy, 215 S. W. (Texas) 229 {semble) (compare Cooks', etc.. Union w. Papageorge, 230 S. W. (Texas) 1086). For cases contra, see note 1, p. 318, infra. A similar result, in accord with the majority of American jurisdictions, has been 312 LEGALITY OF ENDS PXTRSTJED [CHAP. V PLANT V. WOODS Supreme Judicial Coukt of Massachusetts. 1900 176 Mass. 492 Bill in equity, filed in the Superior Court, by the officers and members "of the voluntary association known as Union 257, Painters and Decorators of America of Springfield, Massachusetts, which Union is affiliated with a national organization of the same name, with headquarters at Lafayette in the State of Indiana," against the officers and members "of the voluntary association known as Union 257, Painters and Decorators of America, which Union is affiliated with a national organization of the same name, with head- quarters at Baltimore in the State of Maryland," to restrain the defendants from any acts or the use of any methods tending to prevent the members of the plaintiff association from securing em- ployment or continuing in their employment. . . . Hammond, J. This case arises out of a contest for supremacy between two labor unions of the same craft, having substantially the same constitution and by-laws. The chief difference between them is that the plaintiff union is affiliated with a national organ- ization having its headquarters in Lafayette in the State of Indiana, while the defendant union is affihated with a similar organization having its headquarters in Baltimore in the State of Maryland. The plaintiff imion was composed of workinen who in 1897 with- drew from the defendant union. There does not appear to be anything Ulegal in the object of either union as expressed in its constitution and by-laws. The defendant union is also represented by delegates in the Central Labor Union, which is an organization composed of five delegates from each trade union in the city of Springfield, and had in its constitution a provi- sion for levying a boycott upon a complaint made by any imion. The case is before us upon a report after a final decree in favor of the plaintiffs, based upon the findings stated in the report of the master. The contest became active early in the fall of 1898. In Septem- ber of that year, the members of the defendant union declared "all painters not affiliated with the Baltimore headquarters to be non- reached in England. White v. Riley, [1921] 1 Ch. 1 (disapproving the apparently contrary result reached in the earlier case of Valentine v. Hyde, [1919] 2 Ch. 129). See note 2, p. 324, infra. Compare the dictum of the United States Supreme Court in Coppage v. Kansas, 236 U. S. 1, 19. "Ca'n it be doubted that a labor organization ... has the inherent and constitutional right to deny membership to any man who will not agree that during such membership he will not accept or retain employment in company with non-union men? Or that a union man has the constitutional right to decline proffered employment unless the employer will agree not to employ any non-union men?" SECT. IV] STRIKES TO UNIONIZE SHOPS 313 union men," and voted to "notify the bosses" of that declaration. The manifest object of the defendants was to have all the members of the craft subjected to the rules and discipUne of their particular union, in order that they might have better control over the whole business, and to that end they combined and conspired to get the plaintiffs and each of them to join the defendant association, peace- ably if possible, but by threat and intimidation if necessary. Ac- cordingly, on October 7, they voted that "if our demands are not complied with, all men working in shops where Lafayette people are employed refuse to go to work." The plaintiffs resisting what- ever persuasive measures, if any, were used by the defendants, the latter proceeded to carry out their plan in the manner fully set forth in the master's report. Without rehearsing the circumstances in detail it is sufficient to say here that the general method of opera- tions was substantially as follows. A duly authorized agent of the defendants would visit a shop ; where one or more of the plaintiffs were at work and inform the . employer of the action of the defendant union with reference to ' the plaintiffs, and ask him to induce such of the plaintiffs as were j in his employ to sign applications for reinstatement in the defend- 1 ant union. As to the general nature of these interviews the master finds that the defendants have been courteous in manner, have made no threats of personal violence, have referred to the plaintiffs as non-union men, but have not otherwise represented them as men lacking good standing in their craft; that they have not asked that the Lafayette men be discharged, and in some cases have expressly stated that they did not wish to have them discharged, but only that they sign the blanks for reinstatement in the defendant union. The master, however, further finds, from all the circumstances under which those requests were made, that the defendants intended that employers of Lafayette men should fear trouble in their business if they continued to employ such men, and that employers to whom these requests were made were justified in believing that a failure on the part of their employees who were Lafayette men to sign such reinstatement blanks, and a failure on the part of the employers to discharge them for not doing so, would lead to trouble in the business of the employers in the nature of strikes or a boycott, and the employers to whom these requests were made did believe that such results would follow, and did suggest their belief to the defend- ants, and the defendants did not deny that such results might occur; that the strikes which did occur appear to have been steps taken by the defendants to obtain the discharge of such employees as were Lafayette men who declined to sign apphcation blanks for rein- statement; that these defendants did not in all cases threaten a boycott of the employers' business, but did threaten that the place of business of at least one such employer would be left off from a so-called "fair list" to be published by the Baltimore Union. The 314 LEGALITY OF ENDS PTJKSUED [CHAP. V master also found that, from all the evidence presented, the object which the Baltimore men and the defendant association sought to accomplish in all the acts which were testified to was to compel the members of the Lafayette Union to join the Baltimore Union, and as a means to this end they caused strikes to be instituted in the shops where strikes would seriously interfere with the business of the shops, and in aU other shops they made such representations as would lead the proprietors thereof to expect trouble in their business. . . . It is well to see what is the meaning of this threat to strike, when taken in connection with the intimation that the employer may "expect trouble in his business." It means more than that the strikers wiU cease to work. That is only the preliminary skirmish. It means that those who have ceased to work will, by strong, persist- ent, and organized persuasion and social pressm-e of every descripr tion, do all they can to prevent the employer from procming work-' men to take their places. It means much more. It means that, if these peaceful measures fail, the employer may reasonably expect that imlawful physical injury may be done to his property; that attempts in all the ways practised by organized labor will be made to injure him in his business, even to his ruin, if possible; and that, by the use of vile and opprobrious epithets and other annojdng con- duct, and actual and threatened personal violence, attempts will be made to intimidate those who enter or desire to enter his employ; and that whether or not all this be done by the strikers or only by their sympathizers, or with the open sanction and approval of the former, he will have no help from them in his efforts to protect him- self. . . . Such is the natiu-e of the threat, and such the degree of coercion and intimidation involved in it. If the defendants can lawfully perform the acts complained of in the city of Springfield, they can pursue the plaintiffs all over the state in the same manner, and compel them to abandon their trade or bow to the behests of their pursuers. . . . [As stated] by Wells, J., in Walker v. Cronin, 107 Mass. 555, 564: "Every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skiU and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, distm-bance or annoyance. If disturbance, or loss, come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right by contract or otherwise is interfered with. But if it come from the merely wanton or malicious acts of others, with- out the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing." In this case the acts complained of were calculated to cause dam- age to the plaintiffs, and did actually cause such damage; and they SECT. IV] STRIKES TO UNIONIZE SHOPS 315 were intentionally done for that purpose. Unless, therefore, there was justifiable cause, the acts were malicious and unlawful. Walker V. Cronin, ubi supra. Carew v. Rutherford, 106 Mass. 1, and cases cited therein. The defendants contend that they have done nothing unlawful, and, in support of that contention, they say that a person may work for whom he pleases; and, in the absence of any contract to the contrary, may cease to work when he pleases, and for any reason whatever, whether the same be good or bad; that he may give notice of his intention in advance, with or without stating the reason; that what one man may do several men acting in concert may do, and may agree beforehand that they wiU do, and may give notice of the agreement; and that all this may be lawfully done notwithstanding such concerted action may, by reason of the consequent interruption of the work, result in great loss to the employer and his other em- ployees, and that such a result was intended. In a general sense, and without reference to exceptions arising out of conflicting public and private interests, all this may be true. It is said also that, where one has the lawful right to do a thing, the motive by which he is actuated is immaterial. One form of this statement appears in the first headnote in Allen v. Flood, as re- ported in [1898] A. C. 1, as follows: "An act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to a civil action." If the mean- ing of this and similar expressions is that where a person has the lawful right to do a thing irrespective of his motive, his motive is immaterial, the proposition is a mere truism. If, however, the mean- ing is that where a person, if actuated by one kind of a motive, has a lawful right to do a thing, the act is lawful when done under any conceivable motive, or that an act lawful under one set of circum- stances is therefore lawful under every conceivable set of circum- stances, the proposition does not commend itself to us as either logi- caUy or legally accurate. In so far as a right is lawful, it is lawful, and in many cases the right is so far absolute as to be lawful whatever may be the motive of the actor, as where one digs upon his own land for water (Green- leaf V. Francis, 18 Pick. 117), or makes a written lease of his land for the piu-pose of terminating a tenancy at will (Groustra v. Boiu-ges, 141 Mass. 7), but in many cases the lawfulness of an act which causes damage to another may depend upon whether the act is for justi- fiable cause; and this justification may be found sometimes in the circimistances imder which it is done irrespective of motive, some- times in the motive alone, and sometimes in the circimistances and motive combined. . . . In cases somewhat akin to the one at bar this court has had oc- casion to consider the question how far acts, manifestly coercive and intimidating in their nature, which cause damage and injury 316 LEGALITY OF ENDS PURSUED [CHAP. V to the business or property of another, and are done with intent to cause such injury and paxtly in rehance upon such coercion, are justifiable. In Bowen v. Matheson, 14 Allen, 499, it was held to be lawful for persons engaged in the business of shipping seamen to combine to- gether into a society for the purpose of competing with other per- sons engaged in the same business, and it was held lawful for them, in pursuance of that purpose, to take men out of a ship, if men shipped by a non-member were in that ship; to refuse to furnish seamen through a non-member; to notify the public that they had combined against non-members, and had "laid the plaintiff on the shelf"; to notify the plaintiff's customers and friends that the plaintiff could not ship seamen for them; and to interfere in all these ways with the business of the plaintiff as a shipping agent, and compel him to abandon the same. The justification for these acts, so injurious to the business of the plaintiff and so intimidating in their nature, is to be found in the law of competition. No legal right of the plaintiff was infringed upon, and, as stated by Chapman, J., in giving the opinion of the court (p. 503), "if their effect is to destroy the busi- ness of shipping-masters who are not members of the association, it is such a resxilt as in the competition of business often follows from a course of proceeding that the law permits." The primary object of the defendants was to build up their own business, and this they might lawfully do to the extent disclosed in that case, even to the injury of their rivals. , Similar decisions have been made in other courts where acts some- what coercive in their natin-e and effect have been held justifiable under the law of competition. Mogul Steamship Co. v. McGregor, [1892] A. C. 25. Bohn Manuf. Co. v. Hollis, 54 Minn. 223. Ma- cauley v. Tierney, 19 R. I. 255. ' On the other hand, it was held in Carew v. Rutherford, 106 Mass. 1, that a conspiracy against a mechanic, — who is under the neces- sity of employing workmen in order to carry on his business, — to obtain a sum of money from him which he is under no legal obliga- tion to pay, by inducing his workmen to leave him, or by deterring others from entering into his employ, or by threatening to do this so that he is induced to pay the money demanded, under a reasonable apprehension that he cannot carry on his business without yielding to the demands, is an illegal, if not a criminal, conspiracy; that the acts done under it are illegal, and that the money thus obtained may be recovered back. Chapman, C. J., speaking for the court, says that there is no doubt that, if the parties under such circiunstances succeed in injuring the business of the mechanic, they are liable to pay all the damages done to him. That case bears a close analogy to the one at bar. The acts there threatened were like those in this case, and the purpose was, in sub- stance, to force the plaintiff to give his work to the defendants, and SECT. IV] STRIKES TO UNIONIZE SHOPS 317 to extort from him a fine because he had given some of his work to other persons. Without now indicating to what extent workmen may combine and in pursuance of an agreement may act by means of strikes and boycotts to get the hours of labor reduced or their wages increased, or to procure from their employers any other concession directly and immediately affecting their own interests, or to help themselves in competition with their fellow-workmen, we think this case must be governed by the principles laid down in Carew v. Rutherford, vbi supra. The purpose of these defendants was to force the plain- tiffs to join the defendant association, and to that end they injured the plaintiffs in their business, and molested and disturbed them in their efforts to work at their trade. It is true they committed no acts of personal violence, or of physical injury to property, al- though they threatened to do something which might reasonably be expected to lead to such results. In their threat, however, there was plainly that which was coercive in its effect upon the will. It is not necessary that the liberty of the body should be restrained. Restraint of the mind, provided it would be such as would be hkely to force a man against his wiU to grant the thing demanded, and actually has that effect, is sufficient in cases like this. . . . It was not the intention of the defendants to "give fairly to the employer the option to employ them or the plaintiffs, but to compel the latter against their wUl to join the association, and to that end to molest and interfere with them in their efforts to procure work by acts and threats well calculated by their coercive and intimidating nature to overcome the will. The defendants might make such lawful rules as they please for th* regulation of their own conduct, but they had no right to force other persons to join them. The necessity that the plaintiffs should join this association is not so great, nor is its relation to the rights of the defendants, as compared with the right of the plaintiffs to be free from molestation, such as to bring the acts of the defendants under the shelter of the principles of trade competition. Such acts are without justification, and therefore are malicious and unlawful, and the conspiracy thus to force the plaintiffs was unlawful. Such conduct is intolerable, and inconsistent with the spirit of our laws. . . . As the plaintiffs have been injured by these acts, and there is reason to believe that the defendants contemplate further pro- ceedings of the same kind which will be likely still more to injure the plaintiffs, a bill in equity lies to enjoin the defendants. Vegelahn v. Guntner, 167 Mass. 92. . . . j^^^^^ accordingly. Holmes, C. J. When a question has been decided by the court, I think it proper, as a general rule, that a dissenting judge, how- ever strong his convinctions may be, should thereafter accept the 318 LEGALITY OF ENDS PURSUED [CHAP. V law from the majority and leave the remedy to the Legislature, if that body sees fit to interfere. If the decision in the present case simply had relied upon Vegelahn v. Guntner, 167 Mass. 92, I should have hesitated to say anything, although I might have stated that my personal opinion had not been weakened by the substantial agreement with my views to be found in the judgments of the ma- jority of the House of Lords in Allen v. Flood, [1898] A. C. 1. But much to my satisfaction, if I may say so, the court has seen fit to adopt the mode of approaching the question which I believe to be ■ the correct one, and to open an issue which otherwise I might have thought closed. The difference between my brethren and me now seems to be a difference of degree, and the hne of reasoning followed makes it proper for me to explain where the difference Kes. • I agree that the conduct of the defendants is actionable imless justified. May v. Wood, 172 Mass. 11, 14, and cases cited. I agree that the presence or absence of justification may depend upon the object of their conduct, that is, upon the motive with which they acted. Vegelahn v. Guntner, 167 Mass. 92, 105, 106. I agree, for instance, that if a boycott or a strike is intended to override the jurisdiction of the courts by the action of a private association, it may be illegal. Weston v. Barnicoat, 175 Mass. 454. On the other hand, I infer that a majority of my brethren would admit that a boycott or strike intended to raise wages directly might be lawful, if it did not embrace in its scheme or intent violence, breach of con- tract, or other conduct unlawful on grounds independent of the mere fact that the action of the defendants was combined. A sensible workingman would not contend that the courts should sanction a combination for the purpose of inflicting or threatening violence or the infraction of admitted rights. To come directly to the poin*, the issue is narrowed to the question whether, assuming that some purposes would be a justification, the purpose in this case of the threatened boycotts and strikes was such as to justify the threats. That purpose was not directly concerned with wages. It was one degree more remote. The immediate object and motive was to strengthen the defendants' society as a preliminary means to enable it to make a better fight on questions of wages or other matters of clashing interests. I differ from my brethren in thinking that the threats were as lawful for this preliminary purpose as for the final one to which strengthening the union was a means. I think that unity of organization is necessary to make the contest of labor ef- fectual, and that societies of laborers lawfully may employ in their preparation the means which they might use in the final contest.' . . . ' The doctrine that a strike to compel the discharge of non-union employees is per se illegal is followed by Massachusetts (although difficult to reconcile with Commonwealth v. Hunt, 4 Metcalf, 111) and apparently by New Jersey, Pennsyl- vania, Vermont, and perhaps Maryland and New Hampshire. See, in addition to the Massachusetts cases, Lucke v. Clothing Cutters, 77 Md. 396 {s&nble) SECT. IV] STRIKES TO UNIONIZE SHOPS 319 KEMP V. DIVISION No. 241 Supreme Couet of Illinois. 1912 255 lU. 213 Appeal from the judgment of the Branch Appellate Court for the First District, overruling a demurrer to a bill for injunction and entering a decree in accordance with the prayer of the bill. Mb. Justice Cooke delivered the opinion of the court. . . . The biU was filed by eight employees of the Chicago Railways Co. against Division 241 of the Amalgamated Association of Street and Electric Railway Employees of America, a corporation, and the officers and the members of the executive board of Division 241. Its purpose was to obtain an injimction restraining the appellants, their agents, servants and attorneys, from attempting to procure, by means of threats, the discharge of the appellees from the-sCrvice of the Chicago Railways Co. because of the fact that the appellees are not members of said Division 241. .. . The only reasonable conclusion to be deduced from the allegations and prayer of the bill is, that appellees by this proceeding seek to restrain the union and its officers from calling a strike of its mem- bers, the obvious purpose of the injunction sought being to prevent the union employees, of the Railways Co. from quitting their em- ployment in accordance with the vote previously taken, by which those employees, as members of the union, declared that they would I "cease to work with men who after receiving benefits through our' organization refuse to continue members," appellees belonging to 1 the class of men with which the union employees had thus declared \ thpy would no longer work. The question presented for our deter- ' mination therefore is, whether a court of equity is authorized, upon application by the non-union employees, to restrain the union and its officers from calling a strike of the imion employees in accordance with the vote previously taken by the union employees as members of the union, where the purpose of the proposed strike is to compel the employer to discharge the non-union employees who are engaged in the same class of work. In order to decide this question in the affirmative it would be necessary to hold that had the threatened act been completed, appellees would have been entitled to main- tain an action for damages against the union and its officers for ac- complishing their discharge from the service of the Railways Co., and that such action at law would not afford an adequate remedy because of the financial inability of appellants to respond in ade- (threat of boycott) ; Ruddy v. Plumbers, 79 N. J. L. 467 (but compare Mayer v. -s Journeymen Stonecutters' Assn., 47 N. J. Eq. 519, 526, and Jersey City Printing t Co. V. Cassidy, 63 N. J. Eq. 759, at p. 762); Erdman v. Mitchell, 207 Pa. St. 79; Bausbach v. Reiff, 244 Pa. 559; State v. Dyer, 67 Vt. 690. Although this doc- trine was once law in Connecticut and Illinois, it has apparently been overruled by subsequent cases within those states (see note, p. 311, supra). 320 LEGALITY OF ENDS PUKSXJED [CHAP. V quate damages for the injuries which appellees would suffer by rea- son of their discharge. The inadequacy of the remedy at law suffi- ciently appears from the bill, and it will only be necessary to deter- mine whether the appellees would have been entitled to maintain the action for damages had their discharge been acconiplished by appellants. . . . Every employee has a right to protection in his employment from the wrongful and malicious interference of another resulting in dam- age to the employee, but if such interference is but the consequence of the exercise of some legal right by another it is not wrongfid, and cannot, therefore, be made the basis for an action to recover the consequent damages. It is the right of every workman, for any reason which may seem sufficient to him, or for no reason, to quit the service of another, unless bound by contract. This right cannot 'be abridged or taken away by any act of the legislature, nor is it sub- ject to any control by the courts, it being guaranteed to every per- son under the jxu-isdiction of our government by the thirteenth amend- ment to the Federal constitution, which declares that involuntary servitude, except as a punishment for crime, shall not exist within the United States or any place subject to their jurisdiction. In- cident to this constitutional right is the right of every workman to refuse to work with any co-employee who is for any reason ob- jectionable to him, provided his refusal does not violate his contract with his employer; and there is no more foundation for the con- tention that the employee commits an actionable wrong by inform- ing the employer, before he leaves the service, that he wiU not work with the objectionable co-employee, and thereby occasioning his discharge, than there would be for the contention tha,t the employee would commit an actionable wrong by quitting the service and afterward stating to the employer his reason therefor, if as a result thereof the employer should choose to discharge the objectionable co-employee. In either case the employee is exercising a legal right, and although it results in damage to the objectionable co-employee, the latter has no cause of action against the former for causing his discharge. In the case at bar, had the union employees, as individ- uals and without any prearranged concert of action, each informed the Railways Co. that they would no longer work with appellees because appellees were not members of the union, and had appel- lees, in consequence thereof, been discharged because the Railways Co. chose to retain the services of the union employees, appellees would have had no cause of action against the union employees for thus causing their discharge. Does the fact that the union, its officers and committees, acted as an intermediary between the union em- ployees and the Railways Co., and under the circumstances and for the purposes disclosed by the bill, render unlawful the action by it or them which would have been lawful if performed by the union employees individually? SECT. IV] STKIKES TO UNIONIZE SHOPS 321 Labor unions have long since been recognized by the courts of this country as a legitimate part of the industrial system of this nation. The ultimate purpose of such organizations is, through combination, to advance the interests of the members by obtaining for them adequate compensation for their labor, and it has been frequently decided by the American courts that the fact that this purpose is sought to be obtained through combination or concerted action of employees does not render the means unlawful. . . . The members of the union . . . did not propose absolutely to sever their connection with their employer, but by means of a strike to withdraw temporarily their services, and then, by such means as might be proper and permissible, seek to induce their employer to accede to their demands and reinstate them in the service under the conditions they sought to impose. By thus combining it be- comes necessary to inquire whether the purpose of the combination was a lawful one. Ordinarily it is true that what one individual may rightfully do he may do in combination with others. In some jurisdictions the question of the purpose or motive in such cases as this is not in- quired into. But in other jurisdictions the opposite view is held, for the very apparent reason that acts done by a combination of individuals may be made much more potent and effective than the same acts done by an individual, and we believe the greater weight of authority to be, that what one individual may lawfully do a com- bination of individuals has the same right to do, provided they have no unlawful purpose in view. Would the calling of a strike, and the inducing of an employer thereby to accede to the demands of the union employees and to discharge appellees under the circiunstances disclosed, be such an interference with the rights of appellees as to be wrongful and malicious? It has been comparatively but a short time since it was unlawful for workmen to associate themselves together under such organ- izations as are now known as trades unions, for the purpose of im- proving the conditions of labor Such an organization was formerly held to be a criminal conspiracy, and it required statutory enact- ment in England to permit workmen legally to combine for the pur- pose of maintaining satisfactory wages and for mutual protection. The right of labor to organize, and to strike, if necessary, without resort to violence or other unlawful conduct, for the betterment of the condition of labor, is now generally recognized by the courts of this country. . . . While it cannot be successfully contended that every strike is lawful, it is generally conceded by our courts that workmen may quit in a body, or strike, in order to maintain wages, secure advance- ment in wages, procure shorter hours of emplojonent or attain any other legitimate object. An agreement by a combination of in- dividuals to strike or quit work for the purpose of advancing their 322 LEGALITY OF ENDS PURSUED [GHAP. V own interests or the interests of the union of which they are mem- bers, and not having for its primary object the purpose of injuring others in their business or employment, is lawful. As to whether the object which this bill discloses was sought to be attained by the members of the union was a lawful one or a valid justification of the threat to strike, the authorities in this country are clearly in con- flict. Among the cases in other jurisdictions upon which appel- lees rely in support of their contentions on this point are Berry V. Donovan, 188 Mass. 353, Erdman v. Mitchell, 207 Pa. 79, Lucke v. Clothing Cutters, 77 Md. 396, Plant v. Woods, 176 Mass. 492', and Ciuran v. Galen, 152 N. Y. 33. That some of the cases cited by ap- pellees support their contention caimot be denied. A contrary result has been reached, however, by the courts of some of the other states. This precise question has never been passed upon in this state, and were the position of appellees to be sustained it would be a long step in advance of any decision of this court. In the unsettled condition of the law on this question we are not disposed to follow the cases cited by appellees. We are of the opinion that the cases holding the contrary view are supported by the better reasoning. . . . It is insisted that a strike is lawful only in a case of direct com- petition, and as it cannot be said that the union employees are in any sense competing with appellees, their acts cannot be justified. It is true, as has been stated, that the proposed strike was not to be called for the direct purpose of securing better wages or shorter hours or to prevent a reduction of wages, any one of which would have been a proper object. The motive was more remote than that, but it was kindred to it. The purpose was to strengthen and preserve the organization itself. Without organization the work- men would be utterly unable to make a successful effort to maintain or increase their wages or to enforce such demands as have been held to be proper. ... If it is proper for workmen to organize themselves into such com- binations as labor unions, it must necessarily follow that it is proper for them to adopt any proper means to preserve that organization. If the securing of the closed shop is deemed by the members of a labor union of the utmost importance and necessary for the preser- vation of their organization, through which, alone, they have been enabled to secure better wages and better working conditions, and if to secure that is the primary object of the threat to strike, even though in the successful prosecution of the object of the combina- tion injury may result incidentally to non-union men through the loss of their positions, that object does not become unlawful. It is apparent that in this case the sole purpose was to insure employ- ment by the Railways Co. of union men, only. The appellees had the right to retain their membership in the union or not, as they J saw fit. On the other hand, if the members of the union honestly believed that it was to their best interests to be engaged in the same SECT. IV3 STRIKES TO UNIONIZE SHOPS 323 employment with union men only, and that it was a detriment and a menace to their organization to associate in the same employment with non-members, it was their right to inforni the common employer that they would withdraw from its service and strike unless mem- bers of the union, only, were employed, even though an acquiescence in their demands would incidentally result in the loss of employ- ment on the part of the non-union men. It was only incumbent upon them to act in a peaceful and lawful manner in carrying out their plans. In passing upon this question the court, in Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, say: "Union work- men who inform their employer that they will strike if he refuses to discharge all non-union workmen in his employ are acting within their absolute right, and, in fact, are merely dictating the terms upon which they will be employed." This case was approved in Booth Bros. v. Biu-gess, 72 N. J. Eq. 181. These cases hold that motive is not to be considered, and that the settled American doc- trine, apart from aU recent statutes, is, that all dealers in the market, whether in merchandise or in labor, on every side of the market, have an absolute right to combine voluntarily to concurrently exer- cise their several rights to refrain from contracting if they see fit to do so, and that if this is not good law, then the right to refrain from contracting iK subject to a most extraordinary limitation, which leads to absm-d results. . . . In Gillespie v. People, 188 lU. 176, a statute making it a mis- demeanor for an employer to prevent an employee, by threats, from joining a labor organization, or to discharge an employee be- cause of membership in a labor organization, was held to be uncon- stitutional, and the right of an employer to discharge his employee solely because he would not resign from his imion was upheld. That employees might suffer by remaining members of their unions, or that they might through necessity be compelled to disband the organizations they had built up and maintained for their own proper benefit, could not affect the right of the employer. He has the right to manage his business as he sees fit. It would seem that labor or- ganizations should be accorded the same right to manage their affairs and to determine what is best for their own interests. To deny them the right to determine whether their best interests re- quired that they should be associated in their work only with mem- bers of their organization would imperil their very existence. If they have the right to make such a requirement, then when their employer procures non-imion labor they have the right to strike to enforce that requirement, as that is the only peaceable method avail- able to compel an adjustment of their controversies and to preserve the integrity of their organizations. From the facts as disclosed by the bill it can only be said that the members of the union, upon de- liberation, concluded that their own welfare and business interests required that they cease working with those who were not members 324 LEGALITY OF ENDS PURSUED [CHAP. V of their organization. This being their primary object, they have the right to quit the employment and go upon a strike and to use all proper means to secure their reinstatement upon the conditions- desired. ... Here the primary object of the combination is to further the in- terests of the organization and improve and better the condition of its members. Whatever injury may follow to others is merely in- cidental. The judgment of the Appellate Court is reversed and the decre& of the Circuit Court is afl&rmed. Judgment reversed.^ ENGLISH TKADE DISPUTES ACT, 1906, Sections 3, 4 6 Edw. VII, c. 47 See supra, p. 24, for the text of this Act.* WOLSTENHOLME v. ARISS Chanceey Division. 1920 [1920] 2 Ch. 403 Witness Action. This second action was brought by the same plaintiff, H. Wol- stenholme, against Charles John Ariss, the Secretary, and all the members of the committee of the Cardiff Branch of the Amalgamated Musicians' Union, alleging that they had severally and acting in combination amongst themselves during February, 1919, and until April 22, 1919, by unlawful threats, coercion and pressure compelled the plaintiff's employer to break his contract with the plaintiff on April 22, 1919, and to dismiss him, or refuse to employ him any longer; and the plaintiff claimed an injunction to restrain the de- fendants, individually or collectively, from interfering in combina-' ' Carter, J., specially concurring, rendered a separate concurring opinion. Cartwright, J., Dunn, C. J., and Hand, J., rendered a dissenting opinion. — Ed. ' For an excellent discussion of this Act, see Prof. W. M. Geldart, The Political. Quarterly, No. 2 (May, 1914), pp. 17 et seq. See also Henry R. Seager, The Legal Status of Trade Unions in the United Kingdom, 22 Pol. Sci. Quart. 611. In Valentine v. Hyde, [1919] 2 Ch. 129, where the defendants, certain union employees, demanded that the plaintiff, their fellow employee, should join their union, and "threatened to get him discharged if he did not join, downing tools if the manager was not willing to discharge him," it was held that this was not a "trade dispute" within the meaning of the Trade Disputes Act, 1906; and the court therefore granted an injunction restraining the defendants from "wrong- fully interfering with the employment of the plaintiff." The Court of Appeal, however, expressly disapproved of this decision and reached an apparently con- trary result in the subsequent case of White v. Riley, [1921] 1 Ch. 1, infra, p. 327. It would seem that whatever authority Valentine v. Hyde may once have pos- sessed has been lost by the subsequent decisions of Hodges v. Webb, [1920] % Ch. 70; Wolstenholme i>. Ariss, [1920] 2 Ch. 403, see infra; and-White v. Kiley,. [1921] 1 Ch. 1, infra, p. 327. ^ECT. IV] STRIKES TO UNIONIZE SHOPS 325 tion or otherwise with the right of the plaintiff to dispose of his labour as he would. The evidence in the first action, which was agreed to be treated as given in this case also, brought matters down to the date of the plaintiff's expulsion from the union on January 5, 1919. On February 2, 1919, at the ordinary general monthly meeting of the branch, a resolution was passed in these terms: "As Mr. Wolstenholme has now been expelled and is now a non-member we the members of this branch resolve that on and after Monday, March 3, 1919, we will not play with him, and any member playing with him after above date will be treated as a non-member." On February 7 the passing of this resolution was notified by the de- fendant, Mr. Ariss, as Branch Secretary, to Mr. Fooks the manager,^ and to Mr. Garforth Mortimer the musical director of the Park Hall Cinema where the plaintiff was at that time employed and each letter concluded with the words, "Please note that after above date our members will refuse to play with Mr. H. Wolstenholme." On February 15, Mr. Mortimer, on behalf of his principal, gave the plaintiff a fortnight's notice to terminate his engagement. Such notice would expire on March 1 — two days before the date on which the resolution became effective. At the time this notice was given Mr. Mortimer, himself a mem- ber of the Union, had already intervened with a view to bringing about a reconciliation between the plaintiff and the Union, and the result of his efforts was that the coming into operation of the resolu- tion of February 2 was from time to time suspended. . . . Finally,, on April 21, 1919, Mr. Ariss wrote to Mr. Mortimer as follows: "G. Mortimer, Esq., Musical Director, Park Hall Cinema, Cardiff. Dear Sir and Brother, The period of grace granted to Mr. H. Wolsten- holme has now expired, and as he has not carried out the expressed desire of the Branch Meeting in accordance with the resolution passed by the Branch at the meeting held on April 6, the members of the Branch will act up to the resolution passed on February 2, and will refuse to play with him on and after this date, April 21, 1919. Yours fraternally, Charles Ariss." Mr. Mortimer thereupon gave the plaintiff notice of instant dismissal. The defendants denied the allegations of the use of unlawful threats, coercion or pressure or of having procured the breaking by Mr. Mortimer of his contract with the plaintiff, and submitted that no action would lie against the defendants as members of the Branch, or personally, with respect to any of the matters complained of, and that the action was misconceived and should be dismissed. . . . June 11. Eve, J. (after stating the plaintiff's allegations and claim in the action continued) : The questions I have to decide are primarily of fact: did the defendants, or any of them, by threats, coercion, and pressure, procure and compel the plaintiff's employer, (a) to break his contract with the plaintiff, or (6) to refuse to employ 326 LEGALITY OF ENDS PUESUED [CHAP. V him any longer? [His Lordship stated the facts that took place after January 5, 1919, when the resolution excluding the plaintiff was passed, and continued]: On the evidence this action involved no breach of contract on the part of the employer. The engage- ment pleaded was, I think, a weekly one, but even assuming it was a seasonal one it was proved to be subject to determination by a fortnight's notice. ... In my opinion there was no breach of con- tract on the part of the plaintiff's employer; the notice to determine the employment was- never withdrawn, its operation was suspended until the result of Mortimer's efforts was known, and when they failed the notice became simultaneously operative. I cannot, therefore, hold the plaintiff to have established that the defendants procured or compelled his employer to break his contract with the plaintiff. There is no doubt that it was in consequence of the action of the Union, that is to say of the members of this Branch of the Union present at the meeting of February 2, that the employer refused to employ the plaintiff any longer, but this obvious conclusion does not, in itself, entitle the plaintiff to relief in this action. The mem- bers were quite within their rights in refusing to play with the plain- tiff, and no action could lie against them or any of them for so doing. What the plaintiff has sought to establish is that in the assertion of that right they have threatened and coerced his employer into re- fusing further to employ him. I find it very difficult to lay my finger on any act which can fairly be described as a threat or as coercive. It was argued strenuously that the passing of the resolution of February 2 was, in itself, an agreement or combination by the mem- bers who passed it to do an illegal act in that they thereby resolved that any member playing with the plaintiff after the date therein mentioned should be treated as a non-member. I confess that I cannot follow this argument. If, by the constitu- tion of the Union, a member loses his rights as such by playing with a non-member the resolution is only a reminder of the fact: if, on the other hand, no such penalty attaches this resolution is quite inoperative to impose it; at most it is but the expression of an in- tention on the part of those who support it so to treat members who disregard the earlier part of the resolution. And in so resolving the members were again acting within their rights. This, then, being the position, the defendants having resolved to adopt a line of conduct towards the plaintiff and any of their fellow members who might continue to play with him, which they Tvere lawfully entitled to adopt, what is it that the plaintiff has to establish before he can maintain this action? He must prove that in order to procure their object they have resorted to threats, co- ercion or other iUegal means. Inducement not to continue an em- ployment is illegal only if it is exercised by the use of illegal means. If authority is required for this proposition it is to be found in Lord SECT. IV] STRIKES TO UNIONIZE SHOPS 327 Watson's speech in Allen v. Flood, [1898] A. C. 1, 96, where he says; "There are, in my opinion, two grounds only upon which a person who prociu-es the act of another can be made legally responsible for its consequence. In the first place, he will incur liability if he know- ingly and for his own ends induces that other person to commit an actionable wrong. In the second place, when the act induced is within the right of the immediate actor, and is therefore not wrong- ful so far as he is concerned, it may yet be to the detriment of a third party; and in that case, according to the law laid down by the majority in Liunley v. Gye (1853), 2 E. & B. 216, the inducer may be held liable if he can be shown to have procured his object by the use of illegal means directed against that third party." What then are the illegal means which the plaintiff alleges were used by the de- fendants to carry out what were legal acts in themselves? In sub- stance it was the communication on February 7 to the plaintiff's employer and to Mr. Mortimer of the terms of the resolution of February 2. How can this possibly be treated as a use of illegal means? Can a simple notification to the employer of an intention to do a lawful act or lawful acts, whether it be a notification on be- half of an individual or on behalf of a number of persons, properly be described as the use of illegal means against the plaintiff? I do not think it can. There may, of course, be cases in which threats, coercion or pressure may be found to have been employed without any threats being actually put into words, but in this case I am re- heved from any inquiry whether there was conduct capable of being so interpreted because it is admitted that, apart from the passing of the resolution and the communication of it to the employer and to Mr. Mortimer, there was no threat, coercion or pressure. In these circumstances I come to the conclusion that the plain- tiff has failed to estabhsh any cause of action against the defend- ants, or any of them, and I can only dismiss this action also with costs. WHITE V. RILEY CouKT OF Appeal. 1920 [1921] 1 Ch. 1 Appeal from the decision of Astbury, J., [1920] W. N. 182. The action was brought by the plaintiff, a leather worker, and a member of the Workers' Union, employed by Messrs. Meek and Dean, who carried on business as the Leamore Currying Co. at Wal- sall, against the defendants, who were employed by the same firm and were members of the Curriers' Union, for an injunction and dam- ages, alleging that by conspiracy, threats, intimidation, and coercion they had caused his dismissal from his emplojonent and procured a breach by his employers of their contract with him. Astbury, J., held on the evidence that the defendants had con- spired to injure the plaintiff by obtaining his dismissal simply be- 328 LEGALITY OF ENDS PUESUED [CHAP. V cause he would not forsake his own union and join that of the de- fendants, and that they had induced and intentionally procured a direct breach of contract by his employers. He accordingly gave judgment for the plaintiff, the damages being assessed at 75Z. The defendants appealed. ... Waeeington, L. J.^ . . . The facts have already been stated by the Master of the Rolls, and it is quite unnecessary for me to go over them again; but I must just give a short sunimary. The plain- tiff and the two defendants were in the year 1919 employed as cur- riers under the same employer, the Leamore Currying Co., which consisted of two gentlemen carrying on business in co-partnership. The defendants were both of them, as were all the men employed in the shop except the plaintiff, members of an old craft union, which I will, call, for shortness, the Curriers' Union. It was a craft union that was established some 200 years ago, its object being to protect "the interests of workmen who were by their calling curriers, and "those alone. The Curriers' Union comprises only, I think, skilled workers in the curriers' trade. The plaintiff was a member of a large omnium gatherum union called the Workers' Union, which com- prises amongst its members skilled workmen and non-skilled labourers of all classes not confined to any particular craft, but ready to wel- come as a member, any artisan or labourer whatever may be the nature of his employment. It appears to be the policy of the craft union to insist so far as may be that the workers in the craft should be members of the Union and should not belong to such a union as the Workers' Union in order that the craft union, who devote them- selves to the interests of that craft in particular, may be the persons and the only persons who shall be entrusted with the duty of negotiat- ing with the employers and furthering the interest of the men em- ployed in that craft. That in itself is a perfectly reasonable and intelligible policy. It is for the consequence of carrying out that policy in this particular shop that the two defendants are sued in the present action. It is said, first, that they have knowingly pro- cured from the employers the breach of their legal obligations to the plaintiff, that is to say, a breach on their part of the plaintiff's contract of emplojonent, and, secondly, that they have by illegal means procured the non-employment of the plaintiff by the employers without any breach of contract on his part. On the pleadings as explained by a certain admission made upon an application for particulars (that is putting aside for the moment the breach of con- tract which is only very vaguely pleaded), the procuring of the re- fusal by the employers to employ the plaintiff is said to have been brought about by threats, intimidation and coercion; but that was limited in the way I have suggested to this — that the threats, coer- cion and intimidation complained of are that the defendants threat- 1 Separate concurring opinions were rendered by Lord Stemdale, M. R., and by Younger, L. J. — Ed. SECT. IV] STRIKES TO UNIONIZE SHOPS 329 ened the employers that the labour of the workmen in the defendants' union would be withdrawn from the employers, and so coerced and intimidated the employers. The only so-called threat of which any evidence was given consisted of a letter signed by the defendant Riley, and written on behalf of the men who had been present at the shop meeting. [It is addressed to the firm and was in the following terms: "Sirs, We hereby give you notice that we shall cease work on Friday next unless E. White either joins our Society or leaves your employment."] No other threat is alleged except that, at a subse- quent meeting between the men and the employers, the men, through their spokesman, determined to adhere to the notice which they had already given. Now the question arises, is the giving of a notice of that kind on behalf of the men a wrongful act, I mean at common law quite inde- pendently of the Trade Disputes Act, 1906? That an act of that kind done by an individual is not at conmion law a wrongful act is I think quite plain from the decision in Allen v. Flood, [1898] A. C. 1. An act of that kind done by a number of men is, to my mind, shown not to be an unlawful act at common law, not directly by the decision in Allen v. Flood but by the judgments at all events of three of the noble and learned Lords who addressed the House in that case — namely, Lord Watson, Lord HerscheU and Lord Macnaghten. . . . I would further point out this as the result of what, to my mind, those three noble and learned Lords express to be the law. It is lawful for one man to withdraw his work, or for any number of men to withdraw their work, and to allege as the reason for the with- drawal that they refuse to work while a certain man or class of men is employed by those employers, and it would be an extraordinary conclusion that although it is lawful for them to withdraw their work it is unlawful for them to intimate to their employers their intention of doing so; if that is the law then it amounts to this, that what is now commonly called a lightning strike would be legal, where- as a strike taking place after notice would be illegal. ... That what was done in this case was done quietly and peaceably there can be no doubt at all. The evidence is quite clear that the men had no personal grudge whatever against the plaintiff, and that all that they were anxious for was that he should join the Curriers' Union. So far as they were concerned it did not matter to them whether he also remained a member of the Workers' Union; but the ■Curriers' Union did object to his remaining a member of the Workers' Union. Incidentally he could only join the Curriers' Union by giving up his membership of the Workers' Union; but the object of the men was to obtain his accession to the Curriers' Union. With reference to this part of the case the learned judge has found as a fact that the defendants were guilty, first, of conspiring by threats to injure the plaintiff by obtaining his dismissal from his employ- ment, because he would not leave his own union and join the Curriers' 330 LEGALITY OF ENDS PURSUED [CHAP. V Union. In my opinion that finding is not capable of being sustained on the evidence. They did not, in my judgment, conspire by any threat at all to injure the plaintiff. They did not conspire by any threat to obtain his dismissal from his employment: What they did seek to do was to secure that if he remained in the emplojTuent he' should become a member of the Curriers' Union. What they did they did by means which, in my opinion, were perfectly lawful. The second finding of fact by the learned judge is, that they were guilty of inducing and intentionally obtaining severally and in com- bination a direct breach by the employers of the plaintiff's agree- ment for service. That again, if possible, is even less to be supported on the evidence than the previous finding. What happened was this. It was not proved what were the terms of the employment so far as concerns the right of the employers to terminate it; but it seems to have been assumed on both sides that the employers had the right to determine it either by giving a week's notice or in the alternative paying a week's wages, and when it was intimated to the men that the employers might have to pay the week's wages in lieu of notice and so avoiding a breach of contract, the men in effect said to the employers: "We will pay the wages;, if you pay them you may deduct them from our wages in the follow- ing week." It is true that the employers for some reason best known to themselves and which was not explained to us, did not subse- quently carry that proposal into effect. They did not pay the week's wages to the plaintiff. But that was no fault of the men. The men intended that the contract which they believed to be the true con- tract should be carried out by the employers and that they should terminate the plaintiff's service in the way in which he was in their view, and apparently in the view of all the parties concerned, entitled to have it terminated — namely, by payment to him of a week's wages in lieu of notice. The answer therefore to that claim is that the defendants did not knowingly and intentionally endeavour to induce or succeed in inducing the employers to commit a breach of that contract. What they intended was to avoid a breach of con- tract. ... It is really unnecessary to consider the question of the construc- tion and effect of the Trade Disputes Act, 1906; but as it has been a good deal discussed and as we have also had discussed before us the two cases of Valentine v. Hyde, [1919] 2 Ch. 129, and Hodges V. Webb, [1920] 2 Ch. 70, I think that I ought to say a few words about it. The discussion has really turned upon sec. 5, the definition section as to what is a trade dispute, and I do not therefore propose to discuss the two enacting sections. [His Lordship read sec. 5, sub- sec. 3, and continued:] What is a dispute between employer and workmen or between workmen and workmen which is connected with the employment or non-employment of any person? In my judgment that is a question of fact in every case. In the present SECT. V] AGREEMENTS FOR UNIONIZATION OF SHOPS 331 case there was, I think, quite plainly a dispute between workmen and workmen and it was a dispute as to whether or not the plaintiff should, in the position in which he then stood in relation to the unions, be employed by the particular employers. In my opinion that was a dispute connected with the employment or non-employment of the plaintiff. It was also a dispute connected with the employment or non-employment of the other workmen because they were unwilling to continue in the employment if the plaintiff was also in that em- ployment. On this point, I wish to say for myself that I cannot appreciate the reasoning of Astbury, J., in Valentine v. Hyde, [1919] 2 Ch. 129. He treats the matter as if the dispute was whether or not the workman in question should join the particular union. In my judgment that is only an incident in the dispute. The dispute is whether while he is not a member of the union to which the other men belong he should be employed by the employers. It is really a dispute as to the terms upon which he should continue in the employ- ment. On this point I very much prefer the reasoning of Peterson, J., in Hodges v. Webb, [1920] 2 Ch. 70, to the reasoning of Astbury, J., in Valentine v. Hyde and in the present case. The result, in my opinion, is that the illegal acts charged against the defendants in the present case have not been established, that the action fails and that the judgment pronounced for the plaintiff must be set aside and judgment entered for the defendants with costs here and below. . . . Section 5. Trade Agreements for Unionisation of Shops CURRAN V. GALEN CouKT OF Appeals of New York. 1897 152 N. Y. 33 Appeal from a judgment of the General Term of the Supreme Court in the fifth judicial department, entered April 14, 1894, which affirmed an interlocutory judgment in favor of plaintiff entered upon a decision of the court at Special Term sustaining a demurrer to the answer. The plaintiff demands damages against the defendants for having confederated and conspired together to injure him, by taking away his means of earning a livelihood and preventing him from obtain- ing employment. He sets out in his complaint that he was an en- gineer by trade, and that, previously to the acts mentioned, he was earning, by reason of his trade, a large income, and had constant employment at remunerative wages. He sets forth the existence of an unincorporated association in the city of Rochester, where he was a resident, called the Brewery Workingmen's Local Assembly, 1796, Knights of Labor; which was composed of workingmen em- ployed in the brewing business in that city and was a branch of a 332 LEGALITY OF ENDS PURSUED [CHAP. V national organization known as the Knights of Labor. He alleges that it assumed to control by its rules and regulations the acts of its members in relation to that trade and employment, and demands and obtains from its members implicit obedience in relation thereto. Plaintiff then alleges in his complaint that the defendants Gross- berger and Watts wrongfully and maliciously conspired and com- bined together, and with the said local assembly, for the purpose of injuring him and taking away his means of earning a livelihood, in the following manner, to wit: That in the month of November, 1890, Grossberger and Watts threatened the plaintiff that, unless he would join said local assembly, pay the initiation fee and subject himself to its rules and regulations, they and that association would obtain plaintiff's discharge from the employment in which he then was and would make it impossible for him to obtain any employ- ment in the city of Rochester, or elsewhere, unless he became a member of said association. In pursuance of that conspiracy, upon plaintiff's refusing to become a member of said association, Gross- berger and Watts and the association made complaint to the plaintiff's employers and forced them to discharge him from their employ, and, by false and maUcious reports in regard to him, sought to bring him into ill-repute with members of his trade and employers and to pre- vent him from prosecuting his trade and earning a livehhood. The answer, in the first place, admitted all that was alleged in respect to the organization of the local assembly, as to how it was composed and as to its being a branch of the national organization of the Knights of Labor, and as to its assuming to control the acts of its members and to demand from them implicit obedience. It then denies, generally and specifically, each and every other allegation in the complaint. As a second and separate answer and defense to the complaint, the defendants set up the existence in the city of Roches- ter of the Ale Brewers' Association and an agreement between that association and the local assembly described in the complaint, to the effect that all employees of the brewery companies belonging to the Ale Brewers' Association "shall be members of the Brewery Workingmen's Local Assembly, 1796, Knights of Labor, and that no employee should work for a longer period than four weeks with- out becoming a member." They alleged that the plaintiff was re- tained in the employment of the Miller Brewing Co. "for more than four weeks after he was notified of the provisions of said agreement, requiring him to become a member of the local assembly"; that defendants requested plaintiff to become a member and, upon his refusal to comply, "Grossberger and Watts, as members of said assembly, and as a committee duly appointed for that purpose, notified the officers of the Miller Brewing Co. that plaintiff, after repeated requests, had refused for more than four weeks to become a member of said assembly," and that "defendants did so solely in pursuance of said agreement, and in accordance with the terms SECT. V] AGREEMENTS FOR tHSf IONIZATION OF SHOPS 333 thereof, and without intent or purpose to injure plaintiff in any- way/' The plaintiff demurred to the matter set up as a separate defense to the complaint, upon the ground that it was insufficient, in law, upon the face thereof. The Special Term and General Term have sustained the demurrer, and the question is whether this mat- ter, set up by way of special defense, is sufficient to exonerate the defendants from the charge, made in the complaint, of a conspiracy to injure the plaintiff and to deprive him of the means of earning his livehhood. Per Curiam. In the decision of the question before us we have to consider whether the agreement upon which the defendants rely in defense of this action, and to justify their part in the dismissal of the plajntiff from his employment, was one which the law will re- gard with favor and uphold, when compliance with its requirements is made a test of the individual's right to be employed. If such an agreement is lawful, then it must be conceded that the defendants, are entitled to set it up as a defense to the action; forasmuch as- they allege that what they did was in accordance with its terms. In the general consideration of the subject, it must be premised that the organization, or the cooperation, of workingmen is not against any public poHcy. Indeed, it must be regarded as having the sanction of law, when it is for such legitimate purposes as that of obtaining an advance in the rate of wages or compensation, or of maintaining such rate. (Penal Code, sec. 170.) It is proper and praiseworthy, and, perhaps, falls within that general view of hxmian society, which perceives an underlying law that men should unite to achieve that which each by himself cannot achieve; or can achieve less readily. But the social principle which justifies such organiza- tions is departed from, when they are so extended in their operation as either to intend, or to accomplish, injxuy to others. Public policy and the interests of society favor the utmost freedom in the citizen to pursue his lawful trade or calling, and if the purpose of an or- ganization or combination of workingmen be to hamper, or to re- strict, that freedom, and, through contracts or arrangements with employers, to coerce other workingmen 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 employ- ment, then that purpose seems clearly unlawful and militates against the spirit of our government and the nature of our institutions. The effectuation of such a purpose would conflict with that principle of public policy which prohibits monopolies and exclusive privileges. It would tend to deprive the public of the services of men in useful employments and capacities. It would, to use the language of Mr. Justice Barrett in People ex rel. Gill v. Smith (5 N. Y. Cr. Rep. at p. 513), "impoverish and crush a citizen for no reason connected- in the slightest degree with the advancement of wages, or the main- tenance of the rate." 334 LEGALITY OF ENDS PURSUED [CHAP. V Every citizen is deeply interested in the strict maintenance of the constitutional right freely to pursue a lawful vocation, under con- ditions equal as to all, and to enjoy the fruits of his labor, without the imposition of any conditions not required for the general welfare of the community. The candid mind should shrink from the results of the operation of the principle contended for here; for there would certainly be a compulsion, or a fettering, of the individual, glaringly at variance with that freedom in the ptu-suit of happiness, which is believed to be guaranteed to aU by the provisions of the fundamental , law of the state. The sympathies, or the fellow-feeling which, as a social principle, imderlies the association of workingmen for their common benefit, are not consistent with a purpose to oppress the indi-ddual who prefers by single effort to gain his livehhopd. If -organization of workingmen is in line with good government, it is because it is intended as a legitimate instrumentality to promote the common good of its members. If it militates against the general pubhc interest, if its powers are directed towards the repression erf individual freedom, upon what principle shall it be justified? . . . The organization of the local assembly in question by the working- men in the breweries of the city of Rochester may have been per- fectly lawful in its general purposes and methods and may, other- wise, wield its power and influence usefully and justly, for all that appears. It is not for us to say, nor do we intend to intimate, to the contrary; but so far as a purpose appears from the defense set up to the complaint that no employee of a brewing company shall be allowed to work for a longer period than four weeks, without be- coming a member of the Workingmen's Local Assembly, and that a contract between the local assembly and the Ale Brewers' Associa- tion shall be availed of to compel the discharge of the independent employee, it is, in effect, a threat to keep persons from working at the particular trade and to procure their dismissal from employ- ment. While it may be true, as argued, that the contract was en- tered into, on the part of the Ale Brewers' Association, with the object of avoiding disputes and conflicts with the workingmen's organization, that feature and such an intention cfannot aid the de- fense, nor legalize 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. In our judgment, the defense pleaded was insuflBcient, in law, upon the face thereof, and, therefore, the demurrer thereto was properly sustained. The judgment appealed from should be aflirmed, with costs. All concur, except Haight, J., not sitting. Judgment affirmed. ' 1 See also. Berry v. Donovan, 188 Mass. 353 (1905); Connors v. Connolly, 86 Conn. 641 (1913) (restraint of trade). Compare: Lehigh Structural Steel Co. V. Atlantic Smelting & Refining Works, 111 Atl. (N. J.) 376; Baldwin Lumber ■Co. V. Local No. 660, 109 Atl. (N. J.) 147. SECT. V] AGEEEMENTS FOR UNIONIZATION OF SHOPS 335 JACOBS V. COHEN CoxjBT OF Appeals of New York. 1905 183 N. Y. 207 Gray, J. The plaintiff sues the makers and the indorser [of] a prom- issory note, paj-^abTe'to the order of the Protective Coat Tailors' Union, oFwHich he is the president, to recover the amount due thereon. The answer of the defendants denied the allegations of the complaint, ' except as to the making of the note, and set up as a distinct and separate defense that it was given "as collateral security to the plaintiff, to be applied as liquidated damages, for violation by the\ defendants, of any of the covenants and conditions of a certain' contract." The particular part of the contract set forth is as fol- lows: "That the party of the first part [meaning the makers' firm] shall not employ any Tielp Whatsoever other than those belonging to, and who are members of the party of the third part [meaning a ' union ' of the firm's employees], and in good standing, and who conform to the rules and regulations of the said party of the third part, and the said party of the first part shall cease to employ any one and all those employees who are not in good standing, and who do not conform to and comply with the rules and regulations of said party of the third part, upon being notified to that effect by its duly credentiaJed representatives. That the party of the first part shall not engage any help whatsoever, even those who are mem- bers of the party of the third part, without their first having pro- duced a pass-card duly executed and signed by the authorized busi- ness agent of the party of the third part; said card to show that the bearer thereof is a member in good standing of the party of the third part, and that he has complied with the rules and regulations thereof in force at that time." The answer then alleged "that the said con- tract is in restraint of trade and the said contract has for its purpose the combination oF employers and employees, whereby the freedom of the citizen, in pursuing his lawful trade and calling, is through such contract, combination and arrangement, hampered and re- stricted, and has also for its purpose the coercing of workingmen, to become members of the said^ Erhployees' Organization and come under its rules and its conditions, under the penalty of the loss of their positions and of deprivation of emplosonent, and that such purposes are in restraint of trade, that they hamper and restrict the freedom of a citizen, in pursuing his lawful trade and calling and that they are against public policy and unlawful." To this defense, the plaintiff demurred, for being insufficient in law. The demurrer was sustained at the Special Term; but, upon appeal to the Appel- late Division, in the second department, the judgment sustaining the demurrer was reversed and the demurrer was overruled. Per- mission was given to the defendants to appeal to this court and the following questions were certified for our review, namely: 336 LEGALITY OF ENDS PURSUED [CHAP. V "I. Is a contract made by an employer of labor, by which he binds himself to employ and to retain in his employ only members in good standing of a single labor union, consonant with pubhe policy, and enforcible in the courts of justice in this state? "II. Is the ' Second ' separate defense, contained in the answer herein of the defendants, Morris Cohen and Louis Cohen, insuffi- cient upon the face thereof to constitute a defense?" If we refer to the prevailing opinion of the Appellate Division, it appears that the question in this case was there regarded as within our decision in Curran v. Galen (152 N. Y. 33), and, hence, that the contract was unlawful because contrary to pubhc poUcy. In this view, I think the learned justices below erred. The contract is annexed to, and made part of, the answer and is tripartite, between the defendants, Morris and Louis Cohen, a firm engaged in the tailoring business, their employees, represented by an attorney in fact, and a voluntary association, formed by the latter and called the Protective Coat Tailors' and Pressers' Union, of which the plain- tiff is president. It provided for the employment by the Cohens of their employees, in their various skilled capacities, for the term of one year;, for a system of work by the week; for the number of hours of work and for the mode of payment of the wages and, gen- erally, for the regulation of the relations between the employers and their employees, including this particular agreement not to employ others than members of their employees' union. What- ever else may be said of it, this is the case of an agreement volun- tarily made by an employer with his workmen, which bound the latter to give their skilled services for a certain period of time, upon certain conditions, regulating the performance of the work to be done, and restricting the class of workmen, who should be engaged upon it, to such persons as were in affiliation with an association, organized by the employers' workmen with reference to the carry- ing on of the very work. It would seem as though an emgloxer should be, unquestionably, free to enter into such a "contract with his workmen for the conduct of the business, without its ^3ng deemed obnoxious upon any ground of public policy. If_it might operate to prevent some persons from being employed by the firm,^Or,j)0ssibly, from remaining in the firm's employment, that is but^anjncidental feature. Its restrictions were not of an oppressive nature, operate ing generally in the community to prevent such craftsmen from obtaining employment and from earning their livelihood. It was but a private agreement between an employer and his employees, concerning the conduct of the business for a year and securing to the latter an absolute right to limit the class of their fellow -worknien to those persons, who should be in affiliation with an organization entered into with the design of protecting their interests in carry- ing on the work; as, indeed, the agreement recites. N or doe s the answer aver that it was intended, thereby, to injure other work- SECT. V] AGREEMENTS FOR UNIONIZATION OF SHOPS 337 men; or that it was made with a malicious motive to coerce any to their injury, through their threatened deprivation of all opportunity of piursuing their lawful avocation. To coerce workmen to become members of the employees' organization, through such a contract, is not the allegation of something, which the law will, necessarily, regard as contravening public policy. The allegation that its "pur- poses are in restraint of trade," or that "they hamper and restrict the freedom of a citizen," or "that they are against public pohcy," is the mere statement of a legal conclusion. If the question were more correctly presented by some appro- priate allegation, I, still, would be of the opinion that the agree- ment is not one which comes under the condemnation of the law. The right of workingmen to unite and to organize for the protec- tion of their interests and welfare is not denied. It has been, ex- pressly and recently, declared by this court. (Curran v. Galen, 152 N. Y. 33; National Protective Association v. Gumming, 170 lb. 315, at pp. 320, 334, 338.) The inviolability of the right of persons to freedom of action may well extend to any concert of action for legit- imate ends, if consistent with the maintenance of law and order in the community and if not interfering with the enjoyment and the exercise by others of their constitutional rights. Their right to combine and to cooperate for the promotion of such ends as the increase of wages, the curtailment of hours of labor, the regulation of their relations with their employer, or for the redress of a griev- ance, is justifiable. Their combination is lawful, when it does not extend so far as to inflict injury upon others, or to oppress and crush them by excluding them from all employment, unless gained through joining the labor organization, or trades imion. This we have decided and this the law of the state sanctions. (Gurran v. Galen, supra; National Protective Association v. Gunaming, supra; Penal Gode, sec. 170.) As it was observed in Gurran v. Galen, an underlying law of himaan society moves men to unite for the better achieve- ment of a common aim and this social principle justifies organized action. Organization, or combination, is a law of himian society. It is open to aU orders of men, who desire to accomplish some law- ful piupose through the greater strength and effectiveness, which organization offers over individual effort. If surrender of individ- ual hberty is involved in combination, that is, nevertheless, but an extension of the right of freedom of action. . . . The case of Gurren v. Galen {supra), which stands unaffected as an authority,'"presented a very different state of facts. ... I endeavored to point out in the opinion that the agreement could be jQo^ justification for the acts charged in the complaint and that it could not legalize a plan for compelling other workingmen to join the defendants' organization, at the peril of being deprived of em- ployment and of making a livelihood. However lawful and legit- imate fhe purposes of the organization of the workingmen may have 338 LEGALITY OF ENDS PURSUED [CHAP. V been, its power and influence were being unlawfully wielded in efforts to keep other persons from working at the particular trade and to procure their dismissal from employment. In the general discussion of the question, I conceded the general right of workingmen to organize for the common good of the members and sought to show how the agreement and acts, there in question, were contrary to public policy and unlawful, because oppressive and restricting the freedom of others to engage in the same Hne of occupation, or to make a livelihood at their trade, as a penalty for refusing to join the defendants' organization. That was a very different case from the present one. The subsequent case of National Protective Asso- ciation V. Gumming (supra), in no wise overruled Curran v. Galen. It was not at all within the principle of the prior case. It concerned a dispute between rival labor organizations. ... This contract was voluntarily entered into by the Cohens and, if it provided for the performance of the firm's work by those only who were accredited members, in good standing, of an organization of a class of workingmen whom they employed, were they not free to do so? If they regarded it as beneficial for them to do so (and such is a recital of the contract), does it lie in their mouths, now, to urge its illegality.'* That, incidentally, it might result in the discharge of some of those employed, for failure to come into afifihation with their fellow-workmen's organization, or that it might prevent others from being engaged upon the work, is neither something of which the em- ployers may complain, nor something with which public policy is concerned. I think that the questions certified should be answered in the affirmative and, therefore, that the order of the Appellate Division,* reversing the interlocutory judgment and overruling the demurrer, should be reversed and that the interlocutory judgment, which sustained the demurrer, should be afl&rmed, with costs in all the courts to the appellants.' KISSAM V. UNITED STATES PRINTING CO. Court of Appeals of New York. 1910 199 N. Y. 76 Werner, J. In the first of these actions the plaintiff is a stock- holder and employee of the defendant United States Printing Co., and in the second the plaintiffs are employees of that corporation, but not stockholders. In all other respects the actions are identical, and they are based upon voluminous complaints which charge th e defendants with conspiring and confederating to_ compel the de- ' Vann, J., rendered a dissenting opinion. — Ed. Accord: Mills v. U. S. Printing Co., 99 App. Div. (N. Y.) 605. See also, Natl. Fireproofing Co. v. Mason Builders' Assn., 169 Fed. 259. SECT. V] AGREEMENTS FOR UNIONIZATION OF SHOPS 339 fendant United States Printing Co. to enter into an agreement with the s everal labor unions named as defendants to the effect that from and after January 1, 1904, the said printing company would employ none but members of the several stereotypers unions tTierein referred to, and would discharge all employees in its stereo- typers' department who should refuse to avail themsejves of the opportunity to become members of said unions. The various acts and proceedings by which this agreement was brought about are set forth in great detail, with appropriate aUegatioas of their il- legality, and these are supplemented by the assertion that the agree- ment is void because induced by coercion. The complaints are further amplified by allegations that the agreement, thus imlawfully entered into with reference to the stereotypers' department of the United States Printing Co., is to be followed by similar agreements designed to control the action of that corporation in the conduct of all its other departments; that the effect of such action will be to cause the discharge of the plaintiffs and many others similarly sit- uated and to prevent them from obtaining employment elsewhere; that owing to the peciiliar and far-reaching methods employed by the labor unions referred to, and the fact that they are unincor- porated bodies or associations composed of many hundreds of mem- bers, the plaintiffs have no adequate remedy at law, and will have no remedy at all imless the agreement between the United States Printing Co. and these unions is declared void, and the defendants are restrained and enjoined from carrying out its provisions. A preliminary injunction was issued, the specific provisions of which need not be recited, and that was subsequently modified in certain particulars. Thus the record stood when the case was brought to trial. Much evidence was introduced and some of it bears most cogently upon questions which lie at the very foundations of the rela- tions between employer and employee, not merely as individuals but as organized bodies whose piu-pose it is to induce or exact rights and privileges which must interfere, more or less, with individual freedom of action. If these questions were open for consideration by this court they would be interesting and perplexing, for they involve legal and sociological problems of the highest importance. But they are not open to us. The unanimous affirmance by the Appellate Division of the judgment entered at Special Term limits our investigation to the correctness of the legal conclusions upon the facts found by the trial court. We are bound to assume that the facts found are supported by the evidence, and if the legal conclusions are sustained by these findings the judgment must be affirmed. The learned trial court found that the execution of the agreement between the United States Printing Co. and the several labor unions resulted in great financial benefit to the former, and disposed of the diSerehces between the parties; that the agreement was not en- ^^ tiered into for the purpose of gratifying mahce against the non-union 340 LEGALITY OF ENDS PUESXJED [CHAP. V employees of the printing company or of inflicting injury upon th.em; that it was not the object of the defendants to compel the plaintiffs to join the unions; that no pressure, so imperative as to amoilSrto compulsion, was exerted upon the printing company with regard to the discharge of the plaintiffs from their employment,, and that there was no conspiracy to compel the plaintiffs to join the unions or solely to injure them in their employment. Upon these findings of fact the learned trial court based the legal conclusions that the agreement was in all respects lawful; that it was not entered into under duress; thai no unlawful act has Beeitt committed by the defendants, and that the complaint should be dis- missed. These conclusions are in accordance withthe decisions of this court arising out of similar or analogous conditions (National Protective Association v. Cimiming, 170 N. Y. 315; Jacobs ;;. Cohen, 183 lar 207; People '«). Marcus, 185 Id. 257), and the judgmmts in both actions must, therefore, be aflfaned, with costs. CuLLEN, Ch. J., Haight, Willaed Baktlett, Hiscock and Chase, JJ., concur. Judgments affirmed.' SHINSKY V. O'NEIL Supreme Judicial Court of Massachusetts. 1919 232 Mass. 99 Bill in equity, filed in the Supreme Judicial Court on April 5, 1917, by a laster, who had been employed for many years in shoe factories in Lynn, against the officers and members of an unincor- porated association called Lasters' Local No. 1, praying (1) "That the defendants be enjoined forthwith from interfering or from com- bining, conspiring or attempting to interfere with the plaintiff in obtaining and holding employment, and from intimidating or threat- ening persons who might employ or desire to employ the plaintiff, and from in any way hindering the plaintiff in obtaining or con- tinuing in employment." (2) "That an account be taken of the damage caused the plaintiff by the acts" complained of, (3) for costs and (4) for further relief. . . . LoKiNG, J. The plaintiff in this case (the same person who was the plaintiff in Shinsky v. Tracey, 226 Mass. 21) is a laster who had been expelled from the association known as Jthe United Shoe Workers of America and from the local union of that association in the city of Lynn. After the decision in Shinsky v. Tracey, he ap- plied on February 1, 1917, to the Adams Shoe Co. for employment as a laster. One Benson, who had authority to hire and discharge men for that company, refused to employ him, "feeling bound to comply with the peace pact and fearing that there would be a strike 1 Compare: Brescia Construction Co. v. Stone Masons' Contractors' Assn., 187 N. Y. Supp. 77. SECT. V] AGREEMENTS FOR -UNIONIZATION OF SHOPS 341 if he employed the plaintiff . . . unless he [the plaintiff] had a per- mit from the union. The plaintiff, feeling that he could not get such a permit, went away." In March, 1917, the plaintiff applied to A. Fisher and Son for employment as a laster. One Daley had authority to hire and discharge men for this firm. The master made the same finding with respect to Daley that he made with respect to Benson. On April 2, 1917, the plaintiff applied to the Johnson and Wright Shoe Co. for employment as a laster. Hed- lund had authority to hire and discharge men for this company. Hedlund at first employed the plaintiff, but, on finding out who he was, discharged him. The master found that, "in discharging the plaintiff [Hedlund] was actuated by a desire to carry out the real wishes of Fish and the union and thus avoid trouble with the union." Fish was the business agent of the local union of the United Shoe Workers of America. Hedlund had conferred with him as to the action he had better take on the plaintiff's application for work. The Adams Shoe Co., A. Fisher and Son and the Johnson and Wright Shoe Co. were shoe manufacturers in Lynn. Each of the first two had a peace pact agreement with the United Shoe Workers of America, and the other had a price list agreement with them. The peace pact agreement provided that no person should be employed "other than members in good standing of the United Shoe Workers of America so long as the Local Union . . . are able to furnish help to do said work." The price list agreement provided that all the work should "be given to members in good standing with Lasters' Local No. 1, United Shoe Workers of America." The case came before the Superior Court on the report of a master, to which no exceptions were taken. A decree was entered in the Superior Court dismissing the bill, and the case is here on an appeal from that decree. . . . The plaintiff has not undertaken to question the validity of a peace pact agreement between an employer and a labor union. The validity of such an agreement was established by the decision of this 'court in Hoban v. Dempsey, 217 Mass. 166. Nor has the plain- tiff Undertaken to argue against the validity of a clause in an agree- ment between an employer of labor and a labor union which provides that all work shall be given by the employer to the union. The valid- ity of such an agreement is a necessary corollary of the decision made in Pickett v. Walsh, 192 Mass. 572. What the plaintiff_has_contended is that this. .case is taken out of t hese decision s by the partici^F findings made by the master. He relies in the first plac e on what was found by the master with respect to'tfie general poHcy of the United Shoe Workers of America. The master begins his report by stating what the general policy of th e Unit ed Shoe W orkers of .Ammcajs. He found in the first place that "The United Shoe Workers of America . . . seek as a part of their general policy to_ secure all the work possible for theijr 342 LEGALITY OF ENDS PtTESUED [CHAP. V megabers, rather than to have it gP to .imafl51iaitfidjffiQdseia,.and to oFtain the highest prices possible Jor their work." After statmg that this is "a part of their general policy" he goes on with this finding: "A part of the policy of the union is t o secure and increase in nu mber w hat are sometimes called_S^losed_shops/' thaE"is, shops where union members and no others are employed, and one of the purposes of this policy is to enlarge and strengthen the union or- ganization." The plaintiff's contention on these findings is that the master has found that a part of the general policy of the union is legal and a part illegal; that it foUows from this that the poUcy as a whole is illegal and for that reason this case is taken out of Hoban V. Dempsey and the doctrine of Pickett v. Walsh. We are not able to accede to this contention of the plaintiff. It is established that workmen can combine to get the advantage of bargaining for their common benefit in respect to the terms and conditions upon and under which they should work. It is further established that, if they are successful in getting the bargain they wish, they can insert in the agreement setting forth that "Bargain a clause providing that all work of the employer sha,ll lie given to them or that a preference shall be given to them in the employment of workmen. So much is established. Workmen cannot hope to succeed in securing the advantages of bargaining for the common benefit unless their combination, their organization, their union (caU it what you please) is a large and a strong one. If any member of the combination or imion were to testify that he did not wish "to enlarge and strengthen the union organization," no one would be- lieve him. No one would beheve that a member of a labor union organized to secure the advantages of bargaining for the common benefit could hope to succeed unless all the members of the union did their best "to enlarge and strengthen the union organization." So far as this finding of the master is concerned we are of opinion that the policy of the United Shoe Workers of America "to enlarge and strengthen the union organization" is an incident and a neces- sary incident to a successful combination to secure the advantages of bargaining for the common benefit. What we have said with respect to this finding of the master is also true of the other finding relied upon by the plaintiff, namely, "a part of the poUcy of the union is to secure and increase in number what are sometimes called ' closed shops.' " We understand by this that the master means that it is a part of the policy of the United Shoe Workers of America "to secure and increase in number" shops where the employer agrees to give all the work to members of the union, or at any rate to make a preference in their favor in employing workmen. The purposes of the action in question in Plant v. Woods, 176 Mass. 492, and in Berry v. Donovan, 188 Mass. 353, are quite dif- ferent from the purposes which are found by the master to have been included in the general policy of the United Shoe Workers of SECT. V] AGREEMENTS FOR UNIONIZATION OF SHOPS 343 America set forth above. In both Plant v. Woods and in Berry v. Donovan the action taken was taken to force in the one case a num- ber of workmen and in the other a single workman to join a partic- ular union. That was the sole purpose of the action taken in those cases. The decisions in those cases are not decisive of the case at bar where there is a general poUcy to secure the advantages of bar- gaining for the common benefit or, as the master puts it, "to secure aU the work possible for their members, rather than to have it go to unaffiliated workers, and to obtain the highest prices possible for their work," and where as an incident to that general pohcy it is found by the master that it was the purpose of the imion "to secure and increase in number what are sometimes called ' closed shops ' . . . and ... to enlarge and strengthen the union organization." By the true construction of the master's report it cannot be taken that his statement of the policy of the United Shoe Workers of America is anything more than this. The plaintiff has insisted that there is another finding of the mas- ter which takes this case out of the decision in Hoban v. Dempsey and the doctrine of Pickett v. Walsh. That finding is this: "It is then a part of the policy of the union to endeavor to induce the work- man to become a member of the union or to make himself in good standing in it, and, failing that, to report to the employer that the workman is not a member of the union in good standing. It is not the custom of the union to refuse membership to workmen wishing to join the union, even though there are members of the imion out of work who would like emplojnnent; but of course the admission of new members is optional with the union." It is the plaintiff's contention that this finding means "that the union tries to induce the workman to join and admits him regardless of whether its own members are out of work and without employment. It is not the work, but the man and the closed shop which the imion reaUy seeks, ia order to ' enlarge and strengthen the union organization.' " A union which has an agreement with an employer providing {inter alia) that all the work shall be given to members of the union or "that a preference shall be given to members of the union in employ- ing workmen, would open itself to a serious criticism if it refused to admit to membership men qualified to perform the work done by members of the union in question. By having as a part of its policy \ "the custom" of not refusing membership to workmen who wished to join, such a union avoids subjecting itself to this criticism. We are of opinion that the finding of the master here relied upon cannot be taken to mean anything more than this. The last finding of the master which is relied upon by the plain- tiff to take this case out of Hoban v. Dempsey and the doctrine of Pickett V. Walsh, is this: "I find that, as a consequence of the case of Shinsky v. Tracey, 226 Mass. 21, and the proceedings leading lip to that suit, the defendants, other than Daley and Hedlund, 344 LEGALITY OF ENDS PUKSTTED [CHAP. V and the union generally were and are in a state of business hostility to the plaintiff." It is plain from the master's finding which follows immediately after this finding, that he did not intend by this find- ing to state that the refusal to employ the plaintiff was based on "hostility to the plaintiff." Immediately after this finding the master made the following finding: "But I do not find that, in the three incidents related in this report, the defendants or the luiion did anything adverse to the plaintiff that they would not have done had the plaintiff been a non-member of the union against whom no such hostility existed. Whether the plaintiff could have obtained admission into the union, as an ordinary non-member could, must be a matter of conjecture, because he made no application for ad- mission." It is plain, therefore, that the master/s finding went no further than a finding that the union insisted upon an enforcement of the clauses in their agreement with the Adams Shoe Co., and with A. Fisher and Son which provided that in employing the lasters preference should be given to members of the union, and of the clause in their agreement with the Johnson and Wright Shoe Co., that all the work in the lasters' department should be given to mem- bers of the Lasters' Local No. 1 of the United Shoe Workers of America. For these reasons we are of opinion that there is nothing in the master's report which takes this case out of the decision made in Hoban v. Dempsey and the doctrine of Pickett v. Walsh, and that apart from the Sherman anti-trust act and St. 1911, c. 503 (upon which we intimate no opinion), the agreements between the three employers of lasters here in question and the United Shoe Workers of America were valid agreements. The result is that the decree appealed from must be aflBrmed with costs, and it is So ordered.^ Section 6. Strikes to Compel Payment of Fines Levied against Employer CAREW V. RUTHERFORD Supreme Judicial Court of Massachusetts. 1870 106 Mass. 1 Contract against Alexander Rutherford, Joseph Wagner, Edward Shea, William Cooney, and the "Journeymen Freestone Cutters' 1 The earlier case of Hoban v. Dempsey, 217 Mass. 166 (1914), held that a trade agreement voluntarily entered into between the representatives of certain steamship companies and a union of longshoremen in furtherance of the interests of both, providing that the steamship companies should employ none but mem- bers of the longshoremen's union so long as such labor was available, is a valid agreement, and cannot be enjoined by a rival longshoremen's union. Compare the still earlier case of Berry v. Donovan, 188 Mass. 353 (1905). See also Reihing v. Brotherhood of Electrical Workers, 94 N. J. L. 240. SECT. VI] FINES AGAINST EMPLOYER 345 Association of Boston and vicinity, an unincorporated association composed of the defendants personally named and other persons to the plaintiff unknown," to recover back $500 as money had and received by the defendants to the plaintiff's use; with [an] alterna- tive count in tort. . . . At the trial in the Superior Court, before Brigham, C. J., with- out a jury, the judge found these facts: "The plaintiff in August, 1868, was a freestone cutter at South Boston, and had contracted to furnish cut freestone for various buildings, among which was the Roman Catholic cathedral in Bos- ton, in l$,rge quantity and at a contract price of $80,000. The de- fendants, and sixteen other persons, all journeymen freestone cutters, and members of an ujtiincorporated association called the Journey- men Freestone Cutters' Association of Boston, Charlestown, Rox- bury, and their vicinities (of which association the plaintiff was not a member), together with eight or ten laborers, who were not jour- neymen stonecutters or skilled laborers, and four apprentices to the freestone cutting trade, constituted the stonecutting force reUed upon by the plaintiff to fulfil his said freestone contracts. . . . On the morning of August 18, 1868, the defendant William Cooney, president of said association, who was foreman in the plaintiff's establishment, notified the plaintiff that on the evening of the day before, at a special meeting of the association, it was voted that the plaintiff should pay to the association the sum of $500 as a penalty imposed upon him by the association because he had sent to New York to be executed some of the freestone cutting to be done under his contract for the cathedral; and upon the plaintiff's refusal to make such payment, all the journeymen freestone cutters employed by him (among them, the defendants) left the plaintiff's service in a body, agreeably to said vote and the rules of said association. At his request, the plaintiff was permitted to appear at a meeting of the association and explain the circumstances which induced him to send a part of the stone cutting work required for the cathedral to New York to be executed; and, after explaining that his action in that matter was because of his not having the proper stock for that part of the work when he could procure journeymen to work upon it, and when, having procured such stock, he could not pro- cure a sufficient force of journeymen to work it, there was a motion made and debated in the association, that the previous vote, to the effect that members should withdraw from the plaintiff's service unless he paid $500 as aforesaid^ should be reconsidered and rescinded; but the association refused to reconsider or rescind the vote. At this meeting, said vote was read lo the plaintiff by the secretary of the association. On the same night or the next morning, the defendants Cooney and Shea, and others, told the plaintiff that all the association men in his shop would desert him at once unless he paid the $500, and that the association refused to rescind the vote. 346 LEGALITY Or ENDS PURSUED [CHAP. T The plaintiff refused to pay, and all his men left his shop at once and in a body, under the lead of Cooney and Shea; and the plain- tiff was without men for a week or ten days, and until after he had made the payment of $500 as hereinafter stated. Previously to the payment of the money, and after the men had left him, Cooney and others of the defendants told the plaintiff that neither these men, nor any association men, would be allowed to work in his shop, if he refused to pay the money demanded. In consequence of the withdrawal of the defendants and the other journeymen, the free- stone cutting which the plaintiff had contracted to do was stopped, because it was impossible for the plaintiff to procure journeymen or other freestone cutters, who were not members of said associa- tion, and who had such skill as was required for the fulfilment of his contracts. Several days after the defendants and the other jour- neymen had withdrawn from the plaintiff's service, the plaintiff, induced by the .necessity of doing so to fulfil said contracts and continue his other stonecutting work, paid to the defendants, to the use of said association, the simi of $500, on August 26, 1868; and the defendants and other journeymen, who had withdrawn as afore- said, returned to the service and employment of the plaintiff." . . . The judge further found as a fact "that the money demanded of the plaintiff was demanded without right, and not imder any con- tract or agreement between him and the defendants." Upon these findings the judge ruled that the facts would not sustain the action, and ordered judgment for the defendants. The plaintiff alleged exceptions. Chapman, C. J. The declaration contains a coimt in tort, and a count for money had and received. . . . One of the aims of the common law has always been to protect every person against the wrongful acts of every other person, whether committed alone or in combination with others; and it has pro- vided an action for injuries done by disturbing a person in the en- joyment of any right or privilege which he has. . . . The illustra- tions given in former times relate to such methods of doing injury to others as were then practised, and to the kinds of remedy then existing. But as new methods of doing injury to others are in- vented in modern times, the same principles must be applied to them, in order that peaceable citizens may be protected from being disturbed in the enjoyment of their rights and privileges; and exist- ing forms of remedy must be used. . . . There are many cases where money has been wrongfully obtained by fraud, oppression or taking undue advantage of another, without doing him any other injury. This, being tortious, would sustain an action expressly alleging the tort. But an action for money had and received has been maintained in many cases where money has been received tortiously without any color of contract. 1 Chit. PI. (6th ed.) 352. This class of cases is referred to, because they dis- SECT. VI] FINES AGAINST EMPLOYEK 347 CUSS the question what constitutes an unlawful obtaining of money, such as will subject the party obtaining it to an action for damages. In Shaw v. Woodcock, 7 B. & C. 73, it is said that, if a party making a payment is obliged to pay the money in order to obtain possession of things to which he is entitled, the payment is not a voluntary, but a compulsory payment, and may be recovered back. In Morgan v. Palmer, 4 D. & R. 283, Abbott, C. J., says that, in order to render a payment voluntary in the proper sense of the word, the parties concerned must stand upon equal terms; there must be no duress operating upon the one; there must be no op- pression or fraud practised by the other. In Cadaval v. Collins, 4 Ad. & El. 858, money was recovered back which was obtained by abuse of legal process. In Wakefield v. Newbon, 6 Q. B. 276, money extorted from an- other by means of the wrongful detention of his goods was recovered back. . . . The cases in regard to the recovery back of money which has been wrongfully obtained are very numerous. Many of them are collected in the notes to Marriot v. Hampton, 2 Smith Lead. Cas. (6th Am. ed.) 453. There is a large class of cases in which it cannot be recovered back, like Marriot v. Hampton, and like Benson v. Monroe, 7 Gush. 125. In the latter case, the defendant had made a claim in good faith, under a statute which he believed to be valid. The plaintiff had preferred to settle and pay it, rather than litigate the matter further. It turned out, by the decision in a subsequent case, that if he had carried the case to the Supreme Court of the United States he would have prevailed on the ground that the statute was imconstitutional. But neither this, nor any of the other cases, gives any countenance to the idea that money can be obtained by fraud or oppression, and with knowledge that the claim is unfounded, without exposing the party obtaining it to an action. Without undertaking to lay down a precise rule applicable to all cases, we think it clear that the principle which is established by all the authorities cited above, whether they are actions of tort for disturbing a man in the exercise of his rights and privileges, or to recover back money tortiously obtained, extends to a case Kke the present. We have no doubt that a conspiracy against a me- chanic, who is under the necessity of employing workmen in order to carry on his business, to obtain a sum of money from him, which he is under no legal liability to pay, by inducing his workmen to leave him, and by deterring others from entering into his employ- ment, or by threatening to do this, so that he is induced to pay the money demanded, under a reasonable apprehension that he cannot carry on his business without yielding to the illegal demand, is an illegal, if not a criminal, conspiracy; that the acts done under it are illegal; and that the money thus obtained may be recovered back, and, if the parties succeed in injuring his business, they are liable 348 LEGALITY OF ENDS PURSUED [CHAP. V to pay all the damage thus done to him. It is a species of amioy- ance and extortion which the common law has never tolerated. This principle does not interfere with the freedom of business, but protects it. Every man has a right to determine what branch of business he will piu-sue, and to make his own contracts with whom he pleases and on the best terms he can. He may change from one occupation to another, and pursue as many different occupations as he pleases, and competition in business is lawful. He may refuse to deal with any man or class of men. And it is no crime for any niunber of persons, without an unlawful object in view, to associate themselves together and agree that they will not work for or deal with certain men or classes of men, or work imder a certain price, or without certain ~ conditions. Commonwealth v. Hunt, 4 Met. Ill, cited above. Boston Glass Manufactory v. Binney, 4 Pick. 425. Bowen v. Matheson, 14 Allen, 499. This freedom of labor and business has not always existed. When our ancestors came here, many branches of labor and business w6re hampered by legal restrictions created by English statutes; and it was a long time before the community fully understood the im- portance of freedom in this respect. Some of our early legislation is of this character. One of the colonial acts, entitled "An act against oppression," punished by fine and ifnprisonment such indisposed persons as may take the liberty to oppress and wrong their neigh- bors by taking excessive wages for their work, or unreasonable prices for merchandises or other necessary conunodities as may pass from man to man. Anc. Chart. 172. Another required artificers, or handicraftmen meet to labor, to work by the day for their neighbors, in mowing, reaping of corn and the inning thereof. lb. 210. An- other act regulated the price of bread. lb. 752. Some of our town records show that, under the power to make by-laws, the towns fixed the prices of labor, provisions and several articles of merchan- dise, as late as the time of the Revolutionary War. But experience and increasing intelligence led to the abolition of all such restric- tions, and to the establishment of freedom for all branches of labor and business; and all persons who have been born and educated here, and are obHged to begin life without property, know that freedom to choose their own occupation and to make their own con- tracts not only elevates their condition, but secures to skiU and industry and economy their appropriate advantages. Freedom is the poKcy of this country. But freedom does not imply a right in one person, either alone or in combination with others, to disturb or annoy another, either directly or indirectly, in his lawful business or occupation, or to threaten him with an- noyance or injury, for the sake of compelling him to buy his peace; or, in the language of the statute cited above, "with intent to extort money or any pecuniary advantage whatever, or to compel him to do any act against his will." The acts alleged and proved in this SECT. VI] FINES AGAINST EMPLOYER 349 case are peculiarly offensive to the free principles which prevail in this country; and if such practices could enjoy impunity, they would tend to estabhsh a tyranny of irresponsible persons over labor and mechanical business which would be extremely injurious to both. Exceptions sustained. After this decision, the case was settled by the parties, without another trial. DAY V. STUDEBAKER BROS. MFG. CO, City Couet of New York. 1895 13 Misc. 320 CoNLAN, J. This is an appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial. This action was brought to recover back the siun of $300 claimed to have been paid to the defendant under duress. The evidence shows that about August, 1891, the defendant corporation was engaged in manufacturing carriages in South Bend, Indiana. The plaintiff was in its employ, with an office in the City of New York. About October of that year the plaintiff went to South Bend, where he had a conversation with an officer of the defendant, in which it was claimed that plaintiff had received $500 which be- longed to the defendant; this claim was resisted by the plaintiff, who claimed the money belonged to him. Plaintiff also testified that he was given to imderstand that his services would not be needed by the defendant unless he paid over this money. After some further talk it was agreed that $300 should be turned or paid over to defendant instead of the $500 originally claimed, and which sum plaintiff transferred to the credit of the defendant on his return to New York. Assuming the money to belong to the plaintiff, this action cannot be maintained. The payment of the money after his return was purely a matter of business policy and lacked every essential element of duress. The defendant was under no obligation to retain the services of the plaintiff, and if plaintiff saw fit to pay $300 as the price of his retention in the employ of the defendant he is bound by his bargain. It might with equal force be urged that if defendant had informed plaintiff that unless he consented to take less salary than he was getting then he would be discharged, and plaintiff, desirous of re- taining his place, consented, that he could subsequently recover his original- salary. 350 LEGALITY OF ENDS PURSUED [CHAP. V Such a proposition could not be entertained for a moment. The money was transferred to defendant after plaintiff's return to New York, and after ample opportunity to realize what he was doing, and without any fraud or deception on the part of the de- fendant. Where a party threatens to do only what he has a legal right to do there can be no duress. 6 Am. & Eng. Ency. of Law, 71; Secor V. Clark, 117 N. Y. 350; Barrett v. Weber, 125 id. 18-25; Doyle v. Rector, etc., 133 id. 372. It follows that the plaintiff is without reUef and that the defend- ant's motion, made at the close of the plaintiff's case, should have been granted. Judgment reversed and a new trial ordered, with costs to abide the event. Van Wyck and Newbukgee, JJ., concur. Judgment reversed and new trial ordered, with costs to abide event. ^ MARCH V. BRICKLAYERS' UNION Supreme Court of Erboes of Connecticut. 1906 79 Conn. 7 Action to recover money alleged to have been extorted from the plaintiff by means of unlawful threats, intimidation and coercion, brought to and tried by the Court of Common Pleas in Hartford County, Coats, J. ; facts found and judgment rendered for the plain- tiff, and appeal by the defendants. No error. The plaintiff conducted a brick-yard and manufactured and sold brick. The defendant union was a voluntary association composed of journeymen bricklayers and plasterers. The defendant Butler was a member of the union and its financial secretary and business agent. As business agent it was made his duty, among other things, to see that members of the imion did no work in violation of its requirements, and to ascertain and report to the union aU brick manufacturers who furnished brick to any "boss-mason" who was proscribed by the union as "unfair," as being the employer of other than union bricklayers and plasterers, and generally to act as the agent of the union in securing obedience to its orders and compUance with its demands. The plaintiff was not a member of the union, nor an employer of members of it; neither was he under any con- tractual or other obligation to it, save such obligation as one owes to other members of society. The defendant union had voted that its members would refuse to handle brick from any brickmaker who • Compare: People v. Schmitz, 94 Pac. (Cal.) 419 (threat by mayor that if restaurant keepers of city would not pay him graft money he would prevent their obtaining liquor licenses from the police commissioners); People v. Hughes, 137 N. Y. 29; People v. Barondess, 31 N. E. (N. Y.) 240. ECT. VI] FINES AGAINST EMPLOYER 351 bould furnish brick to "unfair" bosses. By authority of the union, otice of this action had been mailed to the plaintiff, and to substan- ially all other brickmakers in the vicinity of Hartford. It had also leen voted that the two secretaries prepare and cause to be printed ards having thereon the names of those "boss -masons" who were ly the union classed as "fair" and those classed as "unfair." These lad been so prepared, accepted by the union and distributed. The )laintiff received said notice, and one of said cards was delivered to lim by Butler. A few months subsequently the plaintiff sold and lehvered brick to a "boss-mason" who was classed as "unfair." Thereupon the union voted to "place damages of $100 against said tfarch for violating agreement with Bricklayers' Union." There vas no such agreement. Shortly afterward the plaintiff sold and )egan to deliver to one Flynn, a "fair" boss-mason, brick for the con- itruction of a building upon which the latter was doing the brick vork. After a few loads had been so delivered the defendant Butler, icting for the imion in his said capacity as business agent, visited ;his bunding and had a talk with the plaintiff and Flynn. The jenalty imposed Upon the plaintiff was then discussed, and Butler hen either expressly said to the plaintiff and Flynn, or intended rom what he did say that they should imderstand, and they did mderstand, that he, "Butler, acting for the union and the union icting through him, could and would, through their control over Glynn's workmen, then had and to be exercised by Butler, prevent ?lynn from using brick bought by him from March, by immediately itopping Flynn's workmen laying the brick, unless Fljmn would igree to become surety for the payment by March to the union of ;he $100 demanded by it from him, as aforesaid," unless the union should at its next meeting afford the plaintiff some relief To this 51ynn agreed, and the plaintiff continued to make deHveries. The plaintiff appeared at this meeting and was accorded a hearing. A notion "to reduce the fine" to $50 was lost, and Butler was in- ;tructed to collect it. The following day Butler met the plaintiff md Flynn, told them that the union held out for the $100, and idded that they were going to have it. From what he said then 'he intended that March and Flynn should understand and be- ieve, and they did imderstand and believe, that Butler had instruc- ions from the defendant union to stop the bricklayers who were vorking for Flynn from work for him upon said . . . building, and ;o cause them to strike, unless March or Flynn at once "paid the lundred dollars demanded by the defendant union; and that he, Butler, could and would do as he represented that he was instructed io do." Flynn and March both protested against the payment, but nfluenced by the aforesaid representations of Butler, Flynn, who vas indebted to March for brick, paid Butler the $100 with the as- lent of March, and charged the same to March on his account; and aid money was paid, as aforesaid, to save greater loss threatened,. 352 LEGALITY OF ENDS PURSUED [CHAP. V as aforesaid, to the business of March and Flynn, and for that reason only. Butler paid over the money to the defendant union at its next meeting. Demands for the return of the money were made on the defend- ants and refused. The complaint seeks the recovery of the money so paid. Peentice, J. The complaint alleges that the defendants con- spired, combined and confederated with each other and with other persons to extort, demand and obtain from the plaintiff the sum of $100. . . . The plaintiff fmrther claims .that the combination for the pur- poses of its controversy with him, resulting in the payment by him, was an unlawful one. He claims that it was unlawful (1) because its object was unlawful, and (2) because the means to accomplish that object were unlawful. He also claims that, as the payment was one into which he was coerced through the operation of this imlawful conspiracy, he is entitled to recover it back. The defend- ants do not deny that a combination or confederation of men, either for the accomplishment of an unlawful object or for the accomplish- ment of a lawful object by imlawful means, is unlawful; neither do they deny that if the combination between them, which resulted in the payment in question, was an unlawful one, the plaintiff is entitled to recover. The contention between the parties, therefore, becomes primarily resolved into one as to whether the conceded confederation of the defendants, through which the payment was obtained, was an unlawful one by reason of the unlawful character of either its object or the means employed. ... The disagreement between the plaintiff and the defendants as to the lawfulness of the object of the latter's combination is one which arises chiefly, if not entirely, out of a difference of view as to what is to be regarded as that object. The defendants say that the ob- ject was the ultimate object of the union, to wit, among other things, the promotion of the welfare of its members and the advancement of their rights and privileges as laboring men; or, if not that, the freeing of themselves from the competition of those not members of the union; or, if not that, and the object is to be brought into closer relation to the matters in controversy, the compelling of "unfair" bosses to become "fair." The plaintiff finds the object sought in an attempt to punish him for his business dealings con- trary to the wishes of the union, by the exaction from him of $100 as the price of his freedom from harassment in the marketing of his product. These differences in the analysis of the situation disclosed by the record are more formal than vital. Their chief importance arises from the changed form which must be given to the discussion of ike underjying questions involved, and the different use of terms which must be made according as one view or the other be adopted. For SECT. VI] FINES AGAINST EMPLOYER 353 the purposes of our consideration, therefore, we may well assume, as did the court below, that the object sought by the defendants in what they confederated to do was some one of the more remote objects claimed by them, and that this object was a lawful one. This, of course, involves the transferring into the field of means that which would in the other view be regarded as an end, and the consideration of all that the defendants did in the accomplishment of its object as means to that accomplishment. . . . The salient facts in the story spread upon the record are, that this defendant association, through their representative the defend- ant Butler, demanded of the plaintiff the payment to them of a sum. of money, upon the threatened alternative that if payment was re- fused he would, by their action in refusing to handle his product in their work then in progress, be annoyed and harassed in the enjoy- ment of the benefit of the market for that product which he had obtained, and in all probability be wholly deprived of that market. The action thus threatened was within the power of the defendants to take. The consequences which would flow to the plaintiff from it, if taken, were such as might weU excite in him a reasonable ap- prehension of serious injury. To the pressure thus brought to bear upon him he yielded and paid the sum exacted. There is nothing in the record to relieve this picture. It does not improve it to say that the defendants were seeking to enforce a penalty or to collect damages assessed. They had no right to inflict a penalty upon, or assess damages against, this man who owed them no duty through association in the membership of the union, by contract, or otherwise. The plaintiff owed them nothing. To overawe him into the payment of something, by means of threats of injury in their power to inflict and of such a character as to natu- rally arouse a reasonable apprehension of serious consequences to him, in the event of his refusal, was an act of the purest extortion — using that word in its widest meaning — and in the plainest violation of our statute, sec. 1296, of our decisions, and of the uni- versally-accepted principles of the common law. State v. Glidden, 55 Conn. 46, 8 Atl. 890; State v. Stockford, 77 Conn. 227, 58 Atl. 769. . . . The most elemental principles of justice and right, which have by universal consent been adopted into the common law, sufiice for a conclusion that money cannot be lawfully exacted of a man in the manner here successful. We are aware of no case where in the progress of a labor or trade controversy a similar attempt to extort money as the price of forbearance from threatened injurious action has ever come before the courts, save that of Carew v. Rutherford, 106 Mass. 1, where the attempt is characterized as a species of an- noyance and extortion which the common law has never tolerated. It is attempted to justify the action of the union in its money de- mand, upon the proposition that as its members had the right to 354 LEGALITY OF ENDS PURSUED [CHAP. V decline to handle the plaintiff's brick they had the right to waive the exercise of that right upon such conditions as they might impose. The proposition is, that money demanded and obtained as the price of forbearance from the commission of an act of injury — even when the commission of that act is held .over the man to coerce and intimidate him into compliance with the demand — is lawf uUj/ obtained, if the threatened act was one which the threatener might lawfully do. Such a proposition could oftentimes be used to justify the vilest blackmailer, and is palpably imsound in that it ignores certain elements which may be present to convert the proceeding into a wrong or a crime. 28 Amer. & Eng. Ency. of Law (2d ed.), 141. It is further said that the action of the defendants was justified in the exercise of the rights of fair trade competition. If it be as- sumed that these journeymen bricklayers and this brick manu- facturer, whose business touched each other only in that the latter sold brick to persons for whom the former worked, are to be re- garded as trade competitors, so that the recognized doctrines ap- plicable to such competitors are applicable to them, it yet remains that the means resorted to in this case would not be permitted. There is no error. In this opinion the other judges concurred.^ Section 7. Strikes to Compel Payment of Fines Levied against Union Members REX V. SALTER Nisi Pi^ius. 1804 5 Espinasse, 125 This was an indictment or a conspiracy against the defendants, who were journeymen hatters. The indictment charged, that the defendants endeavoured to extort from one Walter Kearns, a journeyman hatter, the sum of a guinea; and on his refusal, that they endeavoiired to cause and pro- cure him to be discharged from the service of one Walls, a master hat-maker, by whom he was employed in his trade and business of a hatter: the said guinea being a fine for his having broken certain rules alleged to have been made for the regulation of journeymen hat-makers, and upon his refusal to pay it, in order to prevent the said Kearns from being employed, that they in order to compel Walls to discharge him, unlawfully absented themselves, and refused to work for Walls. Kearns was called, and proved, that he, with several others, worked for a Mr. Walls, who was a hat-manufacturer; that on the 20th of 1 Compare: Burke v. Fay, 128 Mo. App. 690; Carter t). Oster, 134 Mo. App. 146 (threats of personal violence and intimidation). SECT. VII] FINES AGAINST UNION MEMBERS 355 November, 1802, the journeymen met at the manufactury in a gar- ret; that the witness was sent for, and told that he must pay a fine of a guinea; that the defendants and several others were assembled.' The defendants were convicted, REGINA V. HEWITT Court of Queen's Bench. 1851 6 Cox C. C. 162 This was an indictment for a combination by workmen, contrary to 6 Geo. 4, c. 129, and for a conspiracy. It appeared that all the defendants were members of a club or society, called "The Philanthropic Society of Coopers." It was a benefit society. Hewitt was the president, and Jack was the sec- retary. The society had an acting member in every cooper's yard. A man named Charles Evans was a member of the society. He was working in Mr. Turner's yard, but, with the permission of Mr. Turner, he did four days' work at the steam mills of Messrs. Rosen- berg and Montgomery, where steam machinery was extensively em- ployed for making casks. When this came to the knowledge of the committee of the society, they infiicted a fine of 101. payable by instalments, upon Evans, for working in a yard where steam ma- chinery was employed. Evans refused to pay, and the other men in Mr. Turner's yard then left their work and refused to return while Evans was employed. Evans was, in consequence, thrown out of work. Each man who left Tm-ner's yard on accotint of Evans .was paid 9s. for his loss of time, by the committee. The fine was imposed in accordance with the rules of the society. WiVcins, Serjt., in addressing the jiny for the defendants, con- tended that the defendants were members of a society which they believed to be for their benefit. They made certain rules and im- posed fines for the breach of them. The offence charged was con- spiring to do an unlawful act, but it was not an unlawful act to impose a fine upon a member of the society for breach of one of the rules of the society, unless the rules were unlawful in themselves, or were made for an unlawful purpose. The object of the defendants was to teach Evans that he had departed from his duty to the society, and that he had broken its rules. The object of the Act of Parliament was to protect the masters from the combinations of the men; but here the masters did not complain, and it was, therefore, difficult to imagine that the statute had been violated. Lord Campbell, C. J. (to the jury). It appears to me that this is one of the most important cases ever brought before a British " The second half of the case, dealmg with the admissibility of certain evidence, is omitted. — Ed. 356 LEGALITY OF ENDS PURSUED [CHAP, y jury, and upon its result must depend very much the prosperity of the manufacturers and the good of the operatives. But, let it be clearly understood that, whatever may be the result of this case such societies as the present are not in any way illegal. The Phil- anthropic Society is, according to its rules, a most lawful and a most beneficial institution; the object of it is to take care of its members when sick, and to provide a decent funeral for them when they are called away; but it cannot be permitted that, under the guise of such laudable objects, the members shall enter into a combination or conspiracy to injure others. By law every man's labour is his own property, and he may make what bargain he pleases for his own employment; not only so — masters or men may associate together; but they must not, by their association, violate the law; they must not injm-e their neighbour; they must not do that which may preju- dice another man. The men may take care not to enter into engage- ments of which they do not approve, but they must not prevent another from doing so. If this were permitted, not only would the manufacturers of the land be injured, but it would lead to the most melancholy consequences to the working classes. No doubt the defendants may have been under a delusion that they were doing what they were entitled to do, but they must be instructed that the law must be obeyed, and that they cannot be permitted to injure their neighbours in carrying out that which they may consider to be a protection to themselves. It has been stated by the witnesses, that a fine follows a man all over London and all over England. This shows the power of the society. Let them have their rules, and let them act under them; but if they are to fine for some non- descript offence, and that fine is to foUow a man all over England, — if the man is always to go about with that brand upon him, it be- comes the more important that judges and juries should see that such societies do not infringe the law. The payment to the men of the 9s. each for their loss of time was taken from the funds of the society, and was a clear perversion of its objects. Verdict — GuiUy. LoED Campbell, C. J. This is a case in which it is right to pass judgment at once. The offence is a most serious one, and, if allowed to pass with impunity, would bring ruin upon the trade and manu- facturers of this country, and would involve in its ruin the work- men, upon whom the prosperity of this country mainly depends. It clearly appears that this charitable institution, departing from its laudable purpose, was applied to, to prevent one of its members from exercising his free will, and employing his industry in a way which he thought most to his advantage. It is clear that the presi- dent, secretary, and committee resolved that Evans should be pun- ished for having gone to work at the steam mills; that they unlaw- fully imposed on him a fine for so doing, and that they proceeded by unlawful means to induce him to pay that fine. This is an offence SECT. VII] FINES AGAINST UNION MEMBERS 357 which the law must punish, and I hope it will be known to all these societies, that while they will be protected by the law when acting lawfully, the law will punish them when they interfere with the free will and the exercise of the industry of their members. It is an of- fence for which they must be severely punished. The defendants were then sentenced to various terms of impris- onment. GIBLAN V. NATIONAL AMALGAMATED LABOURERS' UNION Court of Appeal. 1903 [1903] 2 X. B. 600 The action was brought by James Giblan, a labourer, residing at Newport, Mon., against the National Amalgamated Labourers' Union of Great Britain and Ireland, Harry W. Williams, its general secretary, and John Toomey, its local secretary at Newport, claim- ing damages for loss of wages, also an injunction. . . . The facts leading to the commencement of the present action were as follows: In or about the year 1891 the plaintiff, who was at the time a riveter employed in the business of repairing ships, became a mem- ber of the defendant imion. He lived at Newport, Mon., where there was a branch of the union, and ultimately he became treasurer of that branch, holding that of&ce in 1896 and 1897. In 1899 some difficulties arose with reference to his accounts; and it was alleged that he had retained a sum in hand of about 381., which should have been handed over to the society. He was seen by the general secre- tary, the defendant Williams, in reference to the matter, and on September 28, 1899, an agreement was signed by which he admitted his indebtedness to the society in a sxmi of 36Z. 9s. 2d., and agreed to pay this by lOZ. on October 9, 1899, and 11. a month until the whole debt was liquidated. As he failed to carry out this agree- ment an action was brought against him in the county court, at the instance of the union, in December, 1899, when judgment Was ob- tained against him for the amount of the arrears payable under the agreement, which at that time amounted to about IIL By the judg- ment he was ordered to pay 51. forthwith, and the balance of the amount by instalments of 11. per month. Shortly afterwards he paid il., but after making that payment he failed to make any further payments under the judgment or the agreement. On February 5, 1900, whilst the plaintiff was engaged at work at the Prince of Wales Dry Dock at Swansea, the defendant Williams went to the foreman and gave him notice that unless the plaintiff was dismissed the other union men who were employed there would be called out on strike. In consequence of that the plaintiff's em- 358 LEGALITY OF ENDS PURSUED [CHAP. V ployers discharged him, and for some two or three weeks he was out of employment. After that, however, he again obtained employ- ment, and was in full work until nearly the close of the year 1900. Meanwhile, he had made no payments in respect of the amount he owed the union, and in June, 1900, a judgment summons was issued against him at the instance of the union in the county comt, claim- ing that IIZ. was due from him. This proved to be an error, and the summons was dismissed with costs. This fact, according to the plaintiff's case, irritated the officials and members of the union, and determined them, by the course they subsequently took, to punish him by preventing him from obtaining employment or from continuing to work if he happened to obtain a job. He was still a member of the union, and had duly paid his contributions as such. In August, 1900, his position in relation to the union, and his in- debtedness to that body, came up for consideration at the annual general meeting of the union, which took place on August 6, 7, and 8, at the town hall, Newport, when a resolution for his expulsion was passed, which was embodied in the following minutes: "The general secretary explained what he had done in this matter, and the position at present. He said that Giblan seemed determined not to pay back to the society his defalcations, but was putting it to all the trouble and expense he could. After the whole of the facts had been stated, it was moved by brothers J. Burns and Kenny, * That, after hearing the general secretary's statement re Giblan's actions, and the amotmt of his defalcations, he shall be expelled from this union and shall only be allowed to rejoin by paying to the society such moneys as are due, being defalcations when treasiu'er of Newport No. 4 branch. The terms of payment to be arranged "with the general secretary on the basis of this resolution.' " The plaintiff having thus been expelled from the union, the de- fendant Williams, on August 11, 1900, wrote to the then treasm'er of the Newport branch, informing him of the resolution, and request- ing him to post by registered letter to the plaintiff a notice of his expulsion, also requesting him to consider the plaintiff a non-mem- ber, and so to inform the members of that and other branches, and to post up in the club-room a notification that he was not a member, and that he must be treated by the members as a non-unionist until further orders. Notice of expulsion was accordingly sent to the plaintiff. At a district joint committee meeting held at Newport on October 13, 1900, several union men were fined for working with the plaintiff as being an expelled member. On December 29, 1900, the plaintiff was in employment at New- port, when the defendant Toomey, the union's local secretary there, went to his employer and gave him notice that unless the plaintiff was discharged other men in the employment would be called out by the union; and Toomey also gave notice to the other men, being members of the union, that if they worked with the plaintiff they SECT. VII] FINES AGAINST UNION MEMBERS 369 would be called out. Consequently the plaintiff was discharged. In a sinailar way, on four subsequent occasions, at Newport, Sharp- ness, and Swansea, the last occasion being on April 19, 1901, once through the intervention of the defendant Williams, and thrice through that of the defendant Toomey, the plaintiff was prevented from retaining employment, in each case notice being given to the union men in the employment that if they worked with the plain- tiff they would be called out. It appeared that another ground for those proceedings against the plaintiff was that he, a non-imionist, was obtaining employment when union men were out of work.^ . . . RoMEE, L. J.2 What are the facts of this case as stated by Wal- ton, J., and found by the jury? In effect they are that the defend- ants Williams and Toomey, as officers of the defendant union, had, by virtue of their position, control over the men of the union, and consequently power to influence employers by calling out or threaten- ing to call out the men imless the demands of the defendants Wil- Uams and Toomey were complied with; and accordingly that the defendants combined to prevent, and did prevent, the plaintiff from getting or retaining employment by calling out or threatening to call out the men; and, further, that this caused damage to the plain- tiff to the extent of lOOZ., and the jury negatived the suggestion that what the defendants did, first, was only to warn the employers that the men would leave in consequence of the men objecting to work wifh the plaintiff; and, secondly, was done in fact in consequence of the men objecting to work with the plaintiff. Lastly, it is found that the defendants acted as they did in order to compel the plain- tiff to pay the arrears of some moneys due from him to the union. The question then is whether, on these facts, the defendant Toomey ought not to have been held Hable to the plaintiff, as well as the de- fendant Wilhams who was also found to have been actuated by a desire to punish the plaintiff for not paying the arrears. Now, since / the decision of the House of Lords in the case of Quinn v. Leathem, [1901] A. C. 495, I take it to be clear, even if it had not been clear before, that a combination of two or more persons, without justi- fication, to injure a workman by inducing employers not to employ him or continue to employ him, is, if it results in damage to him, actionable. But, although I think there is no difficulty in stating the law, I fully realize that considerable difficulty may often arise in particular cases in ascertaining what is a "justification" within the meaning of my statement. As to this, I can only say that regard must be had to the circumstances of each case as it arises, and that it is not practically feasible to give an exhaustive definition of the word to cover all cases; and I would refer to what I have already ' The jury found that the defendant Williams acted in order to punish the plaintiff for not paying the arrears of his defalcations, but that the defendant Toomey did not. — Ed. ' Only the opinion of Romer, L. J., is given. Separate opinions were rendered by Vaughan Williams, L. J., and by Stirling, L. J. — Ed. 360 LEGALITY OF ENDS PURSUED [CHAP. V said on a similar point in the judgment I have just delivered in the case of the Glamorgan Coal Co. v. South Wales Miners' Federation, [1903] 2 K. B. 545. I will only add that I do not think any exces- sive practical difficulty would arise in directing a jury on the point in any particular case; and I may refer, as illustrating this, to the direction given to the jury by FitzGibbon, L. J., in the case of Quinn V. Leathem, [1901] A. C. at p. 500. In the case now before us I cannot say that I feel any difficulty in applying the law as regards the defendant Toomey For, on the facts, I have simply to determine whether two or more persons, who by virtue of their position have special power to carry out their design, are justified in combining to prevent, and in fact preventing, a workman from obtaining any employment in his trade or calling, to his injury, merely because they wish to compel him to pay a debt due from him. In my opinion they are not justified; and conse- quently the defendants Toomey and Williams are, in my opinion, liable to the plaintiff for the damage suffered by him through the conduct of the defendants. . . . But I should be sorry to leave this case without observing that, in my opinion, it was not essential, in order for the plaintiff to suc- ceed, that he shoxild establish a combination of two or more persons to do the acts complained of. In my judgment, if a person who, by virtue of his position or influence, has power to carry out his design, sets himself to the task of preventing, and succeeds in preventing, a man from obtaining or holding employment in his calling, to his injury, by reason of threats to or special influence upon the man's employers, or would-be employers, and the design was to carry out some spite against the man, or had for its object the compelling him to pay a debt, or any similar object not justifying the acts against the man, then that person is liable to the man for the damage con- sequently suffered. The conduct of that person would be, in my opinion, such an unjustifiable molestation of the man, such an im- proper and inexcusable interference with the man's ordinary rights of citizenship, as to make that person liable in an action. And I think this view is borne out by the views expressed by the members of the House of Lords who decided the case of Quinn v. Leathem. The remaining question is as to the liability of the defendant union. That depends upon whether, if the acts complained of had been done by the executive committee, the union would have been liable. I have come to the conclusion that the union would have ' been liable on the principle stated in Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, — that the acts were done in the service and for the benefit of the union. ^ ' 1 The effect of Section 3 of the English Trade Disputes Act, 1906, passed after the decision in this case, was discussed in the subsequent, somewhat similar ■case of Conway v. Wade, [1909] A. C. 506 (threat made by district delegate of union, acting without authority). SECT. Vn3 PINES AGAINST UNION MEMBEES 361 BRENNAN v. UNITED HATTERS Supreme Court of New Jersey. 1906 73 N. J. L. 729 PiTNET, J. This was an action of tort brought to recover dam- ages sustained by the plaintiEf through interference by the defend- ants with his employment in his trade as a hatter. Plaintiff was a member of Local Union No. 17 of the United Hatters of North America. The defendants are this local union (sued, under Pamph. L. 1885, p. 26, as a voluntary association consisting of more than seven members) and twelve individuals, one of whom was the secre- tary of the union, and the other eleven constituted a committee thereof, known as the "vigilance committee." ... A trial being had before the judge of the Essex Circuit Court and a jury, there was a general verdict in favor of the plaintiff, and the consequent judgment is now before us for review. The assignments of error relate to certain rulings of the trial judge that are evidenced by bills of exceptions. It appears that plaintiff was a member in good standing of the United Hatters' union, and was working in Connett-'s factory as one of several hundred men, all of whom belonged to the same union. He was a foreman, in receipt of $18 per week as wages. By the rules of the union no man could be employed in such a shop unless his membership card or check was on deposit with the shop steward, who was an agent of the union at the factory. By the same rules members of the union were not permitted to wor^ in the shop to- gether with any man who was not a member of the union or not in possession of his card. The linion included within its jurisdiction about two thousand two hundred men, employed in about fifteen different factories, situate in a district comprising Orange, Hacketts- town, Bloomfield, Millburn and Livingston. All the hat factories in this district were imder the jurisdiction of the same union. By / an agreement made between the union and the manufacturers, every man employed in any of these factories must have a mem- bership card on deposit with the shop steward. It appears that by the rules of the union the association has power to fine and reprimand or otherwise punish any member violating the laws of the association or the rules of trade. The viligance com- mittee has power to transact any business pertaining to the weKare of the trade in the time intervening between the regular meetings of the union. By the rule relating to "Trial and Appeal," it is pro- vided as foUows: "Any member of this association shall be entitled to due notice and a fair trial upon being accused of any violation of its laws or the rules of trade, but no member shall be put on trial unless charges are submitted in writing by a member of the associa- tion." 362 LEGALITY OF ENDS PURSUED [CHAP. V It appears that on August 5th, 1902, a meeting of the vigilance committee was held, at the instance of two members of the associa- tion named Sereno and Alvino, to investigate a complaint made by them on the authority of Foreman Brennan (the plaintiff herein) against one Trancone, to the effect that Trancone had accused them (Sereno and Alvino) of lying in wait around Brennan's house for the purpose of doing him some injury. Brennan was called before the meeting as a witness. Trancone appears to have been present as the party accused. Each was examined by the committee in the absence of the other. It appears from the minutes that in the course of the investigation Trancone stated to the committee (in Brennan's absence) that he himself had on several occasions paid Brennan small sums of money "to get good work," and that one Panegraso had given money to Brennan for the same purpose. Tran- cone having retired from the presence of the committee, Brennan was recalled, and the statement made by Trancone before the com- mittee was read to him. Brennan denied it. The committee then called Trancone before Brennan to verify his statement. Trancone declared that his statement was true in every particular, and Bren- nan again denied the charge. Subsequently, at the same meeting, Panegraso came before the committee, under escort of Brennan, "as a witness to prove that Trancone lied." Trancone was recalled and reaffirmed his accusation in the presence of Brennan, Panegraso and the committee. Thereupon all parties were notified to appear .before the committee on the following afternoon (August 6th). Upon that date another meeting of the vigilance committee was held, concerning which the minutes disclose only the following: "Timothy Brennan's case was then taken up, and Michael Panegraso was called before the committee to answer the charge that he had ever given money to Brennan. He denied that he had ever given money to Brennan. Mr. Brennan was called and admitted having met Panegraso in Bloomfield. Motion that Michael Panegraso and Benedetto Trancone be fined the sum of $500 each, $250 down and $5 per week, carried. Motion that Mr. Brennan be fined the sum of $500, $250 down and $1 per week, and to give up his place as foreman for the space of one year in Connett's hat factory, carried unanimously." This action of the vigilance committee was reported to a meet- ing of the association held on the following day (August 7th), and a motion was carried that the report be adopted as read. It should be observed that this ratification by the association of the action of its committee is not mentioned in the plaintiff's declaration herein. In order to sustain the judgment under review, the declaration will be treated as amended, if necessary, in this regard. On August 15th the secretary of the union (who is one of the de- fendants herein) went to Connett's hat factory, where Brennan was working, explained to him the action taken by the vigilance SECT. Vir] FINES AGAINST UNION MEMBERS 363 committee and by the meeting of the association, and demanded payment of the $250. Brennan refused to pay it, and the secretary thereupon went to the' shop steward and took Brennan's check from the box. It is inferable from the evidence that this was done by the secretary in the regular course of his duty, and that in doing it he acted as agent for the association. Afterwards, and on the same day, Brennan's counsel wrote to the union, protesting against the action taken, on the ground that no charges had been preferred nor any notice of a trial or hearing given to him, as required by the laws of the association. Subsequently, and under date of August 17th, a charge was preferred in writing by Trancone, and Brennan was notified of a hearing before the vigilance committee to be held on the 18th. He declined to attend on the ground that he could not appear legally until his card was returned to him, and on the further ground that members of the vigilance committee had made public statements showing that they were prejudiced against him. At a meeting of the association held on September 4th a motion that Brennan be exonerated was carried by a two-thirds vote. Shortly thereafter his card was returned to him and he went back to work in the Connett factory. On August 15th, a few minutes after the secretary of the union took up Brennan's membership card, he was discharged by the head foreman on the ground that Brennan no longer had his check in the box. Upon being exonerated by the union, Brennan informed the head foreman of the fact, and was immediately re-employed. The trial judge, having denied a motion for nonsuit made at the close of the plaintiff's case, and a motion for direction of a verdict in defendants' favor made at the close of the whole case, submitted the issue to the jury, with instructions to the effect that if they found the plaintiff had sustaing.d damage from the acts of the de- fendants in the premises, and if the vigilance committee proceeded against the plaintiff without charges submitted in writing, without notice to the plaintiff, or without fair trial, then, unless the plain- tiff had waived his rights by submitting himself to the jurisdiction of the vigilance committee or of the association, he was entitled to recover to the extent of the pecuniary injury that was the natural result of the action of the defendants. Other and more questionable elements of damage were included in the instructions, but any ground of complaint in this regard was waived upon the argument here. Reversal is asked upon only two grounds, both of which are as- sumed to have been raised in the motion for nonsuit and for direc- tion of a verdict, viz. : First. That the suspension or expulsion of a member of a labor union (it being a voluntary, unincorporated association), in cases where no property rights are involved, cannot support a claim for damages against the union by the member so expelled or suspended. 364 LEGALITY OF ENDS PURSUED [CHAP. V" And, secondly, that the plaintiff had no right to complain of his trial and consequent suspension, and this on the ground that the charge made by Trancone against him was put in writing and read to the plaintiff; that he participated in the trial before the vigilance conunittee and produced witnesses who testified in his behalf; that he received notice of the hearing before the committee upon the second day, at which hearing he attended, with witnesses, and was tried in accordance with the rules and by-laws of the association; and that he waived any formalities that may not have been strictly observed by failing to object to the proceedings for irregularity. To deal with the second point first. We make no question that the subject-matter of the charges — the acceptance from a work- man of a bribe, intended to secure favorable terms of employment — involving, manifestly, a gross breach of Brennan's duty to his employer, as well as to his fellow-employees, and involving moral turpitude as well, was within the jurisdiction of the vigilance com- mittee, although no written rule is cited to that effect. But jurisdic- tion of the subject-matter was not alone sufficient to entitle the committee to proceed. According to the express requirement of the by-laws of the association, jurisdiction over the person of the party accused must first be acquired by the submission of written charges and the giving of due notice to the accused. By "due notice" is meant, of covirse, notice that he is to be put upon trial at a specified time upon specified charges, and the notice must be given in season to afford him a reasonable opportunity to make preparation to meet the charges by simimoning witnesses in his behalf. The by-law like- wise entitles the member accused to "a fair trial." Just what this phrase imports, and how far and under what circimistances the courts of law could properly ignore the results of a trial had under such a by-law, on the ground that it was not a fair trial, we find it unnecessary to determine. For we are of opinion that, clearly, the plaintiff in the case at hand was put upon trial without charges sub- mitted in writing by a member of the association, and without due notice, such as are prescribed by the by-laws of the association. It results, therefore, that the vigilance committee acted without jurisdiction unless plaintiff by his own conduct consented that they should proceed. With respect to his consent, there was, we think,, at least a disputable question for the jury's determination. It is clear enough that at the meeting of August 5th the plaintiff was in- formed that Trancone had made an accusation reflecting upon his integrity. But Brennan was then present as a witness respecting^ a charge that had been made against Trancone, and he may well have supposed that Trancone's accusation against him was under consideration by the committee solely as it affected his credibility as a witness. It is not clear that Brennan knew, on the 5th, that the conamittee meeting appointed for the following afternoon was to take up Trancone's accusation as a basis of actioij against hun SECT. VII] FINES AGAINST UNION MEMBERS 365 [Brennan). So far as the proceedings of August 6th are concerned, t does not appear that Brennan was then notified that the com- nittee had his case under consideration. It is suggested that Brennan, by an appeal to the association, taken ifter his discharge from the Connett factory, submitted himself to ;he jurisdiction. The groimds of this appeal and the circumstances inder which it was taken do not appear, nor does it clearly appear ihat any formal appeal was taken. If taken, the appeal may be pre- sumed to have been based upon' the ground that the vigilance ccpi- nittee had acted without jiu-isdiction, so that the whole proceed- ngs were void. It certainly cannot be held that by the mere taking )f an appeal to the association he assented to the jurisdiction of ;he very tribunal whose proceedings were to be reviewed. To return, now, to the first and main question raised by plaintiff n error. We think too narrow a view is taken of the plaintiff's ground of action when it is regarded as resting merely upon his suspension from the labor union. In our opinion, the gist of the iction is the damage caused to the plaintiff by an unwarranted in- ;erference with him in his employment as a hatter. If the framer )f the declaration, instead of including in that pleading averments ■especting the proceedings of the vigilance committee and of the )ther defendants that eventuated in the withdrawal of the plain- iiff's membership card, had contented himself with averring that- lefendants had unlawfully and without just cause or excuse pro- lured plaintiff's discharge by his employer, it would, as we think, lave set forth the material averment upon which his right of action iepends. Defendants might then have pleaded that his discharge esulted solely from the withdrawal of his membership card, and hat this resulted from his conviction of an offence against the rules tf trade, after a fair trial had upon charges submitted by a member a writing, and on due notice to the plaintiff in accordance with the aws of the association of which he was a member. This course of )leading would have presented the so-called trial and conviction if the plaintiff in its true light, as an alleged justification or excuse or the action of the defendants in procuring his dismissal from mplojrment. No doubt plaintiff's membership in the defendant association im- lorts his consent (so far as he had lawftd power to give consent) to he discipline of the association, if carried out in good faith and idthout malice, through the methods prescribed by the laws of the ssociation and in accordance with the principles of natural justice, assuming the defendant association to have been organized for law- ul purposes only, plaintiff had lawful power to give his consent to ts discipline, to be exercised in furtherance of such purposes. And, ■ssuming that the method adopted by the defendant association f establishing an agreement with the manufacturing hatters in all he factories throughout an extensive district, to the effect that 366 LEGALITY OF ENDS PUESUED [CHAP. V none but members of the association should be employed in their shops, was not unlawful, the plaintiff might assent that upon his being in due coiu-se suspended from membership in the association after a proper conviction upon charges submitted and tried in ac- cordance with its rules, he should lose his place of employment and his opportunity of gaining other employment within the district. . . . Since upon the record before us it must be held that plaintiff's suspension from the association and the consequent withdrawal of his membership card were not warranted by the laws of the asso- ciation, because the tribunal that tried him acted without jurisdic- tion, it is unnecessary to pursue the inquiry whether the defendant association, by establishing a trade agreement that tended to pro- mote a monopoly and to deprive workmen in the hatter's craft of a fair opportunity to obtain employment, had violated the law or the public policy of this state. . . . In dealing with the question of the plaintiff's right to recover, it is to be observed that the action taken by the defendants was not in the course of any legitimate competition for the place held by the plaintiff in the factory, but was taken in order to discipline and punish him for an offence of which he was presiunably innocent, and of which he had not been duly found guilty. ... Upon both reason and authority, therefore, we are of the opinion that the acts of the defendants herein, as above recounted, amounted to an unwarranted interference with the plaintiff in his trade as a hatter, and he having sustained damage as a result thereof in losing Ms place of employment the present action is sustainable. The judgment under review will be afi&rmed, with costs.^ ■ Section 8. Strikes and Other Forms of Collective Action for Miscel- laneous Purposes REYNOLDS v. DAVIS Supreme Judicial Court op Massachusetts. 1908 198 Mass. 294 LoRiNG, J. This is a bill brought apparently by the members of nine firms and thirty-five individuals, and purports to be brought against seven unincorporated associations (a building trades coun- cil and six local trade unions) and twenty-eight individuals. The relief sought is an injunction restraining the defendants from in- terfering with the business respectively carried on by the several 1 Accord: Blanchard v. Newark Council, 77 N. J. L. 389, afiirmed (without opinion) in 78 N. J. L. 737. Upon the question of the legality of a strike to enforce the payment by a union member of a fine lawfully imposed there seems to be very little American authority. The case of Willcut & Sons v. Driscoll, 200 Mass. 110 (following the doubtful cases of Boutwell v. Marr, 71 Vt. 1, and Martell v. . White, 185 Mass. 255) seems very difficult to defend on principle. lECT. VIII] STRIKES FOR MISCELLANEOUS PURPOSES 367 (laintiffs. The place of business of each and all the plaintiffs and [efendants is in the city of Lynn. The case was sent to a master and came on for hearing in the luperior Court on the master's report to which no exceptions had )een taken. A final decree was entered directing that the bill be lismissed as to three of the plaintiffs named on a motion to that ffeet made by them, and as to one defendant on the merits, and estraining the remaining defendants in certain particulars therein et forth. From this decree the defendants who were enjoined took m appeal which is now before us. The principal contention of the defendants is that on the facts et forth in the master's report the bill should have been dismissed. It appears from the master's report that before May 1, 1906, 'although some of them [the plaintiffs] had been running what was )racticaUy an ' open shop,' yet many of the complainants had at east some sort of verbal understanding, if not an actual agreement, vith the various unions respecting hours, wages, apprentices, and ;he employment of non-union help, which would expire on that iate." At some time not fixed by the master the plaintiffs (with the ex- icption of Keyes, Eastman and Swan), acting with others, signed md issued the following advertisement which was headed "Lynn )pen Shops": "The following firms propose in the futiu-e to do a free and un- ■estricted business under the following Open Shop Rules, which ^rill enable us to pay our employees according to their merits, and nsure to the public a fair and honest return for their money, which jannot be done under the Closed Shop. . " Open Shop Rules "1. There shall be no discrimination for or against any work- oan on account of membership or non -membership in any organiza- ion. "2. There shall be no restriction. as to the number of apprentices a be employed when of proper age, or as to the nature of the work vhich workmen of any class shall do. "3. That eight (8) hours shall constitute a day's work. "4. Overtime shall not be permitted except when absolutely lecessary, and under no circimistances to be continued, all over- ;ime to be paid for as regular time. Sundays and Legal Holidays, )r the days on which the same are celebrated, are to be paid for as louble time. "5. Grievances arising among the workmen will be settled in inference between the employer and the workmen already in- rolved." This advertisement was signed by twenty-nine master carpenters md builders, eight master painters and paper hangers, one ma- shinist and millwright, six plimibers, steamfitters and tinsmiths. 368 LEGALITY OF ENDS PURSUED [CHAP. V four stairbuilders and dealers in building supplies, one dealer in lumber and "builders' finish," and three carrying on the business of "Gas and Electrical Construction." The six trade unions named as defendants are unions of (1) car- penters, (2) lathers, (3) painters, decorators and paperhangers, (4) plumbers, (5) sheet metal workers, and (6) steanifitters and helpers. ^ On May 1, 1906, these "Open Shop Rules" were posted by the plaintiffs in their several shops, and thereupon the union men mem- bers of the unions named as defendants left work with "some" exceptions; in these instances the union men "remained at work after the open shop rules were posted and until a non-union man was put at work on the same job with themselves, when they im- mediately left. In one or two cases the imion men returnedwhen the non-union men ceased working." Without going into details it is manifest that the strike here in question was a strike against the open shop, as the plaintiffs pro- posed to carry on an open shop, and for the closed shop as it had previously been carried on by many of the plaintiffs and by the defendants. It is settled in this Commonwealth that the legality of a com- bination not to work for an employer, that is to say, of a strike, depends (in case the strikers are not under contract to work for him) upon the purpose for which the combination is formed, — the pur- pose for which the employees strike. . . . What, then, on the facts found in the master's report was the purpose of the strike here in question? The question of the purpose of the strike does not seem to have been directly in the master's mind in framing his report, and for that reason his findings of fact are not directed to this issue. But in our opinion the facts were abundantly proved which made the strike here in question an illegal combination, that is to say, an in- terference with the business which each plaintiff was conducting, for which interference there was not a justification. The occasion of the strike, as we have said, was the posting of the open shop rules. The strike was manifestly a strike against working under those rules. To understand the significance of the defendants' combination not to work under these open shop rules it is necessary to state what was proved to have been the condition under which many of the plaintiffs had been conducting their busi- ness before these rules were posted. Most of the plaintiffs had been conducting their business under an oral understanding, if not an actual agreement, with the defend- ant local unions. It appears that the defendant local unions were affiliated with the Building Trades Council of Lynn and Vicinity, also named as a party defendant. The Building Trades Council of Lynn and SECT. VIII] STEIKES FOR MISCELLANEOUS PURPOSES 369 Vicinity appears to be an unincorporated association made up of delegates from the local unions with which it is "affiliated," in- cluding the six local unions named here as defendants. By the worldng and trade rules of this council every grievance which a member of a local union affihated with the council has against his employer is to be investigated by the executive board of the council, and if the employer does not comply with the decision of the executive board he is reported to the council as "unfair," and upon being declared "unfair" by the council the executive board is "to again interview" the employer and if the employer continues in his refusal to comply with the demands of the council the board "shall at once remove all union men" from his employ, and "no union man shall be allowed to go to work" for him until he is " again placed upon the fair list by the . . . council." In other words, the members of the defendant unions, by the terms of their own rules undertook to decide each case of an indi- vidual grievance between a single employee and his employer, to decide what should be done by the employer as well as by the em- ployee, and to enforce compliance with its decision by threatening and instituting a strike in which all members were bound to join. What we mean by an individual grievance is (for example) the dis- charge by his employer of a member of the union for drunkenness or inefficiency. This statement of the make-up of the defendant unions and the Trades Council with which they are affiliated makes plain what the plaintiffs were aiming at in the open shop rules. And it also makes plain what was the main or one of the main purposes for which the strike in question was instituted by the individual de- fendants. The strike in question was a combination for the purpose of mak- ing the Trades Council, composed of delegates from the unions of which the individual defendants are members, the arbiter of all questions between individual employees and their employers. It purports to include questions arising under contracts still in existence between the two. To force the employer to submit to a delegate body of employees his rights under an existing contract by a combination for that purpose is not a justifiable interference with their employer's business. And in cases arising outside existing contracts it is an attempt to force compliance on the part of employers with the decision of this delegate body of employees as to whether a single employee is or is not to work for the employer, which decision is to be en- forced by a strike. Such a strike would be a strike in the nature of a sympathetic strike, that is to say, it is a strike not to forward the common interests of the strikers but to forward the interests of an individual employee in respect to a grievance between him and his employer where no contract of employment exists. 370 LEGALITY OF ENDS PUKSUED [CHAP. V We do not mean to say that a labor union cannot combine to support a committee to take up individual grievances in behalf of the several members. What we now decide to be illegal is a com- bination that such grievances (that is to say, grievances between an individual member of a union and his employer which are not co mm on to the union members as a class) shall be decided by the employees and that decision enforced by a strike on the part of all. In this respect this case comes within the principle upon which the second point in Pickett v. Walsh, 192 Mass. 572, was decided. See p. 587 et seq. It follows that the plaintiffs were entitled to an injvmction restrain- ing the defendants from combining together to further the strike in question, and from doing any acts whatever, peaceful or other- wise, in furtherance thereof, including the payment of strike benefits and putting the plaintiffs on an unfair list. The Building Trades Council and the six unions were not properly joined as parties defendant as unincorporated associations, Pickett V. Walsh, 192 Mass. 572, and they should be stricken from the title of the cause. ... So ordered. Knowlton, C. J. The opinion agreed to by a majority of the court in this case, seems to me erroneous in the grounds on which it purports to rest, and, if it should pass without comment, it would be, in my judgment, misleading. To most of the doctrines stated in it I heartily agree. With the final disposition of the case I am satisfied. If the decision were put on the grotmd that the strike was for a closed shop in the sense that the shop should be closed ar- bitrarily to all workmen not members of the union, not because such workmen were personally objectionable in any particular, nor be- cause there was not work enough for all the members of the union if non-union men were employed, but to compel all workman to join the union for the purpose of creating a monopoly in the labor market, whereby to be able to contend successfully with employers whenever a controversy should arise, I should cheerfully concur in it. A strike to compel a closed shop, merely to accomplish such a pxn-pose, would not be justifiable on principles of competition, either as against non-union workmen or as against the employer, but would be unlawful for reasons stated in Berry v. Donovan, 188 Mass. 353, Plant V. Woods, 176 Mass. 492, and Pickett v. Walsh, 192 Mass. 572. This opinion enters a field which has not been very much trav- ersed by the courts. It holds this strike unlawful because of the rules and by-laws of the labor union. Rules and by-laws of labor unions have not commonly received the animadversion of the courts, because, as regulations for the internal administration of the af- fairs of organizations established for a lawful purpose, they are usually designed, in a reasonable way, to promote the objects of the organization. SECT. VIII] STRIKES FOE MISCELLANEOUS PURPOSES 371 It is held universally in law, and is conceded generally in public opinion, that a labor union, established for the promotion of the interests of its members in a reasonable way, is a justifiable and commendable organization. It is right that all the members of such a imion should unite for the protection of the interests of every individual member. If the feeblest of its members has a just grievance as an employee against their common employer, it is proper that the whole combination should act together to obtain redress of the wrong. The most ef- fectual way of enforcing the right of every member to just treatment from his employer, in reference to wages, hours of labor and other things affecting his interests, is by withholding the labor of the union xmtU justice is done. TTo make this a potent inducement the union must be able to act as one body, and to hold every member to the performance of his duties to his fellow members, so that all may be a united force. Of com-se there must be a method of determining what action, if any, shall be taken by the union in any case of an alleged grievance. Such a determination cannot properly be made without an investigation of the facts. Such an investigation or- dinarily would involve conferences with the employer, and negotia- tions to see whether he would consent to an improvement of the conditions, if they should appear to be unjust to the employee. Such conferences and negotiations, without which ordinarily no labor union would be justified in striking, call for a representative or representa- tives of the union to present its side of the controversy to the em- ployer, and to act for the union in the maintenance of its interests against the opposite party. In such cases the employer and em- ployee often come together as adverse parties, each contending for that which seems for his advantage. The final determination of the position to be taken by the union may be by a vote of its members. It may be by the action of a board of officers to whom the union intrusts this duty. In favor of the latter method is the fact that, in times of excitement, assemblies of men and women often act hastily under a misapprehension of the facts, and under an impulse of passion aroused by inflammatory appeals to their feelings. But, in one way or another, such determinations must be made, and must be treated as finally settling the position which the union is to take for itself, as a party dealing with an adverse party in refer- ence to its supposed rights. Of course, if the employer takes a dif- ferent view, neither is bound by the action of the other, and each may make any lawful effort to prevail in the contest with the other. In the opinion the present strike is condemned because of the rules which govern the union. Under these, every grievance is to be investigated by the executive board of the council. Surely this is right and proper. If the employer refuses to do that which the executive board thinks he ought to do, the facts are reported by the board to the next meeting of the building trades council, with 372 LEGALITY OF ENDS PUESUED [CHAP. V a recommendation that he be declared mifair. If he is then declared unfair by the building trades council, that is equivalent to a decision that he is in the wrong. It is then the duty of the executive board to again interview the employer, and if he fails to comply with the conditions that the building trades council deems just, a strilie is to be declared and maintained by the union until he complies with these conditions. It is to be noticed that this course of proceeding is entirely for the guidance of the members of the union. The employer takes such measures and acts upon such principles as he chooses for his own guidance. If the result is a failure to agree, then each stands upon his rights, and it is a question which can force the other to yield, or how they can afterwards reach a compromise. The trades council is no more the arbiter of questions between individual em- ployees and their employers than the employer is. The trades coun- cil, as a representative official board, decides for one party and determines its action, and the employer decides for the other party and determines his action. Neither assumes to determine anything for the other, but the action of each is governed by his or its own determination. I do not see how any rule can be more just and proper for the guidance of a labor union when a dispute arises between its mem- bers, or any one of its members, and the employer. Suppose the case is a reduction of wages by the employer which the members of the union deem unjust. What more fair or equitable method of dealing with such a supposed injustice could be devised? To say that a strike founded on such a reduction is illegal because of a rule providing this method of dealing with the grievance, is, m my judgment, equivalent to saying that no labor union shall be permitted to do anything to promote the proper objects of its or- ganization. . . . I find nothing in this part of the rules and by-laws except that which I should expect to find in those of any well-organized labor union. I discover nothing in the master's report or the evidence to indicate that these rules were intended to be used for the im- lawful promotion of a purely sympathetic strike, or that they ever were so used. I have endeavored to show that if any member of a union shoiild have a grievance as an employee against his em- ployer, even if it was not common to members of the union as a class, it would be the duty of his fellow-members, in accordance with fundamental principles of labor unionism, to unite for the redress of the grievance, even by striking, if that should be neces- sary. So far as appears, the posting and publication of the open shop rules, and the employment or attempt at employment of non-miion men, which were the only matters complained of by the defendants, had a relation to members of each of the local unions before the SECT. VIII] STRIKES FOE MISCELLANEOUS PURPOSES 373 court, as direct as it had to any other union men. Members of these unions were employed in the shops of the plaintiffs. If the ground of complaint had been a proper subject for adverse action by an individual workman, it would have been a proper subject for in- vestigation and action by the union of which he was a member. Because the opinion in this case makes the decision turn upon the rules and by-laws to which I have referred, I do not agree with it.' MINASIAN V. OSBORNE Supreme Judicial Coukt of Massachusetts. 1911 210 Mass. 250 Two BILLS IN EQUITY, filed on December 23, 1910, the plaintiff in the first case being the father of the plaintiff in the second case, and -the defendants in both cases being representatives and members of the Lasters' Union Local No. 1, an unincorporated association, alleging the facts which are stated in the opinion, and praying for an injunction restraining the defendants from maintaining a strike of the persons who before such strike were employed as lasters by the Randall Adams Co., a corporation, in its boot and shoe factory at Lynn, for the purpose of compelling or inducing the Randall Adams Co. to cause Miaas H. Minasian, the plaintiff in the second case, who was employed as a laster by the Randall Adams Co., to discharge from his employment as a helper Hampartzoon Minasian, the plaintiff in the first case, also praying for damages and for further relief. In the Superior Court the cases were heard together by Hitch- cock, J., who, with a recital that the pleadings were substantially the same and the facts 'identical in the two cases, made a memo- randum of findings applicable to both cases, in which he found the facts which are stated in the opinion. The judge made an order that the plaintiffs were severally entitled to an injunction as prayed for and to damages and costs. In each of the cases a final decree was entered in accordance with this order, and in each case the de- fendants appealed. RuGG, C. J. The material facts which give rise to this controversy (as found by the judge of the Superior Court) are that the plaintiff Minas, a skilled laster by trade, had a contract for labor as a laster with the Randall Adams Co., terminable at the will of either. With the consent of his employer, he had in turn employed as helper his father, Hampartzoon, the other plaintiff, who was not able to do all the work of a laster, and who received no wages from the Randall Adams Co. and had no relation as servant to it. The work was piece 1 Compare: State v. Stockford, 77 Conn. 227 (strike and other forms of action to compel employers to sign a trade agreement); Snow v. Wheeler, 113 Mass. 179, supra, page 86 (legality of agreement among imion employees not to teach others their trade uiiless by consent of the union). 374 LEGALITY OF ENDS PUESUED [CHAP. V work, and Minas alone received, and was entitled to receive, the compensation for their joint labor. This method of work was known in the craft as "contract" or "cross-handed."' Both of the plaintiffs were, or had been, members of the Lasters' Union, an unincorporated association, of which the defendants are representatives and members. The defendant Osborne, who is the business agent of the Lasters' Union Local No. 1, notified the em- ployer, the Randall Adams Co., that unless the father was discharged the shop's crew would be "pulled out." The father did not work for a day or two, but returned to work after the superintendent of the employer told the son, Minas, to get him and put him to work again. The next day all the other lasters went out on an orderly strike, which was indorsed by the Union. As a consequence, both plain- tiffs have lost their employment. The Lasters' Union substantially controls the labor market in the manufacture of shoes, for practically all lasters are members of the Union. The effect of the strike, if continued, will be to prevent Randall Adams Co. from continuing business unless it discharges Minas or compels him to dispense with his assistant. Here is a plain and tangible injury to the plaintiffs as the prox- imate result of the acts of the defendants. This gives a cause of action to the plaintiffs unless the defendants have a sufficient jus- tification for their conduct. If they have acted without good cause or excuse, they are liable. Berry v. Donovan, 188 Mass. 353, 356. Quinn v. Leathem, [1901] A. C. 495, 510. South Wales Miners' Fed- eration V. Glamorgan Coal Co., [1905] A. C. 239, 244, 246, 251. As was said in DeMinico v. Craig, 207 Mass. 593, at 598, "Wlaether the purpose for which a strike is instituted is or is not a legal justifica- tion for it, is a question of law to be decided by the court." The inquiry must be directed to the character of the justification proffered by the defendants in excuse for their conduct. The pur- pose of the strike (as found by the Superior Court) was "to com- pel the plaintiff Minas ... to cease employing his father to help him and to induce the emploj^er of Minas either to discharge the father or to require Minas to cease employing a helper, or, failing that, to discharge Minas from its employment." But it has been found also that the defendants are not actuated by any ill feeling toward either of the plaintiffs, and that the strike is wholly dis- connected with any question of membership in the Union. • The basis of the strike is objection to the system known as contract labor or cross-hand work. It follows that the real purpose of the strike is to cause the abolition of that system of work in this shop. It is not of much consequence whether the object of the strike is stated to be the discharge of the father and son without hostility toward them, but for the reason that they practise a certain system of shop labor, or the abolition of the system of shop labor, with the incidental result that one or both of the plaintiffs may be discharged. SECT. VIII] STRIKES FOR MISCELLANEOUS PURPOSES 375 In its practical effects upon the rights of the parties, the question of law involved is the same whichever way it is put. The question presented for decision is whether the abolition of this particular system of shop work is a legal justification for the interference with the rights of these plaintiffs which arises from an orderly strike by fellow employees. "The objection to the system is," as found by the trial judge, "that where two men worked together, as Minas and his father were doing, they can do more work in a day or a week than any single man working without a helper, and that as a result the men who worked without helpers would not get their fair share of the work that was to be done, and would thus be unable to have a chance to earn as much as they could if there were no helpers employed. The custom in the factory was that when a laster had completed his case of shoes or had nearly completed it so as to be ready for an- other case, he would put his name upon a list, and it was understood that cases of shoes would be furnished him for his work in the order in which the names stood upon the list. If there was plenty of work so that any laster could have all he could do, the fact that two men working together could do more than he could would not affect the wages he would ordinarily receive; but in case there was a scarcity of work, or not sufficient work to keep all the lasters employed, the laster who had a helper might be able to do more work and other lasters might not be able to obtain work. In that aspect of the case their compensation might be affected by the system of con- tract labor or cross-hand work." The controversy as presented upon this record is not between employer and employee, but be- tween rival sets of workmen, both of whom were at work in the same shop upon materials of one manufacturer. This is not a strike which involves any inquiry as to the plain- tiffs' habits, conduct or character which might render them unfit or improper shopmates. It is not for the establishment of any sys- tem of shop work or rules directed to the curtailment or limitation of production or interference with reasonable industrial advance- ment. It is not aimed to prevent the highest efficiency of labor or the use of modern or economical machinery. It was not instituted to promote a closed shop or to compel anybody to join or to leave any union, nor primarily to cause the discharge or employment of any person or class of persons. If this results in any instance, it is incidental and not essential to the chief end. It does not go to the extent of interdicting the absolute and unqualified right of the in- dividual to work, if he desires, contrary to the will or rules of a com- bination. It is not based upon objections to shop rules established for the reasonable protection of the rights of the employer or pro- motion of the good order or economical and efficient service of em- ployees. It is not directed against the education of apprentices or those who are trying to learn the trade. It does not appear to be 376 LEGALITY OF ENDS PURSUED [CHAP. V for the establishment or preservation of a monopoly, and this is not indicated by the framework of the bill. It is not directed agaiast piece work as distinguished from day work, nor against any other method of employment where superior sJdll, dexterity or swiftness secures commensurately higher rewards than inefficiency, careless- ness or slothfulness. It does not directly or immediately affect the general convenience, necessities or safety of the public. Its ostensible object is not used as a mask for any ulterior design. The direct and main purpose is to secure a change in a system of work which is asserted to be unjust in its practical operation. It is contended that this system in its final analysis resulted in an unequal distribution of the work of lasting in slack times and thus affected the wages of the strikers, although it did not so operate when there was work enough to keep all the employees busy all the time. The finding of the Superior Court was in substance to this effect and it is supported by evidence. There is nothing to indicate that the strike was not undertaken in good faith against this system. An honest effort to better conditions of employment by laborers is lawful. The right of the plaintiffs to work upon such terms as they chose is incident to the freedom of the individual. That "right . . . could, not be taken away . . .or interfered with by the defendants imless it came into conflict with an equal or superior right of theirs." DeMinico v. Craig, 207 Mass. 593, 599. The right of one person to dispose of his labor freely is not superior to the same rights in others. The right of one to work imder unsanitary conditions does not go to the extent of preventing others from striking in order to secure a mitigation of these conditions merely because such a strike may interfere with the desire of the first to continue to work under those conditions. The same principle applies where a distribution of work discriminates between men of average capacity and gives an xmdue preference to one over another in times when there is a dearth of work. A system of giving out work which, under existing condi- tions, operates unjustly, is a condition of employment in which all workmen affected by it in a particular shop may have a legal interest. Nor is injury to the employer a reason why a strike to remedy such a condition should be enjoined. The right of the employer is no more absolute in respect of a con- dition of employment hke this than it is as to hours of labor or rate of wages. It is not a subject as to which he is entitled to special protection against an orderly and otherwise lawful strike. Pickett V. Walsh, 192 Mass. 572. The conduct of these defendants, although directly affecting to their detriment the labor habits of the plain- tiffs, appears to have sufficient justification in the fact that it is of a kind and for a purpose, which has a direct relation to the benefits of a more uniform distribution of work, and thus of wages among equally skilled or competent workmen during dull seasons. This was the object which the defendants were trying to obtain. SECT. VIII] STRIKES FOR MISCELLANEOUS PURPOSES 377 While the plaintiffs' contractual rights to labor, although termi- nable at will, were entitled to protection against wanton interfer- ence (Citizens Loan Association v. Boston & Maine Railroad, 196 Mass. 528, and cases cited), they were not so assured or valuable in their nature as are valid contracts for continued service for a definite period. It may well be that a stronger reason might be needed to justify interference with such contracts than with those here in question. We do not go beyond what is necessary to this decision. The decision of this case depends upon a somewhat narrow in- terpretation of the findings of the trial court. Construing them as we do, this seems to be a clash of equal rights between fellow laborers, where each could use any lawful means to enforce those rights. No question is presented as to the unlawfulness of the means employed. This is not a case in its facts like those presented for adjudication in Plant v. Woods, 176 Mass. 492; Vegelahn v. Gimtner, 167 Mass. 92; Walker v. Cronin, 107 Mass. 555; Carew v. Rutherford, 106 Mass. 1; Sherry v. Perkins, 147 Mass. 212; Berry v. Donovan, 188 Mass. 353; Reynolds v. Davis, 198 Mass. 294; L. D. Willcutt & Sons Co. V. DriscoU, 200 Mass. 110; DeMinico v. Craig, 207 Mass. 593; Folsom v. Lewis, 208 Mass. 336; but it comes within principles recognized and stated in several of those cases and apphed in Pickett V. Walsh, 192 Mass. 572, at 579 et seq. In the opinion of a majority of the court the entry in each case must be Decree reversed: hill dismissed. WALTON LUNCH CO. v. KEARNEY Supreme Judicial Court of Massachusetts. 1920 236 Mass. 310 Bill in equity, filed in the Supreme Judicial Court on September 12, 1919, seeking to enjoin certain named individuals and the "ofii- cers and members of a certain voluntary unincorporated associa- tion known as the Hotel and Restaurant Employees' International Alliance Union, Local No. 34," from interfering with the business of the plaintiff. ... RuGG, C. J.i This is a suit in equity by a corporation engaged in the restaurant business in Boston against named defendants as "officers and members of a certain voluntary unincorporated association known as the Hotel and Restaurant Employees' In- ternational Alliance Union, Local No. 34." The case was tried before a single justice, who entered a final decree in favor of the plaintiff. This decree was simply one of perpetual injiuiction against certain acts and conduct. It did not declare whether the strike was legal or illegal. The plaintiff appealed and requested a report 1 Only that part of the opinion dealing with the legality of the strike is given. 378 LEGALITY OF ENDS PURSUED [CHAP. V of the material facts. R. L. c. 159, sec. 23. In response to that request the single justice found that the strike was legal. A sum- mary statement of the facts respecting that point is that in August, 1919, representatives of employees of the plaintiff sent to it for consideration a form of agreement, which if accepted would have established the principles of an absolute closed shop and which con- tained other provisions designed to effect changes in working con- ditions of its employees. On September 2, 1919, representatives of the employees and of the plaintiff met at the office of the latter and talked over the situation for about two hours. "At the conclusion of the discussion Mr. Walton [one of the representatives of the plain- tiff] stated that the closed shop clause was important; that it was a change of pohcy, and that he wished time to think it over." It was then agreed that the conference should be renewed at the same place at a later specified time. At that time and place Walton, al- though in his ofl&ce, "concealed that fact from those in charge of the office and from the representatives [of the employees] whom he had agreed to meet there.'' The finding that this was the cause of the strike cannot be over- turned. The evidence is not reported. It is not inconsistent with other facts found. Upon familiar principles it must stand. The ruling that a strike for this cause was justifiable was right. This is not a case of a mere refusal to meet employees for discus- sion of demands for change of wages or working conditions. It is not a declination to confer with strangers about the subject. It is a plain case of a breach of good faith and of square deahng between man and man by intentionally failing without apparent excuse and without notice to keep an engagement deHberately made for further consultation touching their contractual relations with each other. It does not appear that the strike was in violation of the terms of any contract between the plaintiff and its employees.^ . . . MECHANICS FOUNDRY & MACHINE CO. v. LYNCH Supreme Judicial Court op Massachusetts. 1920 236 Mass. 604 Bill in equity, filed in the Superior Court on March 13, 1920, against four officers and twenty-six other members of the Inter- national Moulders' Union No. 48, who on March 2, 1920, were em- ployed by the plaintiff, to enjoin a strike. . . . Carroll, J. The master found that thirty employees of the plaintiff, named in the second paragraph of his report, refused to work and struck. On February 20 and 21, there was a discussion 1 Accord: Rhodes Bros. Co. v. Musicians' Protective Union, 37 R. I. 281 (by-law of musicians' union forbidding members to play for the proprietor of any theatre who has broken a contract with a member or members of the union). SECT. VIII] STRIKES FOR MISCELLANEOUS PURPOSES 379 between the plaintiff's manager and the employees concerning shop conditions, in which discussion Cornelius Lynch, an employee, took an important part. He also foimd that Lynch and the manager "became personal." The shop conditions were satisfactorily ad- justed and all the employees except Lynch returned to work on February 23. On March 2, when Lynch came to the foundry, he was discharged "because of his attitude on February 20 and 21"; and thereupon the defendants struck because Lynch was not given employment. There has been no "picketing, boycotting or other acts or proceedings, other than that the moulders employed by the plaintiff remained away from their work." The bill was brought to restrain the defendants from continuing the strike, to prevent them from interfering with the plaintiff's business and its employees, and from paying money to the apprentices in the plaintiff's employ, or to any other person, as an inducment to remain out, or to quit the plaintiff's employment. A decree was entered in favor of the plaintiff. The form of the decree is not questioned and we do not consider it. The only issue before us on this appeal is whether a strike to compel the plaintiff to employ a discharged workman is a lawful strike. Every person has a legal right to dispose of his own labor as he wishes, and to work for whom he pleases. He may refuse to work with another because that person is distasteful to him, or for any other reason. Plant v. Woods, 176 Mass. 49?, 498. Pickett v. Walsh, 192 Mass. 572, 582. The employer also has a right freely to con- tract, the right to select his employees, and to decide when to en- gage and discharge them. L. D. Willcutt & Sons Co. v. DriscoU, 200 Mass. 110, 118. Vegelahn v. Guntner, 167 Mass. 92, 97. Haver- hill Strand Theatre, Inc. v. Gillen, 229 Mass. 413. In Coppage v. Kansas, 236 U. S. 1, and Adair v. United States, 208 U. S. 161, it was held that neither Congress nor the states could interfere with the Hberty of contract and penalize an employer for threatening an employee with the loss of employment because of his membership in a labor organization, or punish an employer for requiring his employees to agree not to become members of such an organization as a condition of securing or retaining employment. (See R. L. c. 106, sec. 12.) A combination of men to close the em- ployment to all but members of certain organizations is unlawful and can be restrained. Cornellier v. Haverhill Shoe Manufacturers' Association, 221 Mass. 554. If for any reason the employer sees fit to discharge an employee, he has that right and it cannot be taken away from him. While the individual employee may refuse for any cause to con- tinue in the plaintiff's service, the defendants could not conspire ancj combine to quit and enforce a strike because the plaintiff re- fused employment to a fellow workman. The plaintiff had the right in law to do what he did, and the combination of employees to bring 380 LEGALITY OF ENDS PURSUED [CHAP. V about a strike for the cause alleged, is unlawful iu the end it sought, even if no illegal means were used to carry it into effect. Pickett v. Walsh, supra. Martell v. White, 185 Mass. 255. In DeMinico v. Craig, 207 Mass. 593, it was decided that a strike to get rid of a foreman because some of the employees had a disKke for him, was not a strike for a legal purpose. A strike because a fellow workman is discharged stands on the same ground and is governed by the same principle, and while a body of men may lawfully strike to better their conditions, the mere refusal to continue the employ- ment of one of their number is not such a condition as to justify them in combining to enforce a strike. DeMinico v. Craig, supra. When Lynch was discharged there was no dispute about wages or hours of labor, the dispute concerning working conditions had been settled to the satisfaction of all the parties; and the only reason for the strike was the discharge of Lynch and the refusal to employ him. As the strike was for an unlawful purpose,^ it was properly restrained. Decree affirmed. WELINSKY V. HILLMAN Supreme Court of New York. 1920 185 N. Y. Supp. 257 Action by Max Welinsky against Sidney HiUman and others. On plaintiff's motion for an injunction pendente lite. Motion granted. GiBGERicH, J. It is quite clear from the papers, and I do not understand it to be disputed, that the purpose of the strike and of the picketing and other interference with plaintiff's business is not to secure any advance in wages or any improvement in working con- ditions, but to induce the plaintiff to continue the manufacturing department of his establishment, which he has determined to aban- don. Of course the right of the employees in other departments of the business to cease work for this or any other reason cannot be questioned; but neither they, nor the other employees, nor the union to which they belong, can be permitted to take affirmative action injurious to the plaintiff's business, for the purpose of com- peUing him to continue a department of the business which he wishes to abandon. To hold otherwise would be to sanction coercion in support of a demand which the employees had no right to make. I am not insensible of the hardship to old employees thus suddenly thrown out of work, or of the loyalty of their fellow workers, who seek to come to their rescue; but I see no justification under the law for their present attempt, or the attempt of their union, to compel the plaintiff to continue their employment. Such situations may very well suggest doubts and problems to the student of social science; but in the present state of our law, which is adapted to prevailing conceptions of individual rights, I SECT. VIII] STRIKES FOR MISCELLANEOUS PURPOSES 381 think there is no doubt about the decision which must be given here. I think it sufficiently appears from the complaint that the injuries complained of are such that the remedy at law would not be ade- quate. The motion for an injunction will be granted, upon the plaintiff giving an undertaking in a sum to be fixed on settlement of the order. Settle order on notice. SCOTT-STAFFORD OPERA HOUSE CO. v. MINNEAPOLIS MUSICIANS' ASSN. Supreme Court of Minnesota. 1912 118 Minn. 410 Philip E. Brown, J. The plaintiffs are in the theatrical business in the city of Minneapolis. The defendants are, respectively, a cor- poration having only musicians as members and the officers thereof. The object of the action is to restrain the defendants from enforcing a certain rule adopted by the defendant corporation relative to ac- ceptance by its members of employment by the plaintiffs. This is an appeal from an order sustaining a general demurrer to the com- plaint. The complaint, after alleging the character, business, and resi- dence of the several plaintiffs, proceeds, in substance, as follows: The purpose of the defendant corporation, as indicated by its ar- ticles of incorporation, is "to unite the instrumental portions of the musical profession for the better protection of its interests in general and the establishment of a minimum rate of prices to be charged by members of said association for their professional services and the enforcement of good faith and fair dealings among its members; to promote the cultivation of the art, and to create a fund for the erection of a suitable building for musical and other purposes of the association." Practically all the musicians available or qualified for the employment by any of the plaintiffs are members of the de- fendant corporation, and subject to its rules as interpreted by the officers thereof. Each of the plaintiffs, for a number of years past, has been engaged in the business of giving public entertainments and charging admission thereto; and properly to give the same it has been necessary for each of the plaintiffs to invest large sums of money in permanent equipment, such investment having in fact been made by each of the plaintiffs, and being useless for any pur- pose other than public entertainments. A necessary part of such entertainments is instrumental music, which has been furnished by the members of the defendant corporation; it being impossible for the plaintiffs to obtain satisfactory music for their entertainments except from such members. 382 LEGALITY OF ENDS PURSUED [CHAP. V Such being the alleged state of affairs, and the relations between the plaintiffs and the members of the defendant corporation, the complaint further alleges that on June 1, 1911, the defendant cor- poration "adopted, and threatens to, and will, unless restrained by this court, enforce a rule which prohibits any and all members of defendant corporation from accepting employment or playing in the orchestra of any of the plaintiffs, unless at least a certain number of persons, all members of defendant corporation, are included in such orchestra"; that the number of persons required to make up the orchestra for the different entertainments given by each of the plain- tiffs varies with the nature of the entertainment to be given; that in many of the entertainments that are given by each plaintiff an orchestra made up of a less nmnber of persons than is required by the said rule would be entirely satisfactory and sufficient, and that a compliance with the said rule in such entertainments would be and is a useless and needless burden and expense upon such plaintiff; that the officers and members of the board of directors of the de- fendant corporation propose and plan to, and will, tmless restrained, avail themselves of the said rule for the purpose of interfering with each of the above-named plaintiffs and with their business, and will prohibit and prevent each plaintiff from securing musicians who are qualified to perform the parts that are necessary to the proper con- duct of such orchestra, and will prevent each and all of plaintiffs from furnishing competent orchestras at their said entertainments, and from properly and successfully conducting their said business; that if the defendant corporation, or its said officers, should attempt to enforce the said rule, all of its members, under the rules and by- laws thereof, would be compelled to, and would in fact, comply with its direction, and would refuse to, and would not in fact, accept em- ployment in the orchestras of any of the plaintiffs, if such plaintiffs, or any of them, did not employ the number of musicians required under the said minimimi rule; that there is no disagreement or cause of complaint between any of the plaintiffs and any of the said mu- sicians, and that the only cause of complaint is between the plain- tiffs on the one side and the defendant corporation and its officers on the other side, on account of the said rule and its enforcement; and that the plaintiffs are without adequate or any remedy at law. The prayer is for a judgment forever restraining the defendants, and each of them, from in any way interfering with the business of the plaintiffs, or any of them, and from enforcing or attempting to enforce said rule, and for general relief. 1. The plaintiffs' first contention is that the rule complained of is ultra vires. . . . The plaintiffs in the instant case are in no position to challenge the rules of the defendant corporation as being ultra vires; and, even if they had any standing to make such an attack, we are satis- fied that the rule under consideration is not uUra vires. SECT. Vm] STRIKES FOR MISCELLANEOUS PURPOSES 383 2. Unless, therefore, the acts complained of constitute a breach of some legal or equitable duty, without regard to whether or not they were ultra vires, the sustaining of the demurrer was proper. This brings us to the plaintiffs' second and only remaining conten- tion, viz., that "the rule complained of, if not subject to the objec- tion that it is ultra vires under the articles of incorporation, is not legally enforceable against these plaintiffs in any event." In con- nection with this contention the plaintiffs practically admit that it is contrary to Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. 319, and seek to show that the rule established by that case has been repudiated, or at least so modified as not to be determinative of the instant case; Ertz v. Produce Ex- change of Minneapolis, 79 Minn. 140, 81 N. W. 737, 48 L. R. K. 90, 79 Am. St. 433, and Tuttle v. Buck, 107 Minn. 145, 119 N. W. 946, 22 L. R. A. (n. s.) 599, 131 Am. St. 446, 16 An. Cas. 807, being cited in this connection. We think, however, that the instant case is controlled by the Bohn case, supra. Says the syllabus of that case: "Any man, unless under contract obhgation, or unless his employ- ment charges him with some pubhc duty, has a right to refuse to work for or deal with any class of men, as he sees fit." This proposition is not attacked in the instant case, nor is it as- sailabte. Hence it follows that any one of the members of the de- fendant corporation would have had the right to refuse to work for any one of the plaintiffs, except upon such terms and conditions as such member might have seen fit to impose; "And this right," continues the syllabus in the Bohn case, "which one man may exercise singly, any number may agree to exercise jointly." Again, at page 234, this same case, Mitchell, J., says: "What one man may lawfully do singly, 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." Unquestionably this is the law in this State, and it has never been repudiated or modified by this Court. See State v. Daniels, supra, page 155, 136 N. W. 584. The cases of Tuttle v. Buck, supra, and Ertz v. Produce Exchange of Minneapolis, supra, merely stand for a converse rule, which, as stated by Chief Justice Start in the Ertz case, page 145, is that "one man singly, or any number of men jointly, having no legitimate interests to protect, may not lawfully ruin the business of another by maliciously inducing his patrons and third parties not to deal with him. . . . This is just what the com- plaint in this case charges the defendants with doing, and we hold that it states a cause of action." This is equally the settled law; but we do not agree with the plaintiffs in their contention that it applies to the instant case. Paraphrasing the concluding sentence of the Ertz case, "This is just what the complaint in this case did 384 LEGALITY OF ENDS PTJESTJED [CHAP. V not charge." There is no allegation of any contractual relation be- tween the plaintiffs, or any of them, and any of the defendants, or any of the members of the defendant corporation. There is no al- legation of coi^piracy, malice, or ulterior motive. No question of strike, violence, wage, boycott, or violation of contractual relations or public duty, is involved; and no allegation is made that the rule complained of is not beneficial to the members of the defendant corporation. The plaintiffs' argument is largely based upon the assumption of lack of benefit to such members; but, in the absence of any allega- tion of such lack of benefit, we think it may fairly be inferred from the facts and circumstances alleged, and from the very nature of the rule recited, that the rule was designed to benefit the members of the defendant corporation. Certainly the rule does not appear to be so manifestly nonadapted to produce benefit as to raise an inference of mahce or evil motive. As said in the Ertz case, supra, in distin- guishing the Bohn case, supra: "It is to be noted that the defendants in the Bohn case had similar legitimate interests to protect . . . and that the defendants' efforts to induce parties not to deal . . . were limited to members of the association having similar interests to conserve, and that there was no agreement or combination or at- tempt to induce other persons not members of the association to withhold their patronage," etc. The rule established by the Bohn case was reiterated, though not applied, in the Ertz case, and there is nothing in the Tuttle case, supra, to the contrary. We think it applies to the instant case, and the order sustaining the demurrer to the complaint is therefore affirmed.^ SCHNEIDER v. LOCAL UNION NO. 60 Sttpbeme Couet of Lotjisiana. 1905 116 La. 270 Monroe, J. . . . It is imdisputed that the plaintiffs were mem- bers in good standing of Local Union No. 60, which, in turn, was and is a member of the "United Association of Plumbers," etc. It is a fact that in 1902 the General Assembly passed a law for the establishment of a board of examiners of plumbers in cities having 30,000 or more inhabitants, each board to consist of five plumbers (including two journeymen), together with the health officer and engineer of the city in which it is established, the members, other than those last above mentioned, to be appointed by the mayor, with the consent of the council of such city. The act further pro- vides that each board so constituted shall appoint one or more in- spectors, to whom certain duties are assigned, and it contains other provisions which need not be here enumerated. It appears that, 1 Cmtra: Haverhill Theatre v. Gillin, 229 Mass. 413. SECT. VIII] STRIKES FOR MISCELLANEOUS PURPOSES 385 in July, 1902, immediately after the act in question became a law, Local Union No. 60 held a meeting at which the following action, as recorded in the minutes, was taken, to wit: "We have a secret ballot. Theodore Correjolles, Peter Llibert, E. Schekeler, E. C. Hawley, and Frank Robinson were placed in nomination, which resulted in Frank Robinson and Peter Llibert elected to act as board of examiners, and Theodore Correjolles to act as reserved member. Brothers Wm. McGilvray, Wm. Price, and E. Glennon were placed in nomination. Brother McGilvray was elected as chief inspector. Carried." It seems, however, that the mayor and council of New Orleans were indisposed to be controlled in selecting their appointees, for they tendered the positions of journeymen members of the board to Messrs. Patterson and Ybos, who were also members of Local Union No. 60, and thereupon, in December, the organization re- solved and ordered that " any member accepting positions on plumb- ers' board except regular appointed members of Local Union No. 60, be fined $100 and be expelled from the union," to which was added, "We tender Brothers Patterson and Ybos a vote of thanks for de- clining positions on plumbing board." Thereafter, whether at the request of the mayor, or of its own motion, does not appear, on March 25, 1903, Local No. 60 sent its roster to the mayor (to quote the minutes), "so he can select two members for the plumbing board"; the original motion to that effect having been amended to read (quoting again from the min- utes) : "We leave out the following four names: Theodore Correjolles, Frank Robinson, W. Patterson, and L. Ybos." So the mayor received the roster of the union, less the names of Patterson and Ybos, who had already, in view of the persuasive action of the union, declined the appointments, and those of Cor- rejolles and Robinson, whom he had already declined to appoint, and he selected therefrom the names of the plaintiffs, to whom he gave the appointments, which action was approved by the union on April 9, 1903; the minutes of the meeting of that day reading: "The names selected by the mayor of the two members of Local No. 60 to act as members of pliunbing board be indorsed by this local. Carried." It further appears that the union afterwards found some reason to doubt whether the plaintiffs, who had thus become public officials, would see their way, in the discharge of the obligations which they had assumed to the community at large, to voting for McGilvray as inspector, and it accordingly on April 23, 1903, resolved that "Brother Schekeler and Brother Schneider be instructed to vote for Local No. 60's candidate for inspector," to which was added: "We give Brother McGilvray credentials as candidate No. 60 for plumbing Inspector." And this, apparently, not producing the de- 386 LEGALITY OF ENDS PUKSUED [CHAP. V sired effect, the union, on August 25, 1903 (the night before that upon which the board was to select the inspector), adopted the following: "Motion by Knable, and seconded by Sutherland, that the two members of L. U. No. 60 who were appointed on the plumbing board be fined $25 and, with the sanction of the executive committee, of the U. A. the fine be increased to $150, if they do not vote for Brother WiUiam McGilvray as inspector of plumbing for the city of New Orleans. Any other member outside of McGilvray, taking the posi- tion of plumbing inspector, be fined same as two members of pltimb- ing board. Any member taking position of plumbing inspector be expelled from local." The plaintiffs nevertheless' persisted in ignoring McGilvray, and voted for men who (plaintiffs say) were, in their opinion, better qualified for the position; Schekeler voting for one O'Dowd, and Schneider voting for Glennon, lately president of the union. The union thereupon (on. August 27th) ordained that "the constitution and by-laws be enforced in regard to Brothers Schekeler and Schneider in regard to their action on the board of examiners," and on Sep- tember 14th it became more explicit, as will appear from the fol- lowing excerpt from its minutes, to wit: "President De Leon ruled that members who worked in shops with E. Schekeler and S. Schneider, after knowing that said men were working in said shops, be fined not less than $5. So ordered. Brother William O'Brien appealed from the decision of the chair, after which a vote was taken, and the chair was sustained by a vote of 32 to 5. So ordered. Moved and seconded that Brothers who had worked with E. Schekeler and S. Schneider on Monday, Sep- tember 14th be fined the amount of two days' wages, and if they continued to work with said men on Tuesday, September 15, 1903, they be fined the simi of $25 each additionally. Amendment. That fine so collected be paid to brothers who quit work on accoimt of Schekeler and Schneider," etc. This action resulted in the discharge of the plaintiffs by their employers, and they, then, busied themselves in an effort to obtain relief, first, through Local Union No. 60, and later through the United Association. . . . Finally, reaching the conclusion that no relief would be afforded them, the plaintiffs upon November 19th brought these suits. . . . Upon the facts thus stated (and possibly a few others which may be hereafter referred to), the judge a quo gave judgment in favor of the plaintiffs, respectively, and against the defendants. Local Union No. 60 and various named officers of said association who participated in the action complained of, maintaining the prelim- inary injunction which had been issued, ordering that the plaintiffs be reinstated in said Local Union No. 60, and the fines imposed upon them set aside, and condemning said defendants in solido, in favor of the plaintiff Schekeler in the sum of $482, with interest SECT. VIU3 STRIKES FOR MISCELLANEOUS PURPOSES 387 from the rendition of the judgment, and in favor of the plaintiff Schneider in the sum of $466, with interest. And from the judg- ments so rendered the defendants have appealed. The obligation which initiates of Local Union No. 60 are required to take is to be construed with reference to the declared purposes of the organization, and is binding on the initiate only in so far as those purposes are lawful and are to be attained by lawful means. When the union attempts the accomplishment of an object which is foreign to those purposes, or attempts the accomplishment of those purposes by unlawful means, the initiate may properly say: "I entered into no such contract." The union's rules of orde» spe- cifically provide that "partisan politics or sectarian discussion shall not be permitted in the meetings under any circumstances." The introduction of a resolution committing the organization to the support of a particular political party or a particular dogma of re- ligion would therefore be a violation of a fundamental law of the union, as construed by the union, and its adoption would impose no obligation on its members, and it must be read into those rules that the introduction of a resolution which is violative of the funda- mental law of the land has no better foimdation and its passage no greater effect. "The com-ts will not enforce an agreement the object of which is forbidden by law or is opposed to the policy of the law. . . . The following are the leading classes of agreements contrary to the policy of the law: (1) Agreements which tend to injure the / public service. Of this character is an agreement to use one's in- fluence to secure the election or appointment of a person to a public office. Gaston v. Drake, 14 Nev. 175, 33 Am. Rep. 548; Nichols v. Mudgett, 32 Vt. 546; Gray v. Hook, 4 N. Y. 449; Filson's Trustee V. Himes, 5 Pa. 452, 47 Am. Dec. 422. . . ." Principles of Con- tracts (Benjamin), pp. 89, 90. . . . If, therefore, the appointment of McGilvray, rather than of some other and perhaps more competent man, to the position of inspec- tor, could be considered as furthering the purposes for which the defendant herein was established, nevertheless the attempt to secure that appointment, by threatening and imposing fine and suspension, in their capacity as members of the union, upon public officials charged with such appointment, was a violation of law; and this, whether those ofl&cials, as members of the union, had committed themselves to McGilvray's candidacy or not. But we are unable to concm- in the view, relied on by the learned counsel for the de- fendant, that the plaintiffs had so committed themselves. The union, in .July, 1902, adopted a resolution indorsing McGilvray for the position of inspector. It is not altogether certain that the plain- tiffs were present when that action was taken, and, if we assume that they were, we may also assume (in view of the fact that there were two other candidates, including Glennon, for whom one of the plaintiffs, as a member of the board of examiners, subsequently 388 LEGALITY OF ENDS PURSUED tCHAP. V voted), that the plaintiffs voted against him, thereby expressing the opinion that, even as between the three whose names were pre- sented, he was not the best man for the place. At that time, how- ever, it does not appear that the selection of the plaintiffs to member- ship of the board having the appointing power was in contemplation, and the proposition that, by being absent from the meeting or by voting against the indorsement of McGilvray, they committed them- selves to the position that, if they should at any time thereafter attain such membership, they would vote for him is untenable, since they knew, and the union knew, that the power to place them on the board was not vested in the union; that when, if ever, they should be placed there, it would be as public oflBicials, assuming and owing a paramount duty with respect to the selection of an inspector to the community at large; and that they could not, legally or morally, tie themselves up in such a manner as to prevent their discharging that duty by exercising their best judgment in the matter of such selection. . . . It is therefore ordered, adjudged, and decreed that the judgment rendered in the consolidated cases of Stevens Schneider v. Local Union No. 60, United Association Journeymen Plumbers', etc., et al., and Edward Schekeler v. Same Defendants, and herein ap- pealed from, be, and the same are, hereby aflmned, at the cost of the defendants.^ BAUSH MACHINE TOOL CO. v. HILL Supreme Judicial Court of Massachusetts. 1918 231 Mass. 30 LoRiNG, J.^ This is a bill in equity brought against the members (something over two hundred and fifty in number) of two labor unions to enjoin them "from interfering with the business of the plaintiff ... by maintaining, carrying on, aiding or abetting in any manner the strike now in force against the plaintiff." The case was sent to a master. The master foimd that the members of the two unions had struck to get an increase of pay, to unionize the plaintiff's shop and to limit the number of apprentices. The plain- tiff and the defendants are at issue on the legality of a strike to limit the number of apprentices. But both the plaintiff and the defendants agree that a strike to unionize an employer's shop is 1 Compare Spayd v. Ringing Rock Lodge No. 665, 113 Atl. (Pa.) 70. See also, Sallade v. Sohuykill Co., 19 Pa. Sup. Ct. 191. Strikes fob Political and Other Purposes. As to the threatened English miners' strike of 1919 to secm-e the nationalization of the English mines, see Webb, History of Trade Unionism (1920 ed.), pp. 517-522; and as to the increas- ing reUance of English strikers upon the use of "direct action," see Ihid., pp. 663- 673. ' Only so much of the opinion as relates to the legality of the strike is given. — Ed. SECT. VIII] STRIKES FOR MISCELLANEOUS PURPOSES 38t> an illegal strike and that a strike for an increase in wages is a legal strike. Without question a strike for both a legal and an illegal purpose is an illegal strike and no contention has been made to the contrary. It is not necessary therefore to consider the legality or illegality of a strike to limit the number of apprentices and we lay that purpose of the strike on one side as a matter of no consequence.^ . . . 1 Contra: Willcutt v. Bricklayers' Union, 200 Mass. 110 (strike for four ob- jects, two of which were lawful and two apparently u;ilawful). "Such a strike must be treated as a justifiable strike so far as respects its ultimate object." — Per Hammond, .7., p. 114. The doctrine announced in Baush Machine Tool Co. v. Hill was followed in Folsom Engraving Co. v. McNeil, 235 Mass. 269. CHAPTER VI LOCKOUTS LEFEBVRE v. KNOTT CouH StjpiSrietjke de Qu:^bec. 1907 32 Quebec Sup. Ct. 441 Saint-Piehke, J. This case, which had its origin in a conflict between employers and employees as to the price to be paid for labor, has given rise to the discussion of questions of law which are of more than ordinary interest. The facts, which are few and simple, are the following: On the 10th of June, 1905, the Association of Master Plasterers of Montreal, an incorporated body of some years' existence, were notified by the journeymen plasterers who belonged to "The Journeymen Plasterers Union," that on and from the 3d day of July then next, they would no longer consent to work for the universally accepted price of thirty-three cents and one-third per hour, but that they would insist upon their wages being ad- vanced to forty cents per hour for a nine hoiu"s day's work. In plain language, this meant that in the event of the journey- men plasterers' demand being refused a strike would be declared on or before the 3d of July. The master plasterers, many of whom had signed contracts to be executed during the opening season, based upon the scale of wages generally accepted at that time, and for whom a general strike at three weeks' notice would mean serious losses, if not utter ruin, felt that their only alternative was to club together for their own protection. Negotiations were attempted with a view to a compromise, but without success. Finally, on the 22d day of June an agreement was entered into and signed by all the members present of which the following are the chief clauses: "Whereas, it is essential that the master plasterers in Montreal and vicinity, hereinafter called the subscribers, unite to protect their material interests, now, therefore these present Avitness, that the commercial firms and individual employers whose signatures are hereto attached, have mutually agreed and hereby severally and reciprocally bind and obhge themselves as follows: "1. In the event of a strike being declared by 'The Plasterers' Union of Montreal,' said union shall not be recognized in any man- ner whatsoever, on and after the 3d day of July, 1905. "2. In the event of a strike being declared by said union against any of the subscribers to this agreement, all the subscribers shall 390 CHAP, vq LOCKOUTS 391 immediately lock out all members of the said union, then in their employ, and cease employing same. "3. . . . "4. Subscribers shall retain the right to negotiate individually with any journeyman plasterer, whether a member of the union or not and arrange such scale of wages as he may see fit not to ex- ceed the present rate of 33| cents. "5. . . . "6. The subscribers and each of them severally bind themselves to pay into a fund, as liquidated damages for the violation of any clause in the present agreement, the siun of $500.00. As an ad- mission of said liability and to secure the prompt payment of said damages, each of the said subscribers shall give a note bearing date not later than the 10th of July, 1905. This note shall be executed in favor of J. Lefebvre, John McLean, and Joseph Chamberland, as 'trustees' for the Master Plasterers' Association; and shall be de- posited with the secretary of said board. "7. The provisions of clauses 5 and 6 hereof shall apply to such subscribers only as have union shops. "8. The subscribers agree that their liability in damages under clause 6 hereof and for the amount therein stated, shall immediately arise in the event of a decision of the subscribers to the effect that the present agreement has been violated. "9. . . . " 10. The clauses of this agreement relating to damages are hereby specially declared to be of the essence of this contract, without which the same would not have been made, and binding upon all sub- scribers for the space of one year from the date thereof." Among the members of the Master Plasterers' Association wh» signed this agreement were Knott & Gardner, the defendants in the present case. A few days later, in furtherance of the object mentioned in the above agreement, and as a sanction to it, the same gentlemen gave to the three trustees named in the above deed of agreement, the five hundred dollar note which, under the terms thereof each member of the coaHtion had bound and obliged him- self to sign and hand over to the three trustees. As had been ex- pected, in the month of July the impending strike was finally an- nounced to have begun, and the evidence shows that it was continued for a period of time covering several months. About the middle of September, Knott & Gardner, for reasons best known to themselves, broke their engagement, and yielded to the strikers' demands by paying their men forty cents an hour. The result of this action on their part proved highly detrimental to the other master plasterers. The strikers, encouraged by their defection, made up their minds to prolong the struggle, and by their doing so iacreased, in a large proportion, the losses of the other master plas- terers, who remained faithful to their pledge. On being informed 392 LOCKOUTS [CHAP. VI of the action taken by Knott & Gardner, the association decided that these gentlemen should be made to pay the penalty of $500 agreed upon, and on the 28th of September, 1905, the present ac- tion, based upon the promissory notes signed by them, was taken out in the name of the three trustees, and served upOn them. . . . As may be noticed by the various allegations contained in the pleadings, the main question to be looked into is whether the pro- ceedings resorted to by the master plasterers constituted such a combination as is in restraint of the freedom of trade and of the liberty of contracts, and for that reason prohibited by law. . . . Was the coalition or combination of the master plasterers an un- lawful one under the circumstances of the case? The solution of this first question must of all necessity follow, as a corollary and as a natural sequel, that to be given to this other one: Was the action of the strikers a lawful one? It is as clear as the sun's light at noonday that if the journeymen plasterers were not violating any law in forming a coalition or combine in order to secure advanced wages, their employers could not possibly be guilty of any wrong, either private or public, in clubbing together for the purpose of resisting their demand, and by the same means of protecting themselves against loss. Formerly the fact of forming a combination for the purpose of raising the price of labor was held to be a conspiracy punishable by law; but times have changed, notions more humane and more in accordance with real justice have prevailed, and now, in aU civilized countries the world over, workingmen are permitted to unite to- gether for their mutual protection, and legislation has intervened to sanction such rights. . . . It being shown that the journeymen plasterers were doing nothing but that which they had a right to do, in joining together for the purpose of obtaining an increase of wages, the most rigid logic ought, in my opinion, to bring us to the conclusion that if the action of the employees was lawful in making such a demand, that of the em- ployers was equally lawful, when it is shown that all they did was simply to club together in order more effectually to oppose it. I find this point so clearly elucidated in a book recently published "On the Law of Combinations," by Mr. Eddy, of the Chicago Bar, that I cannot resist the temptation of giving here a few citations from that really valuable treatise. I will cite from page 477, paragraph 561, under the caption "Com- bination of employers to resist demands of employees." He says: "A combination of employers to resist an artificial ad- vance in wages demanded by a combination of employees is lawful, inasmuch as the combination of employers is not made for the pur- pose of interfering with the rate of wages, as normally regulated by supply and demand. The right of employees to demand that eight tours should constitute a day's work is clear. It is the right Of a CHAP. VI] LOCKOUTS 393 laborer to fix such value on his services as he sees proper; there is no power lodged anywhere to compel him to work for less than he chooses to accept. And it is clear that worlonen may agree together that they will not work for less than a fixed scale, and that by all lawftil means, such as reasoning and persuasion, they will prevent other workmen from working for less. "But what is permitted to employees is also permitted to em- ployers, and it cannot be successfully urged that employees may be permitted to combine together to advance their wages while employers shall not be permitted to combine, together to resist by lawful means the advance demanded." . . . The defendants thought that they had found an illegal object in that part of the agreement by which the master plasterers bound themselves not to maintain in their employment the members of the journeymen plasterers who were members of the union. I can- not agree with them in this contention. If it were lawful for jour- neymen to decline working except at a specific rate of wages, surely it could not have been unlawful for the master plasterers to decline employing the very men who had openly expressed their unwilling- ness to work for them except on their own terms. . . . I might add that it is incorrect to state that a general boycott was decided upon by the master plasterers against the journeymen who were members of the union. I find, on the contrary, that, un- der the agreement, each individual member of the association was free to employ any one of them at the recognized wages of 33J cents per hour. I have no hesitation, therefore, in deciding this first ques- tion in favor of the master plasterers. . . . The inscription in law and the plea to the merits are, therefore, dismissed, and judgment will go for the plaintiffs for the sum of $500, with interest and costs as prayed for in the declaration."^ 1 N. Y., Chicago & St. Louis R. R. Co. v. Schaffer, 65 Ohiio St. 414; Atkins «. Fletcher Co., 65 N. J. Eq. 658. CHAPTER VII BOYCOTTS 1 Section 1. Primary Boycott Clark, The Law of the Employment of Labor, pages 289, 290, A distinction is sometimes drawn between what are classed as pri- mary and secondary boycotts. In the former, the action is directly against the offending employer, the members of the organization simply withholding their patronage as laborers or purchasers, and inducing their fellows to do the same. The mere withholding of patronage or refusal to trade is not unlawful, and the announce- ment or publication of such a purpose is within the rights of the persons agreeing together, even though it results in the injvuy of the person against whom the acts are directed. And it will foUow that persons freely joining in such withholding of business intercourse will not by their acts inculpate either themselves or the original actors. But such is not the usual course of the boycott; and indeed the definitions usually adopted do not cover such acts, but are ap- phcable only to the second class, or the so-caUed secondary boycotts (sometimes called compound boycotts), which are generally under- stood to mean combinations to harm one person by coercing others to harm him. . . . Martin, The Law of Labor Unions, Sec. 71, page 107. It is lawful for members of a union acting by agreement among them- selves to cease to patronize a person against whom the concert of action is directed, when they regard it for their interest to do so. This is the so-caUed "primary boycott," and in furtherance thereof it is lawful to circulate notices among the members of the union to cease patronizing one with whom they have a trade dispute, and to annoimce their intention to carry their agreement into effect. For instance, if an employer of labor refuses to employ union men, the union has a right to say that its members will not patronize him. A combination between persons merely to regulate their own conduct and affairs is allowable, and a lawful combination, though others may be indirectly affected thereby. And the fact that the execution of the agreement may tend to diminish the profits of the party against 1 Although logically the boycott, as a means used by labor organizations, should be placed under Chapter IV, yet because of the desirability of a fuller treatment of this important subject, a separate chapter has been devoted to it. — Ed. 394 SECT. I] PKIMAKY BOYCOTT 395 ■whom such act is aimed does not render the participants liable to a prosecution for a criminal conspiracy, or to a suit for injunction. Even though he sustain iinancial loss, he will be without remedy, either in a court of law or a court of equity. KEARNEY v. LLOYD ExCHEQtTEB DIVISION, IRELAND. 1890 L. R., Ireland, 26 Q. B. & Ex. Div. 268 Palles, C. B. The only questions argued before us had refer- ence to the cause of action contained in paragraphs 7 to 10 of the statement of claim. Upon this cause of action each party insists that, upon the findings of the jury, he is entitled to have the verdict entered for him. The defendants, in addition, submit that no evi- dence was given at the trial which ought to have been submitted to the jury upon the question whether the acts of the defendants "injured" the plaintiff, and that for that reason also they are now entitled to the verdict. The paragraphs to which I have referred state in substance that the plaintiff was incumbent of a Union of certain parishes of the Protestant Episcopalian Church of Ireland, and as such was in re- ceipt of an income which partly depended upon the amount of the contributions by the parishioners to a fund called the " Sustentation Fund"; that the defendants, being some of such parishioners, "ma- liciously intending to injure the plaintiff, and to deprive him of his income as such incumbent, and with the view of obliging him to resign the incumbency, and to ruin him in his profession as a clergy- man, agreed to abstain themselves, and to cause and procure others of the parishioners to abstain, from contributing to the Sustentation Fund; that in pursuance of that agreement they abstained and procured others of the parishioners to abstain, from so contributing; and that the plaintiff was in consequence deprived of the greater part of his income, and obliged to resign the incumbency. The jury foimd, inter alia, in answer to questions submitted to them by the learned judge, that the defendants combined and agreed with each other to abstain themselves from subscribing to the Sus- tentation Fund, but not to induce other parishioners not to sub- scribe; that this was done by the defendants, not solely with the intention of injuring the plaintiff, nor solely with the intention of obliging him to leave the parish, nor solely with the intention of promoting the religious interests of the parish; but partly with the intention of injuring the plaintiff, or obliging him to leave the parish, and partly with the intention of promoting the religious interests of the parish; and that the mode by which the defendants intended to promote the religious interests of the parish was by obliging the plaintiff to leave it. They further found that subscriptions were, 396 BOYCOTTS [CHAP. VII in fact, withheld from the Sustentation Fund by reason of the de- fendants' combination and agreement; that the plaintiff was thereby "injured" and obliged to leave the parish; and they assessed the damages at £200. . . . The mode most favourable to the plaintiff of reading the state- ment of claim is to treat the agreement to refrain from subscribing, not as the conspiracy itself, but as an act which caused damage to the plaintiff — as that which, in an indictment, would have been pleaded as an overt act of the conspiracy; and as seeking to render that prima facie lawful act of agreement wrongful against the plain- tiff, by reason of the intention with which it was entered into, alleg- ing that intent to be to injm-e the plaintiff, by obUging him to resign his incumbency. This intent the plaintiff endeavoured to prove in evidence, by proof of the conspiracy alleged to have been entered into for that purpose. I assume, then, that the jury found: 1, that the defendants, with intent to injure the plaintiff by obliging him to resign his incumbency, agreed to refrain from subscribing; 2, that by reason thereof subscriptions were in fact withheld, and that the plaintiff was thereby injured and obliged to resign; and I proceed to consider the sense in which these findings should be imderstood to make the action maintainable, and the evidence to sustain them when read in that sense. It will be admitted that, to support the action, the words "in- jury" and "injured" in these findings, must be read in their strict legal sense, as meaning the infringement of some legal right vested in the plaintiff. As laid down in Rogers v. Rajendro Dutt, 13 Moo. P. C. C. 209, 241, "It is essential to an action in tort that the act complained of should, under the circimistances, be legally wrongful as regards the party complaining — that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do him harm in his interests is not enough." We are, then, to in- quire was there any right vested in the plaintiff which would be invaded by subscriptions having been withheld, or by his being obliged to resign under the circumstances which appear in the case? I take his resignation first, as any injury to him by reason of it will be found to be attracted to, and involved in, the withholding the subscriptions. In one sense he was obliged to resign; in another he was not. His income was so much reduced that he voluntarily resigned. It was his own act, to which he was constrained no other- wise than by the reduction of his income; and unless this reduction was, as against htm, an actionable wrong, the voluntary resignation which resulted from it cannot be deemed an "injury" in law. Was, then, the reduction of his income, in the mode in which it was ef- fected, an actionable wrong — i. e., an invasion of any legal right vested in him? Each parishioner was at perfect liberty to sub- scribe, or not to subscribe, at his own mere volition. The plaintiff had no right to compel him to subscribe; and therefore the isolated SECT. I] PRIMABY BOYCOTT 397 act of one parishioner alone refraining from subscribing could not — irrespective of intention — amount to a legal injury to the plain- tiff; nor would it make any difference that the intention of that one parishioner in so refraining was to deprive the plaintiff of the means necessary to support his position of incumbent, or to annoy him, or to do him harm, using that word in the popular sense. Such, intention, however it may be regarded from a moral point of view, cannot amount to an intent to "injure," because the act intended, if in fact accompHshed, would not amount to an injury, in the sense of an invasion of a legal right. . . . The plaintiff had no legal right which would have been invaded by the act of the one parishioner which I have mentioned. If, then, each defendant, acting separately and independently of his fellows, refrained from subscribing, in the same manner in all respects, other than in combination, in which he did here, and if the same result ensued, i. e., that the plaintiff was obliged to resign, no legal right of the plaintiff would have been invaded. If, then, the acts of the defendants are wrongful as against the plaintiff, they must be so merely by reason of the pre-concert; and thus we come to this, on which the whole case must rest — does that pre-concert render wrongful the acts which otherwise would have been innocent? As to this, it is to be observed that there is no element of wrong in the mode in which this pre-concert was obtained, as distinct from the pre-concert itself. It is not alleged that the adherence to it of any party was obtained by fraud, intimidation, breach of a contract in which the plaintiff was interested, or other means wrongful towards the plaintiff. . . . Nothing then remains which can render the agreement unlaw- ful, except the intention with which it was entered into; and that intention — as I have already observed — does not amount to an intention to "injure" the plaintiff, or otherwise act wrongfully to- wards him; nor is it, either by statute or at common law, wrongful as against the public generally, as were the agreements in some of the cases cited in the argument in reference to trade societies. From, then, these rightful acts of — 1, a determination by each parishioner not to subscribe; 2, a combination by each of them with the others to adhere to that determination, unaffected by any purpose of ef- fecting "wrong" towards another, or any other illegal purpose, I am wholly unable to form any compound of which wrong shall be an element; and for this reason I am of opinion that the findings of the jury do not show an invasion of any legal right in the plain- tiff; and that consequently the verdict upon it should have been entered for the defendants.' . . . 1 Compare Ware and De FreviUe, Ltd. v. Motor Trade Assn., [1921] 3 K. B. 40.- See also, Brewster v. Miller's Sons Co., 101 Ky. 368. 398 BOYCOTTS [CHAP. VII MILLS V. UNITED STATES PRINTING CO. KISSAM V. UNITED STATES PRINTING CO. Supreme Coubt of New York. 1904 99 App. Div. 605 Jenks, J. The defendant printing company was ordered to show cause why an injunction should not issue, restraining it from dis- charging the plaintiff or any other of its workmen because of their failure to join the labor unions meiitioned in the complaint, and from carrying out the provisions of two contracts made with two of the imions, defendant. The other defendants were ordered to show cause why they should not be restrained and enjoined from in any way interfering with the plaintiff or any of his fellow non-union workmen in their employment by the printing company, from or- ganizing a strike against the said defendant printing company, from picketing, boycotting, or in any way interfering with its busi- ness management and affairs, or with any of its ofl&cers, agents, employees or servants, and that they and each thereof be restrained from boycotting or in any way interfering with the sale of any goods manufactured by the defendant printing company. The order con- tained a prelinoinary injimetion. Upon the hearing, the Special Term continued the injunction pendente lite as to the defendants other than the printing company, but denied the injunction as against the printing company. These are cross-appeals from that order by the plaintiff, and by the defendants other than the printing com- pany. It must be carefully noted that the defendants appellant are thus restrained from "organizing a strike against the said defendant printing company," from "picketing" and from "boycotting." I think that the injunction against organizing a strike cannot stand, and that the injunction against "picketing" and "boycotting" runs in terms too broad, and that the learned Special Term rightly denied the injunction as against the printing company. The record contains many affidavits full of allegations, denials, covmter allega- tions and counter denials. This is natural to a hearing of such issues upon ex parte statements unsubjected to the tests of cross-examina- tion, and unrestricted by rulings upon relevancy, materiahty or competency. It may be that the judgment upon trial will be far different from any preliminary relief which this record justifies. (See Warsaw Water Works Co. v. Warsaw, 4 App. Div. 509; Meyers V. City of New York, 58 Id. 534.) The defendants should not be restrained from "organizing a strike against the said defendant printing company." An employee who has not bound himself to his master by contract cannot be bound to him by law. Therefore, he may quit his work. If he may quit his work absolutely, he may quit it because the conditions SECT. I] PRIMARY BOYCOTT 399 thereof are not to his liking, and he is free to say that he will not take up that work until the conditions are to his liking. What one may lawfully do alone, he may do in concert, and hence a strike is not per se unlawful. The court, in National Protective Assn. v. Gum- ming (170 N. Y. 315, 321), do not differ over the proposition that " a peaceable and orderly strike, not to harm others, but to improve their own condition, is not in violation of the law." (See, too, Wunch V. Shankland, 59 App. Div. 482.) "Picketing" may simply mean the stationing of men for obser- vation.. If in the doing of this act, solely for such purpose, there be no molestation or physical annoyance, or let or hindrance of any person, then it cannot be said that such an act is per se unlawful. But "picketing" may also mean the stationing of a man or men to coerce or to threaten, or to intimidate or to halt or to turn aside against their will those who would go to and from the picketed place to do business, or to work, or to seek work therein, or in some other way to hamper, hinder or harass the free • dispatch of business by the employer. In that case picketing may weU be said to be unlaw- ful. But the vice of the injunctive order lies in the fact that this word, unqualified, may signify a lawful act. . . . The experience of Captain Boycott has added to our language a substantive and a verb. There is little, if any, question as to the meaning of the substantive, but there is no commonly accepted definition of the verb. Some courts have defined it as necessarily implying violence, or intimidation, or the threat thereof; others as but necessarily implying abstention. A may refuse to trade with B unless B changes a certain policy, and A may think that his attitude is necessary for his own welfare and protection. It cannot be con- tended that A thereby offends the law. In Mogul Steamship Co. V. McGregor, Gow & Co. (66 L. T. Rep. [n. s.] 1) Halsbury, L. C, says: "Now it is not denied and cannot be even argued that, prima facie, a trader in a free country in all matters ' not contrary to law may regulate his own mode of carrying it on according to his own discretion and choice.'" Judge Cooley in his work on Torts (2d ed., p. 328) says: "It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whom- soever, whether the refusal rests upon reason or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern." If A may take this step, it does not seem logical to hold that A and C together may not, and may not, by argument, persuasion and entreaty, bring D and E to their side. If A, C, D and E cannot do what A alone may lawfully do, the vice must be in the combination. But there is no dissent in our highest court over the proposition in National Protective Assn. V. Gumming (supra), that "whatever one man may do alone he may do in combination with others, provided they have no un- lawful object in view. Mere numbers do not ordinarily affect the 400 BOYCOTTS [CHAP. VII quality of an act." Parker, C. J., and Vann, J., are in accord (pp. 321, 338), and Gray, J., the other judge who wrote in that case, has expressly affirmed this principle in his dissent in Straus v. American Publishers' Assn. (177 N. Y. 473, 491). A's attitude may be trivial as to B, when that of the combination might enforce B's concessions, but this affords no legal reason against such combina- tion. It is not in the breast of the court to stamp as illegal a com- bination for the betterment of the interests of the members thereof or of some of them, and which, without incidental violence or in- timidation, severs all business dealings with an outsider until it may secure it. If this be illegal, where can we draw the line so as to coun- tenance association to insure united, and, therefore, effective action to right what seems wrong, or to correct what seems an abuse, or to mark disapproval of some policy in the every day affairs of our social life? The protest of one under threat of abstention may be unheeded in view of the slightness of the penalty, when a like pro- test of many, with similar threat, is effective, and only because the penalty is too great to pay. Lawful and concerted protest can reg- tdate many things within the law without invoking paternal govern- ment. It may be that the result of the boycott is a loss to him proscribed. Else, the combination would fail of its purpose. But when the result sought by a boycott is to protect the members of the combination or to enhance their welfare, that loss is but the incident of the act, the means whereby the ultimate end is gained. ... I think that the verb "to boycott" does not necessarily signify that the doers employ violence, intimidation or other imlawful coercive means, but that it may be correctly used in the sense of the act of a combina- tion in refusing to have business dealings with another until he removes or ameliorates conditions which are deemed inimical to the welfare of the members of the combination, or some of them, or grants concessions which are deemed to make for that purpose. And as such a combination may be formed and held together by argument, persuasion, entreaty or by the "touch of nature," and may accomplish its purpose without violence or other unlawful means, i. e., simply by abstention, I think it cannot be said that "to boycott" is to offend the law. (Bohn Manufacturing Co. v. Hollis, 54 Minn. 223; Sinsheimer v. United Garment "Workers, 77 Hun, 215; Cook Trade & Labor Comb. sec. 9, p. 43; 1 Tiedeman State & Fed- eral Control of Persons & Property, 440 et seq.; Bowen v. Mathe- son, 14 Allen, 499; Mogul Steamship Co. v. McGregor, Gow & Co., L. R. 23 Q. B. Div. 598; affd., H. of L., 66 L. T. Rep. [n. s.] 1; Marx & H. J. Clothing Co. v. Watson, 168 Mo. 133, 56 L. R, A, 951; Ulery v. Chicago Live Stock Exchange, 54 111. App. 233, 240; State V. GHdden, 55 Conn. 47; Allen v. Flood, supra; Quinn v. Lea- them, supra; Park & Sons Co. v. Nat. Druggists' Assn., 175 N. Y. 1, per Haight and Cullen, JJ.) . . . SECT. I] PRIMARY BOYCOTT 401 The discharges in this case are the result of the agreement be- tween the printing company and the miion. It is clear enough that the company made this agreement in order to end the strike and the boycott. Thus, the defendants secured the exclusive employ- ment of their members, an adjustment of wages and a determination of the working hoiu-s. If the defendants had the right to refuse to work for the printing company until their demands were met, I cannot see why they could not agree that they would work only under conditions which represented a concession of such demands. If the employer preferred to have these workmen work for him on the conditions that he should employ none but their fellows, increase their wages, and settle the hours of labor, than to have them strike and organize a boycott, I cannot see why in the exercise of its right to regulate its own affairs it could not follow this course and make the agreement. ... I said at the outset that the judgment on trial may be far differ- ent from the determination upon the papers now before us. The evidence may put the combination within the prohibition of the principle of Curran v. Galen, 152 N. Y. 33, may justify an injunction against the picketing in the manner of its doing, against the boy- cotting in the methods of its practice, and more. But as I think that the printing company is free to discharge the plaintiffs and their other workmen, and that the other defendants have the right to organize a strike and to picket and boycott within the Hmitations which I have sought to state in this opinion, and that the record does not justify a retention of the injunction against picketing and boycotting, with specifications and limitations, the order must be modified in accord with these views, and as modified must be affirmed, without costs.' Hbnshaw, J., IN PIERCE V. STABLEMEN'S UNION 156 Col. 70, 75 (1909) We think, moreover, that no court questions the right of those same men to cease dealing by concerted action, either socially or by way of business, with their former employer, and this latter act, in its essence, constitutes the primary boycott.^ 1 This decision was affirmed (without opinion) in the Appellate Division, 128 App. Div. 889, 890, and was subsequently affirmdtt by the Court of Appeals, 199 N. Y. 76, mpra, p. 338. " The most casual observation will disclose that scarcely any two courts treat- ing of the subject [i. e., the boycott] formulate the same definition." — Per Hal- loway, J., in Lindsay v. Montana Fed. of Labor, 37 Mont. 264, 272. " But the word [i. e., boycott] is of vague signification, and no accurate and exclusive defini- tion has, so far as I know, ever been given." — Per Hough, J., in Gill Engraving Co. V. Doerr, 214 Fed. Ill, 118. ' 2 Accord: Cartwright, J., in Wilson v. Hey, 232 111. 389, 396 (holdmg a second- ary boycott Ulegal) : " It is not wrong for members of a union to cease patroniz- ing any one when they regard it for their interest to do so, but they have no 402 BOYCOTTS [CHAP. VII SiH Charles Rxjssel — Opening Speech before the Parnell Com- mission. [The charge against the Irish Land League was of con- spiring to encourage agrarian outrage. The League admitted that it had encouraged boycotting in the simple sense, and claimed a distinction between lawful boycotting and unlawful violence.] My lords, in this matter of boycotting, may I be forgiven for using the celebrated exclamation of Dr. Johnson, and say, " Let us clear our minds of cant." Boycotting has existed from the earliest times that human society existed. It is only a question of degree. Up to a certain point, boycotting is not only not criminal, but I say is jus- tifiable and is right. For what does boycotting mean? It means the focusing of the opinion of the community in condemnation of the conduct of an individual of that community who offends the general sense of propriety, or offends against its general interests. Is there no boycotting at the bar? Is there no boycotting in the other professions? Is there no boycotting in the church? Is there no boycotting in politics? Is there no boycotting of tradesmen in election times? What is the meaning of "sending a man to Coven- right to compel others to break off business relations with the one from whom they have withdrawn their patronage, and to do this by unlawful means, with the motive of injuring such person." Scott AND Farmer, JJ., in the same case, p. 399 (dissenting in respect to other points): "The law is that an individual may refrain from trading or deal- ing with any particular person, and that two or more individuals may agree among themselves that they wiU not trade or deal with a certain person, and may give notice to others that they have made such an agreement. (Common- wealth V. Hunt, 4 Mete. Ill; Bowen v. Matheson, 14 Allen, 499; Macauley v. Tierney, 19 R. I. 225; Bohn Manf. Co. v. HoUis, 54 Minn. 223; Cote v. Murphy, 159 Pa. 420; Longshore Printing Co. v. Howell, 26 Ore. 527; National Protective Assn. V. Cumming, 170 N. Y. 315; 18 Am. & Eng. Ency. of Law, 2d ed., p. 87.) Appellants did nothing more." Sutherland, J., in People v. McFarlin, 89 N. Y. Supp. 527, 531: "In so far as the threats against the manufacturers were confined to the withdrawal of the union men from their employ and the withdrawal of all business relations and intercourse between the union men and said manufacturers unless their de- mands were complied with, no law was violated, and no illegal act threatened." Taft, J., in Toledo, A. A. & N. M. Ry. Co. v. Penna. Co., 54 Fed. 730, 738: " . . . It is generally lawful for the combiners to withdraw their intercourse and its bene- fits from any person and to announce their intention of doing so. . . ." Mitchell, J., in Bohn Manufacturing Co. v. HoUis, 54 Minn. 223, 234: "It is perfectly lawful for any man (unless under contract obligation, or unless his employment charges him with some public duty) to refuse to work for or to deal with any man or class of "men, as he sees fit. . . . And . . . the right which one man may exercise singly, many, after consultation, may agree to exercise jointly, and make simultaneous declaration of their choice." Chapman, C. J., in Carew v. Rutherford, 106 Mass. 1, 14: "Every man has a right to . . . refuse to deal with any man or class of men. And it is no crime for any number of persons, without an unlawful object in view, to associate them- selves together and agree that they will not work for or deal with certain men or classes of men, or work under a certain price, or without certain conditions." Compare the definition of the primary boycott laid down by Pitney, J., in the case of Duplex Printing Press Co. v. Deering, 254 U. S. 443, at p. 466, infra, p. 443. SECT. II] SECONDARY BOYCOTT 403 try " ? I say that boycotting — I am not justifying intimidation, I am not justifying force, I am not justifying violence in connection with it: those are different things — I am talking of an act of moral reprehension called boycotting, and I say it always has existed and always will exist. My lords, if I were to search ancient records, historical, sacred records, I could point to many instances of boy- cotting; but I need not go far back. We have had in our days very remarkable instances, not only of boycotting, but of effective and useful boycotting.! Section 2. Secondary Boycott by Means of Coercion HEYWOOD V. TILLSON Supreme Jxidiciai, Court of Maine. 1883 75 Me. 225 Appleton, C. J. This is an action on the case. The plaintiff in his writ alleges that on December 19, 1875 he was seized of a dwelling house on Hurricane Island of great value, yielding an annual rent of one himdred dollars which he should be receiving, were it not for the wrongful act of the defendant, and ought to receive from one Charles H. Sanborn and other tenants; that he leased the dwelling house and premises to said Sanborn for the term of one year, which sum said Sanborn was willing to pay; that the defendant was the occupant and owner of said Hurricane Island, and engaged in quarrry- ing, cutting and working granite, and shipping the same to market; that there was no opportunity to lease any building, except to those in the defendant's employ; yet the defendant knowing this and to deprive the plaintiff of the rents and profits arising therefrom, did on December 29, 1875, order and direct the said Sanborn to pay him only twenty dollars a year, instead of ninety-six dollars, and threatened to discharge said Sanborn if he did not comply with his order; by means, whereof, the plaintiff received but one dollar and sixty-seven cents per month, instead of eight dollars; that after- wards on August 1, 1876, said Tillson ordered and directed said Sanborn to leave said dwelling house and refused to allow him to remain therein, and threatened to discharge him from his employ- ment, unless he should leave said dwelling house; and that the said Tillson threatened to discharge any and all persons from his em- ployment, and expel them from the island, who should occupy said premises and become tenants of the plaintiff, — by means of which orders, threats and directions, the said Sanborn was induced to and did leave the premises, and refused to pay for the use of the same, and to occupy the same, — whereby the plaintiff has been unable ' Quoted in Wigmore's Cases on Torts, vol. 2, p. 339. See other interesting passages and examples of boycotts in ibid., pp. 329-340. 404 BOYCOTTS [CHAP. VII to rent, lease or sell said dwelling house, and has lost all benefit from the same. . . . The defendant is the owner of Hurricane Island, has extensive quarries there, doing a large business, having important contracts with the government, and six hundred men in his employ. The plaintiff went into the defendant's employ as a stone cutter in 1873, and purchased the house referred to in the declaration, in the fall of 1874, for two hundred and fifty dollars, and was dis- charged in October, 1875. He testified that he "made no attempt to injure General Tillson, previous to his (my) discharge"; that he "had been taking notes in regard to the management of the job," and was, "going to keep the notes in case the job was ever investi- gated"; that he "furnished information to the newspapers in re- gard to the management of the government works"; wrote articles in the Boston Herald and The Rockland Opinion; that when the latter paper was indicted for a libel growing out of the articles, he was here two weeks in procuring witnesses for the publisher; that he said he considered the defendant a damned scoundrel, that he so testified, on the trial of the indictment, and that he "so considers him now." The house was built on defendant's land, by verbal permission of his clerk. . . . The house was not leased for the year. It was personal property. The plaintiff was not seized of it. Sanborn testifies that the plain- tiff rented the house to him "for eight dollars a month, so long as he (I) saw fit to occupy it," that he went into the house in October, 1875, and left in August, 1876, and that the amount he "paid Hey- wood was in the neighborhood of eighty dollars." The plaintiff nowhere alleges that he did not receive the rent as stipulated from Sanborn. The only evidence of ordering out is, what is testified to by Sanborn; that "he said he did not wish to injure me (Sanborn), but the man that lived in Heywood's house could not work for him." But this constitutes no ordering. It was what he had a right to say. It did not interfere with letting to others. As the house was rented to Sanborn by the month, as "lon^ as he saw fit to occupy it," the contract was terminable at the option of Sanborn. He could terminate it when and for what reason he saw fit. The plaintiff could not complain of its termination, no matter how unreasonable it might be. He had no contract with Sanborn that he should remain. He might remain or not. In Hutchins v. Hutchins, 7 Hill, 104, the defendants, after a will was made, devising certain real estate to A, conspired to induce the testator to revoke it, and effected their object by means of false and fraudulent repre- sentations: Held, that A, could not maintain an action, as the rev- ocation of the will merely deprived him of an expected gratuity, without interfering with any of his rights. So, here, no rights were interfered with. There was no obligation on the tenant to remain. SECT. II] SECONDARY BOYCOTT 405 None on the landlord to permit him to remain. All there is, the tenant did not renew his contract. Why he did not is no concern of the landlord. The tenancy was at will. The exercise of that will was the exercise of a perfect right. The motive which induced that exercise, can be no ground of complaint, whether it was the chance of bettering his condition, to gratify a whim of his own or the ill will of another. The landlord cannot complain that a tenant de- cHnes to renew his lease. If Sanborn violated any contract, he is liable to the plaintiff in damages. Besides, an employer has a vital interest in the welfare of his men. He has a right to see that they are not plundered. It was a perfectly proper motive for the defendant to interpose to prevent an extortionate rent, as that of one hundred dollars a year for a shanty costing but two hundred and fifty dollars. His own interest and his interest in the success of his employees, without the impu- tation of anything sinister on his part, afford good and sufficient reasons for his intervention. The question raised is, whether the defendant is liable in dam- ages to a landlord for a tenant's leaving, or for one or many declin- ing to become or not becoming tenants in consequence of his threats that he would eniploy no one who should become such landlord's tenants, or being his tenants should continue to remain such. . . . The employer, as he may by contract stipulate with his men where they shall not board, may equally determine where and of whom they may rent the houses they may occupy, and where they may not. The house may be in an unhealthy part of the city, or a disreputable neighborhood. But whatever the reason, good, bad or indifferent, no one has a right to complain. The owner has no cause of complaint when one says he will not occupy his house, nor when another says he will refrain from doing an act if it be occupied. The defendant was under no obligation — owed no duty to the plaintiff that he should permit his men to oc- cupy his house any more than to a boarding house keeper, that he should permit his men to board with him. The idea of a boarding house keeper suing a man because he declines or refuses to employ his boarders, or the owner of a house, because he will not employ his tenants, is utterly at variance with the right of individuals to make their own contracts. A landlord has no right of action against an employer of men, because he refuses to employ his tenants or boarders. Nor are his rights enlarged because the reason of such refusal is, that they are his tenants or boarders. Neither is the employer liable if having the tenants or boarders of a landlord in his employ, he discharges them from his service because they choose to remain such tenants or boarders, having the right by his contract with them to terminate their services. . . . The defendant had an absolute right to employ or not to employ, a tenant of the plaintiff, and no action would be maintained against him if he chose not to do it. 406 BOYCOTTS [CHAP. VII Threatening not to employ such tenant affords no ground of action on the part of the landlord. A threat to commit an injury is "not an actionable private wrong." Cooley on Torts, 29. It is only the promise of doing something which in the future may be injurious. It may never be carried into effect. It cannot be foreknown that it wUl be. . . . So far as relates to the case of Sanborn, who was a tenant by the month, the stipulated rent was fully paid, and the tenant left as he had a right to do. He left because defendant would not employ one of the plaintiff's tenants. The defendant had a right to impose that condition. The tenant had a right to his preference. . . . There is no proof of any wrong done — of any legal damage — or of any facts for or on account of which any damages could be assessed — unless threatening to do what a man has a perfect right to do, will constitute a sufficient foundation for an action. If any wrong was done, it was by the tenant in leaving; and if he has broken any contract, or violated any rights of the plaintiff, he alone is re- sponsible for his misfeasance. Plaintiff nonsuit.^ DUNLAP'S CABLE NEWS CO. v. STONE Supreme Coubt of New York. 1891 15 N. Y. Supp. 2 Appeal from special term. New York county. Action for injunction by Dunlap's Cable News Co., a corporation existing under the laws of New Jersey, and engaged in the business of collecting news, and furnishing the same to all newspapers which may apply therefor, against David M. Stone, as president of the New York Associated Press, an unincorporated association, existing under the laws of New York, also engaged in the business of collecting news and furnishing the same to the newspapers. The prayer of the com- plaint was "for judgment against the defendant, and said New York Associated Press, its officers, agents, or servants, enjoining them, and each of them, from addressing any communications or letters to any newspapers, their publishers or editors, threatening to withdraw, and also from withdrawing, the services of said New York Associated Press to said newspapers in case they continue to ' Accord: Raycroft v. Tayntor, 68 Vt. 219 (threat by defendant to revoke L's license to cut stone from defendant's quarry unless L would discharge plain- tiff employee); Payne v. Western, etc., Railroad Co., 13 Lea (Term.), 507 (threat by defendant railway company to discharge any of its employees who should patronize store of plaintiff, in order to coerce plaintiff into complying with de- fendant's wishes) ; Cote v. Murphy, 159 Pa. St. 420 (threat by defendants, em- ployers, not to sell building material to any building contractor who conceded to employees the advance in wages they were demanding, i. e., secondary boycott by employers against employees). See also, Scottish Co-operative Society v. Glasgow Fleshers' Assn., 35 Scottish L. Rep. 645. SECT. II] SECONDAKY BOYCOTT 407 avail themselves of the services of this plaintiff; and that they further be directed to withdraw and countermand such as have already been sent; and that the New York Associated Press be further en- joined from enforcing, or attempting to enforce, in any mode or man- ner whatsoever, the said by-law in any way unlawfully interfering with the business of this plaintiff; and for such other and further relief as the court may deem proper, besides the costs and disbm-se- ments of this action." The by-law or rule of the New York Asso- ciated Press referred to was to the effect that none of the members should enter into any arrangement for taking news from other news agencies. Plaintiff alleged that the business engaged in by the parties was "a public business, and that both plaintiff and the said New York Associated Press are therefore under an obligation to serve the entire public; and that it is essential for the proper conduct of a newspaper, and for the interests of its readers, subscribers, and ad- vertisers, and for the interest of the public, that such newspaper should be at liberty to avail itself of all sources of information, and combine, if it thinks best, the intelligence and information furnished by the various agencies instituted for that purpose." The New York Associated Press directed such of its members as were sub- scribers to plaintiff's system to discontinue plaintiff's service, on the ground that it was a violation of the rules of the Associated Press. A motion for an injunction pendente lite was denied, and plaintiff appeals. Bakrett, J. The plaintiff's application amounted to nothing more nor less than an attempt to restrain the defendants from trans- acting their lawful business in their own way, lest in doing so the/ plaintiff's rival business should be injured or diminished. The de-| fendants have a perfect right to limit the sale of the news which they collect to those who contract to deal exclusively with them. They are private individuals, dealing, it is true, with a large public, but governed by no corporate duty or statutory obligation. They certainly owe no duty to the plaintiff, which is a foreign corpora- tion, attempting to compete with them, and with whom they have no privity or relations of any kind. When one of the defendants' customers comes forward as a suitor, it will be time enough to con- sider whether such customer can with impunity violate his contract, and, while dealing with the plaintiff, demand a continuance of the defendants' services. It certainly is an extraordinary demand on the part of a competitor that the defendants be enjoined from en- forcing their agreements with their customers, or from refusing to accept new customers, without the ordinary limitation as to exclu- sive dealing. The plaintiff has no standing to maintain such an action, and its complaint is devoid of equity. It may be added that the injunction sought was almost in the precise terms of the prayer for relief, and the granting of it would have been equivalent to final judgment before trial. Such an injunction is only granted in an 408 BOYCOTTS [CHAP. VII extreme case, and where the right is absolutely clear. No such case has here been presented, but rather the reverse. The application for an injunction pendente lite was therefore without merit, and was properly refused. The order appealed from should be affirmed, with costs. MACAULEY BROTHERS v. TIERNEY SuPBEME Court of Rhode Island. 1895 19 B. I. 255 Bill in equity for an injunction. October 28, 1895. Matteson, C. J. The complainants are mas- ter plumbers engaged in the business of plumbing. In the transac- tion of their business they have been accustomed, and are obUged, to purchase from time to time materials from wholesale dealers in Rhode Island and other parts of the United States, and, among others, from L. H. Tilhnghast & Co., of Providence, who with the New England Supply Co. are the only wholesale dealers in plumb- ing materials in this State. The respondents are also master plumbers and oflEicers and mem- bers of the Providence Master Plumbers' Association, a voluntary association affiliated with the National Association of Master Plumb- ers of the United States of America. The latter association, on June 26, 1894, at Baltimore, in con- vention assembled, adopted resolutions that they would withdraw their patronage from any firm manufacturing or dealing in plumb- ing material selling to others than master plumbers; that the mas- ters should demand of manufacturers and wholesale dealers in plumb- ing material to sell goods to none but master plumbers; that the association should keep a record of all journeymen and plumbers who place in buildings plumbing material bought by consumers of manufacturers or dealers; that a committee be appointed by the association in every state and county for the purpose of reporting to the proper officers, at its head in the state, any violations of these resolutions; that the convention urge upon the association to per- fect and adopt a uniform system of protection for the trade over their entire jurisdiction. Subsequently a resolution of amendment was adopted, at St. Louis, that the interpretation of the resolutions be left in the hands of the Executive Committee with power. Still later a resolution was adopted at Washington "that it is the sense of this convention that in the future the interpretation of the term of ' master plumber,' as set forth in the above resolutions, to en- title him to purchase plumbing material, be construed to mean master plumbers that have quahfied under state or local enactments where such exist." SECT. II] SECONDARY BOYCOTT 409 It is alleged by the complainants that the interpretation put by the Executive Committee of the National Association on these reso- lutions is that those only are to be regarded as master plumbers who are members of the National Association, or members of the several local associations affiliated with the National Association; that the complainants have been informed by various wholesale dealers in plimibing materials in the United States outside of this state that they will not sell them supplies unless they shall join the Providence Master Plumbers' Association, and that these dealers are forced to refuse to sell them supplies because of the resolutions referred to and the interpretation put upon them by the Executive Committee of the National Association, and because of the action of the Providence Master Plmnbers' Association in causing such dealers to be notified not to sell to the complainants under the penalty, in case of their continuing to do so, of not selling to any member of the association; that the Providence Master Plumbers' Associa- tion, acting through the respondents, has issued notice to L. H. Til- linghast & Co. and the New England Supply Co. to sell supplies to none but members of the association, and that in consequence of these notices these wholesale dealers have notified the complainants and other master plumbers that they will not sell plumbing materials to plumbers not members of the Master Plumbers' Associations in the places in which they do a plumbing business, or members of the National Association; and that since the date limited in the notices these dealers have refused to sell to the complainants, and that they have been unable to purchase supplies from them and from other wholesale dealers in the United States because they are not mem- bers of the Providence Master Plumbers' Association. The bill charges that the Providence Master Plimibers' Associa- tion and the National Association have conspired together to pre- vent the complainants from buying suppUes anywhere in the United States, and utterly to ruin their business, unless they will submit to the conditions of membership in and become members of the Prov- idence Master Plmnbers' Association; avers that the business of the complainants wUl be irremediably ruined unless the respondents are enjoined from further action and are compelled to rescind the action which they have already taken, and prays that the respond- ents may be directed to rescind the notices given and all orders and requests, both oral and written, to any and all dealers in plumbers' supplies, not to trade with such dealers unless they shall refuse to sell supplies to any but members of such associations, and to rescind and withdraw any and all orders and requests to the National Asso- ciation to prevent wholesale dealers outside of the State of Rhode Island from selling supplies to the complainants, and that the re- spondents may be enjoined from all further interference with the complainants by notifying such dealers not to sell to them, or by further requests to said National Association to prevent them from 410 BOYCOTTS [CHAP. VII bujning supplies anywhere in the United States. Testimony has been submitted by the complainants tending to prove the allegations of the bill. Assuming that the allegations are fully sustained by the proof, have the complainants made a case entitling them to relief? We think not. The complainants proceed on the theory that they are entitled to protection in the legitimate exercise of their business; that the sending of the notices to wholesale dealers not to sell supplies to plumbers not members of the association, under the penalty, ex- pressed in some instances and implied in others, of the withdrawal of the patronage of the members of the associations in case of a failure to comply, was unlawful, because it was intended injuriously to affect the plmnbers not members of the association in the conduct of their business, and must necessarily have that effect. It is doubt- less true, speaking generally, that no one has a right intentionally to do an act with the intent to injure another in his business. In- jury, however, in its legal sense, means damage resulting from a violation of a legal right. It is this violation of a legal right which renders the act wrongful in the eye of the law and makes it action- able. If, therefore, there is a legal excuse for the act it is not wrong- ful, even though damage may result from its performance. The cause and excuse for the sending of the notices, it is evident, was a selfish desire on the part of the members of the association to rid themselves of the competition of those not members, with a view to increasing the profits of their own business. The question, then, resolves itself into this: Was the desire to free themselves from competition a sufficient excuse in legal contemplation for the sending of the notices? We think the question must receive an affirmative answer. Com- petition, it has been said, is the life of trade. Every act done by a trader for the purpose of diverting trade from a rival and attracting it to himself is an act intentionally done and, in so far as it is suc- cessful, to the injury of the rival in his business, since to that extent it lessens his gains and profits. To hold such an act wrongful and illegal would be to stifle competition. Trade should be free and un- restricted; and hence every trader is left to conduct his business in his own way, and cannot be held accountable to a rival who suf- fers a loss of profits by anything he may do, so long as the methods he employs are not of the class of which fraud, misrepresentation, intimidation, coercion, obstruction or molestation of the rival or his servants or workmen, and the procurement of violation of con- tractural relations, are instances. A leading and well considered case on this subject was the Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. 598; L. R. (1892) App. Cas. 25. . . . The case at bar contains no element of the character of those SECT. II] SECONDARY BOYCOTT 411 eniimerated by the Lord Justice ^ which are forbidden by law, un- less the threat of the withdrawal of patronage may be considered as amoiuiting to coercion. We do not think, however, that such a threat can be regarded as coercive within a legal sense; for, though coercion may be exerted by the appUcation of moral as well as physical force, the moral force exerted by the threat was a lawful exercise by the members of the associations of their own rights, and not the exercise of a force violative of the rights of others as in the cases cited by the Lord Justice. It was perfectly competent for the mem- bers of the association, in the legitimate exercise of their own busi- ness to bestow their patronage on whomsoever they chose, and to annex any condition to the bestowal which they saw fit. The whole- sale dealers were free to comply with the condition or not, as they saw fit. If they valued the patronage of the members of the asso- ciations more than that of the non-members, they would doubtless comply; otherwise they would not. Closely analogous to the case at bar was the recent case of Bohn Mfg. Co. V. HoUis, 54 Minn. 223. ... See also Paine v. Western & Atlantic R. R. Co., 81 Tenn. 507, 514-519; Cote v. Murphv, 159 Pa. St. 420, 421; Heywood v. Tillson, 75 Me. 225, 233. It only remains to notice the charge of conspiracy contained in the bill, upon which considerable stress has been laid as though the fact that the action of the members of the associations was in pursuance of a combination entitled the complainants to relief. To maintain a biU on the ground of conspiracy, it is necessary that it should appear that the object rehed on as the basis of the con- spiracy, or the means used in accomplishing it, were unlawful. What a person may lawfully do a nimiber of persons may unite with him in doing without rendering themselves liable to the charge of con- spiracy, provided the means employed be not unlawful. The ob- \ ject of the members of the association was to free themselves from the competition of those not members, which, as we have seen, is not unlawful. The means taken to accomplish that object were the ' agreement among themselves not to deal with wholesale dealers who sold to those not members of the associations, and the sending of notices to that end to the wholesalers. This, as we have also seen, was not xmlawful. Hence, it follows that, as the object of the com- bination between the members of the associations was not unlawful, nor the means adopted for its accomplishment unlawful, there is no ground for the charge of conspiracy, and the fact of combination is wholly immaterial. Commonwealth v. Hunt, 4 Met. Ill, 129; Bowen v. Matheson, 14 Allen, 499; Wellington v. Small, 3 Cush. 145, 150; Carew v. Rutherford, 106 Mass. 1, 14; Paine v. Western & Atlantic R. R. Co., 81 Tenn. 507, 521; Hunt v. Simonds, 19 Mo. fl ijl. e., Bowen, L. J., who rendered the opinion in Mogul Steamship'Co. v. McGregor, L. R. 23 Q. B. D. 598. —Ed. 412 BOYCOTTS [CHAP. VII 583, 588; Robertson v. Parks, 76 Md. 118, 134, 135; Mogul Steam- ship Co. V. McGregor, L. R. 23 Q. B. 598; L. R. (1892) App. Cas. 25; Bohn Mfg. Co. v. HoUis, 54 Minn. 223, 234; Delz v. Winfree, 80 Tex. 400, 404. ' We are of the opinion that the bill should be dismissed.^ CASE OF ABBOT OF LILLESHALL SOMEHSBTSHIRE GaOL DELIVERY. 1225 Selden Soc. Pub. Vol. I, p. 115, No. 178 The Abbot of Lilleshall complains that the bailiffs of Shrewsbury- do him many injuries against his liberty, and that they have caused proclamation to be made in the town that none be so bold as to sell any merchandise to the Abbot or his men upon pain of forfeiting ten shillings, so that Richard Peche, the bedell of the said town, made this proclamation by their orders. And the bailiffs defend all of it, and Richard likewise defends all of it and that he never heard such proclamation made by anyone. It is considered that he do defend himself twelvehanded [with eleven compurgators], and do come on Saturday with his law. Pledges for the law of Richard Peche the bedell : Robert of Bray and Peter Pin. Afterwards came the Abbot and by leave of the justices remitted the law. 1 Accord: Bohn Mfg. Co. v. Hollis, 54 Minn. 223, supra, p. 62; Montgomery Ward V. South Dakota Assn., 150 Fed. 413. See also, Ware and DeFreville, Ltd. V. Motor Trade Assn., [1921] 3 K. B. 40; Scottish Co-operative Society w. Glasgow Fleshers' Assn., 35 Scot. L. R. 645. Compare: United States v. United Shoe Machinery Co., 247 U. S. 32; United Shoe Machinery Co. v. Brunet, [1909] A. C. 330. The elements of boycott in such cases as Maoauley v. Tiemey and Bohn Mfg. Co. V. HoUis do not seem to have impressed the courts as illegal. On the other hand, similar action is often held to violate state or federal laws prohibiting re- straint of trade. See, for instance, Grenada Lumber Co. v. State of Mississippi, 217 U. S. 433 (violation of state statute prohibiting restraint of trade); Mon- tague & Co. V. Lowry, 193 U. S. 38; Jackson v. Stanfield, 137 Ind. 592 (agree- ment among retail lumber dealers not to buy from wholesalers selling to retailers outside their association held illegal as in restraint of trade. Cites cases) ; Dueber Watchcase Mfg. Co. v. Howard Co., 55 Fed. 851 (agreement among watchcase manufacturers not to sell their product to any one buying watchcases of plaintiff held not to violate the Sherman Anti-Trust Act); but see 24 N. Y. Supp. 647 (where same facts were held to constitute an act injurious to trade or commerce in violation of the N. Y. State Penal Code, sec. 168, subd. 6. See p. 649). Compare also the following: Jayne v. Loder, 149 Fed. 21; United States v. Coal Dealers' Assn., 85 Fed. 253; Brown v. Jacobs' Pharmacy Co., 115 Ga. 429; Chicago, W. & V. Coal Co. v. People, 214 111. 421; Klingel's Pharmacy v. Sharp & Dohme, 104 Md. 218; Jackson v. Stanfield, 137 Ind. 592; State v. Adams Lum- ber Co., 81 Neb. 392; Cleland v. Anderson, 66 Neb. 252; People v. Sheldon, 139 N. Y. 251; Territory v. Long Bell Lumber Co., 22 Okla. 893; Hawarden v. Youghiogheny & Lehigh Coal Co., Ill Wis. 545 (common law restraint of trade); Funck V. Farmers' Elevator Co., 142 Iowa, 621. In other cases where malice and lack of justification are charged in the com- plaint and admitted by demurrer, the demurrer has been overruled. Delz v. Winfree, 80 Tex. 400; Olive v. Van Patten, 7 Tex. Civ. App. 630. SECT. II] SECONDARY BOYCOTT 413 WILSON V. HEY Supreme Court of Illinois. 1908 232 III. 389 Mr. Justice Cartwright delivered the opinion of the court : The appellees, John E. Wilson and John T. Wilson, are partners, and have been engaged in' business many years in Sparta, a city of Randolph county, having a population of 3000 at the last census. Their business has been that of liverymen, hackmen and draymen, and they have owned and used a large number of teams, wagons and vehicles furnished to the public for hire. Their business in- cluded hauling freight for merchants and others, and carrying pas- sengers, boarding horses for customers, furnishing storage for a hearse and a team for hauling the hearse. They also owned a build- ing known as the "Auditorium," which they rented for lectures and exhibitions. There have also been in Sparta organizations or unions of laborers, among which are the Team Drivers' International Union No. 109, the Brotherhood of Carpenters and Joiners of America No. 479, the Brotherhood of Painters, Decorators and Paper Hangers of America No. 74, and the United Mine Workers of America No. 659. These are subordinate unions to the Sparta local union of the American Federation of Labor, which is a general organization combining aU trades and callings, and there is another organiza- tion known as the Sparta Central Trades and Labor Assembly, composed of delegates from each of the subordinate unions. At various times since 1900 there have been difficulties between the appellees and the labor unions, and the team drivers' union has demanded of the appellees the employment of none but union team drivers on their teams or on any hack or omnibus. One of these difficulties was in 1903, about hauling brick to the school house. It was a short haul, and the appellees used two teams for three wagons, so as to leave one wagon standing for loading or unloading. A committee of the union called upon one of the appellees and in- formed him that he was preventing men from working and ordered him to put a team and driver on each wagon. He pleaded economy and that there was no necessity for a team on each wagon, but after a hearing the Trades and Labor Assembly ordered a team for each wagon, which was put on until appellees could hear from an appeal taken to the International Brotherhood of Teamsters. They re- ceived a communication from Cornelius P. Shea, the president, de- clining to interfere, and they complied with the order. In 1901 the team drivers' union pubHshed a notice in a newspaper request- ing all union men not to patronize appellees until they should comply with some agreement with them, but all the difficulties were settled by appellees yielding to the demands made. In the spring of 1904 there was trouble over the building of a church in Sparta, when 414 BOYCOTTS [CHAP. VII appellees were notified to take their teams off. On April 14, 1904, the appellees and officers of the team drivers' union signed a con- tract, in which the appellees agreed "to work only union team drivers on all teams; also to employ Federation members at aU other work as helpers." The contract contained this further agreement on the part of appellees: ''In case no union man can be had from either union we can employ another only for a short time, and if he or they work for more than one day we agree to retain one dollar on his or their application to join the A. F. of L. No. 7231, or the Team Drivers' Union No. 109." In November, 1904, there was a new difiiculty between the parties growing out of that contract. The dispute was over the claim that appellees had not retained the proper amount of money from non-union employees. Appellees claimed that there was only one dollar due on a man named Dude Wilson, and that was paid, but the union claimed that appellees owed five dollars on account of non-union men. Appellees refused to pay the four dollars, and the team drivers' union put them on what was called the "unfair Hst" and reported such action to the local union of the Federation of Labor and the Trades and Labor Assembly. The Trades and Labor Assembly endeavored to have appellees yield, and upon their refusal the assembly appointed a committee of three to inform the business men generally, in Sparta, a part of whom had been in the habit of having appellees haul their freight and who were accustomed to deal with them, that appellees were on the "unfair hst." The members of the various unions ceased to patronize appellees, and some of those to whom notices were given did the same. There were some who paid no attention to the notice but continued to employ and deal with appellees as before. A biU of paint sold by one man, which was delivered by appellees, was sent back for that reason and he was compelled to take it back. There was no threat made by the committee in connection with the notice, but it was understood by various parties who received it that their business would be injured and trade withdrawn unless they complied with it. A series of lectures were to be given under the auspices of the school board and the Auditorium was engaged for that pur- pose. An ofiicer of the school board was notified not to hire the Auditorium, by a committee, who stated that they were acting as a committee of one of the unions. The Trades and Labor Assembly on January 26, 1905, notified the Lyceum Bureau that the Audi- torium, in which the lectures were to be given, was on the "we don't patronize" list, and the board was requested to arrange to have the lectures delivered elsewhere. The union afterward granted the request of the school board and removed the ban. A committee called on the undertaker who owned the hearse and notified him not to use appellees' team to haul his hearse at a funeral, and the notice was complied with. A similar notice was given in another case. SECT. II] SECONDAEY BOYCOTT 415 Appellees filed their bill in this case in the Circuit Court of Ran- dolph county setting up these facts, and making the appellants, who are the unions and their officers, defendants, and praying for an injunction against interfering with the appellees, their servants or employees, from boycotting the appellees, their teams or vehicles or business, and from giving notices with the intent or calculated to deter the public from doing business with them. Later a supple- mental bill was filed alleging acts of interference with the business of appellants after the filing of the original bill. Answers were filed denying the material allegations of the bill and supplemental bill, and there was a hearing in open court, at which a large number of witnesses were examined and documentary evidence was intro- duced. A decree was entered finding the allegations of the bill and supplemental bill to be true, granting an injunction substantially as prayed for in the bill against putting appellees or their employees on the "unfair list" and from boycotting appellees, or going to or sending committees to their customers to induce or compel them to withhold their trade from appellees, and from menacing or in- terfering with their business in furtherance of the conspiracy against them. The facts are not in dispute, and the argument for appellants is based on the proposition that nothing wrong or unlawful was done. The jurisdiction of equity is not questioned if there was a wrongful interference with the rights of appellees, but counsel say that it was neither unlawful to refuse to deal with appellees nor to notify others of such refusal, and to try to induce them, by peaceable means, not to patronize appellees. The rights of labor unions and the extent to which they may law- fully go have been pretty fully explained in O'Brien v. People, 216 111. 354, and Franklin Union v. People, 220 Id. 355. The right of laboring people to organize for the purpose of promoting their com- mon welfare by lawful means is fully recognized. They may refuse to work for any particular employer, and may obtain employment for their members by sohcitation and promises of support in trade and otherwise, but in the accomplishment of their purpose they must proceed only by lawful and peaceable means and they have no right to make war on other persons. It is not wrong for members of a union to cease patronizing any one when they regard it for their interest to do so, but they have no right to compel others to break off business relations with the one from whom they have withdrawn their patronage, and to do this by unlawful means, with the motive of injuring such person. Such means as giving notices which excite the fear or reasonable apprehension of other persons that their busi- ness will be injured unless they do break off such relations or cease patronizing another are wrong and unlawful. If the notices given or things done have the natural effect of exciting such reasonable fear and apprehension and accomplish the result intended, it is im- 416 BOYCOTTS [CHAP. VII material that they are not accompanied by direct threats. In this case a witness who said he did not pay any attention to the notice and did not cease to deal with appellees testified that the effect on his business was bad, and others testified that they notified appellees that they did not want them to haul their freight because of fear of being boycotted if they permitted them to continue doing the hauling. There was no threat made in connection with the notice, but it was understood by the parties that the result would be an injury to anyone who dealt with the appellees. It was understood by those who received the notices that if they continued to trade with appellees and did not break off existing business relations they would incur the hostility of the unions and their own business would suffer. The evidence shows that in this case, at least, the words "unfair list" were a euphemism for a boycott, and, of course, it does not change the nature of an unlawful thing by substituting an inoffensive for an offensive name. The testimony was that the ob- ject of putting one on the "unfair list" was, if the parties receiving a notice should keep on dealing with such person the unions would withdraw their patronage, and the only object of the whole proceed- ing was to coerce appellees by injuring their business with the public at large. . . . Here was a small place in which there were a number of unions, embracing a considerable part of the population, and the ruinous effect of a boycott and a withdrawal of their patronage from customers of appellees unless such customers should break off all business relations with appellees can readily be seen and understood. It is urged that the injunction as allowed is too broad, for the reason that appellants are enjoined from putting appellees on the "unfair list." If the only purpose of putting one on the "unfair list," and the only effect, were to notify members of the union of the fact so that they might withdraw their patronage, the injunc- tion would be too broad; but the evidence in the record is that the purpose of that list is not so limited and that its purpose and effect is to establish a boycott, and in that view it is not too broad. The judgment of the Appellate Court is affirmed. Judgment affirmed. Scott and Farmer, JJ., dissenting: We do not think the evidence in this case warrants the conclusion that appellants established or sought to establish a boycott. The committee appointed by the Trades and Labor Assembly called on many persons in Sparta who had been in the habit of dealing with appellees and informed them of the action that had been taken by the unions. Following this, members of the various vmions in the city ceased to patronize appellees, and some of those to whom notice was given, as above mentioned, did likewise, whUe others to whom notice of the action of the unions came, paid no attention to the matter but continued to deal with appellees as before. No violence or threats of violence were used by appellants, or either of them, to SECT. II] SECONDARY BOYCOTT 417 induce appellees to adjust the controversy in a manner satisfactory to the unions or to cause individuals to whom the notices were given to refrain from dealing with appellees, and appellants did not cease, or threaten to cease, to patronize those business men who paid no attention to and who were not influenced by the notice that appellees were upon the "unfair hst." It is true that one business man who continued to deal with appellees after receiving the notice, testified that his business was not as good as it had been before he received the notice. The record is barren of evidence as to whether or not the lessening of his profits resulted from the continuance of his busi- ness relations with appellees. The law is that an individual may refrain from trading or deal- ing with any particular person, and that two or more individuals may agree among themselves that they will not trade or deal with a certain person, and may give notice to others that they have made such an agreement. (Commonwealth v. Hunt, 4 Mete. Ill; Bowen V. Matheson, 14 Allen, 499; Macauley v. Tierney, 19 R. I. 225; Bohn Manf. Co. v. HoUis, 54 Minn. 223; Cote v. Murphy, 159 Pa. 420; Longshore Printing Co. v. Howell, 26 Ore. 527; National Pro- tective Assn. V. Cimaming, 170 N. Y. 315; 18 Am. & Eng. Ency. of Law, 2d ed., p. 87.) Appellants did nothing more.i . . . GRAY V. BUILDING TRADES COUNCIL SUPEEME CoXmT OF MINNESOTA. 1903 91 Minn. 171 Brown, J. Action to restrain and enjoin defendants from boy- cotting plaintiffs in their business. Six separate actions of the same nature were brought at the same time by different plaintiffs against the same defendants, in each of which the trial court made an order that a temporary injunction issue, restraining and enjoining de- 1 See also Beck v. Railway Teamsters' Union, 118 Mich. 497 (boycott ac- companied by intimidation and violence). A large number of boycott cases will be found collected in 6 Am. Law Rep. 909 et seq. Speaking of the cases of Bohn Manufacturing Co. v. Hollis, 54 Minn. 223, supra, p. 62, and Continental Insurance Co. v. Fire Underwriters, 67 Fed. 310, Prof. Charles Noble Gregory, in 11 Harv. L. Rev. 487, at p. 505, writes: " It is the contention of those near to the labor organizations that these cases establish the legality of combinations of capitalists, even of moderate or small capitalists and business men, as retail liunber dealers and insurance agents, for the purpose, by non-intercourse and by at least partial boycott, of disciplining those who do not join their combination or do not transact business as they wish it to be done, but that the courts hold an exactly opposite rule when they pass upon the peace- ful combinations of humbler laboring men to maintain wage rates, and to declare for non-intercourse with those who wiU not join them or who oppose them. It is difiBcult to see why the rules should not be identical, and, if the courts have appeared to discriminate against those who most need to be taught the impar- tiality of our administration of justice, it is hoped that later decisions may so plainly establish that ' he who runs may read,' that there is one rule for all alike." 418 BOYCOTTS [CHAP. VII fendants in the respects hereinafter mentioned, from which order defendants appealed to this Court. The cases were submitted here together and upon one set of briefs. The facts are as follows: Plaintiffs are electrical contractors and engineers, and their business consists ia instaUing wires and other electrical apparatus in buildings and structures, and such business and affairs as are incidental thereto. It is alleged in the complaint in this connection (substantially the same allegations being found in the complaint in each of four of the actions) that plaintiffs have built up a large and profitable busiaess in their Hne; that the cus- tomers with whom they are doing it are necessary and essential to the successful conduct of the same; that such business is a" source of profit, and from which they earn a livelihood; that defendant Building Trades Council is an unincorporated association consist- ing of a large number of delegates from numerous other associations, known as "labor unions," all of which are located in the city of Minneapohs; that each labor union or organization selects a certain number of delegates, who represent and act for it, who become mem- bers of and constitute the Building Trades Council, which, so com- posed, possesses and exercises control over all the unions so repre- sented; that, by virtue of an arrangement between the unions, any action taken or order given by the Trades Council is binding and obligatory upon each of the several unions so represented, and form- ing part of the council; that each individual member assumes an obligation to abide by and obey all orders emanating from the Trades Council, in default of which he subjects himself to a fine of $5; that one of the unions so associated with the Trades Council is the In- ternational Brotherhood of Electrical Engineers of America, Local Union No. 292; that this brotherhood is composed of employees of firms engaged in a business similar to that of plaintiffs; that, in the language of the union, certain firms and corporations are known as "fair," and others as "unfair"; that those classified as "unfair" are such as employ non-union labor, and those classified as "fair" limit their employees to union laborers; that defendant Building Trades Council has recently placed all 'of the plaintiffs upon the "unfair" list; that defendants have entered into a conspiracy and combination for the purpose of injuring the business of plaintiffs, and in pursuance of which defendants have appeared before prospec- tive customers, and threatened such customers that, if they at- tempted to do business with plaintiffs, defendants would make it impossible to transact business with them; that on May 15, 1903, defendants, in pursuance of such conspiracy and combination, ap- peared before a conunittee in charge of the affairs of the Minne- apolis Industrial & Amusement Association, and declared that if it' should give contracts for certain electrical wiring, which the asso- ciation desired to have done, to plaintiffs, or either of them, the Trades Council would see that the association would be unable SECT. 11] SECOND AKT BOYCOTT 419 to obtain men for the construction of the booths and other buildings contemplated and necessary for the carnival and fair to be given by the association. The complaint further alleges that at the time said threats were made by the Trades Council the association was intending to make contracts for the electrical work with plaintiffs; that, but for the intimidation and threats of the Trades Council, the contract for such work would have been let to them, in the per- formance of which plaintiffs would have made a profit. The same facts are alleged in the complaints in the other two ac- tions, except as to the carnival association; and on this subject, namely, the particular interference with plaintiffs' business com- plained of, it is alleged in the Gugler Manufacturing Co. case that plaintiff in that action was engaged in carrying out a contract with one Smith, the proprietor of the Brunswick Hotel, in Minneapolis; that the contract required plaintiff to install wires and other electrical apparatus in the building; that other artisans, consisting of car- penters, plasterers, and painters, were engaged in and about the same building; that a representative of the Trades Council called upon Smith, and notified him that, if plaintiff was permitted to continue work on the building, the council would order all union men under its control, and employed in and about the building, to quit work, and that the council would see to it that Smith would be unable to complete the contract. Smith then notified plaintiff of these threats and representations, and urged upon it the necessity of cancelling its contract for the electrical work upon such building, which plain- tiff thereafter, ia view of the situation, consented to do. In the Hartig & Hellier case a state of affairs is presented very similar to the Gugler case. The complaints further allege that plaintiffs have no adequate remedy at law, and that defendants are insolvent and unable to respond in damages, and conclude with a prayer that de- fendants be restrained and enjoined from carrying out the threats complained of. The answer in each case admits all the allegations of the com- plaints respecting the organization of defendant Trades Council, its objects and purposes, its connection with the International Brotherhood of Electrical Workers of America, and in all other ma- terial respects denies generally the allegations of the complaints. It specifically denies that defendants, or any of them, have entered into any conspiracy or combination for the purpose of injuring or destroying the business of plaintiffs, or that pursuant to a con- spiracy or combination defendants, or any of them, have appeared before prospective customers of plaintiffs, or any other person or persons, or made any of the threats set forth in the complaint or otherwise. The actions came on before the court below on plaintiffs' apphca- tion for a temporary injunction enjoining and restraining defendants, and each of them, from the threatened acts, and were heard upon 420 BOYCOTTS [CHAP. VII the pleadings and affidavits in support and in denial of the allega- tions of the complaints. After due consideration, the court made an order that a temporary injunction issue in each action restrain- ing and enjoining defendants, and each of them, from doing the cer- tain acts hereinafter referred to. It appears from the affidavits, in addition to the matter pleaded, that plaintiffs, with a number of other electrical contractors, formed an association among themselves, and entered into an agreement with each other, agreeing among other things upon uniform con- ditions of service, a scale of wages, and that there should be no dis- crimination in respect to the persons employed because they might or might not be members of some labor union or organization; in short, they proposed to employ non-union labor if, in their judg- ment, their interests suggested it. No controversy ever arose, so far as appears in the record, between plaintiffs and any of their employees, or defendants, as represen- tatives of labor unions, as to the amount of wages paid or to be paid their employees. The whole controversy rests on the effort of de- fendants to compel plaintiffs to employ union labor only. It is urged that the efforts made in this direction were legitimate, and were resorted to for the purpose of furthering the interests of those represented by the Trades Council and the electrical union, and without maUcious intent to injure the business of plaintiffs; that, if injury in fact resulted to plaintiffs, it was incidental to the exer- cise of a lawful right by defendants. The complaints allege facts showing a boycott, and the order of the trial court granting a tem- porary injunction must be deemed, for the piu'poses of this review, as a finding that the facts so alleged are true. . . . A strike for the purpose of securing better wages or otherwise bet- tering the condition of the strikers is not unlawful, though the result thereof is a combination between the striking employees, and results incidentally in the injury of others. Bohn Mfg. Co. v. HoUis, 54 Minn. 223, 55 N. W. 1119. The courts very generally refuse to I interfere by injunction to prevent such action. But a boycott, as I generally understood, is held by nearly all the authorities to be an unlawful conspiracy, and subject to restraint by a court of equity. ; A boycott may be defined to be a combination of several persons to cause a loss to a third person by causing others against their will to withdraw from him their beneficial business intercourse through threats that, unless a compliance with their demands be made, the persons forming the combination will cause loss or injury to him; or an organization formed to exclude a person from business rela- tions with others by persuasion, intimidation, and other acts, which tend to violence, and thereby cause him through fear of resulting injury to submit to dictation in the management of his affairs. Such acts constitute a conspiracy, and may be restrained by injunction. 5 Cyc. L. 995; Crump v. Commonwealth, 84 Va. 927, 6 S. E. 620; SECT. II] SECONDARY BOYCOTT 421 Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co. (C. C.) 54 Fed. 730; Barr v. Essex, 53 N. J. Eq. 101, 30 Atl. 881; State v. Stewart, 59 Vt. 273, 9 Atl. 559; Gatzow v. Buening, 106 Wis. 1, 81 N. W. 1003; Casey v. Cincinnati Typographical Union (C. C), 45 Fed. 135; Frank V. Herold, 63 N. J. Eq. 443, 52 Atl. 152. In Hopkins v. Oxley Stave Co., 83 Fed. 912, 28 C. C. A. 99, 104, Judge Thayer, speaking for the Court of Appeals of the Eighth Circuit, said: "While the courts have invariably upheld the right of individuals to form labor organizations for the protection of the interests of the laboring classes, and have denied the power to en- join the members of such associations from withdrawing . . . either singly or in a body, even where such withdrawal involves a breach of contract, . . . yet they have very generally condemned those combinations usually termed ' boycotts,' which are formed for the pvu-pose of interfering, otherwise than by lawful competition, with the business affairs of others, and depriving them, by means of threats and intimidation, of the right to conduct the business in which they happen to be engaged, according to the dictates of their own judgments." . . . The case of Bohn Mfg. Co. v. HoUis, supra, is not here in point. In that case certain retail dealers in lumber agreed with each other not to deal with wholesale dealers who sold building material direct to consimiers or contractors. It appeared that the plaintiff therein had sold certain material to contractors, and the defendants threat- ened to inform all members of the retail association of the fact, and plaintiff brought that action to restrain them from so doing, on the ground that it was a conspiracy to injure its business. The court held otherwise, but the decision is clearly put on the ground that the action of the retai l dealers was, in effect, a strike, and jiotrestraiji- able in equity . They intended only to inform members of their association of the action of plaintiff in selling direct to the contrac- tors, and there was no claim made of any boycott, as in the case at bar. . . . Intimidation and coercion are essential elements of a boycott. It must appear that the means used are threatening and intended to overcome the will of others and compel them to do or refrain from doing that which they would or would not otherwise have done. What amounts to coercion, intimidation, or threats of injury, must necessarily depend upon the facts of each particular case. Plant V. Woods, 176 Mass. 492, 57 N. E. 1011; Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307. In Barr v. Essex, 53 N. J. Eq. 101, 122, 30 AtL 881, it was said that: "The clear weight of authority undoubtedly is that a man may be intimidated into doing or refrain- ing from doing [a particular act] by fear of loss of life or injury to health or limb; and the extent of this fear need not be abject, but only such as to overcome his judgment, or induce him not to do, or to do, that which otherwise he would have done or have left undone." 422 BOYCOTTS [CHAP. VII Intimidation, within the meaning of the law, is not necessarily limited to threats of violence to person or property. . . . It follows from what has been said that the learned trial court was justified in holding that defendants were guilty of a boycott, and ordering the issuance of a temporary injunction restraining them therefrom. We come, then, to the question whether the contention of defend- ants, to the effect that the order of the trial court is too broad and restrains acts other than of boycotting, is well taken. The order of the court is as follows : "Said injunction shall specifically enjoin said defendants and each of them, their members, agents, and employees, from in any manner interfering with the business of the plaintiffs by means of threats or intimidation, of any kind or natiu-e, directed against the customers or prospective customers of said plaintiffs. "Said injunction shall specifically enjoin the said defendants, council and brotherhood, their members, agents, and employees, and each and every of them, from interfering with the customers or prospective customers of plaintiffs by threats of any kind or nature, and particularly from notifying such customers or prospective cus- tomers and patrons of plaintiffs that plaintiffs are unfair. "Said injunction shall specifically enjoin said defendants, coun- cil and brotherhood, their members, agents, representatives, and employees, and each and every of them, from going upon the premises where plaintiffs are engaged or employed, for the purpose of inter- fering with the business of plaintiffs, and pursuant to said purpose, from ordering and directing or notifying men belonging to the va- rious allied unions to desist from work upon said premises by reason of the fact that plaintiffs are employed thereon." As already stated, it was proper for the trial court to enjoin de- fendants from all acts amounting to a boycott, and the question presented is whether the order of the trial court goes beyond this in scope and effect. The first subdivision of the order restrains and enjoins defendants, their members and agents, from in any manner interfering with the business of plaintiffs by means of threats or in- timidation, of any kind, directed against their customers or pro- spective customers. The second subdivision enjoins them from interfering with the customers, or prospective customers, of plain- tiffs, by threats of any kind or nature, and particularly from notify- ing such customers or prospective customers that plaintiffs are unfair. We are of opinion that neither of these restraining clauses, except the part we have italicized, goes beyond or restrains defendants from acts other than boycotting, and were therefore proper. It is immaterial whether contract relations actually existed between plaintiffs and their customers at the time, for it would be just as injurious and destructive to plaintiffs' business to prevent them by such means from obtaining customers with whom they could enter SECT. II] SECONDARY BOYCOTT 423 into contracts as to interfere by unlawful threats or intimidation and cause existing contract relations to be broken. It is plaintiffs' business as a whole that the law protects, and not some particular transaction involved therein. If a notification to such customers, actual or prospective, that plaintiffs are "unfair," portends injury to them or plaintiffs, and such as to bring the case within the rule against boycotting, it was properly made a part of the temporary injunction. Beck v. Railway, 118 Mich. 497, 77 N. W. 13. Whether such a notification would in any case amount to a threat or intimidation must be determined from all the facts and circum- stances of each particular case. Such notice might have special significance in a particular case, and have no meaning in another. But the complaints before us, by which we are controlled in deter- mining the case, there being no finding other than in effect that their allegations are true, contain no allegations that the mere notification of customers that plaintiffs are "unfair" has any special significance, that it portended injury, or was intended as a threat or intimidation, and for this reason we hold that the court below was not justified in making this an element of the injunctional order. In other respects the provisions of the order must be taken to cover and include acts constituting an unlawful conspiracy or boycott — nothing further — and are not open to the objections urged against them by defendants. As to the third subdivision, we are of opinion that the acts there attempted to be restrained are such as might lawfully be committed, and are not subject to equitable control. It is fair to the trial judge to say, however, in this connection, that the order was drawn by plaintiffs' attorney, as is usual in such cases, and was undoubtedly adopted by him as covering only the case made by the complaints. But it goes beyond this, and restrains acts other than acts constitut- ing boycotting. This particular provision specifically enjoins de- fendants, their members, agents,, and representatives, from going upon the premises where plaintiffs are employed, for the purpose of ordering, directing or notifying men belonging to the various allied unions to desist from work upon the premises by reason of the fact that plaintiffs are employed thereon. The authorities, as already noted, very generally hold that a strike is not unlawful, that members of labor unions may singly or in a body quit the service of their employer, and for the purpose of strengthening their association may persuade and induce others in the same occupation to join their union, and, as a means to that end, refuse to allow their members to work in places where non- union labor is employed. 18 Am. & Eng. Ency. (2d ed.) 84. They may refuse to have any sort of dealings with an employer of non- imion labor, singly or collectively; they may persuade and induce their members to join them, and there would seem to be no reason why they should be limited as to the place where they may do such 424 BOYCOTTS [CHAP. VII acts. There would be nothing wrongful or unlawful in their going upon the premises of the owner, with his permission, where their associates were engaged at work, for the purpose of notifying or ordering them to desist from work thereon, unless, perhaps, their conduct in that respect be so persistent and annoying to the owner of the premises or contractor as to constitute a nuisance. It is clear, upon authority, that this particular part of the injunctional order goes beyond the limits of the law, and cannot be sustained. It is therefore ordered that the order appealed from be modified to conform to the views herein expressed, and, as so modified, it is affirmed. PIERCE V. STABLEMEN'S UNION Supreme Court of California. 1909 156 Ccd. 70 Henshaw, J. The plaintiff went into equity seeking an injunc- tion to restrain the defendants from illegal interference with its business. Plaintiff conducted a livery, board, and feed stable in the city and county of San Francisco. The officers and representa- tives of defendant made request of him to "unionize" his stable by discharging his non-union employees and employing union men in their places. Upon his refusal, a strike of the union men was declared. Following the strike, a boycott was decreed. A patrol about plaintiff's place of business was established, and, under the findings, these representatives of the defendants, the pickets, "called forth in loud, threatening and menacing' tones to the patrons and customers of plaintiffs not to patronize plaintiffs in their said busi- ness; defendant, the Stablemen's Union, through its agents and representatives, has stated to and threatened patrons and customers and other persons dealing with plaintiffs that if said patrons and customers and other persons continued to patronize and do busi- ness with plaintiffs, said Stablemen's Union would cause them re- spectively to be boycotted in their business." Menacing terms and threatening language were made use of by the agents, representa- tives, and pickets of the union toward the employees of the plaintiff such as "Unfair stable, union men locked out and non-union men put in, look at this stable, the only unfair stable on Market Street; the stable that always was and always will be unfair. This is a scab stable. When we catch you outside, we will finish you. We will get you yet. It is a scab stable, full of scabs. We will fix you yet. It is a matter of time when we will get you all right. You wiU never get but of the stable alive. We will break you in half. We will beat you to death. When we catch you outside, we will finish you." A judgment for an injunction followed upon these findings, and that judgment by its terms commanded the defendant, its agents, and employees, to desist and refrain "from in any wise interfering SECT. II] SECONDARY BOYCOTT 425 with, or harassing, or annoying, or obstructing plaintiffs in the con- duct of the business of their stable, known as the Nevada Stables, and situated at number 1350 Market Street, in the city and county of San Francisco; or from in any wise molesting, interfering with, threatening, intimidating or harassing any employee or employees of plaintiffs; or from intimidating, harassing, or interfering with any customer or customers, patron or patrons of plaintiffs in connec- tion with the business of plaintiffs, either by boycott or by threats of boycott, or by any other threats; or by any kind of force, violence or intimidation, or by other unlawful means, seeking to induce any employee or employees of plaintiffs to withdraw from the service of plaintiffs; or by any kind of violence, threats or intimidation in- ducing, or seeking to induce, any customer or customers, patron or patrons, of plaintiffs to withdraw their patronage or business from them, or from stationing or placing in fronf of said plaintiffs' place of business any picket, or pickets, for the purpose of injuring, ob- structing or in any wise interfering with, the business of plaintiffs, or for the purpose of preventing any customer or customers, patron or patrons, of plaintiffs from doing business with them; or from in any other way molesting, intimidating or coercing, or attempt to molest or intimidate or coerce any customer, patron or employee of plaintiffs now or hereafter dealing with, or any employee now or hereafter employed by, or working for plaintiffs in their said business." This appeal is from the judgment. The findings are not attacked. Appellants' principal contentions upon the appeal, however, are the following:^ ... 2. That the boycott is a legal weapon in a trade dispute and, therefore, an injunction should not issue to re- strain its use or threatened use; and 3. That "picketing" as an adjunct to the boycott is itself legal and may not be forbidden. . . . 2. In considering the second proposition, whether or not a court of equity may enjoin a boycott, the meaning of the word is of pri- mary importance. It is defined in 4 Am. & Eng. Ency. of Law, 2d ed., p. 85, as follows: "The boycott is a conspiracy, the direct object of which is to occasion loss to the party or parties against whom the conspiracy is directed, and the means commonly used is the induc- ing of others to withdraw from such party or parties their patronage and business intercourse by threats, that unless they so withdraw, the members of the combination will cause, directly or indirectly, loss of a similar character to them.'' Appellants announce their wiUingness to accept this definition, substituting the word "con- federacy" or "combination" for "conspiracy." But the definition, even as so amended, it will be noted is not complete. The "means conunonly used" are specified, but other means may be and fre- quently are employed. A boycott may adopt illegal means and 1 The first of appellants' contentions, relating to a California statute is omit- ted. — Ed. 426 BOYCOTTS [CHAP. VII thus become a "conspiracy," a word which imports illegality; or a boycott may employ legal means and methods, and thus be merely a legitimate combination by a number of men to accomphsh, within the law, a legal result. The crux of the question and the strain in every case lie, then, in the means employed. We think that today no court would question the right of an organized union of em- ployees, by concerted action, to cease their employment (no con- tractual obUgation standing in the way), and this action constitutes a "strike.^' We think, moreover, that no court questions the right of those same men to cease dealing by concerted action, either socially or by way of business, with their former employer, and this latter act, in its essence, constitutes the primary boycott. But what acts organized labor may do, and what means it may adopt to accom- plish its end, without violation of the law, have presented questions of much nicety, over which the courts have stood, and still stand, widely divided. It would not be profitable to discuss and analyze these widely divergent cases. It is sufficient to formulate briefly the principles adopted in this state, many of which have recently found elaborate expression in the case of Parkinson v. Building Trades Council of Santa Clara, 154 Cal. 581 [98 Pac. 1027]. The right of united labor to strike, in furtherance of trade interests (no contractual obligation standing in the way) is fully recognized. The reason for the strike may be based upon the refusal to comply with the employees' demand for the betterment of wages, conditions, hours of labor, in the discharge of one employee, or the engagement of another — in brief, in any one or more of the multifarious con- siderations which in good faith may be beheved to tend toward the advancement of the employees. After striking, the employees may engage in a boycott, as that word is here employed. As here em- ployed it means not only the right to the concerted withdrawal of social and business intercourse, but the right by all legitimate means — of fair publication, and fair oral or written persuasion, to induce others interested in or sympathetic with their cause, to withdraw their social intercourse and business patronage from the employer. They may go even further than this, and request of another that he withdraw his patronage from the employer, and may use the moral intimidation and coercion of threatening a like boycott against him if he refuse so to do. This last proposition necessarily involves the bringing into a labor dispute between A and B, C, who has no difference with either. It contemplates that C, upon the request of B, and under the moral intimidation lest B boycott him, may thus be constrained to withdraw his patronage from A, with whom he has no controversy. This is the "secondary boycott," the legality of which is vigorously denied by the English courts, the federal courts, and by the courts of many of the states of this nation. With- out presenting the authorities, which are multitudinous, suffice it to state the other view in language of the President of the United SECT. II] SECONDARY BOYCOTT 427 States but recently uttered: "A body of workmen are dissatisfied with the terms of their employment. They seek to compel their employer to come to their terms by striking. They may legally do so. The loss and inconvenience he suffers he cannot complain of. But when they seek to compel third persons, who have no quarrel with their employer, to withdraw from all association with him by threats that unless such third persons do so the worlonen will inflict similar injury on such third persons, the combination is oppressive, involves duress, and if injury results, it is actionable." (President Taft, McClure's Magazine, June, 1909, p. 204.) Notwith- standing the great dignity which attaches to an utterance such as this, which, as has been said, is but the expression of numerous courts upon the subject-matter, this court, after great deliberation, took what it believed to be the truer and more advanced ground above indicated and fully set forth in Parkinson v. Building Trades Council, etc., 154 Cal. 581 [98 Pac. 1027]. In this respect this court recognizes no substantial distinction between the so-called primary and secondary boycott. Each rests upon the right of the union to withdraw its patronage from its employer and to induce by fair means any and aU other persons to do the same, and in exercise of those means, as the unions would have the unquestioned right to withhold their patronage from a third person who continued to deal with their employer, so they have the unquestioned right to notify such third person that they will withdraw their patronage if he continues so to deal. However opposed to the weight of federal authority the views of this Court are, that they are not unique may be noted by reading National Protective Association v. Cumming, 170 N. Y. 315 [88 Am. St. Rep. 648, 63 N. E. 369]; Lindsay v. Mon- tana Federation of Labor, 37 Mont. 264 [127 Am. St. Rep. 422, 96 Pac. 127, 18 L. R. A. (n. s.) 707], where the highest courts of those states formulate and adopt hke principles. It has been said that it is important to any correct understanding of or adjudication upon such questions that a definition of the word "boycott" should be first stated. Thus, to say that a boycott is a "conspiracy" immediately implies illegahty, and puts the conduct of the boycotters under the ban of the law. So, also, does the defini- tion which describes boycotting as "illegal coercion" designed to accomplish a certain end. As we have undertaken to define boycott, it is an organized effort to persuade or coerce, which may be legal or illegal, according to the means employed. In other jurisdictions where a definition is given to a boycott which imports illegality the injunction will of course lie against boycotting as such. In this state the injunction will issue, depending upon the circumstances whether the means employed, or threatened to be employed, are legal or illegal. 3. We are thus brought to consider the method of "picketing," the use of which appellants contend is a legal weapon in their hands. . . . 428 BOYCOTTS [CHAB. VII In this country a man's constitutional liberty means far more than his mere personal freedom. It means that, among other rights, his is the right freely to labor and to own the fruits of his toU. (Ex parte Jentzsch, 112 Cal. 468 [4 Pac. 803]). Any act of boycotting, therefore, which tends to impair this constitutional right freely to labor, by means passing beyond moral suasion, and playing by in- timidation upon the physical fears, is unlawful. . . . A picket, in its very nature, tends to accomplish, and is designed to accomphsh, these very things. It tends and is designed by phys- ical intimidation, to deter other men from seeking employment in the places vacated by the strikers. It tends and is designed to drive business away from the boycotted place, not by the legitimate methods of persuasion, but by the illegitimate means of physical intimidation and fear. . . . We think it plain that the very end to be attained by picketing, however artful may be the means to ac- complish that end, is the injury of the boycotted business through physical molestation and physical fear caused to the employer, to those whom he may have employed or who may seek employment from him, and to the general pubhc. The boycott having employed these means for this unquestioned purpose, is illegal, and a court will not seek by over-niceties and refinements to legalize the use of this unquestionably Ulegal instrument. . . . In conclusion, then, and applying these principles to the injunc- tion here under consideration, it appears that, while the injunction was properly granted, it was broader in its terms than the law war- rants. It was, for example, too broad in restraining defendants from "in any wise interfering with" plaintiff's business, since the interference which we have discussed, of publication, reasonable persuasion, and threat to withdraw patronage, is legal and such as defendants could employ. So, also, was the injunction too broad in restraining defendants from "intimidating any customer by boy- cott or threat of boycott" since, as has been said, the secondary boycott is hkewise a legal weapon. In all other respects, however, the injimction was proper. The trial court is directed to modify its injunction in the par- ticulars here specified, and in all other respects the judgment will stand affirmed.^ LoEiGAN, J., Mblvin, J., and Beatty, C. J., concurred.^ ' Angellotti, J., and Sloss, J., rendered a concurring opinion. Shaw, J., dis- sented from that part of the opinion relating to the secondary boycott. — Ed. 2 Accord: Parkinson v. Building Trades Council, 154 Cal. 681. See also, Union Labor Hospital Assn. v. Vance Redwood Lumber Co., 158 Cal. 551; Truax v. Bisbee Local, 19 Ariz. 379; Meier v. Speer, 96 Ark. 618. SECT. II] SECONDARY BOYCOTT 429 HOPKINS V. OXLEY STAVE CO. U. S. Circuit Court of Appeals, Eighth Circuit. 1897 83 Fed. 912 This was a bill for an injunction by the Oxley Stave Co. against the Coopers' International Union of North America, Lodge No. 18; the Trades Assembly of Kansas City, Kan.; and a number of the individual members of such organizations. As against the organiza- tions, the bill was dismissed, and a temporary injunction was granted against the remaining defendants, from which they appeal. . . . Thayer, Circuit Judge. This case comes on appeal from an order made by the Circuit Court of the United States for the district of Kansas, granting an interlocutory injunction. The motion for the injunction was heard on the bill and supporting affidavits, and on cer- tain opposing afiBdavits. There is no substantial controversy with ref- erence to the material facts disclosed by the bill and accompanying affidavits, which may be summarized as follows : The appellants, H. C. Hopkins and others, who were the defendants below, are members of two voluntary, unincorporated associations, termed, respectively, the Coopers' International Union of North America, Lodge No. 18, of Kansas City, Kan., and the Trades Assembly of Kansas City, Kan. The first of these associations is a labor organization com- posed of coopers, which has local lodges in all the important trade centers throughout the United States and Canada. The other association, the Trades Assembly of Kansas City, Kan., is a body composed of representatives of many different- labor organizations of Kansas City, Kan., and is a branch of a general organization of the same name which exists and operates, by means of local assem- blies, in all the principal commercial centers of the United States and Europe. The Oxley Stave Co., the plaintiff below and appellee here, is a Missouri corporation, which is engaged at Kansas City, Kan., where it has a large cooperage plant, in the manufacture of barrels and casks for packing meats, flour, and other commodities. It sells many barrels and casks annually to several large packing associations located at Kansas City, Mo., and Kansas City, Kan., and also has customers for its product in sixteen other states of the Union, and in Europe. Its annual output for the year 1895 was of the value of $164,173. For some time prior to November 16, 1895, the plain- tiff company had used successfully in its cooperage plant at Kansas City, Kan., certain machines for hooping barrels, which materially lessened the cost of making the same. It did not confine itself ex- clusively to the manufacture of machine-hooped barrels, but manu- factured, besides, many hand-hooped barrels, and employed a large number of coopers for that purpose. The wages paid to the coopers in its employ were satisfactory, and no controversy had arisen be- tween the plaintiff and its employees on that score. On or about 430 BOYCOTTS [CHAP. VII November 16, 1895, the plaintiff comp any was informed by a com - mittee of persons representing the local lodge of the Coopers' Union, No. 18, at Xansas City, Kan., t hat it must discontinue th e use of hooping machines in its plant. Said committee f urther~infor med the plaintiff IKaOHey ^a^Talready notified one of Jt^ largest cus- tomers^ "BTOft~&^Cb., that, in making contracts with the plaintiff for barrels, the Coopers' Union would require such customer, in future, to specify that all barrels supglied to it by t he plaintiff mu st be hand-hooped. None of the members of this committee were employees of the plaintiff company, and, with one exception, none of the present appellants were or are in its employ. At a later date the Coopers' Union, No. 18, called to its assistance the Trades As- sembly of Kansas City, Kan., for the purpose of enforcing its afore- said demand; and on or about January 14, 1896, a committee of persons representing both of said organizations waited upon the manager of the plaintiff company, and notified him, in substance, that said organizations had each determined to boycott the product of the plaintiff company unless it discontinued the use of hooping machines in its plant, and that the boycott would be made effective on January 15, 1896. . . . It was also charged, and the charge was not denied, that the mem- bers of the voluntary organizations to which the defendants be- longed had conspired and agreed to force the plaintiff, against its will, to abandon the use of hooping machines in its plant, and that this object was to be accomplished by dissuading the plaintiff's customers 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 country would be induced not to pur- chase any commodity which might be packed in such machine- hooped barrels or casks. The biU charged, by proper averments (and no attempt was made to prove the contrary), that the defendants were persons of small means, and that the plaintiff would suffer a great and irreparable loss, exceeding -1100,000, if the defendants were allowed to carry the threatened boycott into effect in the manner and form proposed. The injunction which the court awarded against the defendants was, in substance, one which prohibited them, until the final hearing of the case, from making effective the threatened boycott, and from in any way menacing, hindering, or obstructing the plaintiff company, by interfering with its business or customers, from the full enjoyment of such patronage and business as it might enjoy or possess independent of such interference. The first proposition contended for by the appellants is that the trial court acted without jurisdiction in awarding an injunction. The ground for this contention consists in the fact that in the bill, as originally filed, two persons were named as defendants who were citizens and residents of the State of Missouri, under whose laws the SECT. II] SECONDARY BOYCOTT 431 Oxley Stave Co. was incorporated. But as the case was dismissed as to these defendants, and as to the two voluntary unincorporated associations, and as to all the members thereof who were not specifi- cally named as defendants in the bill of complaint, before an in- junction was awarded, and as the bill was retained only as against persons concerned in the alleged conspiracy who were citizens and residents of the State of Kansas, the objection to the jurisdiction of the trial court is, in our opinion, without merit. Oxley Stave Co. V. Coopers' International Union of North America, 72 Fed. 695. . . . We turn, therefore, to the merits of the controversy. The sub- stantial question is whether the agreement entered into by the mem- bers of the two unincorporated associations to boycott the contents of all barrels, casks, and packages made by the Oxley Stave Co. which were hooped by machinery was an agreement against which a court of equity can afford relief, preventive or otherwise. The contention of the appellants is that it was a lawful agreement, such as they had the right to make and carry out, for the purpose of main- taining the rate of wages then paid to journeymen coopers, and that, being lawful, the injury occasioned to the plaintifi* company, no matter how great, was an injury against which neither a court of law nor equity can afford any redress. . . . We [do not] deem it necessary on the present occasion to define the term "boycott"; for, whatever may be the meaning of that word, no controversy exists in the present case concerning the means that were to be em- ployed by the members of the two labor organizations for the pur- pose of compelling the plaintiff company to abandon the use of hooping machines. It is conceded that their purpose was to warn all of the plaintiff's immediate customers not to purchase machine- hooped barrels or casks, and to warn wholesale and retail dealers everywhere not to handle provisions or other commodities which were packed in such barrels or casks. This warning was to be made effectual by notifying the members of aU associated labor organiza- tions throughout the United States, Canada, and Europe, not to purchase provisions or other commodities, and, as far as possible, to dissuade others from purchasing provisions or other commodities which were packed in machine-hooped barrels or casks. The object of the conspiracy, it will be seen, was to interfere with the com- plainant's business, and to deprive the complainant company, and numerous other persons, of the right to conduct their business as they thought proper. To this end, those who were engaged in the conspiracy intended to excite the fears of all persons who were en- gaged in making barrels, or who handled commodities packed in barrels, that, if they did not obey the orders of the associated labor organizations, they would incur the active hostility of all the mem- bers of those associations, suffer a great financial loss, and possibly nm the risk of sustaining some personal injury. It may be conceded that, when the defendants entered into the combination in question, 432 BOYCOTTS [CHAP. VII they had no present intention of resorting to actual violence for the purpose of enforcing their demands; but it is manifest that by con- certed action, force of numbers, and by exciting the fears of the timid, they did intend to compel many persons to surrender their freedom of action, and submit to the dictation of others in the man- agement of their private business affairs. Another object of the conspiracy, which was no less harmful, was to deprive the pubhc at large of the advantages to be derived from the use of an inven- tion which was not only designed to diminish the cost of making certain necessary articles, but to lessen the labor of human hands. While the courts have invariably upheld the right of individuals to form labor organizations for the protection of the interests of the laboring classes, and have denied the power to enjoin the members of such associations from withdrawing peaceably from any service, either singly or in a body, even where such withdrawal involves a breach of contract (Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310), yet they have very generally condemned those combinations usually termed "boycotts," which are formed for the purpose of interfering, otherwise than by lawful competition, with the business affairs of \ others, and depriving them, by means of threats and intimidation, lof the right to conduct the business in which they happen to be en- 'gaged according to the dictates of their own judgments. The right of an individual to carry on his business as he sees fit, and to use such implements or processes of manufacture as he desires to use, provided he follows a lawful avocation, and conducts it in a lawful manner, is entitled to as much consideration as his other personal rights; and the law should afford protection against the efforts of powerful combinations to rob him of that right and coerce his will by intimidating his customers and destroying his patronage. A con- spiracy to compel a manufacturer to abandon the use of a valuable invention bears no resemblance to a combination among laborers to withdraw from a given employment as a means of obtaining better pay. Persons engaged in any service have the power, with which a court of equity will not interfere by injunction, to abandon that serv- ice, either singly or in a body, if the wages paid or the conditions of employment are not satisfactory; but they have no right to dic- tate to an employer what kind of implements he shall use, or whom he shall employ. Many courts of the highest character and abihty have held that a combination such as the one in question is admitted to have been is an unlawful conspiracy, at common law, and that an action will lie to recover the damages which one has sustained as the direct result of such a conspiracy; also, that a Suit in equity may be maintained to prevent the persons concerned in such a com- bination from carrying the same into effect, when the damages would be irreparable, or when such a proceeding is necessary to prevent a multiplicity of suits. The test of the right to sue in equity is whether I the combination complained of is so far unlawful that an action at SECT. II] SECONDARY BOYCOTT 433 law will lie to recover the damages inflicted, and whether the remedy at law is adequate to redress the wrong. If the remedy at law is for any reason inadequate, resort may be had, as in other cases, to a court of equity. . . . We think it is entirely clear, upon the authorities, that the con- duct of which the defendants below were accused cannot be justified on the ground that the acts contemplated were legitimate and law- ful means to prevent a possible future decline in wages, and to secure employment for a greater number of coopers. No decrease in the rate of wages had been threatened by the Oxley Stave Co., and, with one exception, the members of the combination were not in the employ of the plaintiff company. The members of the com- bination undertook to prescribe the manner in which the plaintiff company should manufacture barrels and casks, and to enforce obedience to its orders by a species of intimidation which is no less harmful than actual violence, and which usually ends in violence. The combination amounted, therefore, to a conspiracy to wrong- fully deprive the plaintiff of its right to manage its business accord- ing to the dictates of its own judgment. Aside from the foregoing considerations, the fact cannot be overlooked that another object of the conspiracy was to deprive the public at large of the benefits to be derived from a labor-saving machine which seems to have been one of great utihty. If a combination to that end is pronounced lawful, it foUows, of course, that combinations may be organized for the purpose of preventing the use of harvesters, threshers, steam looms, and printing presses, typesetting machines, sewing machines, and a thousand other inventions which have added immeasurably to the productive power of human labor, and the comfort and wel- fare of mankind. It results from these views that the injunction was properly awarded, and the order appealed from is accordingly afiirmed.i ^ Caldwell, J., rendered an interesting dissenting opinion. — Ed. Attitude of Federal CotrBTS Sitting in States tjnder whose Law the Secondakt Boycott is Lawptji.. Prior to 1908 several decisions had been ren- dered by federal courts sitting in California, holding the secondary boycott il- legal. See Loewe v. California State Fed. of Labor, 139 Fed. 71 (1905); Seattle Brewing & Malting Co. v. Hansen, 144 Fed. 1011 (1905); Sailors' Union v. Ham- mond Lumber Co., 156 Fed. 450 (1907). In 1908 the California Supreme Court in the case of Parkinson v. Building Trades Council, 154 Cal. 581, supra, p. 150, decided that imder the law of California the secondary boycott was not illegal and that it therefore might freely be practiced within the state. This decision was followed and approved by the California Supreme Court the following year in the case of Pierce v. Stablemen's Union, 156 Cal. 70, supra, p. 424. In 1911 in the case of Loewe v. California State Fed. of Labor, 189 Fed. 714, the question arose in a federal court in California as to whether a secondary boycott occurring within the State of California, although similar action had been declared by the Supreme Court of the state lawful under California law, should be declared un- lawful by the federal court sitting within that state. See also Rocky Mountain Bell Telephone Co. v. Montana Fed. of Labor, 156 Fed. 809 (1907). 434 BOYCOTTS [CHAP. VII BOSSERT V. DHUY CouKT OF Appkals OF New Yobk. 1917 221 N. Y. 342 Appeal by the defendants from a judgment of the Appellate Divi- sion of the Supreme Court in the second judicial department, en- tered January 7, 1915, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term in an action for an injunction. . . . Chase, J. The plaintiffs are co-partners engaged in the borough of Brooklyn, city of New York, in the manufacture, purchase and sale of doors, sash, blinds, trim, lumber and other kinds of wood- work. They employ from five to six hundred persons in their fac- tories in the production of such woodwork, but do not perform any work in the installation of the woodwork so manufactm-ed by them. All of such woodwork is sold to builders. The defendants are officers, representatives and agents of the United Brotherhood of Carpenters and Joiners of America and of its branches in the city of New York and vicinity. The United Brotherhood of Carpenters and Joiners of America, hereinafter called the Brotherhood, is a voluntary unin- corporated association of workmen. It has a membership of about 200,000 journe3anen carpenters with headquarters at IndianapoHs, Indiana, subdivided into about 1900 local branches, also voluntary unincorporated associations, over seventy of which local associa- tions are within the limits of the city of New York. All manufacturers of woodwork who do not operate under an agreement with said Brotherhood or one of its branches and do not agree to employ union carpenters exclusively, are known by the defendants as non-union, unfair or open shop manufacturers and their products are known as non-union, unfair or open shop ma- terials. The plaintiffs operate an open shop, selecting their employees without discrimination against any person on the ground that he is or is not a member of the local union, and pursue this pohcy as a matter of principle and not for mercenary reasons, and for many years the relations between the plaintiffs and their employees were mutually satisfactory. The Brotherhood issues a monthly paper, its official organ, called The Carpenter and holds biennial conven- tions attended by delegates elected from the local unions. Since 1904 the Brotherhood has been engaged in a general combination among other things to prevent the employment of non-union car- penters or woodworkers in woodworking factories, or in erecting certain kinds of woodwork and has adopted rules which forbid its members from working for any employer who employs any so-called non-union carpenters, and from working on or in connection with any building where materials are used which are purchased from SECT. II] SECONDARY BOYCOTT 435 any employer who employs non-union carpenters, and the constitu- tion of the Brotherhood provides that it shall be the duty of local unions to prevent its members encouraging the use of any unfair material by handhng the same. From time to time the Brotherhood in connection with the joint district council of the carpenters' union have circulated a letter which in part is as follows : . " To Owners, Architects, Contractors, and Builders of New York City and Vicinity: "Gentlemen. — In order to avoid any labor trouble on jobs you are interested in we deem it necessary to request you to stipulate in all your contracts a clause guaranteeing the employment of recog- nized union men, also a clause requiring in the execution of all con- tracts for carpenter work the emplojrment of union made trim, mantels, parquet flooring, and other shop made carpenter work. This applies particularly to all classes of kalamein and metal covered work. "We desire to inform you that imless this material has been con- structed under strict union conditions we shall refuse to handle it. It being a well-known fact that the agents of unfair and non-union firms resort to misstatements in order to obtain contracts in this city we recommend that before placing contracts with any firm not on this Hst you communicate with this organization regarding the union standing of said firm. "Stipulating in your contract that your trim, etc., must bear this union label (here appears a cut of label) will avoid all complica- tions." The rules of the Brotherhood provide in substance that if any member is proven guilty of working with non-union carpenters or on material made in a shop where non-union carpenters are em- ployed, he shall be subject to fine or expulsion from the association. The defendants having attempted to enforce the rules of the Brotherhood againist its members handling non-union made wood- work, this action was brought by the plaintiffs to obtain an injunc- tion against the defendants taking (in substance) any action affect- ing the plaintiffs and the building material made in their mills. . . . It is unnecessary in the case now under consideration to hold that in all cases and under all circumstances, whatever a man may do alone he may do in combination with others, but it was clearly estabHshed in the National Protective Association case that work- ingmen may organize for purposes deemed beneficial to themselves and in that organized capacity may determine that their members shall not work with non-members or upon specified work or kinds of work. It was not illegal, therefore, for the defendants to refuse to allow members of the Brotherhood to work in the plaintiffs' mill with non-union men. The same reasoning results in holding that the 436 BOYCOTTS [CHAP. VIT Brotherhood may by voluntary act refuse to allow its members to work in the erection of materials furnished by a non-union shop. Such action has relation to work to be performed by its members and directly affects them. The voluntary adoption of a rule not to work upon non-union made material and its enforcement differs only in degree from such voluntary rule and its enforcement in a particular case. Such a determination also differs entirely from a general boycott of a particular dealer or manufacturer with a ma- licious intent and purpose to destroy the good will or business of such dealer or manufacturer. An act, when done maliciously and for an illegal purpose, may be restrained; and held to be within the bounds of reasonable business competition when done in good faith and for a legal purpose. (See Ruling Case Law, vol. 16, pp. 431, 432 and 433.) It appears by findings that are uncontrovertibly established by reason of the unanimous affirmance of the Special Term by the Ap- pellate Division that it was not the intent and purpose of the defend- ants in this case to injure the good will or business of the plaintiffs as individuals or of non-union manufactm"ers generally. In refusing to work on non-union made material, they were conserving their interests as individuals and as members of the Brotherhood, and in so doing necessarily interfered to some extent with non-union manu- facturers. Such interference necessarily resulted to some extent also in the National Protective Association case, and such fact did not prevent the court sustaining the action of the defendants therein. The importance of the facts in each case involving individ- ual or associate action affecting the relations of employers and employees is such that even although it materially increases the length of this opinion, we quote some of the important findings mentioned : " 1. The United Brotherhood of Carpenters and Joiners of America is a voluntary association and trade union of carpenters whose mem- bers consist of so-called ' outside carpenters ' who work on buildings, and ' inside carpenters, 'who work in mills. "7. That the members have adopted rules antedating any strikes against plaintiff's material, by which outside members are not to work on mill products not made in mills manned by their inside members. "8. That. said rules were not adopted with the plaintiff in view, but were intended to apply generally to the products of all non- union mills. "10. The non-union mills, including that of the plaintiff, compete in their products with the mills manned by the members of said United Brotherhood. ... " 17. That it conduces to the betterment of the condition of the members of said United Brotherhood not to install the mill products of plaintiff in buildings. ... SECT. II] SECONDARY BOYCOTT 437 " 19. That it would tend to increase the sale of union mill products made by the inside carpenters, members of the United Brotherhood and so secure them in work and increase the chances of outside members to obtain work in union mills, for the outside members to refuse to handle the non-union mill products of the plaintiff. . . . " 24. There was. no violence, nor any threat of violence, on the part of the defendants in connection with any of the acts complained of. "25. That no threat, coercion or intimidation was used by any of these defendants to induce the union carpenters to quit work where strikes against plaintiff's material occurred, except the en- forcement of the by-laws. . . . "32. The primary motive and purpose the defendants had in view in all the matters complained of regardless of whether their acts would be in furtherance of such motive and purpose — or not — were to benefit their fellow-members in said brotherhood by pro- curing them work and helping the sale of the union-made mill prod- ucts of their fellow-members in mills. "35. The defendants have refused to install the mill products of other non-union mills than that of the plaintiff. "43. That to compel the members of said United Brotherhood to work on the mill products of the plaintiff limits the sale of the union mill products made by its members, and, to that extent tends to throw them out of work. "44. That generally the union rate of wages is higher and the hours of work shorter per day than in non-union mills. "46. That the union rate of wages and hours tends to a higher and better standard of hving than the non-union rates and hours. "49. That the hours of labor in plaintiff's mill are more than eight hours per day." . . . In considering this finding of the court we must keep in mind the fact that the action of the Brotherhood did not interfere with any contract between employer and employee. Its action was open and clearly defined and its enforcement was not designed to and did not include any force, fraud, threat or defamation. Its action was vol- untary and concerned labor competition in which the association and its members are vitally interested. The voluntary adoption by an association of employees of reason- able rules relating to persons for whom and conditions under which its members shall work is not illegal at common law. (National Pro- tective Association v. Gumming, 170 N. Y. 315; Macauley Brothers v. Tierney, 19 R. I. 255; Bohn Manufacturing Co. v. HoUis, 54 Minn. 223; J. F. Parkinson Co. v. Building Trades Council, 154 Cal. 581; Martin, Modern Law of Labor Unions, 109; Gill Engraving Co. v. Doerr, 214 Fed. Rep. Ill; State v. Van Pelt, 136 N. C. 633; Ruling Case Law, vol. 16, 450.) Neither is the enforcement of such rules by the association through fines or by expulsion from the association illegal. Members are 438 BOYCOTTS [CHAP. VII thus simply required to obey rules of the association so long as they remain members thereof. (Bohn Manufacturing Co. v. Holhs, supra.) ... Notwithstanding the quoted and other conclusions of law found by the court in this case which would seerti to preclude a judgment in favor of the plaintiffs the court found as follows: "That the combination of the defendants to prevent the sale, use and installation of the plaintiff's wood materials by causing all union carpenters to refuse to handle said materials or work upon any building where said materials were being used, is illegal. "That the combination of the defendants, as set forth in the findings of fact, constitutes an illegal conspiracy. "That the combination of the defendants, as set forth in the find- ings of fact, and the acts in furtherance thereof, constitutes an illegal conspiracy to injure the plaintiff contrary to common law." . . . We do not think that the conclusion of the court is sustained by the findings of fact in the case. A judgment, was, however, entered, the affirmative provisions of which are quoted herewith, preceding the opinion. The first paragraph thereof adjudges that the defend- ants shall not send to any customer or prospective customer of the plaintiffs any letter, circular or communication, printed, written or oral, which in terms or by inference suggests that labor troubles will follow the use of materials purchased from plaintiffs or from any person, firm or corporation declared unfair or whose material does not bear the union label. Upon all the findings before us it is clear that the "^labor troubles" therein referred to, simply mean that if non-union made materials are used the members of the Brother- hood will refuse to install the same. The second paragraph thereof adjudges that the defendants shaU not direct, require or compel any person by by-law, rule or regula- tion or any act thereunder to cease working for another because they use material purchased from non-union shops. And the third para- graph thereof enjoins the defendants from inducing any workmen in their trades to quit work on any building because non-union car- penters are there employed to install material which comes from non-union shops. All of the acts enjoined are under the findings of fact in this case lawful acts done for lawful purposes. We think that the rules laid down by this court in the National Protective Association case require a reversal of the judgment in favor of the plaintiffs upon the findings before us. When it is deter- mined that a labor organization can control the body of its mem- bers for the purpose of securing to them higher wages, shorter hours of labor and better relations with their employers, and as a part of such control may refuse to allow its members to work under con- ditions unfavorable to it, or with workingmen not in accord with ■■ the sentiments of the labor union, the right to refuse to allow them to install non-union made material follows as a matter of course. SECT. II] SECONDARY BOYCOTT 439 subject to there being no malice, fraud, violence, coercion, intimida- tion or defamation in carrying out their resolutions and orders. Voluntary orders by a labor organization for the benefit of its members and the enforcement thereof within the organization is not Coercion. The members of the organization as we have already stated who are not wilHng to obey the orders of the organization are at liberty to withdraw therefrom. The bounds beyond which an association of employees may not as a general rule go in con- trolling its members in their dealings with employers are not easily determined. They cannot at least extend beyond a point where its or their direct interests cease. There is a material difference in the power of an association so far as its affects its primary or secondary interest. Where the acts of an employee or employees in their in- dividual or associate capacity are reasonably and directly calcu- lated to advance lawful objects, they should not be restrained by injunction. A strike or boycott may be legal or illegal according to the acts involved therein (Gray v. BuUding Trades Council, 91 Minn. 171; State V. Van Pelt, supra; Gill Engraving Co. v. Doerr, 214 Fed. Rep. Ill; Mills v. U. S. Printing Co., 99 App. Div. 605; affd., 199 N. Y. 76. See also, opinion of Andrews, J., in Seubert, Inc., v. Reiff, 98 Misc. Rep. 402), so an action for a direct and primary pur- pose in the interest of individuals or a combination of individuals taken in good faith to advance the interest of the individuals or combination may be lawful, while a remote and secondary action which carries with it a degree of malice as a matter of law is illegal. In the case now before us if the defendants had called upon the pubhc generally to discontinue using the plaintiffs' material and had sought to prevent all persons by communications, written or otherwise, from dealing with the plaintiffs, their acts would have been illegal. It does not appear from the record that the defendants in any way interfered with the trade or business of the plaintiffs, except that the members of the Brotherhood were by their voluntary ac- tion required to decUne using material made in non-union shops and announcement was made of such intention that the same might be known by contractors in advance of the contracts to be entered into in connection with the erection of the work. Such action of the defendants did not extend beyond such refusal to install non- union made material and so far as it amounted to either a strike or a boycott, it directly affected the Brotherhood and its members. . . . The judgment of the Appellate Division should be reversed and the complaint dismissed, with costs in all courts. Collin, Hogan, Cardozo, Pound, and Andrews, JJ., concur; Ceane, J., takes no part. Judgment reversed; etc' 1 Accord: Gill Engraving Co: v. Doerr, 214 Fed. Ill; Parkinson v. Building Trades Council, 154 CaL 581, supra, p. 150; State v. Van Pelt, 136 N. C. 633; 440 BOYCOTTS [CHAP. VII LOEWE V. LAWLOR Supreme Court of the United States. 1908 208 U. S. 274 See supra, page 121, for a report of the case. DUPLEX PRINTING PRESS CO. v. DEERING Supreme Court of the United States. 1921 254 U. S. 443 Mr. Justice Pitney delivered the opinion of the court. This was a suit in equity brought by appellant in the District Court for the Southern District of New York for an injunction to restrain a course of conduct carried on by defendants in that Dis- trict and vicinity in maintaining a boycott against the products of complainant's factory, in furtherance of a conspiracy to injure and destroy its good will, trade, and business — especially to obstruct and destroy its interstate trade. There was also a prayer for dam- ages, but this has not been pressed and caUs for no further mention. Complainant is a Michigan corporation and manufactures print- ing presses at a factory in Battle Creek, in that State, employing about 200 machinists in the factory in addition to 50 office employees, traveling salesmen, and expert machinists or road men who super- vise the erection of the presses for complainant's customers at their various places of business. The defendants who were brought into court and answered the bill are Emil J. Deering and William Bram- ley, sued individually and as business agents and representatives of District No. 15 of the -International Association of Machinists, and Michael T. Neyland, sued individually and as business agent and representative of Local Lodge No. 328 of the same association. The District Council and the Lodge are unincorporated associations having headquarters in New York City, with numerous members resident in that city and vicinity. There were averments and proof to show that it was impracticable to bring all the members before the court and that the named defendants properly represented them; and those named were called upon to defend for all, pursuant to Equity Rule 38 (226 U. S. 659). Other jurisdictional averments Searle Mfg. Co. v. Terry, 106 N. Y. Supp. 438; Grant Construction Co. v. Bldg. Trades Council, 136 Minn. 167 (semble) ; Reardon v. Caton, 189 App. Div. (N. Y.) 501 {semble); Buyer v. GuiUan, 63 N. Y. L. J. 1625 (semble). Contra: Irving v. Dist. Council, 180 Fed. 896; Shine v. Fox Bros. Mfg. Co., 156 Fed. 357; Burnham v. Dowd, 217 Mass. 351; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421; Moores v. Bricklayers' Union, 10 Ohio Dec. Reprint, 665; Purvis V. Local No. 500, 214 Pa. St. 348. See also. Duplex Printing Press Co. v. Deering, 254 U. S. 443, 480-483. Com- pare Paine Lumber Co. v. Neal, 244 U. S. 459, 471. Compare the subsequent New York case of Auburn Draylng Co. v. WardweU, 227 N. Y. 1 (1919). SECT. II] SECONDARY BOYCOTT 441 need no particular mention. The District Court, on final hearing, dismissed the bill, 247 Fed. Rep. 192; the Circuit Court of Appeals affirmed its decree, 252 Fed. Rep. 722; and the present appeal was taken. The jurisdiction of the federal court was invoked both by rea- son of diverse citizenship and on the ground that defendants were engaged in a conspiracy to restrain complainant's interstate trade and commerce in printing presses, contrary to the Sherman Anti- Trust Act of July 2, 1890, c. 647, 26 Stat. 209. The suit was begun before but brought to hearing after the passage of the Clayton Act of October 15, 1914, c. 323, 38 Stat. 730. Both parties invoked the provisions of the latter act, and both courts treated them as appli- cable. Complainant relied also upon the common law; but we shall deal first with the effect of the acts of Congress. The facts of the case and the nature of the reHef prayed are suffi- ciently set forth in the report of the decision of the Circuit Court of Appeals, 252 Fed. Rep. 722. . . . Complainan t^ conducts its business on the "open sh o p" policy , without discrimination against either vmion or non-umon men. The individual defendants and the local organizations of which they are the representatives are affiliated with the International Association of Machinists, an unincorporated association having a membership of more than 60,000; and are united in a combinatio n, to which the ' International Association also is a party, havSg the object of compell ing com plainant to unionize its factory and enforce the "c losed shop," the eight-hour day, and the union_scale of wages, by means of interfering with and restrainihg its interstate trade in the products of the factory. Com- plainant's principjiLma nufacture is newspaper pregses of large size and complicated mechanism, varymgm weight from 10,000 to 100,000 pounds, and requiring a considerable force of labor and a consider- able expenditure of time — a week or more — to handle, haul and erect them at the point of deHvery. These presses are sold through- out the United States and in foreign countries; and, as they are especially designed for the production of daily papers, there is a large market for them in and about the City of New York. They are deUvered there in the ordinary course of interstate commerce, the handling, hauling and installation work at destination being done by employees of the purchaser under the supervision of a spe- cially skilled machinist supphed by complainant. The acts com- plained of and sought to be restraijasd-ba.Ye nothing to do with the conducToi- iiianagement of the factory in JVIichigan, but solely with tEeTnstallatiori and"qperation of the presses by^complainant's cus- tomers. None o f the defendants is or ever was an employee of com- plainant, and coniplainant at no time has had relations with either oFTEe"organizations that they represent. In August, 1913 (eight months before the filing of the bill), the International Association called a strike at complainant's factory in Battle Creek, as a result 442 BOYCOTTS [CHAP. VII of which union machinists to the number of about eleven in the fac- tory and three who supervised the erection of presses in the field left complainant's employ. But the defection of so small a number did not materially interfere with the operation of the factory, and sales and shipments in interstate commerce continued. The acts complained of made up the details of an elaborate programme adopted and carried out by defendants and their organizations in and about the City of New York as part of a country-wide programme adopted by the International Association, for the purpose of enforcing a boycott of complainant's product. The acts embraced th e._fQ.llow- i ng, with others:, warjajng customers that it would be better for them not to purchase^ or having purchas ed not to instaU, pra ses naade bj^mplaihant, and threatening them with loss should tbey do so; threatening customers with sympathetic st rikes in other trade s; notifying a trucking company usually emplo ye^^y custom ers to haul the presses nbt to do so, and threatening it with trouble if it should;"" uicitin g employees of the trucking company, and other men employed by customers of complainant, to strike^_against_their respective ^einployefs in order to interfere with the liauling_and in- stallation of presses, and thus bring pressure to bear upon the cus- tomers; notifyinig repair shops not to do repair work on Duplex presses; coercing union men by threatening them with loss of union cards and with being blackhsted as "scabs" if they assisted in in- stalling the presses; threatening an exposition^ comp any with a strike if it permitted complainant^ presses .to. be ex hibite d ; and reicHing to a variety of other modes of preventing the sale of presses of complainant's manufacture in or about New York City, and deUvery of them in interstate commerce, such as injuring and threat- ening to injure complainant's customers and prospective customers, and persons concerned in hauling, handHng, or installing the presses. In some cases the threats were undisguised, in other cases polite in form but none the less sinister in purpose and effect. All the judges of the Circuit Court of Appeals concurred. in_ the yiew that_ defend- ants' conduct consisted essentially of efforts to render" it impossible for complainant to carry on any commerce in printing presses be- tween Michigan and New York; and that defendants had agreed to do and were e ndeav oring to accomplish^thevery thing pronounced unlawful by this'CourtlnXo'ewe t;". Lawlor, 208 tJ. S. 274;"23FU. S. 522. The judges also' agreed that the interference with interstate commerce was such as ought to be enjoined, unless the Clayton Act of October 15, 1914, forbade such injunctioji. That act was passed" aftef^Ee beginning of the suit but more than two years before it was brought to hearing. We are clear that the courts below were right in giving effect to it; the real question being, whether they gave it the proper effect. In so far as the act (a) pro- vided for relief by injunction to private suitors, (b) imposed con- ditions upon granting such relief under particular circumstances, SECT. II] SECONDARY BOYCOTT 443 and (c) otherwise modified the Sherman Act, it was effective from the time of its passage, and applicable to pending suits for injunc- tion. Obviously, this form of reUef operates only in futuro, and the right to it must be determined as of the time of the hearing. . . . That complainant's business of manufactu ring printing presses and disposing of them in commerce is a property right, entitled to protectio n against unlawf ul injury or interference ; that unrestrained access to" the" channels of interstate commerce is necessary for the s uccessful conduct of the busings ^; that a widespre ad^cpmbination eSsts, to which defendants and the associations represented by them are parties, to hin der acd. obstruct complainant'^ interstate tra de and comme rce by the means that have been indicated; and tESt as a result of it complainant has sustained substantial damage to its interstate trade, and is threatened with fiu'ther and irreparable loss and damage in the future; is proved by clear and undisputed evidence. Hence the right to an injunctio n, is clear if^the threat- ened loss is due to a vioiation .nJLthe tSh^aan Act as amended by t he Clayton Ac t. Looking first to thejEormer^ct, the thing declared illegal by its first section (26~'Stat. 209) is "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations." . . . The substance of the matters here complained of is an interfer- ence with complainant's interstate trade, intended to have coercive effect upon complainant, and produced by what is commonly known as a "seconda ry boycott," that is, a combination not merely to refrain from dealiiig wi th complaina nt, or to advise or Jjy^ peaceful rneanFpersuade c^ plainant's customers to . refrain ("primary boy- c"ott"}7 Hit to exer cise coercive pressure upon such .customers, actual or prospective, in order to cause them to withhold or withdraw patronage from^complainant throughTear of Toss or damage to them- selves should they deal with it. As we shall see, the recognized distinction between a primary and a secondary boycott is material to be consid ered Ajpoa the ques- tion o f the proper construction of the Clayton A ct. But, in deter- mining the riglit to an injunction underthat and thg^ Sherman Act, it is of minor consequence whethereTtSer kind of T)oycott is lawful oTmnSi^ir^'cominon'law or under the statutes of , particular States. Those acts, passed in the exercise of the power of Congress to regu- late commerce among the States, are of paramount authority, and their prohibitions must be given full effect irrespective of whether the things prohibited are lawful or unlawful at common law or un- der local statutes. [The court here enters upon a discussion of Loewe v. Lawlor, 208 U. S. 274, supra, p. 121 ; Lawlor v. Loewe, 235 U. S. 522, infra, p. 466; and Eastern States Retail Lumber Dealers' Assn. v. United States, 234 U. S. 600.] 444 BOYCOTTS [CHAP. VII It is settled by these decisions that such a restraint produced by peaceable persuasion is as much within the prohibition as one ac- complished by force or threats of force; and itjs not tobeji^tified by the fact that the participants in the combination or conspiracy may have some object beneficial to themselves or their associates which possibly they might have been at liberty to pursue in the absence of the statute. tJpbn the question whether the provisions of the Clayton Act forbade the grant of an injunction under the circumstances of the present case, the Circuit Court of Appeals was divided; the ma- jority holding that under sec. 20, "perhaps in conjunction with sec. 6," there could be no injunction. These sections are set forth in the margin.' Defendants seek to derive from them some authority for their conduct. As to s ec. 6, it seems to us its principal importance in this discussion is for what it does not authorize, and for the limit it sets to the immunity conferred. The section assu mes the norm al objects of a labor organization to be legitimate, and decla res that nothing in the anti-trust laws shall be construed to for bid the~^ast- ence and operation of such organizations_OT_to forbid their mraibers ixqvaj,awfully carrying out their legitimate objects; and that such an organization shall not be held in itself — merely because of its existence and operation — to be an illegal combination or con- spiracy in restraint of trade. But there is nothing in the section to exempt such an organization or its members from accountability where it or they depart from its normal and legitimate objects and engage in an actual combination or conspiracy in restraint of trade. And by no fair or permissible construction can it be taken as au- thorizing any activity otherwise imlawful, or enabhng a normally lawful organization to become a cloak for ah illegal combination or conspiracy in restraint of trade as defined by the anti-trust laws. The principal reliance is upon sec. 20. . . . All its provisions are subject to a general qualification respecting the natm-e of the controversy and the parties affected. It is to be a "case between an^employer and employees, or betweeii"employerslind employees, or between ernployees, or_ between persons employed and persons seeEng employment, involving, or growing out of, a dispute con- cerning terms or conditions of employment." The first paragraph merely puts into statutory form familiar restrictions upon the granting of injunctions already established and of general application in the equity practice of the courts of the United States. It is but declarator v of the law as it s tood before. The second paragraph declares that "Ea~mch restraining order or injunction" shall prohibit certain ccm3uct_specified — m anifes tly still referring to a "case between an employer anc^employees, . . . involving, or growing out of, a dispute^ concerning terms or con- ditions of employjoient," as designated in tKe"^ first paragraph. It 1 For the text of sees. 6 and 20 of the Clayton Act, see supra, p. 145. — Ed. SECT. II] SECONDARY BOYCOTT 445 is very clear that t he restriction upon the use of the injunction is in favor only of those concerned as parties to such a dispute as is de- ^ibe d. TEe~wofas' defining the "permitted^condiTct include partic- ular qualifications consistent with the general one respecting the nature of the case and dispute intended; and the concluding words, " nor shall any of the acts speeified in this paragraph be considered or jield to b e_j^iolations of any law of the United States, " are to be r ead in the light of the context, and mean only that those acts are not to be so held when committed by parties concerned in "a dis- pute concerning . terins'or c(m ditions~o r employment. ' ' If the qualify- ing words are to have any effect, they must operate to confine the restriction upon the granting of injunctions, and also the relaxation of the provisions of the anti-trust and other laws of the United States, to parties standing in proximate relation to a controversy such as is particularly described. The majority of the C ircuit Court, of .Appeals appear to have entertaine^^ke .vie^^^th^ the words "employers and employees," as usedTn sec. 20, should be treated as referring to "the business class or clan to which the' parties litigant respectively belong"; and that7^There Kad been a dispute at complainant's factory in Mich- igan concerning the conditions of emplojonent there — a dispute created, it is said, if it did not exist before, by the act of the Ma- chinists' Union in calling a strike at the factory — sec. 20 operated to permit^jnembers of the Machinists' Union elsewhere — some 60jl)'()0~m number — although standing in no relation of employ- mentunder complainant7"past, present, or prospective, to make that dispute their own and proceed to instigate sympathetic strikes, pKKe^u^T'^iid boycotting asgainst employers wholly unconnected with c omplainant's factory and having relations with complainant only in the way of purchasing its product in the ordinary course of interstate conunerce — and this where there was no dispute between such employers and their employees respecting terms or conditions of employment. We deem this construction altog ether inadmissible. . . . Full and fair effect will be given to every word if the exceptional privilege be confined — as the natural mean ing of the words confines it — to those who are proximately and su^antraUy concerned as parties to an actual dispiife respecting the terms or conditions of their own employment7 past, present, or prospective. The extensive construc- tion Adopted "By the majority of the court below virtually ignores the effect of the qualifying words. Congresshad in mind particular industrial controversies, not a generS "class war^' "Terms or con- ditions of employment" are the only grounds of dispute recognized as a3equiIe~to~Hring into play the exemptions; and it would do violence to the guarded language employed were the exemption ex- tended beyond the parties affected in a proximate and substantial, not merely a sentimental or sympathetic, sense by the cause of dispute. 446 BOYCOTTS . [CHAP. VII Nor can sec. 20 be regarded as bringing in all members of a labor organization as parties to a "dispute concerning terms or condi- tions of employment" which proximately affects only a few of them, with the result of conferring upon any and all members — no mat- ter how many thousands there may be, nor how remote from the actual conflict — those exemptions which Congress in terms con- ferred only upon parties to the dispute. That would enlarge by construction the provisions of sec. 20, which contain no mention of labor organizations, so as to produce an inconsistency with sec. 6, which deals specifically with the subject and must be deemed to express the measure and limit of the immunity intended by Congress to be incident to mere membership in such an organization. At the same time it would virtually repeal by imphcation the prohibi- tion of the Sherman Act, so far as labor organizations are concerned, notwithstanding repeals by implication are not favored; and in effect, as was noted in Loewe v. Lawlor, 208 U. S. 274, 303-304, would confer upon voluntary associations of individuals formed within the States a control over commerce among the States that is denied to the governments of the States themselves. The qualifying effect of the words descriptive of the nature of the dispute and the parties concerned is further borne out by the phrases defining the conduct that is not to be subjected to injunction or treated as a violation of the laws of the United States, that is to say: (a) "terminating any relation of employment, ... or per- suading others by peaceful and lawful means so to do"; (6) "attend- ing at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating informa- tion^ or from peacefully persuading any.person to work or to abstain from working"; (c) "ceasing to patronize or to employ any party to such dispute, or . . . recommending, advising, or persuading others by peaceful and lawful means so to do " ; (d) " paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits . . ."; (e) "doing any act or thing which might law- fully be done in the absence of such dispute by any party thereto." The emphasis placed on the words "lawful" and "lawfully," "peace- ful" and "peacefully," and the references to the dispute and the parties to it, strongly rebut a legislative intent to confer a general immunity for conduct violative of the anti-trust laws, or otherwise unlawful. The subject of the boycott is dealt with specifically in the "ceasing to patronize" provision, and by the clear force of the language employed the exemption is limited to pressure exerted upon a "party to such dispute" by means of "peaceful and law- ful" influence upon neutrals. There is nothing here to justify de- fendants or the organizations they represent in using either threats or persuasion to bring about strikes or a cessation of work on the part of employees of complainant's customers or prospective cus- tomers, or of the trucking company employed by the customers, SECT. II] SECONDARY BOYCOTT 447 with the object of compelling such customers to withdraw or re- frain from commercial relations with complainant, and of thereby constrainiag complainant to yield the matter in dispute. To in- stigate a sympathetic strike in aid of a secondary boycott cannot be deemed "peaceful and lawful" persuasion. In essence it is a threat to inflict damage upon the immediate employer, between whom and his employees no dispute exists, in order to bring him against his will into a concerted plan to inflict damage upon another employer who is in dispute with his employees. The majority of the Circuit Court of Appeals, very properly treating the case as involving a secondary boycott, based the decision upon the view that it was the purpose of sec. 20 to legalize the second- ary boycott "at least in so far as it rests on, or consists of, refusing to work for any one who deals with the principal offender." Char- acterizing the section as "blindly drawn," and conceding that the meaning attributed to it was broad, the court referred to the legis- lative history of the enactment as a warrant for the construction adopted. Let us consider this.^ . . . Reaching the conclusion, as we do, that complainant has a clear right to an injunction undeFlhe Sherman Act as amended by the Clayton AcT^__it becomes unnecessary to consider whether a like re sult would foll ow under the common law or local statutes; there bemg no suggestion that relief thereunder could be broader than that to which complainant is entitled under the acts of Congress. There should be an injunction against defendants and the asso- ciations represented by them, and all members of those associations, restraining them, according to the prayer of the bill, from interfering or attempting to interfere with the sale, transportation, or delivery ia interstate commerce of any printing press or presses manufactured by complainant, or the transportation, carting, installation, use, operation, exhibition, display, or repairing of any such press or presses, or the performance of any contract or contracts made by complainant respecting the sale, transportation, delivery, or in- stallation of any such press or presses, by causing or threatening to cause loss, damage, trouble, or inconvenience to any person, firm, or corporation concerned in the purchase, transportation, carting, installation, use, operation, exhibition, display, or repairing of any such press or presses, or the performance of any such contract or contracts; and also and especially from using any force, threats, command, direction, or even persuasion with the object or having the effect of causing any person or persons to decline employment, cease employment, or not seek employment, or to refrain frora work or cease working under any person, firm, or corporation being a pur- chaser or prospective purchaser of any printing press or presses from ' The court here enters into a consideration of the legislative history of the enactment, and comes to the conclusion that the purpose of the enactment was not to legalize the secondary boycott. — Ed. 448 BOYCOTTS [CHAP. VII complainant, or engaged in hauling, carting, delivering, installing, handling, using, operating, or repairing any such press or presses for any customer of complainant. Other threatened conduct by defendants or the associations they represent, or the members of such associations, in furtherance of the secondary boycott should be included in the injunction according to the proofs. Complainant is entitled to its costs in this court and in both courts below. Decree reversed, and the cause remanded to the District Court for further proceedings in conformity with this opinion. Mr. Justice Brandeis, dissenting, with whom Mr. Justice Holmes and Mr. Justice Clarke concur. The Duplex Co., a manufacturer of newspaper printing presses, seeks to enjoin officials of the machinists' and affiliated unions from interfering with its business by inducing their members not to work for plaintiff or its customers in connection with the setting up of presses made by it. Unlike Hitchman Coal & Coke Co. v. Mitchell, 24.5 U. S. 229, there is here no charge that defendants are inducing employees to break their contracts. Nor is it now urged that de- fendants threaten acts of violence. But plaintiff insists that the acts complained of violate both the conunon law of New York and the Sherman Act and that, accordingly, it is entitled to relief by in- junction under the state law and under sec. 16 of the Clayton Act, October 15, 1914, c. 323, 38 Stat. 730, 737. The defendants admit interference with plaintiff's business but justify on the following ground: There are in the United States only four manufacturers of such presses; and they are in active competition. Between 1909 and 1913 the machinists' union induced three of them to recognize and deal with the union, to grant the eight-hour day, to establish a minimum wage scale and to comply with other union requirements. The fourth, the Duplex Co., re- fused to recognize the union; insisted upon conducting its factory on the open shop principle; refused to introduce the eight-hour day and operated for the most part, ten hours a day; refused to establish a minimum wage scale; and disregarded other union standards. Thereupon two of the three manufacturers who had assented to union conditions, notified the union that they should be obliged to terminate their agreements with it unless their competitor, the Duplex Co., also entered into the agreement with the union, which, in giving more favorable terms to labor, imposed correspondingly greater burdens upon Jihe employer. Because the Duplex Co. re- fused to enter into such an agreement and in order to induce it to do so, the machinists' union declared a strike at its factory, and in aid of that strike instructed its members and the members of affiUated unions not to work on the installation of presses which plaintiff had deUvered in New York. Defendants insist that by the common law SECT. II] SECONDAKY BOYCOTT 449 of New Yorkj where the acts complained of were done, and where this suit was brought, and also by sec. 20 of the Clayton Act, 38 Stat. 730, 738, the facts constitute a justification for this interference with plaintiff's business. First. As to the rights at common law: Defendants' justifica- ti on is that of self-i nterest^^ They have supported the strike at the employer's factory~Sy~a strike elsewhere agains"t its product. They havETlijured the plaintiff^ not raaliciously ,' but in self-defense . They contend that the Duplex Co.'s refusal to deal with the machinists' union and to observe its standards threatened the interest not only of such union members as were its factory employees, but even more of all members of the several affiliated unions employed by plain- tiff's competitors and by others whose more advanced standards the plaintiff was, in reaUty, attacking; and that none of the de- fendants and no person whom they are endeavoring to induce to refrain from working in connection with the setting up of presses made by plaintiff is an outsider, an interloper. In other words, that the contest between the company and the machinists' union involves vitally the interest of every person whose cooperation is sought. May not, a ,ll with j l^ ^mmon interest join in refusing to expend their labor upon articles whose very production constitutes an"aEScE~upbn t&eir "stanHard of living and the institution which they 'are convinced supports it? Applying common-law principles the answer should, in my opinion, be: Yes, if as matter of fact those wfio so cooperate have a common interest. TEe"*change in the law by which strikes once illegal and even criminal are now recognized as lawful was effected in America largely without the intervention of legislation. This reversal of a common- law rule was not due to the rejection by the courts of one principle and the adoption in its stead of another, but to a better realization of the facts of industrial life. It is conceded that, although the strike of the workmen in plaintiff's factory injured its business, the strike was not an actionable wrong; because the obvious self-interest of the strikers constituted a justification. See Pickett v. Walsh, 192 Mass. 572. Formerly courts held that self-interest could not be so served. Commons, History of Labor in the United States, vol. 2, c. 5. But even after strikes to raise wages or reduce hours were held to be legal because of the seK-interest, some courts held that there was not sufficient causal relationship between a strike to unionize a shop and the self-interest of the strikers to justify injuries inflicted. Plant V. Woods, 176 Mass. 492; Lucke v. Clothing Cutters' Assembly, 77 Md. 396; Erdman v. Mitchell, 207 Pa. Sljf79. But other courts, repeating the same legal -formula, found that there was justification, because they viewed the facts differently. National Protective Association v. Cunaming, 170 N. Y. 315; Kemp v. Division No. 241, 255 111. 213; Roddy v. United Mine Workers, 41 Okla. 621. When centrahzation in the control of business brought its corresponding 450 BOYCOTTS [CHAP. VII centralization in the organization of workingmen, new facts had to be appraised. A single employer might, as in this case, threaten the standing of the whole organization and the standards of all its members; and when he did so the union, in order to protect itself, would naturally refuse to work on his materials wherever found. When such a situation was first presented to the courts, judges con- cluded that the intervention of the purchaser of the materials estab- lished an insulation through which the direct relationship of the employer and the workingmen did not penetrate; and the strike against the material was considered a strike against the purchaser by unaffected third parties. Burnham v. Dowd, 217 Mass. 351; Purvis V. United Brothe'rhood, 214 Pa. St. 348; Booth v. Burgess, 72 N. J. Eq. 181. But other courts, with better appreciation of the facts of industry, recognized the unity of interest throughout the union, and that, in refusing to work on materials which threat- ened it, the union was only refusing to aid in destroying itself. Bos- sert V. Dhuy, 221 N. Y. 342; Cohn & Roth Electric Co. v. Brick- layers' Union, 92 Conn. 161; Gill Engraving Co. v. Doerr, 214 Fed. Rep. Ill; State v. Van Pelt, 136 N. C. 633; Grant Construction Co. V. St. Paul Building Trades Council, 136 Minn. 167; Pierce v. Stablemen's Union, 156 Cal. 70, 76. So, in the case at bar, deciding a question of fact upon the evi- dence introduced and matters of common knowledge, I should say, as the two lower courts apparently have said, that the defendants and those from whom they sought cooperation have a common in- terest which the plaintiff threatened. This view is in harmony with the views of the Court of Appeals of New York. For in New York, ; although boycotts like that in Loewe v. Lawlor, 208 U. S. 274, are ,' illegal because they are conducted not against a product but against ,| those who deal in it and are carried out by a combination of persons :' not united by common interest but only by sympathy, Auburn Dray- ^ ing Co. V. Wardell, 227 N. Y. 1, it is lawful for all members of a union by whomever employed to refuse to handle materials whose produc- tion weakens the union. Bossert v. Dhuy, supra; P. Reardon, Inc., V. Caton, 189 App. Div. 501; compare Paine Lumber Co. v. Neal, 244 U. S. 459, 471. "The voluntary adoption of a rule not to work on non-union made material and its enforcement differs only in degree from such voluntary rule and its enforcement in a particular case. Such a determination also differs entirely from a general boy- cott of a particular dealer or manufactmrer with a malicious intent and purpose to destroy the good will or business of such dealer or manufacturer." Bossert v. Dhuy, 221 N. Y. 342, 355. In my opin- ion, therefore, plaintiff had no cause of action by the common law of New York. Second. As to the anti-trust laws of the United States: Sec. 20, of the Clayton Act, declares, — SECT. II] SECONDAKY BOYCOTT 451 "Nor shall any of the acts specified in this paragraph be con- sidered or held to be violations of any law of the United States." The acts which are thus referred to are, whether performed singly or in concert, — "Terminating any relation of employment, or . . . ceasing to perform any work or labor, or . . . recommending, advising, or persuading others by peaceful means so to do; or . . . attending at any place M'here any such person or persons may law- fully be, for the purpose of peacefully obtaining or communicating information, or . . . peacefully persuading any person to work or to abstain from working; or . . . ceasing to patronize or to employ any party to such dispute, or . . . recommending, advising, or per- suading others by peaceful and lawful means so to do; or . . . paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value; or ,. . . peaceably assembling in a lawful manner, and for lawful purposes; or . . . doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto." This statute was the fruit of unceasing agitation, which extended over more than twenty years and was designed to equalize before the law the position of workingmen and employer as industrial com- batants. Aside from the use of the injunction, the chief source of dissatisfaction with the existing law lay in the doctrine of malicious combination,^ and, in many parts of the country, in the judicial declarations of the illegality at common law of picketing and per- suading others to leave work. The grounds for objection to the latter are obvious. The objection to the doctrine of malicious com- binations requires some explanation. By virtue of that doctrine, damage resulting from conduct such as striking or withholding patronage or persuading others to do either, which without more might be damnum absque injuria because the result of trade com- petition, became actionable when done for a purpose which a judge considered socially or economically harmful and therefore branded as malicious and unlawful. It was objected that, due largely to environment, the social and economic, ideas of judges, which thus became translated into law, were prejudicial to a position of equality between workingman and employer; that due to this dependence upon the individual opinion of judges great confusion existed as to 1 See " Malice and Unlawful Interference," Ernest Freund; 11 Harv. L. Rev. 449, 461; "Rights of Traders and Laborers," Edward F. McClennen, 16 Harv. L. Rev. 237, 244; " Crucial Issues in Labor Litigation," Jeremiah Smith, 20 Harv. L. Rev. 429, 461; Principles of Labor Legislation, Commons and Andrews, pp. 95-116; Hoxie, Trade Unionism in the United States, p. 231; Groat, Atti- tude of American Courts Towards Labor Cases, pp. 76-77; 221; 246; J.W.Bryan, The Development of the English Law of Conspiracy, p. 147 et seq. Report of the Industrial Commission, 1901, vol. 17, p. cxiv, pp. 515, 556; Report of Royal Commission on Trade Disputes and Trade Combinations, 1906, p. 12; Report of Commission on Industrial Relations, 1915, p. 135; p. 377. For attempts to reach this doctrine by legislation see also, 52d Cong., H. R. 6640, sec. 1; 56th Cong., H. R. 11667, sec. 7; 57th Cong., S. 649, sec. 7. 452 BOYCOTTS [CHAP. VII what purposes were lawful and what unlawful; and that in any event Congress, not the judges, was the body which should declare what public policy in regard to the industrial struggle demands. By 1914 the ideas of the advocates of legislation had fairly crystal- lized upon the manner in which the inequality and uncertainty of the law should be removed. It was to be done by expressly legalizing certain acts regardless of the effects produced by them upon other persons. As to them Congress was to extract the element of injuria from the damages thereby inflicted, instead of leaving judges to determine according to their own economic and social views whether the damage inflicted on an employer in an industrial struggle was damnum absque injuria, because an incident of trade competition, or a legal injury, because in their opinion, economically and socially objectionable. This idea was presented to the committees which reported the Clayton Act. The resulting law set out certain acts which had previously been held unlawful, wheneve;- courts had dis- approved of the ends for which they were performed; it then declared that, when these acts were committed in the course of an industrial dispute, they should not be held to violate any law of the United States. In other words the Clayton Act substituted the opinion of Congress as to the propriety of the purpose for that pi differing judges; and thereby it declared that the relations between employers of labor and workingmen were competitive relations, that organized competition was not harmful and that it justified injuries necessarily inflicted in its course. Both the majority and the minority report of the House Committee indicate that such was its purpose. If, therefore, the act applies to the case at bar, the acts here complained of cannot "be considered or held to be violations of any law of the United States," and, hence, do not violate the Sherman Act. The Duplex Co. contends that sec. 20 of the Clayton Act does not apply to the case at bar, because it is restricted to cases "be- tween an employer and employees, or between employers and em- ployees, or between employees, or between persons employed and persons seeking emplojonent, involving, or growing out of, a dispute concerning terms or conditions of employment"; whereas the case at bar arises between an employer in Michigan and workingmen in New York not in its employ, and does not involve their conditions of employment. But Congress did not restrict the provision to em- ployers and workingmen in their employ. By including "employers and employees" and "persons employed and persons seeking em- ployment" it showed that it was not aiming merely at a legal re- lationship between a specific employer and his employees. Further- more, the plaintiff's contention proves too much. If the words are to receive a strict technical construction, the statute will have no application to disputes between employers of labor and workingmen, since the very acts to which it applies sever the continuity of the legal relationship. Iron Holders' Union v. AUis-Chahners Co., 166 Fed. SECT. Ill] NON-COERCIVE BOYCOTT 453 Rep. 45, 52-53; Louisville, Evansville & St. Louis R. R. Co. v. Wilson, 138 U. S. 501, 505; cf. Rex v. Neilson, 44 N. S. 488, 491. The further contention that this case is not one arising out of a dispute concern- ing the conditions of work of one of the parties is, in my opinion, founded upon a misconception of the facts.^ . . . Section 3. Boycott by Means of Notice or Non-coercive Persuasion. The " Unfair List" NICHOL V. MARTYN Nisi Pbius. 1799 2 Espinasse, 732 This was a special action on the Case, against the Defendant, for seducing the Plaintiff's customers. The Plaintiffs were wholesale ironmongers, who carried on a very extensive business; the Defendant had been employed by them as their rider or traveller, to get orders in the course of their business; and the foundation of the action was, That the Defendant, who at the time of bringing the action was in the same line of business with the Plaintiffs, had, during the time that he was in their employment, endeavoured to seduce the several country shopkeepers who were in the habit of deaUng with the Plaintiffs, to leave off dealing with them, and to transfer their business to the Defendant. To prove the Plaintiff's case, they called some of those country shopkeepers. Their evidence proved that the Defendant on his last coming to their shops as rider to the Plaintiffs, and on their business, had told them that he was himself going into the same business with the Plaintiffs after Christmas, and would then be obhged to them for an order on his own account. It appeared, however, on the cross examination of those witnesses, that he took the orders regularly for the Plaintiffs on that journey, and that they were executed on the Plaintiff's account; and that no solicitation was used by the Defendant for any order at that time, which might have been suppUed by the Plaintiffs. It was also admitted, that in fact, the time of the Defendant's engagement to serve the Plaintiffs, expired at the beginning of the year; so that, in truth, in the month of March he would have been completely his own master. " 1 That the Clayton Act does not prevent federal courts from enjoining in- timidation or violence, see Kinloch Telephone Co. v. Union No. 2, 265 Fed. 312 (compare 275 Fed. 241); Dail Overland Co. v. Willys-Overland, 263 Fed. 171, 186 (compare 274 Fed. 56). See also, as to the Clayton Act, Lamar v. United States, 260 Fed. 561; Mont- gomery V. Pacific El. Ry. Co., 258 Fed. 398; United States v. Norris, 225 Fed. 423; Kroger Co. v. Retail Clerks' Assn., 250 Fed. 890; United States v. King, 250 Fed. 908. 454 BOYCOTTS [QHAP. VII Lord Kenyon, Chief Justice. The conduct of the Defendant in this case, may perhaps be accounted not handsome; but I cannot say that it is contrary to law. The relation in which he stood to the Plaintiffs, as their sfervant, imposed on him a duty which is called . of imperfect obligation, but not sUch as can enable the Plaintiffs to maintain an action. A servant while engaged in the service of his master, has no right to do any act which may injure his trade, or imdermine his business; but every one has a right, if he can, to better his situation in the world; and if he does it by means not contrary to law, though the master may be eventually injured, it is damnum abs. injuria. There is nothing morally bad, or very improper in a servant, who has it in contemplation at a future period to set up for himself, to endeavour to conciliate the regard of his master's cus- tomers, and to recommend himself to them, so as to procure some business from them as well as others. In the present case, the De- fendant did not solicit the present orders of the customers: on the contrary, he took for the Plaintiffs all those he could obtain: his request of business for himself was prospective, and for a time when the relation of master and servant between him and the Plaintiffs would be at an end. It was suggested in the course of the cause, that the Defendant had seduced some of the servants of the Plaintiff to quit their service, and to enter into his when he went into business. Upon that point Lord Kenyon said. That seducing a servant, and enticing him to leave his master while the master by the contract had a right to his services, was certainly actionable: but that to in- duce a servant to leave his master's service at the expiration of the time for which the servant had hired himseK, although the servant had no intention at the time of quitting his master's service, was not the subject of an action. The Plaintiffs were nonsuited.^ LINDSAY & CO. V. MONTANA FEDERATION OF LABOR Supreme Court ot' Montana. 1908 37 Mont. 264 Mr. Justice Holloway dehvered the opinion of the court. This action was commenced by Lindsay & Co., Limited, a domestic corporation, having its principal office or place of busiuess at Helena, with branch offices and places of business at Billings and Great Falls, in this state, and engaged in conducting 'the business of wholesale fruit and produce merchants at those places, against the Montana Federation of Labor, the Yellowstone Trades and Labor Assembly, •Billings Clerks' Protective Union, certain officers of these associa- ' Compare Citizens' etc. Co. v. Montgomery Light & Water Power Co., 171 Fed. 553. Compare also Bowen v. Matheson, 14 Allen, 499, supra, p. 297. SECT. Ill] NON-COEECIVE BOYCOTT 455 tions, and others to secure an injunction restraining the defendants from certain acts alleged to have been committed by them and threat- ened to be continued. Upon the verified complaint a temporary injunction was issued. The defendants above named appeared by answer, which denies the allegations of the complaint material to this controversy, and upon such answer and oral testimony to be offered moved the court to dissolve the injunction. After a hearing the injunction was dissolved as to defendants Joy and Doody, and modified by striking out a portion of one sentence, and, with the modifications thus made, the motion was denied, and the injunction continued in force against the remaining answering defendants. . . . From the order refusing to dissolve the injunction this appeal was taken. For the purpose of this decision the allegations of the complaint need not be referred to at length. We are not called upon to deter- mine the propriety of issuing the injunction in the first instance. The question for our decision is: Should the injunction have been continued in force after the hearing on the motion to dissolve was had? And the answer to this must depend upon the facts disclosed at such hearing. Stripped of all useless verbiage, these facts ap- peared: That some time prior to October, 1907, Lindsay & Co. had been declared unfair by the Miners' Union and Trades Assembly in Helena, and this action had been indorsed by the Montana Federa- tion of Labor, and circulars announcing the fact had been sent to labor organizations throughout the state. On October 25, 1907, the Yellowstone Trades and Labor Assembly, upon information received of the action taken in Helena, passed a resolution which declared Lindsay & Co. unfair, and referred the matter to the grievance com- mittee of that organization to advise the public of the action taken. Acting upon the authority thus given, the grievance committee caused to be piibHshed and circulated among the business houses and elsewhere in Billings circulars, of which the following is a copy: "UNFAIR. "All laboring men and those in sympathy with organized labor are requested not to patronize Lindsay & Co., who are engaged in the wholesale fruit business, also distributers for cigars and vegetables of all kinds in Billings and vicinity, as they are unfair. We urge the ■ retail merchants, laboring men, and all who are in sympathy with organized labor to place themselves in position to patronize friendly wholesalers. We further desire to call attention to the fact that Lindsay & Co. are operating peddling wagons throughout this city, and we ask the people to guard against patronizing these wagons. We ask this for your own protection and the protection of organized labor. "[Signed] YELLOWSTONE TRADES AND LABOR ASSEMBLY." 456 BOYCOTTS [CHAP. VII That immediately after the adoption of the resolution and the publication of this circular a large number of retail dealers in Bill- ings, who had theretofore purchased goods from the plaintiff com- pany, ceased to do business with the concern, with the result that the business of the company at Billings was practically paralyzed, and great financial loss resulted. As stated by the witness Vaughan for plaintiff: "We have lost patronage from these merchants on account of being unfair. A circular printed and sent around. There is no other cause." Another witness for the plaintiff testified that at a meeting of the Clerks' Union in BiUings early in November, 1907, the defendant Fairgrieve made the statement that "they had Lindsay & Co. on the unfair list, and they had him where they wanted him, and he believed it was a good thing to leave him there." Fair- grieve testified that he did not remember making any such state- ment. However, this is immaterial to a consideration of the matter before us. From these facts we are to determine the question : Should the injunction have been dissolved? It is to be observed that only two acts of any consequence are shown to have been committed by the defendants: (1) They declared Lindsay & Co. unfair, or, in the language of respondent, boycotted the company; and (2) they pub- lished the circular set forth above, that is, they caused it to be printed and circulated. The injunction, as modified, is very sweeping in its terms, and in that form could not be justified by any possible state of facts; but assuming that it was continued for the purpose of preventing the continuance in force of the boycott, and for the purpose of prevent- ing a repetition of the publication of the circular or a similar one — although there is not any evidence of any threat or purpose on the part of the defendants or any of them to repeat that act — ^we may consider the question presented to us by reference to these two prin- cipal acts mentioned. 1. Does the continuance in force of the resolution of October 25, 1907, amount to such an invasion of plaintiff's rights as will warrant the interposition of a court of equity by injunction? . . . Whatever may have been the attitude of the courts and legisla- tive bodies in this country toward labor organizations in the past, it is sufficient for our purpose to know that the right of workingmen to organize for the improvement of their industrial condition is now generally admitted. The great diversity of opinions among the courts has arisen over a consideration of the question: What means may trade unions employ to further the objects of their organiza- tions? It is well known that the means frequently employed are the strike and the boycott, and, as an incident of each, picketing, the use of placards and banners, and the publication of circulars. It is insisted by the respondent company that the defendants or- ganized a boycott of plaintiff's business by agreeing among them- selves and with other members of organized labor to withhold their SECT. Ill] NON-COERCIVE BOYCOTT 457 patronage from the plaintiff company, and that they undertook by coercion to compel the retail dealers of Billings and others to like- wise withdraw their patronage; that the resolution of October 25, 1907, was intended and understood by the defendants to express the object of their preconcerted design; and that the publication of the circular was for the purpose of intimidating the retail dealers and others. We think it may fairly be said to have been shown by the evidence that upon the adoption of the resolution of October 25th, and upon the intelligence of that action becoming general among the union men there, it was understood among those men that they would not patronize Lindsay & Co. while the interdict was in force, and would not patronize anyone who did patronize that company, and that they expected that all retailers and others in sympathy with their organizations would cease trading with the plaintiff com- pany. Whether the acts done by the defendants constituted a boycott, of course depends entirely upon the definition of that term which may be adopted. The most casual observation will disclose that scarcely any two courts treating of the subject formulate the same definition. In fact, the growth and development of the country, the influence of science and invention on the mode of conducting business, and many other causes have combined to change materially the relation of employer and employee, and, as consequent upon it, the meaning of the terms employed at the time Captain Boycott was literally sent to Coventry by the tenants of Connemara. We are referred by respondent to three definitions of the term given in 5 Cyc. 995, as follows: "A combination of many to cause a loss to one person by coercing others, against their will, to withdraw from him their beneficial business intercourse, through threats that, unless others do so, the many will cause similar loss to them; an organized effort to exclude a person from business relations with others by persuasion, intimidation, and other acts which tend to violence, and thereby coerce him, through fear of resulting injury, to submit to dictation in the management of his affairs; a combination between persons to suspend or discontinue dealings or patronage with another person or persons because of the refusal to comply with a request of him or them." If we adopt any one of these, the evidence would fail to bring the acts of the defendants within the definition. But we prefer a broader definition, and one we deem more consonant with present-day conditions. We are of the opinion that the evidence shows that these defendants inaugurated a boycott on Lindsay & Co., and that it was still in effect at the date of the hearing. We adopt the language of the Supreme Court of New York in Mills v. United States Printing Co., 99 App. Div. 605, 91 N. Y. Supp. 185, in which the court, speaking through Justice Jenks, said: "I think that the verb ' to boycott ' does not necessarily signify that the doers employ violence, intimidation, or other unlawful coercive means; 458 BOYCOTTS [CHAP. VII but that it may be correctly used in the sense of the act of a combina- tion, in refusing to have business dealings with another until he re- moves or ameliorates conditions which are deemed inimical to the welfare of the members of the combination, or some of them, or grants concessions which are deemed to make for that purpose." In Ulery v. Chicago Live Stock Exchange, 54 111. App. 233, it is said: "A person, with or without reason, may refuse to trade with another; so may ten or fifty persons refuse. An individual may ad- vise his neighbor or friend not to trade with another neighbor. He may even command when the command amounts only to earnest advice." But what is there unlawful in the act of the union workingmen of Billings in withdrawing their patronage from the plaintiff? Certainly it cannot be said that Lindsay & Co. had a property right in the trade of, any particular person. In this country patronage depends upon good will, and we do not think that it wUl be contended by anyone that it was wrongful or unlawful, or violated any right of the plaintiff company, for any particular individual in Billings to withdraw his patronage from Lindsay & Co., or from any other con- cern which might be doing business with that company, and that, too, without regard to his reason for doing so. But there can be found running through our legal literature many remarkable state- ments that an act perfectly lawful when done by one person becomes by some sort of legerdemain criminal when done by two or more persons acting in concert, and this upon the theory that the con- certed action amounts to a conspiracy. But with this doctrine we do not agree. If an individual is clothed with a right when acting alone, he does not lose such right merely by acting with others, each of whom is clothed with the same right. If the act done is lawful, the combination of several persons to commit it does not render it unlawful. In other words, the mere combination of action is not an element which gives character to the act. It is the illegality of the purpose to be accomphshed, or the illegal means used in furtherance of the purpose, which makes the act illegal. (18 Ency. of Law, 2d ed., 82; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 40 Am. St. Rep. 319, 55 ,N. W. 119, 21 L. R. A. 337.) . . . Chief Justice Parker, in speaking for the Court of Appeals in National Protective Assn. v. Cumming, 170 N. Y. 315, 88 Am. St. Rep. 648, 63 N. E. 369, 58 L. R. A. 135, said: "Whatever one man may do alone, he may do in combination with others, provided they have no unlawful object in view. Mere numbers do not ordinarily affect the quality of the act." We hold, then, that a labor organization may employ the boycott as herein defined in furtherance of the objects of its existence. If, however, the means by which it enforces the boycott are Ulegal, then it may render its members amenable to the processes of the law; but, if they are not, the courts are powerless to render assist- SECT. HI] NON-COERCIVE BOYCOTT 459 ance to the person or firm boycotted, even though financial loss results as the direct consequence .of the boycott. It may be true, that, speaking generally, no one has the right intentionally to do an act for the purpose of injuring another's business, but injury, however, in its legal significance, means damage resulting from the violation of a legal right and it is the violation of the legal right which renders an act wrongful in the eye of the law and makes it actionable. (Ma- cauley Bros. v. Tierney, 19 R. I. 255.) If then these defendants and their associates did not violate any legal right of the plaintiff in withdrawing their patronage from the company or in agreeing to withdraw their patronage from any one who might patronize Lindsay & Co., they cannot be enjoined from continuing the boycott in force so long as the means employed to make the boycott effective are not illegal. The evidence shows that the only means used in this instance was the publication of the cir- cular in question, and this brings us to a consideration of the second proposition involved. 2. (a) May a court of equity enjoin the publication by an individ- ual of a circular of this character? (6) If not may it enjoin such pubUcation when made by a number of individuals acting collectively? (a) Article III of our Constitution is entitled: "A Declaration of Rights of the People of the State of Montana," and sec. 10 of that Article, so far as appHcable here, reads as follows: "No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being re- sponsible for all abuse of that liberty." The language here employed seems too clear to admit of doubt or argument. . . . The language of the section is not susceptible of any other meaning than this: That the individual citizen of Montana cannot be prevented from speak- ing, writing, or publishing whatever he will on any subject. If, however, what he writes or pubHshes constitutes a criminal libel, he may be held responsible for the abuse of the liberty in a criminal prosecution (Penal Code, Title VIII, Chapter VIII), or, if what he speaks, writes, or publishes wrongfully infringes the rights of others he may be held responsible for the abuse in a civil action for dam- ages. . . . Under similar constitutional provisions, the Supreme Courts of California and Missouri have reached the same conclusion. (Dailey v. Superior Court, 112 Cal. 94, 53 Am. St. Rep. 160, 44 Pac. 458, 32 L. R. A. 273; Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 90 Am. St. Rep. 440, 67 S. W. 391, 56 L. R. A. 951.) (6) What we have said above, in the first paragraph of this opinion, is hkewise applicable here. If any one of these individuals could publish this circular, they may with equal security all join in its publication. We think the evidence produced at the hearing was insufficient to justify the continuance in force of the injunction, and it should have been dissolved. 460 BOYCOTTS [CHAP. VII The order of the court is reversed, and the cause is remanded, with direction to vacate the order heretofore made and enter an order dissolving the injunction. Reversed and remanded. Me. Chief Justice Bbantly and Mr. Justice Smith concur.^ SINSHEIMER v. UNITED GARMENT WORKERS Supreme Court of New York. 1894 77 Hun, 215 Appeal by the defendants, The United Garment Workers of America and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of November, 1893, granting the plaintiffs' motion for a preliminary injimction. Van Brunt, P. J. . . . The main facts in reference to which there seems to be sufficiency of legal proof are that the plaintiffs formed part of a combination of clothing manufacturers, having for its osten- sible object protection from unjust claims upon the part of their operatives, with a secret purpose to break down, if possible, any organization made by operatives for the purpose of advancing wages and protecting themselves in their employment. The defendant upon the other hand is a combination of operatives associated to- gether for the purpose of protection against the exactions of employers, the advancement of their wages, and the compelling of employment of only those persons who belong to their association. Naturally the interests and purposes of these two associations lead to contest and strife. I know of no law which prevents combinations, either for the assertion of rights or protection against wrongs, as long as the acts of such associates do not infringe upon the provisions of law. Various differences had arisen between the plaintiffs and the defendants; negotiations were had; claims of bad faith upon both sides were advanced; and the result was the issuance of circulars by the defendants, some time prior to the commencement of this action, to tradesmen in other cities, complaining of their treatment by the plaintiffs and others, and substantially asking that they discontinue trading with them as long as this condition of affairs existed. And finally, in March, 1893, the clothing manufacturers adopted a reso- lution (claiming bad faith upon the part of the operatives and that a strike had been ordered in the shop of one of the members of the association) that unless the operatives receded from their position, all persons in their employ belonging to the association of operatives should be discharged. . . . ' Accord: Iverson v. Dilno, 44 Mont. 270 (display of banner) ; Empire Theatre Co. V. Cloke, 63 Mont. 183 (display of banner). Compare Citizens' Light, Heat, & Power Co. v. Montgomery Light & Water Power Co., 171 Fed. 653, 567. SECT. Ill] NON-COERCIVE BOYCOTT 461 1 fail to see how the injunction in this action can be sustained. There is no proof of any acts of violence upon the part of the defend- ants, or of any injury to property, or of any threats or intimida- tion. At best the circulars were hut one of the instruments used by the defendants in their contest with the association of which the plaintiffs were members. It was a pursuing of precisely the same coiu-se against the Manufacturers Association as the Manufacturers Association were urging against them. The Manufacturers Associa- tion claimed the right that their members should discharge from their employ all persons connected with the defendants' association unless they receded from certain demands made upon one of their members. The defendants notified persons engaged in the trade of the controversies which were existing, and virtually requested such persons not to deal with the plaintiffs' firm unless such differences could be adjusted. I faU to see that there is any infringement of any provision of law in the issuance of such a circular. . . . It seems to me obvious that the clothing manufacturers had the right to lock out all operatives connected with the defendants' asso- ciation because of demands which they considered imjust, made by the defendants upon one of their number, and that the defend- ants had an equal right to endeavor to persuade those who had been accustomed to deal with members of the Manufacturers Associa- tion to discontinue their trade. It is a familiar principle in equity that the plaintiff must come into court with clean hands. Under the circvunstances disclosed by the papers in this case, if the defendants were guilty of any viola- tion of law, the plaintiffs were certainly equally implicated, and under this condition of affairs it is difficult to see how they would have a right to the intervention of a court of equity. In deahng with questions of this nature the court should be studious to see that the rights of all parties are protected; and that the forms of law should not be permitted to be used on behalf of one party against another, when the party seeking the intervention of the court has been endeavoring to secure his ends by means similar to those which he seeks to enjoin on the part of his antagonist. Upon the whole case, therefore, I am of the opinion that the in- junction should not have been granted, and the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. FoLLETT, J.,^ concurred.'' ' O'Brien, J., rendered a concurring opinion. — Ed. 2 Accord: Heitkamper v. Hoffman, 99 Misc. 643; Butterick Pub. Co. v. Typ. Union, 100 N. Y. Supp. 292. In the former case the court said (p. 549) : "No just complaint can be made by the plaintiff against the union's circularizing the neighborhood, asking the friends of union labor not to patronize this plaintiff, nor can the plaintiff seek to restrain the union, its members or agents from peaceably persuading proposed patrons of the plaintiff from trading in his shop. The doing of those things will 462 BOYCOTTS [CHAP. VII GOMPERS V. BUCKS STOVE & RANGE CO. StrPEEME COUBT OF THE UnITED StATES. 1911 221 U. S. 418 This is a proceeding to reverse a judgment, finding that Samuel Gompers, John Mitchell, and Frank Morrison were guilty of con- tempt in violating the terms of an injunction restraining them from continuing a boycott, or from pubHshing any statement that there was or had been a boycott against the Bucks Stove & Range Co. The contempt case grew out of htigation reported in 33 App. D. C. 83, 516. It will only be necessary to briefly refer to the facts set out in that record. The American Federation of Labor is composed of voluntary associations of labor unions with a large membership. It pubhshes the American Federationist, which has a wide circulation among the public and the Federation. Samuel Gompers is president and editor of the paper. John Mitchell is vice-president of the Federation and' president of the United Mine Workers, one of the affiliated unions. Frank Morrison has charge of the circulation of the paper. The Federation had a difference as to the hours of labor with the Bucks Stove & Range Co., of which J. W. Van Cleave was president, who was also president of the American Manufacturers' Association. This controversy over the hours of work resulted in a boycott being declared against the Bucks Stove & Range Co., and it was there- upon declared "Unfair" and was published in the American Fed- erationist on the "Unfair" and "We don't patronize" lists. The company filed in the Supreme Court of the District of Columbia its bill against the Federation, the defendants above named and other officers, alleging that the defendants had entered into a conspiracy to restrain the company's state and interstate business, in pursuance of which they had boycotted it, published it on the unfair lists, and had by threats also coerced merchants and others to refrain from buying Bucks' products for fear that they themselves would be boy- cotted if they continued to deal with that company. The result of the boycott had been to prevent persons from dealing with it and had greatly lessened its business and caused irreparable damage. After a lengthy hearing, the court on December 18, 1907, signed a temporary injunction, which became effective when the bond re- quired was given on December the 23d. . . . not be restrained. But a judgment will be entered here restraining the individ- ual defendants named here and the defendant union, its officers, members, agents, and employees from congregating in front of plaintiff's shop, from marching up and down upon the sidewalk in front of his shop, from blockading the entrance to his store and from in any way or manner preventing intending customers from entering or departing from plaintiff's shop, or in any manner by threats, vio- lence, intimidation or force, interfering with plaintiff's employees or those who may seek employment from plaintiff." SECT. Ill] NON-COERCIVE BOYCOTT 463 Thereafter testimony was regularly taken, and on March 23, 1908, the injunction was made permanent, with provisions almost identical with the temporary order of December 17, 1907. From this final decree the defendants appealed, but before a decision was had, the Bucks Stove & Range Co. began contempt proceedings, by fihng in the Supreme Court of the district a petition entitled "Bucks Stove & Range Co., plaintiff, v. The American Federation of Labor et al., defendants, No. 27,305, Equity," alleging that peti- tioner had "filed in this cause its original bill of complaint, naming as defendants, among others, Samuel Gompers, Frank Morrison, and John Mitchell." ... Mr. Justice Lamar, after making the foregoing statement, de- livered the opinion of the court. The defendants, Samuel Gompers, John Mitchell, and Frank Morrison, were found guilty of contempt of court in making certain publications prohibited by an injunction from the Supreme Court of the District of Columbia. They were sentenced to imprisonment for twelve, nine, and six months respectively, and this proceeding is prosecuted to reverse that judgment. The order alleged to have been violated was granted in the equity suit of the "Bucks Stove & Range Co. v. The American Federation of Labor and others," in which the court issued an injunction re- straimng all the defendants from boycotting the complainant, or from publishing or otherwise making any statement that the Bucks Stove & Range Co. was, or had been, on the "Unfair" or "We don't pat- ronize" lists. Some months later the complainant filed a petition in the cause, alleging that the three defendants above-named, parties to the original cause, in contempt of court and in violation of its order, had disobeyed the injunction by publishing statements which either directly or indirectly called attention to the fact that the Bucks Stove & Range Co. was on the "Unfair" list, and that they had thereby continued the boycott which had been enjoined. The defendants filed separate answers under oath, and, each denied: (1) That they had been in contempt or disregard of the court's orders; (2) That the statements complained of constituted any violation of the order; and, on the argument, (3) contended that if the pubhcation should be construed to amount to a violation of the injunction they could not be punished therefor, because the court must not only possess jurisdiction of the parties and the sub- ject-matter, but must have authority to render the particular judg- ment. Insisting, therefore, that the court could not abridge the liberty of speech or freedom of the press, the defendants claim that the injunction as a whole was a nullity, and that no contempt pro- ceeding could be maintained for any disobedience of any of its pro- visions, general or special. If this last proposition were sound it would be unnecessary to go further into an examination of the case or to determine whether 464 BOYCOTTS [CHAP. VII the defendants had in fact disobeyed the prohibitions contained in the injunction. Ex parte Rowland, 104 U. S. 612. But we will not enter upon a discussion of the constitutional question raised, for the general provisions of the injunction did not, in terms, restrain any form of pubhcation. The defendants' attack on this part of the in- junction raises no question as to an abridgment of free speech, but involves the power of a court of equity to enjoin the defendants from continuing a boycott which, by words and signals, printed or spoken, caused or threatened irreparable damage. Courts differ as to what constitutes a boycott that may be en- joined. All hold that there rnust be a conspiracy causing irreparable damage to the business or property of the complainant. Some hold that a boycott against the complainant, by a combination of per- sons not immediately connected with him in business, can be re- strained. Others hold that the secondary boycott can be enjoined, where the conspiracy extends not only to injm-ing the complainant, but secondarily coerces or attempts to coerce his customers to re- frain from dealing with him by threats that unless they do they themselves wUl be boycotted. Others hold that no boycott can be enjoined unless there are acts of physical violence, or intimidation caused by threats of physical violence. But whatever the requirement of the particular jurisdiction, as to the conditions on which the injunction against a boycott may issue; when these facts exist, the strong current of authority is that the publication and use of letters, circulars and printed matter may constitute a means whereby a boycott is unlawfully continued, and their use for such purpose may amount to a violation of the order of injunction. Reynolds v. Davis, 198 Mass. 300; Sherry v. Perkins, 147 Mass. 212; Codman v. Crocker, 203 Mass. 150; Brown v. Jacobs, 115 Ga. 429, 431; Gray v. Council,, 91 Minn. 171; Lohse Co. v. Fuelle, 215 Mo. 421, 472; Thomas 'v. Raiboad Co., 62 Fed. Rep. 803, 821; Continental Co. v. Board of Underwriters, 67 Fed. Rep. 310; Beck v. Teamsters' Union, 118 Mich. 527; Pratt Food Co. v. Bird, 148 Mich* 632; Barr v. Essex, 53 N. J. Eq. 102. See also Lud- wig V. Western Union Telegraph Co., 216 U. S. 156; Bitterman v. L. & N. R. R., 207 U. S. 206; Board of Trade v. Christie, 198 U. S. 236; Scully v. Bird, 2a9 U. S. 489. While the bUl in this case alleged that complainant's interstate business was restrained, no relief was asked under the provisions of the Sherman Anti-Trust Act. But if the contention be sound that DO court under any circumstances can enjoin a boycott if spoken words or printed matter were used as one of the instrumentahties by which it was made effective, then it could not do so, even if in- terstate commerce was restrained by means of a blackhst, boycott or printed device to accomplish its purpose. And this, too, notwith- standing sec. 4 (act of July 2, 1890, c. 647, 26 Stat. 209) of that act provides, that where such commerce is unlawfully restrained it shall SECT. Ill] NON-COERCIVE BOYCOTT 465 be the duty of the attorney general to institute proceedings in equity to prevent and enjoin violations of the statute. In Loewe v. Lawlor, 208 U. S. 274, the statute was held to apply to any unlawful combination resulting in restraint of interstate commerce. In that case the damages sued for were occasioned by acts which, among other things, did include the circulation of ad- vertisements. But the principle announced by the court was gen- eral. It covered any illegal means by which interstate commerce is restrained, whether by unlawful combinations of capital, or un- lawful combinations of labor; and we think also whether the re- straint be occasioned by unlawful contracts, trusts, pooling arrange- ments, blacklists, boycotts, coercion, threats, intimidation, and whether these be made effective, in whole or in part, by acts, words or printed matter. The court's protective and restraining powers extend to every device whereby property is irreparably damaged or conamerce is illegally restrained. To hold that the restraint of trade under the Sherman Anti-trust Act, or on general principles of law, could be en- joined, but that the means through which the restraint was accom- plished could not be enjoined would be to render the law impotent. Society itself is an organization and does not object to organiza- tions for social, religious, business and all legal purposes. The law, therefore, recognizes the right of workingmen to unite and to invite others to join their ranks, thereby making available the strength, influence and power that come from such association. By virtue of this right, powerful labor unions have been organized. But the very fact that it is lawful to form these bodies, with mul- titudes of members, means that they have thereby acquired a vast power, in the presence of which the individual may be helpless. This power, when unlawfully used against one, cannot be met, except by his purchasing peace at the cost of submitting to terms which involve the sacrifice of rights protected by the Constitution; or by standing on such rights and appealing to the preventive powers of a court of equity. When such appeal is made it is the duty of government to protect the one against the many as well as the many against the one. In the case of an unlawful conspiracy, the agreement to act in concert when the signal is pubhshed, gives the words "Unfair," "We don't patronize," or similar expressions, a force not inhering in the words themselves, and therefore exceeding any possible right of speech which a single individual might have. Under such cir- cumstances they become what have been called "verbal acts," and as much subject to injunction as the use of any other force whereby property is unlawfully damaged. When the facts in such cases warrant it, a court having jurisdiction of the parties and subject- matter has power to grant an injunction.^ . . . 1 The remainder of the opiBion, dealing with the question of whether defend- ants were guilty of contempt and with the principles of the law underlying con- 466 BOYCOTTS [CHAP. VII LAWLOR V. LOEWE Sttpeeme Court of the United States. 1915 235 U. S. 522 Mb. Justice Holmes delivered the opinion of the court. This is an action under the act of July 2, 1890, c. 647, sec. 7, 26 Stat. 209, 210, for a combination and conspiracy in restraint of com- merce among the States, specifically directed against the plaintiffs (defendants in error), among others, and effectively carried out with the infliction of great damage. The declaration was held good on demurrer in Loewe v. Lawlor, 208 U. S. 274, where it will be found set forth at length. The substance of the charge is that the plain- tiffs were hat manufacturers who employed non-union labor; that the defendants were members of the United Hatters of North America and also of the American Federation of Labor; that in pursuance of a general scheme to unionize the labor employed by manufacturers of fur hats (a purpose previously made effective against all but a few manufacturers), the defendants and other members of the United Hatters caused the American Federation of Labor to declare a boy- cott against the plaintiffs and against all hats sold by the plaintiffs to dealers in other States and against dealers who should deal in them; and that they carried out their plan with such success that they have restrained or destroyed the plaintiffs' commerce with other States. The case now has been tried, the plaintiffs have got a verdict and the judgment of the District Court has been affirmed by the Circuit Court of Appeals. 209 Fed. Rep. 721; ' 126 C. C. A. 445. The grounds for discussion under the statute that were not cut away by the decision upon the demurrer have been narrowed still further since the trial by the case of Eastern States Retail Lumber Dealers' Association v. United States, 234 U. S. 600. Whatever may be the law otherwise, that case estabhshes that, irrespective of compulsion or even agreement to observe its intimation, the cir- culation of a list of "unfair dealers," manifestly intended to put the ban upon those whose names appear therein, among an important body of possible customers combined with a view to joint action and in anticipation of such reports, is within the prohibitions of the Sherman Act if it is intended to restrain and restrains commerce among the States. It requires more than the blindness of justice not to see that many branches of the United Hatters and the Federation of Labor, to both of which the defendants belonged, in pursuance of a plan emanat- ing from headquarters made use of such lists, and of the primary and secondary boycott in their effort to subdue the plaintiffs to their tempt proceedings, is omitted. The conclusions reached by the court led it to direct a reversal of the judgment rendered by the Court of Appeals. — Ed. SECT. Ill] NON-COERCIVE BOYCOTT 467 demands. The union label was used and a strike of the plaintiffs' employees was ordered and carried out to the same end, and the purpose to break up the plaintiffs' commerce affected the quality of the acts. Loewe v. Lawlor, 208 U. S. 274, 299. We agree with the Circuit Court of Appeals that a combination and conspiracy forbidden by the statute were proved. . . . Judgment affirmed. Legality op Boycott by Means op Notice or Non-Coercive Persua- sion. By the weight of authority a boycott by means of non-coercive persuasion or notices is not illegal. In addition to the cases in the text the following may be cited as representative, holding such boycotts not illegal: Truax v. Bisbee Local, 19 Ariz. 379; Local Union v. Stathakis, 135 Ark. 86; Henrici Co. v. Alex- ander, 198 111. App. 568; Steffes v. Union, 136 Minn. 200; Gray v. Bldg. Trades Council, 91 Minn. 171, 184; Empire Theatre Co. v. Cloke, 53 Mont. 183; Iver- son V. Dilno, 44 Mont. 270; Marx Clothing Co. v. Watson, 168 Mo. 133; Ex parte Heffron, 179 Mo. App. 639; Root v. Anderson, 207 S. W. (Mo.) 255; Buttorick Pub. Co. V. Typ. Union, 100 N. Y. Supp. 292; Heitkamper v. Hoffman, 164 N. Y. Supp. 533; Richter Bros. w. Union; 11 Ohio Dec. Rep. 45. Leading cases holding the opposite view are: Seattle Brewing Co. v. Hanson, 144 Fed. 1011; Rocky Mountain Tel. Co. v. Montana Fed. of Labor, 156 Fed. 809; My Maryland Lodge v. Adt, 100 Md. 238; Sherry v. Perkins, 147 Mass. 212; Beck v. Ry. Teamsters' Union, 118 Mich. 497 (but here circulars were al- leged to be false, and intimidation was proved); Martin v. McFall, 65 N. J. Eq. 91; Roraback v. Union, 140 Minn. 481 (semble) (where defendants sought to prevent plaintiff working himself in his own shop). The tendency of the English courts may be seen in CoUard v. Marshall, [1892] 1 Ch. 571 (false statement); Springfield Spinning Co. v. Riley (1868), L. R. 6 Eq. 551 (intimidation). But see Ware and DeFreville, Ltd. v. Motor Trade Assn., [1921] 3 K. B. 40. Tertiary Boycotts. As examples of the so-called "Tertiary Boycott," see New England Cement Gun Co. v. McGivern, 218 Mass. 198; Pickett v. Walsh, 192 Mass. 572. International Boycotts. International boycotts are becoming more and more frequent. See, for example, U. S. Monthly Labor Rev., Vol. 11, No. 3, pp. 184r-188. Compare League of Nations Covenant, Art. 16. CHAPTER VIII THE BLACK LIST BOYER «;. WESTERN UNION TELEGRAPH CO. U. S. Circuit Court, E. D. Missouri. 1903 124 Fed. 246 Rogers, District Judge. The plaintiffs named in the bill, for them- selves and for others whom they describe as the "remaining members of Local Lodge No. 3, of St. Louis, of the Commercial Telegraphers' Union of America," filed this bill in equity and ask for an injunc- tion. . . . A careful examination of the bill shows that the gist of it is this: That the defendant, having become aware that plaintiffs had be- come members of an organization known as the Commercial Teleg- raphers' Union of America, immediately discharged them, without notice or other cause; that "the defendant, its officers and agents, have unlawfully combined and confederated together to destroy the said union, and intend discharging all the members of said union from the services of the defendant, . . . and by threats, intimidation, and coercion, and otherwise, are interfering with your orators and with others of their employees for uniting with the Commercial Telegraphers' Union of America, and are seeking to prevent those discharged from obtaining employment as telegraph operators"; that defendant "has estabhshed and maintained what is commonly known as a ' blackhst.' It is a Hst of persons who have been in their employ and who have been discharged by the defendant, on which are placed from time to time the names of persons incurring the dis- pleasure of the defendant company, and its officea's and chief opera- tors; and the defendant, by methods which are not fully known to your orators, and which cannot be fully set forth herein, prevents persons whose names are on said blackhst from again obtaining em- plojonent as telegraph operators; that your orators' names have been placed on said blacklist solely because they have become mem- bers of the Commercial Telegraphers' Union -of America, and it is the intention of the defendant . . . for the same reason to discharge from the employ and place upon said blacklist the names of several hundred other persons who are members of the Local Lodge No. 3 of the Commercial Telegraphers' Union of America, and thereby debar these your orators and said other persons . . . from obtaining employment at their respective locations as telegraph operators," etc. CHAP. VIII] THE BLACK LIST 469 The first cause of complaint is that plaintiffs have been discharged without notice from the service of the defendant for no other cause than that they joined that union. But the answer to that complaint is that in a free country like ours every employee, in the absence of contractual relations binding him to work for his employer a given length of time, has the legal right to quit the service of his employer without notice, and either with or without cause, at any time; and in the absence of such contractual relations any employer may legally discharge his employee, with or without notice, at any time. The second ground for complaint is that defendant, its officers and agents, have unlawfully combined and confederated together to destroy the said imion, and intend discharging all the members of said union from the service of the defendant, and by threats, in- timidation, and coercion, and otherwise, are interfering with the plaintiffs and with others of their employees for uniting with the union, and are seeking to prevent those discharged from obtaining employment. I need not take time to multiply authorities to show that there is no such thing in law as a conspiracy to do a lawful thing. If the last allegation means anything, it is that the defendant, its officers and agents, have conspired to destroy the union by discharg- ing aU its members in its employ, and refusing to employ others, solely for the reason that they were members of the union. But it is not unlawful, in the absence of contractual relations to the con- trary, to discharge them for that or any other reason, or for no reason at all. Hence there is no such thing in law as a conspiracy to do that, and it matters not whether you call such an agreement a conspiracy, a combination, or a confederation. But it is said that the defendants " by threats of intimidation and coercion, and otherwise," so interfered with plaintiffs and others of its employees because they imited with said union. But it does not appear what the threats were, what the intimidation was, or what the coercion was, of which they complain. Such an allegation is not one of fact; it is one of conclusion. What did defenda-nt threaten to do? Perhaps it was to discharge them, or perhaps, if not em- ployed by it already, to not employ them. But such a threat is not illegal. It is not illegal to threaten to do a lawful thing. It may be defendant threatened to employ non-union men, instead of mem- bers of the union; but that, if true, is not illegal. Defendant had a perfect right to employ whom it pleased, if it could. How did de- fendant intimidate or coerce plaintiff? The complaint gives no answer. It will not be presimied that the threats, intimidation, or coercion complained of involved illegal acts. The law never pre- sumes wrong, or crime, or illegality; it presimies always in favor of right and legal action. In the absence of any alleged wrongful act or threat, it would presume that defendant's interference was law- ful and not unlawful. True, it is alleged that defendant, its officers and agents, unlawfully combined and confederated to destroy the 470 THE BLACK LIST [CHAP. VIII union. But what is unlawful is a question of law; whether a thing done is unlawful depends on what is done or threatened to be done. But what the defendant company, its officers and agents, combined or confederated to do in order to destroy the union, is the precise thing the complaint fails to show. The court must always be able to look at the facts and say that if these facts are true they are il- legal; otherwise there is no ground for invoking its protective agency. But plaintiffs say defendant, its officers and agents, are seeking to prevent those discharged from obtaining employment as teleg- raphers. But how are they seeking to do so; what are they doing; are they doing acts that are unlawful? If so, what are they? The complaint gives no answer. There is no allegation in the complaint that there were any contractual relations between plaintiffs and the defendant company to retain plaintiffs in the service for any given period. But if there were, then it must be said that it was illegal to discharge them. Yet in that event equity can give no relief; the remedy is at law for a breach of contract, and each man injured must sue separately, and in his own right, for damages sustained. It would be intolerable if a man could be compelled by a court of equity to serve another against his will, or if a man could be compelled to retain in his employ one he does not want; courts of equity exercise no such power and grant no such rehef . But it is said that defendant maintains a blacklist containing a list of names of such persons as may have incurred its displeasure and have been dischkrged from its service, and that, by methods not known to them, it prevents such discharged persons from getting employment as telegraph operators; that they have blacklisted people solely because they belong to the union, and that they intend to blacklist others for the same thing, etc. We have seen it is not unlawful to discharge plaintiffs because they belong to the union. Is it unlawful for defendant to keep a book showing that they were discharged because they belonged to the union? The union pre- svimably, and especially in view of the aUegations in the bUl, is an honorable, reputable, and useful organization, intended to better the conditions and elevate the character of its members. Is it il- legal for defendant to keep a book showing that it had discharged members of such a union solely because they belong to it? That seems to be the real essence of the bill. Is it illegal to notify others that it keeps such a book and that they can inspect it, or to inform others what such a book shows? That seems to be the ground of complaint. There can be no question about it; the positive, direct, and unequivocal allegation is that defendant keeps such a book; that plaintiffs are placed on it solely because they belong to the union, and have been discharged solely because they did belong to the union. Can a court of equity grant rehef to a man who says for his cause of action that he belongs to a reputable organization, and that he has been discharged solely because he did belong to it; that CHAP. VIII] THE BLACK LIST 471 his employer who discharged him keeps a book on which is placed his name, and has set opposite thereto the fact that he discharged him solely because he belonged to such organization; and that he gives that information to other persons, who refuse to employ him on that account? Suppose a man should file a bill alleging that he belonged to the Honorable and Ancient Order of Freemasons, or to the Presbyterian Church, or to the Grand Army of the Repubhc; that his employer had discharged him solely on that account; that he had discharged others of his employees, and intended to discharge all of them, for the same reason; that he kept a book which con- tained all the names of such discharged persons, and set opposite the name of each discharged person the fact that he had been dis- charged solely on the ground that he belonged to such organization; and that he had given such information to others, who refused to employ such persons on that account. Is it possible a court of equity could grant reUef? If so, pray, on what ground? And yet that is a perfectly parallel case to this as made by the biU. Those who may be interested in the questions raised by the de- murrer to this biU wiU be entertained and instructed by reading the following cases, and especially the first : Payne v. Western & Atlantic R. R. Co., 49 Am. Rep. 666; Dinah Worthington et al. v. James Waring et al., 157 Mass. 421, 32 N. E. 744, 20 L. R. A. 342, 34 Am. St. Rep. 294; Hundley v. Louisville & Nashville Railway Co., 48 S. W. 429, 88 Am. St. Rep. 298; Raymond v. Russell et al., 9 N. E. 544, 58 Am. Rep. 137; McDonald v. lU. Central R. R., 187 111. 629, 58 N. E. 463; Wabash R. R. Co. v. Hannahan et al. (C. C.) 121 Fed. 563. These cases, and the cases cited in them, discuss and cover every principle involved in this bill, although, of course, the facts are dif- ferent. I have not discussed the right of the plaintiffs to bring this suit for themselves and others. The bill is without equity as to the complainants named, and it is useless, therefore, to discuss their right, under the allegations of the bill, to represent other persons. It is enough to say that there is no apt authority cited, and none found, to sustain that right. The demurrer is sustained from want of equity in the bill.^ 1 Compare: Cornellier v. Haverhill Shoe Manufacturers' Assn., 221 Mass. 554 (blacklist declared illegal). The court in that case (p. 559) says: "A combina- tion to blacklist is the counter weapon to a combination to boycott, and is open to s imil ar legal objections, when directed against persons with whom those com- bining have no trade dispute, or when the concerted action coerces the individual members, by implied threats or otherwise, to withhold employment from those whom ordinarily they would employ." Compare the earlier Massachusetts case of Worthington v. Waring, 157 Mass. 421. See also Weston v. Bamicoat, 175 Mass. 454. 472 THE BLACK LIST [CHAP. VIII WILLNER V. SILVERMAN Court of Appeals of Maryland. 1909 109 Md. 341 Henry, J., delivered the opinion of the court. This is an action on the case brought by the appellant, the plain- tiff below, against the appellees, the defendants below, grounded on a declaration containing four counts, the first three of which allege in substance that the defendants, after discharging the plain- tiff from their employment, maliciously conspired or contrived to injure him by blacklisting him and writing a letter, containing false statements, to the members of an association, known as the Cloth- iers' Board of Trade of Baltimore City and requesting such associa- tion members to refuse employment to the plaintiff, while the fourth count sets out at length the details of the grievance complained of, omitting the charge of conspiracy. The defendants filed the general issue plea, and the verdict, under the instruction of the court, being for the defendants, the plaintiff entered an appeal to this court. The appellant was a cutter of cloth in the establishment of Harris Silverman, one of the appellees, in Baltimore City, and on Decem- ber 19, 1905, was discharged, his employer sending for him on the afternoon of that day to come to his office, and saying to him: " Will- ner, you are a disorganizer and an agitator, I cannot use you any longer; here is your envelope," which contained wages up to date. When Wniner asked why he said that, Mr. Silverman rephed: "Because you told a man, who has worked for me before and who left me and started in again, I hired him yesterday — you told him to ask for more money." Wilhier said: "Mr. Silverman, I did not tell him to ask for more money, I merely said to him, ' Cosman, is that true what a fellow tell me that you started in again for $2.75.' He said: ' Yes '; I said: ' Charlie, I am surprised at you.' " It seems that the man, Cosman, who had been hired the preceding day, in consequence of this conversation with the appellant, de- manded an increase of wages to $3.00 per day, which was granted. On the day of the discharge, Moses Silverman, son of Harris Silverman, and one of his employees, wrote the following letter to the Clothiers' Board of Trade, an organization comprising in its membership about twenty clothing dealers of Baltimore, including Harris Silverman, one of the appellees, it being one of the rules of said association that an employee discharged by one member should be refused employment by all other members. • "Baltimohe, December 19, 1906. Mb. Sylvan Hayes Lauchheimeb, Local. Dear Sir: — We desire to call your attention to Mr. Jos. Willner, a cutter who was formerly in my employ. We would request you to see that he CHAP. VIII] THE BLACK LIST 473 IS refused employment in all Association houses in which he may apply for a position. He was the shop chairman of my cutting room, and in addition to this, he has been a source of trouble. In other words, he has been trying to disorganize my rule. We took on a cutter yesterday at a certain price, and when he went to work this morning, he told him to insist on more money, otherwise we suppose they would have made it unpleasant for him. He came down and stated his demand, to which we acceded, but thought we would be better off by discharging Mr. Willner, who was the cause of the disturbance. We think it no more than right that the Association should back us up in this matter, and refuse this man employment, as we would like to make an example of him. Yours truly, M. S. (Signed) Harris Silverman & Sons." Evidence was offered tending to prove that this letter was duly received by the Clothiers' Board of Trade, and that copies of the same were made by the clerk, according to routine, and promptly delivered to the various members of the association. WUlner, on the morning after his discharge, started out to secure other employment, and continued his efforts, without success, until January 4th, following, when he was employed by M. Lauchheimer & Sons, one of the members of the Clothiers' Board of Trade. In his search for work, the plaintiff made application to eight different clothing firms in Baltimore, six of them being members of the afore- said association. At the conclusion of the plaintiff's testimony, the defendants offered two prayers, the first asking the court to instruct the jury that there was no evidence legally sufficient to entitle the plaintiff to recover, and their verdict must be for the defendants, and the second asking for an instruction that there was no evidence legally sufficient to entitle the plaintiff to recover against Harris Silver- man and Louis Silverman. Both of these prayers were granted, to which action the plaintiff excepted, and these exceptions constituting the 11th and 12th bills will be first discussed. Preliminary thereto, it may be well to announce as a principle of law that any malicious interference with the business or occupa- tion of another, if followed by damage, is an actionable wrong. Such interference may be by a single individual, or by a number of in- dividuals conspiring together, but it is the damage which constitutes the gist of the action, and not the conspiracy, the latter being a matter of aggravation, if proven, as affecting the means and manner of redress. We find no Maryland case that goes to the extent of sustaining the position contended for by the appellant to the effect that the "blackhsting" of discharged employees by a combination of employers is in itself actionable, without proof of damage. . . . 474 THE BLACK LIST [CHAP. VIII An employer, where no right of contract is involved, may lawfully discharge an employee at what time he pleases and for what cause he chooses, while, on the other hand, an employee may sell his labor to whomsoever he desired at such wages as he is willing to accept and may quit such employment at his pleasure, yet neither has the right to interfere, without cause, with the business or occupation of the other. While the law does not furnish a shield against the effects of fair and honest competition, yet injury to the business of another, if accompUshed by threats or coercion, constitutes a ground of action for damages on the part of the person so injured. In furtherance of their common welfare and in settlement of their ofttimes conflicting interests, both employers and employees stand upon a plane of perfect equahty before the law, enjoying the same freedom and amenable to the same restrictions. Both may combine in unions or associations, but such associations, like individuals, must employ lawful methods for the attainment of lawful pur- poses. This was not always so, as appears from the account of the prog- ress of trade unions, as given in the 2d volume of McCarthy's "His- tory of Our Own Times," referred to by the appellant's brief. Look- ing at the subject in retrospect it is difficult to understand how the conditions and sentiments therein described could obtain lodgment in public opinion or receive sanction in the com-ts, for it is now clearly settled that the same law which permits the organization of em- ployers and interposes to protect manufacturers or merchants from the violence of "strikes," or the "intimidation of boycotts," is also vigilant to see that the right and opportunity to work, which is the most valuable asset of the laboring man, as well as the privilege of organization, shall not be unjustifiably interfered with by employers, acting either as individuals or in combinations. Barnes v. Typo- graphical Union, 232 111. 424; Walker v. Cronin, 107 Mass. 562; KimbaU v. Harman, 34 Md. 407; Robertson v. Parks, 76 Md. 135; laingell's Pharmacy v. Sharpe & Dohme, 104 Md. 231; 8 Cyc, 650. About the first element for recovery in the plaintiff's case, we have no difficulty. While the letter of December 19th aforesaid, is not couched in extravagant language, yet it does not state the facts of the case with entire accuracy, and the concluding sentence of the letter is some evidence of malice on the part of the writer, and the circulation of such letter through the instrumentahty of the Cloth- iers' Board of Trade was an actionable wrong, provided damage resulted therefrom. On this latter point, we think that the receipt of the letter of De- cember 19th, by the members of the Clothiers' Board of Trade, a body of men engaged in a like business and associated together CHAP. VIII] THE BLACK LIST 475 partly, if not primarily, for the purpose of discipliping employees, are facts affording some evidence from which the jury might infer that the refusal of employment to the plaintiff was because of the rule of the association and the request for its enforcement by the defendants. . . . The question next arises, who of the appellees is responsible for the wrong alleged in the narr. The uncontradicted testimony shows that the firm of Harris Silverman & Sons was not in existence at the time the above-quoted letter was written, nor was there any evidence whatever to show that Louis Silverman had any connection with the case. Therefore as to the firm of Harris Silverman & Sons, which did not come into existence until January 1, 1906, and as to Louis Silverman, individually, it is clear that there was no right of action. Concerning Harris Silverman, there is no evidence legally sufficient to show that he either authorized or subsequently ratified the action of his son in writing the letter. The only circumstance from which it could be inferred that he had knowledge of the letter and took no steps to repudiate it, is that, being a member of the Clothiers' Board of Trade, a copy was dehvered to him along with the other members, but this is opposed by the equally logical inference that the clerk might not have deemed it necessary to deliver to Silverman what was practically a copy of his own letter. Harris Silverman was a witness for the plaintiff, and in reply to a question as to whether he wrote the letter said: "Positively not; I have no knowledge of it; don't know a thing about it, sir." This is a broad answer, but even if held to be merely responsive to the question concerning the writ- ing of the letter, it was easy for the plaintiff to have followed the question up by a direct question as to when, if ever, the letter came to his knowledge. This the plaintiff failed to do, and we think has left ths testimony in too vague and indefinite a shape to provide a basis for the jury to infer a subsequent notice and ratification of the letter by Harris Silverman. Nor is there any ground for hold- ing the father responsible on the ground of the agency of the son, Moses Silverman. The latter testified that he was an employee, who occasionally wrote letters of minor importance, but not on sub- jects of serious business. The letter in question was clearly not about a routine matter, but was outside of the usual course of busi- ness, about which, according to the only testimony in the case, the son would have no authority to take any steps whatever. Holding these views, we think the second prayer of the defendants was prop- erly granted by the court. Moses Silverman admits writing the letter in question, and, un- der the fourth count of the narr., but not under the other counts, the plaintiff has a right of action against him. The first prayer of the defendants was, therefore, improperly granted, and the judg- 476 THE BLACK LIST [CHAP. VIII ment on that account should be reversed and the cause remanded for a new trial. . . . Judgment reversed with costs to the appellant, and cause remanded for new trial} STATE V. JUSTUS Supreme Cotjet of Minnesota. 1902 85 Minn. 279 Writ of habeas corpus issued from the Supreme Court on relation of Alfred Scheffer, directed to Philip C. Justus as sheriff of Ramsey county. Writ discharged. Lewis, J. The relator was arrested under a criminal warrant issued out of the Municipal Court of the city of St. Paul upon the complaint of one William Harvey, which charged that the relator, as the agent of Scheffer & Rossum, a copartnership, by whom he had been employed, and which employment he had voluntarily left, did wrongfully, wilfully, and unlawfully seek to prevent and hinder the complainant from obtaining work with another firm. The imprisonment is claimed to be unlawful for the following reasons: That Laws 1895, c. 174, is unconstitutional, because it contravenes the provisions of sec. 2, art. 1, sec. 27, art. 4, and sees. 33 and 34, art. 4, of the state constitution, and the provisions of the fourteenth amendment of the federal constitution. The title to Laws 1895, c. 174, reads as follows: "An act to prohibit the practice of blackUsting and the coercing and influencing of employees by their employers."' Sec. 1 prohibits the combination of two or more employers of labor for the purpose of interfering with or preventing any person, either by threats, promises, or blacklisting, from procuring employ- ment. Sec. 2 reads as follows: "No company, corporation or partnership in this state shall authorize, permit or allow any of its or their agents to, nor shall any of its or their agents blacklist any discharged employee or employees, or by word or writing seek to prevent, hinder or restrain such dis- charged employee or any employee who may have voluntarily left such company's or person's service from obtaining employment from any other person or company." Sec. 3 prohibits employers from requiring their employees not to join or become members of labor organizations, as a condition of their employment. Sec. 4 declares a violation of the act a misde- meanor. The complaint under consideration was drawn with special refer- ence to the provisions of sec. 2, and if that section, standing alone, ' See also, White v. Parks & Co., 93 Ga. 633 (libelous statement) ; Hundley V. Louisville & Nashville Railroad Co., 105 Ky. 162 (false statement of reason for discharge); Rhodes v. Granby Cotton Mills, 87 S. C. 18. CHAP. VIII] THE BLACK LIST 477 without reference to the provisions of sec. 3, may be considered valid, then it will be unnecessary to determine the validity of the latter sec- tion; and, inasmuch as the case does not depend upon the validity of sec. 3, we deem it wise not to enter into a discussion of the proposi- tions urged by relator. Under the decisions of this court the act may be considered, in reference to its constitutionalitj', without regard to the provisions of sec. 3. In other words, if any part of the act is valid, the whole does not become invalid because a portion of it is so considered. Reimer v. Newel, 47 Minn. 237, 49 N. W. 865; Sim- ard V. SuUivan, 71 Minn. 517, 74 N. W. 280. Excluding sec. 3, then, is the title suggestive of the subject- matter of the act, which is the coercing and influencing of employees by their employers? The object is to prohibit such coercion and influence. Conceding that the word "blacklist," as used in the title, has no well-defined meaning in the law, either by statute or judicial expression, the general understanding of the term is that it has refer- ence to the practice of one employer presenting to another the names of employees for the purpose of furnishing information concerning their standing as employees, and, so understood, it may have refer- ence to the subject of influencing or coercing employees or employers. Sec. 2 deals with the question of an employer influencing or coercing the actions of an employee who voluntarily leaves his employ, and is therefore within the subject suggested by the title. But it is urged that sec. 2 is objectionable to the provisions of the constitu- tion upon the ground that it is class or special legislation, having apphcation only to corporations or partnerships, as distinguished from individual employers. This argument is based upon the omis- sion from the first part of the section of the word "person." While true that word is omitted from the first part of sec. 2, yet it is used in the next to the last line in such connection that it becomes neces- sary either to drop the word out of the section entirely, or to supply it in connection with the words "company," "corporation," or "part- nership." Sec. 1 has reference to all employers, without regard to whether they are corporations, partnerships, or individuals. So with sees. 3 and 4, where the word "person" is used. It was evidently not the intention of the legislature to discrim- inate in sec. 2 against an individual employer, when the other sec- tions of the act are plainly made applicable to individuals. Em- ployers, as distinguished from employees, do not constitute a class, within the constitutional prohibition. Those acts which are declared unlawful by the statute are peculiar to employers of labor. The act, being applicable to all members of the class, is not invalid be- cause limited to that class. Cameron v. Chicago, M. & St. P. Ry. Co., 63 Minn. 384, 65 N. W. 652. We therefore hold that sec. 2 of the act appHes to individuals as well as to companies, corporations, and partnerships, and is not class legislation. 478 THE BLACK LIST [CHAP. VIII Again, it is. insisted that an employer of labor has the natural right, under the constitution, state and federal, to give such advice and information as he desires with respect to his employees, whether they have been discharged for cause or without cause, or whether they have voluntarily left the emplojmient. This leads to a con- sideration of what the offense is, as set forth by the provisions of sec. 2. An employee who voluntarily leaves his employment is one who has the right to do so. He violates no contract obligations. Presumably, he is an employee in good standing, and leaves because it is to his advantage so to do; and if he seeks employment else- where he is entitled to the presimiption that his reputation as an employee has been unharmed by the fact of his leaving. The fact that such an employee voluntarily abandons his employment does not give the employer a right to prejudice his emplojTiient elsewhere. Under such circumstances, a communication designed to prevent such employment is presumably a reflection upon the standing of the employee. It is no answer to say that the employer may have cause for mak- ing such communication; that it may be to the advantage of the new employer, and for the mutual advantage of all such employers, to have notice of the character of the employee. If there is any valid reason for such communication, it would be available only as a mat- ter of defense. The act does not attempt to interfere with the right of an employer to discharge an employee for cause or without cause. It does not seek to prohibit an employer from communicating to other employers the nature and character of his employees, when the facts would be for their interest. While such interference by an employer is not expressly characterized as malicious, that intent is necessarily implied. It is the purpose of this law to protect em- ployees in the enjojonent of those natural rights and privileges guar- anteed them by the constitution, viz., the right to seU their labor and acquire property thereby. The act is valid, and the conviction must be sustained. Therefore the writ is quashed, and the relator is remanded to the custody of the sheriff of Ramsey county.' 1 Accord: St. Louis R. R. v. Hixon, 126 S. W. (Texas) 338; Joyce v. Great Northern Ry. Co., 100 Minn. 225. CHAPTER IX THE UNION LABEL HETTERMAN BROS. & CO. v. POWERS Court of Appeals of Kentucky. 1897 102 Ky. 133 Judge Hazelrigg delivered the opinion of the court. The appellants were manufacturers and dealers in cigars in Louis- ville, Ky., and without right or claim of right used on boxes of cigars manufactured and sold by them the blue label of the Cigar Makers' International Union of America, [of which the following is a copy] : Sept. 1880 Issued by Authority of the Cigar Makers' International Union of America. Union-Made Cigars This Certifies that the Cigars contauied in this box have been made by a First-Class Workman, a member of the Cigar Makers' Inter- Local national Union of America, an organization opposed to inferior rat- shop, Coolie, Prison, or FUthy Tenement-House Workmanship. Therefore we reconmiend these Cigars to all smokers throughout the Stamp world. All infringements upon this Label will be punished [Seal] according to law. A. Strasser, President, C. M. I. U. of America Thereupon appellees, Powers, Kieffer, and Wopprice, suing for themselves and all their associates and fellow members in the Cigar Makers' International Union and the Cigar Makers' Protective Union No. 32, and joining these two organizations also as plaintiffs, brought this action to prevent this alleged wrongful use of the label. The International Union, embracing, according to the petition, some members and the local union some members are voluntary, unincorporated labor organizations, composed solely of practical cigar makers. They are working men who do not own the product of their labor, being exclusively wage workers. The purpose of these unions, as said in the petition, is generally to maintain a high standard of workmanship and secure fair wages to cigar makers, to elevate the material, moral and intellectual welfare of the mem- bership and by legitimate, organized effort to secure laws prohibiting labor by children under fourteen years of age, the abolition of the "truck" system, the tenement-house cigar manufacture and the manufacture of cigars by prison convict labor. Other praiseworthy objects are set out which need not be detailed. It is further averred 479 480 THE UNION LABEL [CHAP. IX that, for the purpose of designating the cigars made by members of the union the label in controversy was adopted and extensively used as a trade-mark or certificate of identification. And, when pasted on the outside of cigar boxes containing cigars made by members of the union, it is a guarantee that the cigars are made by first-class workmen, members of the Cigar Makers' Union, etc., etc.; that because the members receive fair wages and were thus able to furnish good workmanship, the cigars so labeled commanded a higher price than did similarly looking cigars not so labeled; that the label was, therefore, a source of great profit and benefit to the appellees and other members of the union. The appellants, for defense, do not deny the use of the label as charged in the petition, but it is insisted by them that this label does not possess any of the elements of a trade-mark; that the ap- pellees are engaged in no trade, having nothing to sell, and, there- fore, nothing to protect by a trade-mark; that none of them are engaged in the business of selling cigars; they are "simply workmen employed by other people making cigars, first by one person and then another, and those persons sell the cigars"; that the plaintiffs, there- fore, "have not shown any property right in the label as a trade-mark or otherwise." Moreover, that the membership is an ever chang- ing one, constantly varying in niunbers, composed of a few thousand today and many thousand tomorrow — "a shifting crowd." That the plaintiffs, therefore, are not qualified to sue and have in fact no legal rights that can be made the subject of a suit. Moreover, it is urged that the plaintiffs do not come into court with clean hands; that they are members of an organization lately engaged in boycotting the defendants and attempting to ruin their business; that the label itself cannot be approved, either in law or morals, as it denounces other cigars than union-made ones as inferior and unwholesome, and the product of filthy tenement-houses or made by coolies and convicts. And, first, we may admit that the label is not used as a trade- mark in the ordinary sense of that word. It is not a brand put on the goods of the owner to separate or distinguish them from the goods of others, but we cannot agree on that account that it does not represent a valuable right which may be the subject of legal pro- tection. Why may not those engaged in skillful employment so designate the result of their labor as to entitle them to the fruits of their skill when it is admittedly a source of pecuniary profit to them? And this, though they may not own the property itself? They are not, it is true, "in business" for themselves in the or- dinary sense, but they have property rights nevertheless. They may not select a label and be protected in its use apart from its con- nection with some commodity; but they not only select it in this instance, they apply it to property, and it does not at all matter that the tangible property is that of another. CHAP. IX] THE UNION LABEL 481 In order to get the benefit of the superior reputation of cigars made by them the appellees select and apply this label as a distin- guishing brand or mark. And it would be strange if this thing of value, this certificate of good workmanship and which makes the goods made by them sell and thus increases demand for their work, be entitled to no protection, because those making the selection and application are not business men, engaged in selling cigars of their own. The man who is employed for wages is as much a business man as his employer in that larger sense in which the word "busi- ness" has come to be used by statesmen and legislators. In a number of the States laws have been enacted giving protec- tion to the men engaged in the business of working for wages, and their right of organizing and selecting appropriate symbols to des- ignate the results of their handiwork is recognized and ordained to be the subject of lawful protection by the courts. Thus in this State, in April, 1890, a law was enacted by the General Assembly providing that "every union or association of workingmen or women adopt- ing a label, mark, name, brand or device, intended to designate the product of the labor of the members of such union, shall file duplicate copies of such label in the office of the Secretary of State, who shall then give them a certificate of the filing thereof, and that every such union may, by suit in any of the courts of the State, proceed to en- join the manufacture, use, display, etc., of counterfeits or imitations of such labels, etc., on goods bearing the same, and that the court having jurisdiction of the parties shall grant an injunction restrain- ing such wrongful manufacture, use, etc., of such label," etc. This suit was filed before the adoption of this statute, but it in- dicates the poHcy of the law, the growth or expansion and perhaps the creation of legal remedies hardly known to ancient trade-mark law. The learned chancellor below, in an exhaustive opinion reviewing all the authorities, among other things, said, and we can say it no more clearly, that "the known reputation of a particular kind of skilled labor employed in the development of a particular product or class of products determines, to a large degree, the value or price of such products when put on the markets. To stamp or label a com- modity as the product of a particular kind or class of skilled labor determines the demand for and the price of such product or com- modity. The marketable price of a commodity influences the scale of wages paid for its manufacture. The higher the price, the higher the wages paid; hence it is indisputable that the employee whose skilled labor, in the production of a particular commodity, creates a demand for the same, that secures for him higher remunerative wages, has as definite a property right to the exclusive use of a partic- ular label, sign, symbol, brand or device, adopted by him to dis- tinguish and characterize said commodity as the product of his skilled labor, as the merchant or owner has to the exclusive use of his adopted trade-mark on his goods." 482 THE UNION LABEL [CHAP. IX The question has engaged the attention of a number of the courts of this country, but the conclusions reached have not been uniform. In Weener, etc., v. Brayton, 25 N. E. R., 46 (Mass., 1890), it was held that an injunction against the wrongful use of the label of the International Cigar Makers' Union should not be granted because of special injury to plaintiffs, who were officers and members of the union, but were not manufacturers of or dealers in the cigars on which such label is used, and to the same effect are the cases of Cigar Makers' Protective Union v. Conhaim, etc., 40 Minn. 243; McVey V. Brendel, 144 Pa. St. Rep. 235. However, a number of the courts have held otherwise. In the case of Strasser v. MooneKs, 55 N. Y. Sup. Court, 197 (affirmed in Court of Appeals, 1888), it was argued, as it is here, that the members of the union were not the owners or manufacturers of cigars, but merely laborers and that, therefore, the label did not come within the settled definition of a trade-mark. The court said: "It is needless to discuss this phase of the case, for the right to the exclusive use of this label may be sustained, although it failed to be a trade-mark in the precise definition of the term as heretofore used. For whether we call the property right, which I believe plaintiffs have in the label, a trade-mark, or by another name, is a matter of shght import. It is a right entitled to the pro- tection of a court of equity, on the same principle as that upon which the courts have based the right to protect trade-marks and good will. It has been accepted as the rule that the court proceeds upon the ground that a person has a valuable interest in the good will of his trade or business, and that, having appropriated to himself a particular label or sign or trade-mark, indicating, to those who wish to give him their patronage, that the article is manufactured or sold by him, ... he is entitled to protection against any other person who attempts to pirate on the good will of his friends or customers ... by saifing under his flag, without his authority or his consent." In Kohn v. People, 149 111. 486, the court upheld the constitu- tionahty of the Trades Union Act in that State, and as the court, independent of the statute, disposed of one of the contentions of counsel in the case, which is also relied on here, we quote in part its argument: "It is next objected that the label, an imitation and counterfeit of which is alleged to have been unlawfully used by plain- tiff in error, could not have been rightfully adopted either as a trade- mark or form of advertisement, it is said that it transgresses the rules of morality and pubUc pohcy. We are referred to the rule in respect to trade-marks that ' to be a lawful trade-mark the emblem must avoid transgressing the rules of moraUty and public policy.' (Brown on Trade-marks, sec. 602.) ... "By reference to the label heretofore set out it wiU be seen that it is a certificate, signed by the president of the Cigar Makers' In- ternational Union of America, certifying that the cigars contained CHAP. IX] THE UNION LABEL 483 in the box upon which it was placed were ' made by a first-class work- man, a member of the Cigar Makers' International Union of America, an organization opposed to inferior, rat-shop, coohe, prison or filthy tenement-house workmanship.' And it concludes: 'Therefore, we recommend these cigars to all smokers throughout the world.' The ^purpose, as derived from the label itself, is to send the cigars out to the public with the assurance that they are made by a first- class workman, who belongs to an order opposed to the inferior workmanship designated. It will be observed that the label attacks no other manufacturer of cigars. It says simply, in effect, these cigars are not the product of an inferior, rat-shop, coolie, prison or filthy tenement-house workmanship. Can it be said that one may not, without condemning or aspersing the product of other manu- facturers, commend the article he has for sale? If he may do so himself, may he not procure the certificate of others as to the quality of the article he puts upon the market." (State v. Hagin, 6 Ind. Appeal, 167; Carson v. Ury, 39 Fed. Rep. 777.) Further, we agree with the learned chancellor that there is no competent evidence that the appellees, or any of them, have been engaged in boycotting the appellants, and thus deprived themselves of the right to enforce their legal remedies in a court of equity. What- ever may be said of the letters and circulars looking to this end, and exhibited in the proof, it is not shown by any competent proof that the appellees instigated or had aught to do with the attempted boy- cott. And, moreover, this boycott, which seems to have occurred in 1886, did not in any way grow out of the wrongful use of the label in controversy. On the whole case, therefore, we are of opinion that the law may be justly invoked by organized labor to protect from piracy and intrusion the fruits of its skill and handiwork, and that brain and muscle may be the subjects of trade law rules as well as tangible property. The judgment is aflSirmed.^ " See also, Schmalz v. Wooley, 57 N. J. Eq. 303 (accord). In McVey v. Brendel, 144 Pa. 235, where an injunction was sought to restrain the use of imitation union labels, after deciding that a union label is not a trade- mark and therefore not entitled to protection as such since the owner is neither a manufacturer nor a dealer, Williams, J., goes on to say (p. 247) : "I come now to inquire whether the adoption of the label for the purposes set forth in the bill gives to the international union any ground for equitable reUef. We have seen that this label is not a trade-mark, and that the union is not in a business that en- ables it to adopt or acquire a trade-mark. Still it is urged that, as the defendant was about to use an imitation of the label, he should be enjoined, whether the label is a trade-mark or not. But what is this label, and why should it be protected? It purports to be ' issued by the authority of the Cigar Makers' International Union of America' to the person who uses it. The name of the workman who made the cigars does not appear upon it, nor the owner or location of the shop at which they are made. It does not point out the personal or the local origin or ownership of the goods on which it is placed. On the other hand, it issues to every one of the many thousands of workmen who make up the membership of the union, and it certifies, in the name of the union, that the cigars in the box on 484 THE UNION LABEL [CHAP. IX PERKINS V. HEERT Court of Appeals of New Yoek. 1899 158 N. Y. 306 Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 29, 1896, affirm- ing a judgment of the late Superior Court of the city of New York entered upon a decision awarding the plaintiff a perpetual injunc- tion, with damages and costs. which it is placed were made ' by first-class workman, a member of the Cigar Makers' International Union.' Who this first-class workman was, where he lived, for whom he worked, the label does not tell. He is indorsed as a ' first- class workman,' because he is ' a member' of the union. As to all who are not members, the label proceeds to define the position of the organization that issues it by describing their work as ' inferior rat-shop, cooly, prison, or filthy tenement- house workmanship.' The label then proceeds in these words: 'Therefore we recommend these cigars to aU smokers throughout the world.' The value of this label is in the recommendation and the reasons given for it. The label is thus seen to be something quite different from a trade-mark in its character, its purpose, and the manner of its use, viz., a device to distinguish between imion and non-union workmen, and to discriminate against the work of the latter. It says to the public in spirit and in effect: ' Buy the cigars that bear this label because they were made by a member of this union. Do not buy those not bear- ing it because they were made by workmen who do not belong to us. Such cigars are the product of " inferior rat-shop, cooly, prison, or filthy tenement-house workmanship." ' It is the request of a powerful labor organization to ' all smokers throughout the world' to take sides with it in its contest with those who are out- side of its membership by refusing to buy the work of such persons. It is an at- tempt to use the public as a means of coercion upon them, compelling them to unite with the union in order to find a market for their goods or their labor. Right here let us distinguish broadly between an object and the means employed to reach it. Organization is the privilege, perhaps I might say the duty, of labor; and an organization seeking to promote ' the mental, moral, and physical wel- fare of its members,' by securing fair wages, steady work, and the comforts of home for them, occupies a legitimate field of usefulness, and is capable of doing great good to its members and to the public. The Cigar Makers' Union is no doubt seeking to do such a work, and accomplishing much in that direction. What we are now considering is one of the means it employs to increase its mem- bership, and to hurt workmen who do not belong to it. The real question now before us is whether the international organization of workmen shall have the help of a court of equity in making war upon aU cigar makers who do not belong to it, and in driving their work out of the market by representing it as coming from inferior rat-shops, from coolies, prisons, or filthy tenement-houses. A 'firsl^class workman' is one who does first-class work, whether his name is on the rolls of any given society or not. Filthiness and criminality of character de- pend on conduct, not on membership of the union. Legitimate competition rests on superiority of workmanship, and business methods, not in the use of vulgar epithets and personal denunciation. When the Cigar Makers' Interna- tional Union of America stigmatizes those who do not belong to it, and seeks to induce the public to discriminate against them and their work by covering them with opprobrious epithets, it is not engaged in ' promoting the mental, moral, and physical welfare of its members,' but is trying to hurt and destroy those who do not choose to become members. While the comrts would aid the former purpose in all ways within their power, they cannot help the latter. We cannot CHAP. IX] THE UNION LABEL 485 Haight, J. This action was brought by the plaintiff, as president of the Cigar Makers' International Union of America, under the provisions of chapter 385 of the Laws of 1889, for an injunction to restrain the defendants from using an alleged imitation of the union's label, a copy of which had been filed in the office of the secretary of state under the provisions of that law, and also for an accounting for profits. The Cigar Makers' International Union of America is a volun- tary unincorporated association consisting of a large number of persons, who are practical cigar makers residing in the United States, with its principal office located at Buffalo. The purpose of their organization is the promoting of the mental, moral and physical welfare of its members by assisting them to obtain labor at remunera- tive wages and by affording them pecuniary aid in case of sickness, and generally to maintain a high standard of workmanship. They adopted a label upon blue paper with an ornamental border, con- taining the following: "Sept., 1880. "Issued by authority of the Cigar Makers' International Union of America. Union Made Cigars. This certifies that the cigars con- tained in this box have been made by a first-class workman, a member of the Cigar Makers' International Union of America, an organization opposed to inferior rat-shop, coolie, prison or filthy tene- ment-house workmanship. Therefore, we recommend these Cigars to all smokers throughout the world. All infringements upon this label will be punished according to law. "G. W. PERKINS, "President C. M. I. U. of America." justify the defendant's conduct. There is no rule of morals or of business upon which he can defend himself in the preparation and use of spurious labels. But it is not every wrong action that a chancellor will enjoin, because the purpose of an injunction is to protect the plaintiff in the exercise and enjoyment of a clear legal right, for an infringement of which the law does not afford an adequate remedy. If, therefore, the right of the plaintiff is doubtful, equity will withhold its aid. The plaintiffs in this case have no trade-mark to protect, and no right to a decree resting on the law relating to trade-marks. What they have is a label which recommends the purchase of cigars made by union men, and warns against the purchase of all others as inferior and unwholesome because made in 'rat- shops, or prisons, or by coolies, or tenants of filthy tenement-houses.' Their right to use such a label may well be doubted, whether the question be treated as one of morals or of law. But the plaintiffs come into a court of equity, and seek to enlist the conscience of a chancellor in their behalf. They must come with clean hands, with a conscionable regard for the rights of others, ready to do equity on their part, and seeking only equity at the hands of the court. They do come in this case with the avowed purpose to do harm to non-union men; to prevent the sale of their work; to cover them with opprobrium; and they ask a court of equity to say that they have a right to do it. We decline to say so. The decree of the court below is reversed, the injunction dissolved, and the bill dis- missed. As we cannot approve the conduct of the defendant, we shall not award him costs, but direct that each party pay the costs it has made, and that the fees of the master be paid in equal parts by the plaintiffs and the defendant." 486 THE UNION LABEL [CHAP. IX On one end was a copy of the seal of the union, and on the other end a place was reserved for a local stamp. After the passage of the act in question, they caused a copy of this label to be filed in the ofiice of the secretary of state. The defendants are cigar manufacturers in the city of New York, and are not members of the union. They caused to be printed coun- terfeits of the blue label adopted by the union, and pasted it upon boxes containing the cigars manufactured by them, and then through their agents sold their cigars to the pubUc with the intent, as has been found, to defraud the union and the purchasers and to impose upon the public. The case was tried before the court without a jury, and a decision was rendered in favor of the plaintiff, awarding a perpetual injunc- tion against the defendants and for damages and costs. It is claimed on behalf of the appellants that the label had been abandoned by the union; that it contained matter libelous and de- famatory, which a court of equity would not protect, and that the statute in question had been repealed. These questions were fuUy considered by the learned Appellate Division, and we fuUy concur with the views of that court, as expressed in the prevailing opinion, with reference thereto. The only questions which we deem it neces- sary to here consider are those raised with reference to the con- stitutionality of the act. The statute is as follows: "Sec. 1. Every union or association of workingmen or women, adopting a label, mark, name, brand or device, intended to designate the products, of the labor of members of such union or association of workingmen or women, shall in order to obtain the benefits of this act, file dupUcate copies of such label, mark, name, brand or device in the office of the secretary of state, who shall, under his hand and seal, dehver to the party filing or registering the same a certified copy and a certificate of the filing thereof, for which he shall receive a fee of one dollar. Sec. 2. Every union or association of workingmen or women adopting such label, mark, name, brand, or device, and filing the same, as specified in the first section of this act, may proceed, by suit in any of the courts of record of the state, to enjoin the manufacture, use, display or sale of counterfeits or colorable imitations of such label," etc. It is claimed that the act in question is void for the reason that it grants an exclusive privilege to a private association in contra- vention of the provisions of the Constitution. (Art. Ill, sec. 18.) That section of the Constitution, so far as material, provides as fol- lows: "The legislature shall not pass a private or local bill in any of the following cases, . . . granting to any private corporation, association or individual any exclusive privilege, immunity or fran- chise whatever. . . . The legislature shall pass general laws provid- ing for the cases enumerated in this section, and for all other cases which in its judgment may be provided for by general laws." CHAP. IX] THE UNION LABEL 487 It will be observed that the prohibition contained in this provi- sion of the Constitution has reference to private or local bills, and that it requires the legislature to pass general laws providing for the cases in which private and local bills are prohibited. The ques- tion, therefore, arises as to whether the act in question is a general law or a private and local bill. It is entitled "An act for the better protection of skilled labor, and for the registration of labels, marks, names, brands or devices covering the products of such labor of associations or unions of workingmen or women." There is nothing in the title or the provisions of the act that in any manner limits its provisions to any particular locaUty of the state or to any designated association or union of workingmen or women. Instead, the provi- sions are all general, including every locahty in the entire state, and embracing every association or union of workingmen or women existing or that may be thereafter organized. It is in no sense local or private, but is in every sense a general law. . . . Finally, it is insisted that the act is unconstitutional and void, for the reason that it is contrary to public poHcy, in that it unjustly discriminates in favor of the labor of members of associations or unions as against that of non-union workmen. The questions arising under this contention are more serious and require deliberate con- sideration. While private and local bills, granting to a private cor- poration, association or individual any exclusive privilege, immunity or franchise whatever is prohibited, the Constitution authorizes the legislature to pass general laws under which grants may be made to corporations, associations or individuals of an exclusive privilege, immunity or franchise. An exclusive privilege or franchise is, there- fore, authorized if obtained under general laws. Among the exclu- sive privileges and franchises which have been made the subject of grants to private corporations, and with which we are all familiar, are those made by municipal governments under the authority of general laws of the right to occupy streets or highways for the con- struction and operation of street railroads. In all of these grants, there is, of necessity, discrimination. Some particular corporation is singled out, to which the grant is given, and which, thereafter, enjoys the exclusive privilege of operating its railroad through the streets or highways specified in the ^rant; but the grant being au- thorized, the discrimination is not unlawful. It is not contrary to public policy, for the reason that the Constitution is the foundation upon which the public policy of the state is based. It embodies the policy of our government. It authorizes that which is politic and prohibits that which is deemed impolitic. Where, therefore, the Constitution grants or authorizes a grant through legislative action of an exclusive privilege, it must be deemed to be in accord with the policy of the state. As we have seen, the label authorized was by a general and not a local act. No particular association or union has been given the exclusive privilege of adopting a label, but every asso- 488 THE UNION LABEL [CHAP. IX ciation or union of every kind of workingmen or women is given the right to adopt its own label, which may indicate its own workman- ship. It consequently follows that whatever discrimination there may be is authorized, and, therefore, not unjust, and that the privi- lege granted under the general law is in accord with pubUc policy. We are aware that the courts of sister states have had trouble with similar legislation in their states; that very much has been written upon the subject and that the conclusions reached by the courts in the different states have widely differed. We have not thought it profitable to enter upon an elaborate discussion of these cases. The questions here presented arise under our own Constitution and are confined within narrow limits. We have not overlooked the in- timation that the passage of this act was procured for the purpose of enabling union labor organizations to boycott non-imion laborers and to deprive them of the legitimate fruits of their labors. We can- not, however, assume that such was the purpose and intent of the legislature or that the association of which the plaintiff is president ^ will resort to acts which are unlawful and criminal. The act allows the members ofi the union to send the products of their labors into the markets of the country marked in such a way as to indicate the character of their workmanship. This is legitimate and proper. It is a right that the law accords to every manufacturer. We must assume, therefore, that the legislature in passing the act had in view the lawful and legitimate purpose and that they did not contemplate that the provisions of the act might be used for illegitimate purposes. These views render it unnecessary to consider the question as to whether the label was a valid trade-mark at common law. No question is raised as to the right of the plaintiff to prosecute the action as president of the association. The judgment should be affirmed, with costs. All concur. Judgment affirmed.' ' Accord: Cohn v. People, 149 111. 486; Tracy v. Banker, 170 Mass. 266; State V. Bishop, 128 Mo. 373; United Garment Workers of America v. Davis, 74 Atl. (N. J.) 306; Cigar Makers' International Union v. Lindner, 3 Ohio Dec. 244. CHAPTER X UNION ORGANIZERS IN NON-UNION FIELDS HITCHMAN COAL & COKE CO. v. MITCHELL StTPKEME Court of the United States. 1917 245 U. S. 229 Mr. Justice Pitnet delivered the opinion of the court. This was a suit in equity, commenced October 24, 1907, in the United States Circuit (afterwards District) Court for the Northern JDistrict of West Virginia, by the Hitchman Coal & Coke Co., a cor- poration organized under the laws of the State of West Virginia, against certain citizens of the State of Ohio, sued individually and also as officers of the United Mine Workers of America. Other non- citizens of plaintiff's state were named as defendants but not served with process. Those who were served and who answered the bill were T. L. Lewis, vice-president of the U. M. W. A. and of the In- ternational Union, U. M. W. A.; Wilham Green, D. H. Sullivan, and "George" W. Savage (his correct Christian name is Gwilym), respectively president, vice-president, and secretary-treasurer of District No. 6, U. M. W. A. ; and A. R. Watkins, John Zelenka, and Lee Rankin, respectively president, vice-president, and secretary- treasurer of Sub-district No. 5 of District No. 6. Plaintiff owns about 5000 acres of coal lands situate at or near Benwood, in Marshall County, West Virginia, and within what is known as the "Pan Handle District" of that State, and operates a coal mine thereon, employing between-200 and 300 men, and having an annual output, in and before. 1907, of about 300,000 tons. . . . The general object of the bill was to obtain an injunction to restrain defendants from interfering with the relations existing between plaintiff and its employees in order to compel plaintiff to "unionize" the mine. A restraining order having been granted, followed by a temporary injunction, the served defendants filed answers. ... A final decree was made January 18, 1913, granting a perpetual injunction. 202 Fed. Rep. 512. This was reversed by the Circuit Court of Appeals June 1, 1914 (214 Fed. Rep. 685). . . . The District Court based its decision upon two grounds : (1) That the organization known as the United Mine Workers of America, and its branches, as conducted and managed at the time of the suit and for many years before, was a common-law conspiracy in un- 489 490 UNION ORGANIZERS IN NON-UNION FIELDS [CHAP. X reasonable restraint of trade, and also and especially a conspiracy against the rights of non-union miners in West Virginia; and (2) That the defendants, in an effort to compel the plaintiff to enter into contractual relations with the union relating to the employ- ment of labor and the production of coal, although having knowl- edge of express contracts existing between plaintiff and its employees which excluded relations with the Union, endeavored by unlawful means to procure a breach of these contracts by the employees. \ A brief recital of previous transactions between the parties be-? comes material. The Union is a voluntary and unincorporated asso-j elation which was organized in the year 1890 in the States of Ohio and Indiana, and afterwards was extended to other States. It is made up of national or "international," district, sub-district, and local unions. District No. 6 comprises the coal districts of Ohio and the Panhandle of West Virginia. Sub-district No. 5 of that district comprises five counties and parts of counties in Ohio, and the Pan- handle. The answering defendants were and are active and influential members — leaders — of the Union, as well as officers. . . . From 1897 to 1906 what were known as joint interstate confer- ences were held annually or biennially between officials of the union and representatives of the operators in the "Central Competitive Field" (which includes Western Pennsylvania, Ohio, Indiana, and Illinois, but not West Virginia), for the purpose of agreeing upon the scale of wages and the conditions of employment in that field. In addition there were occasional conferences of the same character affecting other States and districts. Plaintiff's mine is within the territorial limits of Sub-district No. 5 of District No. 6. Coal-mining operations were commenced there in the early part of the year 1902, and the mine was operated "non- union" until April, 1903, when, under threats from the union officials, including defendants Watkins and Sulhvan, that a certain unionized mine in Ohio, owned by the same proprietors, would be closed down ff the men at the Hitchman were not allowed to organize, plaintiff consented to the unionization of the latter mine. . . . On April 15th [1906] defendant Zelenka, vice-president of the sub-district, visited the mine, called a meeting of the miners, and addressed them in a foreign tongue, as a result of which they went on strike the next day, and the mine was shut down until the 12th of June, when it resumed as a "non-union" mine, so far as relations with the U. M. W. A. were concerned. . . . About the 1st of June a self-appointed committee of employees called upon plaintiff's president, stated in substance that they could not remain longer on strike because they were not receiving benefits from the Union, and asked upon what terms they could return to work. They were told that they could come back, but not as mem- bers of the United Mine Workers of America; that thenceforward CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 491 the mine would be run non-union, and the company would deal with each man individually. They assented to this, and returned to work on a non-union basis. Mr. Pickett, the mine superintendent, had charge of employing the men, then and afterwards, and to each one who apphed for employment he explained the conditions, which were that while the company paid the wages demanded by the Union and as much as anybody else, the mine was run non-union and would continue so to run; that the company would not recognize the United Mine Workers of America; that if any man wanted to become a member of that union he was at liberty to do so; but he could not be a member of it and remain in the employ of the Hitchman Co.; that if he worked for the company he would have to work as a non- union man. To this each man employed gave his assent, understand- ing that while he worked for the company he must keep out of the Union. Since January, 1908 (after the commencement of the suit), in addition to having this verbal understanding, each man has been required to sign an emplo3Tnent card expressing in substance the same terms. This has neither enlarged nor diminished plaintiff's rights, the agreement not being such as is required by law to be in writing. Under this arrangement as to the terms of employment, plaintiff operated its mine from June 12, 1906, until the commencement of the suit in the fall of the following year. . . . All coal mines in the Panhandle and elsewhere in West Virginia, except in a small district known as the Kanawha, field, were run "non-union," while the entire industry in Ohio, Indiana, and Il- linois was operated on the "closed-shop" basis, so that no man could hold a job about the mines unless he was a member of the United Mine Workers of America. Pennsylvania occupied a middle ground, only a part of it being under the jurisdiction of theUnion. Other States need not be particularly mentioned. The unorganized condition of the mines in the Panhandle and some other districts was recognized as a serious interference with the purposes of the Union in the Central Competitive Field, partic- ularly as it tended to keep the cost of production low, and, through competition with coal produced in the organized field, rendered it more difficult for the operators there to maintain prices high enough to induce them to grant certain concessions demanded by the Union. This was the subject of earnest and protracted discussion in the annual international convention of the U. M. W. A. held at IndianapoUs, Indiana, in the month of January, 1907, at which aU of the answering defendants were present as delegates and partici- pated in the proceedings. The discussion was based upon statements contained in the annual reports of John Mitchell, as president of the Union (joined as a defendant in the bill but not served with process), and of defendant Lewis, as vice-president, respecting the causes and 492 UNION ORGANIZERS IN NON-UNION FIELDS [CHAP. X consequences of the strike of 1906, and the policy to be adopted by the Union for the future. In these reports it was made to appear that the strike had been caused immediately by the failure of the joint convention of operators and miners representing the central and southwestern competitive fields, held in the early part of the year 1906, to come to an agreement for a renewal of the mining scale; that the strike was widespread, involving not less than 400,000 mine workers, was terminated by "district settlements," with variant results in different parts of the territory involved, and had not been followed by a renewal of the former relations between the operators and miners in the Central Competitive Field. Another result of the strike was a large decrease in the membership of the Union. Two measures of relief were proposed: first, that steps be taken to re- establish the joint interstate conferences; and second, the organiza- tion of the hitherto unorganized fields, including the Panhandle District of West Virginia, under closed-shop agreements, with all men about the mines included in the membership of the United Mine Workers of America. In the course of the discussion the pur- pose of organizing West Virginia in the interest of the unionized mine workers in the Central Competitive Field, and the probability that it could be organized only by means of strikes, were repeatedly declared and were disputed by nobody. All who spoke advocated strikes, differing only as to whether these should be nation-wide or sectional. . . . Defendant Green took part, favoring the view of Mr. Lewis that strikes shoiild be treated nationally instead of sec- tionaUy. In the course of his remarks he said: "I say to you, gentle- men, one reason why I opposed the poHcy that was pursued last year was because over in Ohio we were pecuUarly situated. We had West Virginia on the south and Pennsylvania on the east, and after four months of a strike in eastern Ohio we had reached the danger fine. We felt keenly the competition from West Virginia, and during the suspension our mines in Ohio chafed under the ob- ject lesson they had. They saw West Virginia coal go by, train- load after train-load passing their doors, when they were on strike. This coal supplied the markets that they should have had. . . . Now, something must be done; it is absolutely necessary to protect us against the competition that comes from the unorganized fields east of us." . . . The discussion continued during three days, and at the end of it the report of a committee which expressed disagreement with Vice- President Lewis' opposition to sectional settlements and recom- mended "a continuation in the future of the same wise, conserva- tive business-like policies" that had been pursued by President Mitchell, was adopted by a viva voce vote. The plain effect of this action was to approve a poUcy which, as apphed to the concrete case, meant that in order to relieve the union miners of Ohio, Indiana, and lUinois from the competition of the CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 493 cheaper product of the non-union mines of West Virginia, the West Virginia mines should be "organized" by means of strikes local to West Virginia, the strike benefits to be paid by assessments upon the union miners in the other States mentioned, while they remained at work. This convention was followed by an annual convention of Sub- district 5 of District No. 6, held in the month of March, 1907, at which defendants Watkins and Rankin were present as president and secretary of the sub-district. Defendant Lewis, as National vice-president, occupied the chair during several of the sessions. Defendant Zelenka was present as a delegate, and also Thomas Hughes, who, while named as a defendant in the present suit, was not served with process. Watkins and Rankin in their reports recom- mended the complete unionization of the mines in the Panhandle counties, with particular reference to the Hitchman, the Glendale, the Richland, and two others; and as a result it was resolved "that the Sub-district ofiicers, together with the District officers, be au- thorized to take up the work of organizing every mine in the Sub- district as quickly as it can be done." . . . The evidence renders it clear that Hughes was sent into the Pan- handle to organize all the mines there, in accordance with the resolu- tion of the sub-district convention. The bill made a statement of his activities, and alleged that he was acting as an organizer for the Union. Defendants' final answers made a complete denial, but in this are contradicted by admissions made in the earlier answers and by other and undisputed evidence. The only defendant who testified upon the subject declared that Hughes was employed by District No. 6 as an organizer, but denied that he had power or authority to shut down the Hitchman mine. He arrived at that mine some time in September, 1907, and re- mained there or in that vicinity until the latter part of October, con- ducting a campaign of organization at the Hitchman and at the neighboring Glendale and Richland mines. The evidence shows that he had distinct and timely notice that membership in the Union was inconsistent with the terms of em- ployment at all three mines, and a violation of the express provisions of the agreement at the Hitchman and Glendale - Having unsuccessfully apphed to Koch ' and McKinley ^ for their cooperation, Hughes proceeded to interview as many of the men as he could reach and to hold public meetings in the interest of the Union. There is clear and uncontradicted evidence that he did not confine himseK to mere persuasion, but resorted to deception and abuse. In his public speeches he employed abusive language respect- ing Mr. Pickett, William Daugherty, and Jim Jarrett.^ He proph- ' Mr. Koch was the general manager of the Hitchman Co.; Mr. McKinley was operating a neighboring non-union mine. — Ed. * Mr. Pickett was superintendent of the Hitchman and Glendale mines, and 494 UNION ORGANIZERS IN NON-UNION FIELDS [CHAP. X esied, in such a way that ignorant, foreign-born miners, such as he was addressing, naturally might beUeve him to be speaking with knowledge, that the wages paid by the Hitchman would be reduced unless the mine was unionized. The evidence as to the methods he employed in personally interviewing the miners, while meagre, is significant. Myers, a Hitchman miner, testified: "He told me that he was a good friend of Mr. Koch, and that Mr. Koch had nothing against having the place organized again. He said he was a friend of his, and I made the remark that I would ask Mr. Koch and see if it was so; and he said no, that was of no use because he was telhng me the truth." He did not confine his attentions to men who already were in plaintiff's employ, but in addition dissuaded men who had accepted employment from going to work. A highly significant thing, giving character to Hughes' entire course of conduct, is that while his solicitation of the men was more or less public, as necessarily it had to be, he was careful to keep secret the nimiber and the names of those who agreed to join the Union. Myers, being asked to allow his name to be entered on a book that Hughes carried, tried to see the names already entered, "but he would not show anything; he told me he had it, and I asked him how many names was on it, and he said he had about enough to ' crack off.' " To Stewart, another Hitchman miner, he said "he was forming a kind of secret order among the men; he said he had a few men — he did not state the number of them — and he said each man was supposed to give him so much dues to keep it going, and then he said after he got the majority he would organize the place." . . . In short, at the time the bill was filed, defendants, although hav- ing full notice of the terms of emplojmaent existing between plaintiff and its miners, were engaged in an earnest effort to subvert those relations without plaintiff's consent, and to alienate a sufficient number of the men to shut down the mine, to the end that the fear of losses through stoppage of operations might coerce plaintiff into "recognizing the union" at the cost of its own independence. . . . What are the legal consequences of the facts that have been de- tailed? That the plaintiff was acting within its lawful rights in employ- ing its men only upon terms of continuing non-membership in the United Mine Workers of America is not open to question. . . . The same Uberty which enables men to form unions, and through the union to enter into agreements with employers willing to agree, entitles other men to remain independent of the union and other employers to agree with them to employ no man who owes any al- legiance or obligation to the union. . . . it was with him that the miners made their agreements to refrain from mem- bership in the Union; Daugherty and Jarrett were miners at the Hitchman, and had been, respectively, president and financial secretary of the local union at the time of the 1906 strike, when the local deserted the U. M. W. A. CHAP. X] UNION OKGANIZERS IN NON-UNION FIELDS 495 Plaintiff, having in the exercise of its undoubted rights estabhshed a working agreement between it and its employees, with the free assent of the latter, is entitled to be protected in the enjoyment of the resulting status, as in any other legal right. That the employ- ment was "at will," and terminable by either party at any time, is of no consequence. . . . In short, plaintiff was and is entitled to the good will of its employees, precisely as a merchant is entitled to the good will of his customers although they are under no obligation to continue to deal with him. The value of the relation hes in the reasonable probability that by properly treating its employees, and paying them fair wages, and avoiding reasonable grounds of complaint, it will be able to re- tain them in its employ, and to fill vacancies occurring from time to time by the employment of other men on the same terms. The pecuniary value of such reasonable probabilities is incalculably great, and is recognized by the law in a variety of relations. . . . The right of action for persuading an employee to leave his em- ployer is universally recognized — nowhere more clearly than in West Virginia — and it rests upon fundamental principles of gen- eral apphcation, not upon the Enghsh statute of laborers. Thacker Coal Co. V. Burke, 59 W. Va. 253, 255; 8 Ann. Cas. 885, 886; Walker V. Cronin, 107 Mass. 555, 567; Angle v. Chicago, St. Paul, etc., Ry. Co., 151 U. S. 1, 13; Noice, Adm'x, v. Brown, 39 N. J. L. 569, 572. We turn to the matters set up by way of justification or excuse for defendants' interference with the situation existing at plaintiff's mine. The case involves no question of the rights of employees. De- fendants have no agency for plaintiff's employees, nor do they assert any disagreement or grievance in their behalf. In fact, there is none; but, if there were, defendants could not, without agency, set up any rights that employees might have. The right of the latter to strike would not give to defendants the right to instigate a strike. The difference is fundamental. . . . Defendants set up, by way of justification or excuse, the right of workingmen to form unions, and to enlarge their membership by inviting other workingmen to join. The right is freely conceded, provided the objects of the union be proper and legitimate, which we assume to be true, in a general sense, with respect to the Union here in question. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 439. The cardinal error of defendants' position lies in the as- sumption that the right is so absolute that it may be exercised under any circumstances and without any qualification; whereas in truth, like other rights that exist in civilized society, it must always be exercised with reasonable regard for the conflicting rights of others. Brennan v. United Hatters, 73 N. J. L. 729, 749. . . . Now, assmning defendants were exercising, through Hughes, the right to invite men to join their Union, still they had plain notice 496 UNION ORGANIZERS IN NON-UNION FIELDS [CHAP. X that plaintiff's mine was run "non-union," that none of the men had a right to remain at work there after joining the Union, and that the observance of this agreement was of great importance and value both to plaintiff and to its men who had voluntarily made the agreement and desired to continue working under it. Yet de- fendants, far from exercising any care to refrain from unnecessarily injuring plaintiff, dehberately and advisedly selected that method of enlarging their membership which would inflict the greatest in- jury upon plaintiff and its loyal employees. Every Hitchman miner who joined Hughes' "secret order" and permitted his name to be entered upon Hughes' list was guilty of a breach of his contract of employment and acted a he whenever thereafter he entered plain- tiff's mine to work. Hughes not only connived at this, but must be deemed to have caused and procured it, for it was the main fea- ture of defendants' plan, the sine qua non of their programme. Evidently it was deemed to be necessary, in order to "organize the Panhandle by a strike movement," that at the Hitchman, for ex- ample, man after man should be persuaded to join the Union, and having done so to remain at work, keeping the employer in ignorance of their number and identity, until so many had joined that by stop- ping work in a body they could coerce the employer and the remain- ing miners to "organize the mine," that is, to make an agreement that none but members of the Union should be employed, that terms of employment should be determined by negotiation not with the employees but with union officers — perhaps residents of other States and employees of competing mines — and that all questions in controversy between the mine operator and the miners should likewise be settled with outsiders. True, it is suggested that under the existing contract an employee was not called upon to leave plaintiff's employ until he actually joined the Union, and that the evidence shows only an attempt by Hughes to induce the men to agree to join, but no attempt to in- duce them to violate their contract by faihng to withdraw from plaintiff's employment after actually joining. But in a court of equity, which looks to the substance and essence of things and dis- regards matters of form and technical nicety, it is sufficient to say that to induce men to agree to join is but a mode of inducing them to join, and that when defendants "had sixty men who had signed up or agreed to join the organization at Hitchman," and were "going to shut the mine down as soon as they got a few more men," the sixty were for practical purposes, and therefore in the sight of equity, already members of the Union, and it needed no formal ritual or taking of an oath to constitute them such; their uniting with the Union in the plan to subvert the system of employment at the Hitch- man mine, to which they had voluntarily agreed and upon which their employer and their fellow employees were relying, was sufficient. But the facts render it plain that what the defendants were en- CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 497 deavoring to do at the Hitchman mine and neighboring mines can- not be treated as a bona fide effort to enlarge the membership of the Union. There is no evidence to show, nor can it be inferred, that defendants intended or desired to have the men at these mines join the Union, unless they could organize the mines. Without this, the new members would be added to the number of men compet- ing for jobs in the organized districts, while non-union men would take their places in the Panhandle mines. Except as a means to the end of compelling the owners of these mines to change their method of operation, the defendants were not seeking to enlarge the union membership. In any aspect of the matter, it cannot be said that defendants were pursuing their object by lawful means. The question of their intentions — of their bona fides — cannot be ignored. It enters into the question of malice. As Bowen, L. J., justly said, in the Mogul Steamship Case, 23 Q. B. Div. 613, "Intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's property or trade, is actionable if done without just cause or excuse." And the intentional infliction of such damage upon another, without justification or excuse, is maUcious in law. Bitterman v. Louisville & NashviQe R. R. Co., 207 U. S. 205, 223; Brennan v. United Hat- ters, 73 N. J. L. 729, 744 et seq., and cases cited. Of course, in a court of equity, when passing upon the right of injunction, damage threatened, irremediable by action at law, is equivalent to damage done. And we cannot deem the proffered excuse to be a "jmsJ cause or excuse," where it is based, as in this case, upon an assertion of conflicting rights that are sought to be attained by unfair methods, and for the very purpose of interfering with plaintiff's rights, of which defendants have fuU notice. .... There is no reason to doubt that if defendants had been actuated by a genuine desire to increase the membership of the Union without unnecessary injury to the known rights of plaintiff, they would have permitted their proselytes to withdraw from plaintiff's employ when and as they became affihated with the Union — as their con- tract of employment required them to do — and that in this event plaintiff would have been able to secure an adequate supply of non- vmion men to take their places. It was with knowledge of this, and because of it, that defendants, through Hughes as their agent, caused the new members to remain at work in plaintiff's mine until a sufficient number of men should be persuaded to join so as to bring about a strike and render it difficult if not practically impossible for plaintiff to continue to exercise its undoubted legal and constitu- tional right to run its mine "non-union." It was one thing for plaintiff to find, from time to time, com- paratively small numbers of men to take vacant places in a going mine, another and a much more difficult thing to find a complete 498 UNION ORGANIZEKS IN NON-UNION FIELDS [CHAP. X gang of new men to start up a mine shut down by a strike, when there might be a reasonable apprehension of violence at the hands of the strikers and their s3Tnpathizers. The disordered condition of a mining town in time of strike is matter of common knowledge. . . . Defendants' acts cannot be justified by any analogy to competi- tion in trade. They are not competitors of plaintiff; and if they were their conduct exceeds the bounds of fair trade. Certainly, if a competing trader should endeavor to draw custom from his rival, not by offering better or cheaper goods, employing more competent salesmen, or displaying more attractive advertisements, but by persuading the rival's clerks to desert him under circumstances rendering it difficult or embarrassing for him to fill their places, any court of equity would grant an injunction to restrain this as unfair competition. Upon all the facts, we are constrained to hold that the purpose entertained by defendants to bring about a strike at plaintiff's mine / in order to compel plaintiff, through fear of financial loss, to con- sent to the unionization of the mine as the lesser evU, was an unlaw- ful purpose, and that the methods resorted to by Hughes — the inducing of employees to unite with the Union in an effort to subvert the system of employment at the mine by concerted breaches of the contracts of employment known to be in force there, not to mention misrepresentation, deceptive statements, and threats of pecuniary loss communicated by Hughes to the men — were unlawful and malicious methods, and not to be justified as a fair exercise of the right to increase the membership of the Union. There can be no question that plaintiff was threatened with dan- ger of an immediate strike as a result of the activities of Hughes. . . . That the damage resulting from a strike would be irremediable at law is too plain for discussion. Therefore, upon the undisputed facts of the case, and the indubi- table inferences from them, plaintiff is entitled to rehef by injunc- tion. ... As against the answering defendants, plaintiff's right to an in- junction is clear; as to the others named as defendants, but not served with process, the decree is erroneous, as already stated. Respecting the sweep of the injunction, we differ somewhat from the result reached by the District Court. So 'far as it restrains — (1) Interfering or attempting to inter- fere with plaintiff's employees for the purpose of unionizing plain- tiff's mine without its consent, by representing or causing to be represented to any of plaintiff's employees, or to any person who might become an employee of plaintiff, that such person will suffer or is likely to suffer some loss or trouble in continuing in or in entering the employment of plaintiff, by reason of plaintiff not recognizing the Union, or because plaintiff runs a non-union mine; (2) Interfer- ing or attempting to interfere with plaintiff's employees for the CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 499 purpose of unionizing the mine without plaintiff's consent, and in aid of such purpose knowingly and wilfully bringing about the break- ing by plaintiff's employees of contracts of service known at the time to exist with plaintiff's present and future employees; (3) Knowingly and wilfully enticing plaintiff's employees, present or future, to leave plaintiff's service on the ground that plaintiff does not recognize the United Mine Workers of America or runs a non- union mine, etc.; (4) Interfering or attempting to interfere with plaintiff's employees so as knowingly and wilfully to bring about the breaking by plaintiff's employees, present and future, of their contracts of service, known to the defendants to exist, and especially from knowingly and wilfully enticing such employees, present or future, to leave plaintiff's service without plaintiff's consent; (5) Trespassing on or entering upon the grounds and premises of plain- tiff or its mine for the purpose of interfering therewith or hindering or obstructing its business, or with the purpose of compelhng or in- ducing, by threats, intimidation, violent or abusive language, or persuasion, any of plaintiff's employees to refuse or fail to perform their duties as such; and (6) Compelling or inducing or attempting to compel or induce, by threats, intimidation, or abusive or violent language, any of plaintiff's employees to leave its service or fail or refuse to perform their duties as such employees, or compelling or attempting to compel by like means any person desiring to seek em- ployment in plaintiff's mine and works from so accepting employ- ment therein; — the decree is fully supported by the proofs. But it goes further, and awards an injunction against picketing and against acts of physical violence, and we find no evidence that either of these forms of interference was threatened. The decree should be modified by eliminating picketing and physical violence from the sweep of the injunction, but without prejudice to plaintiff's right to obtain an injunction hereafter against these forms of interference if proof shall be produced, either in proceedings supplemental to this action or in an independent action, that such an injunction is needed. The decree of the Circuit Court of Appeals is reversed, and the decree of the District Court is modified as aivoe stated, and as so modified it is affirmed, and the cause is remanded to the District Court for further proceedings in conformity with this opinion. Me. Justice Bkandeis, dissenting. This suit was begun October 24, 1907. The Hitchman Coal & Coke Co., plaintiff below, is the owner of a coal mine in West Vir- ginia. John Mitchell and nine others, defendants below, were then the chief executive officers of the United Mine Workers of America and of its district and sub-district organizations having "jurisdiction" over the territory in which plaintiff's mine is situated; and were sued both individually and as such officers. The mine had been "unionized" about three years prior to April 16, 1906; and until 500 UNION ORGANIZERS IN NON-UNION FfBLDS [CHAP. X about that date was operated as a "union" mine, under a collective agreement with a local union of the United Mine Workers of America. Then a strike was declared by the union; and a short shut-down fol- lowed. While the strike so declared was still in force, as the bill alleges, the company reopened the mine as a closed non-union mine. Thereafter persons applying for work were required as a condition of obtaining emplojonent to agree that they would not, while in the service of the company, be a member of the union, and if they joined the union would withdraw from the company's employ.^ Alleging that efforts were being made illegally to unionize its mine "without its consent," the company brought in the United States Circuit (now District) Court for the Northern District of West Virginia this suit to enjoin such efforts. District Judge Day- ton granted a restraining order upon the fihng of the bill; . . . and on January 18, 1913, a decree was entered for a perpetual injunction substantially in the form of the restraining order. 202 Fed. Rep. 512. ... The Circuit Court of Appeals, reversing the decree of the District Court, held that the United Mine Workers of America was not an unlawful organization under the laws of West Virginia, that its vaUdity under the Federal Anti-Trust Act could not be considered in this proceeding; that so long as defendants "refrained from re- sorting to unlawful measures to effectuate" their purpose "they could not be said to be engaged in a conspiracy to unionize plaintiff's mine"; that "the evidence fails to show that any unlawful methods were resorted to by these defendants in this instance"; and spe- cifically that there was nothing in the individual contracts which barred defendants from inducing the employees to join the union. With these conclusions I agree substantially. First: The alleged illegality of the United Mine Workers of America under the law of West Virginia. The United Mine Workers of America does not appear to differ essentially in character and purpose from other international unions which, hke it, are affiliated with the American Federation of Labor. Its membership is said to be larger than that of any other; and it may be more powerful. But the common law does not limit the size of unions or the degree to which individual workmen may by 1 . . . The agreement rested in oral understanding merely, and is sufficiently indicated in the following excerpts from the testimony of the mine superintendent as to what he told the men applying for employment : " I also told them that any man who wanted to become a member of the United Mine Workers — that that was his business — but he could not be a member of the United Mine Workers and be affiliated with the United Mine Workers and be under the employ of the Hitchman Coal & Coke Co., or be imder the jurisdiction of the United Mine Workers; that the mine was run non-imion so far as the United Mine Workers of America were concerned. "Q. You mean you made every man understand that while he worked for the Hitchman Co. he must keep out of the union? "A. Yes, sir; or at least they said they understood it." CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 501 union increase their bargaining power. As stated in Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 439: "The law, therefore, recognizes the right of workingmen to unite and to invite others to join their ranks, thereby making available the strength, influence and power that come from such association." We do not find either in the decisions or the statutes of West Virginia anything incon- sistent with the law as declared by this court. The union is not an unlawful organization, and is not in itself an unlawful conspiracy. We have no occasion to consider the legaHty of the specific provisions contained in its constitution or by-laws. Second: The alleged illegality of the United Mine Workers of America under the Federal Anti-Trust Act. The District Judge undertook to pass upon the legahty of the United Mine Workers of America under the Federal Anti-Trust Act; but the question was not in issue in the case. It had not been raised in the bill or by answer. Evidence bearing upon the issue was prop- erly objected to by defendants and should have been excluded. Third: The alleged conspiracy against the West Virginia Mines. It was doubtless the desire of the United Mine Workers to unionize every mine on the American continent and especially those in West Virginia which compete directly with the mines of Western Pennsyl- vania, Ohio, Indiana, and other states already unionized. That desire and the purpose to effect it were not unlawful. They were part of a reasonable effort to improve the condition of workingmen engaged in the industry by strengthening their bargaining power through unions; and extending the field of union power. No con- spii-acy to shut down or otherwise injure West Virginia was proved, nor was there any averment in the bill of such conspiracy, or any issue otherwise raised by the pleadings which justified the con- sideration of that question by the District Court. Fourth: " Unionizing plaintiff's mine ivithout plaintiff's consent." The fundamental prohibition of the injunction is against acts done "for the purpose of unionizing plaintiff's mine without plaintiff's consent." Unionizing a shop does not mean inducing the employees to become members of the union. It means inducing the employer to enter into a collective agreement with the union governing the relations of the employer to the employees. Unionizing impKes, therefore, at least formal consent of the employer. Both plaintiff and defendants insisted upon exercising the right to secure con- tracts for a closed shop. The plaintiff sought to secure the closed non-union shop through individual agreements with employees. The defendants sought to secure the closed union shop through a collective agreement with the union. Since collective bargaining is legal, the fact that the workingmen's agreement is made not by in- dividuals directly with the employer, but by the employees with the union and by it, on their behalf, with the employer, is of no signif- icance in this connection. The end being lawful, defendant's efforts 502 UNION ORGANIZERS IN NON-UNION FIELDS [CHAP. X to unionize the mine can be illegal, only if the methods or means pursued were unlawful; unless indeed there is some special signif- icance in the expression "unionizing without plaintiff's consent." It is urged that a union agreement curtails the Uberty of the opera- tor. Every agreement curtails the liberty of those who enter into it. The test of legality is not whether an agreement curtails liberty, but whether the parties have agreed upon some thing which the law prohibits or declares otherwise to be inconsistent with the public welfare. The operator by the union agreement binds himself: (1) to employ only members of the union; (2) to negotiate with union officers instead of with employees individually the scale of wages and the hours of work; (3) to treat with the duly constituted repre- sentatives of the union to settle disputes concerning the discharge of men and other controversies arising out of the employment. These are the chief features of a "unionizing" by which the employer's liberty is curtailed. Each of them is legal. To obtain any of them or all of them men may lawfully strive and even strike. And, if the union may legally strike to obtain each of the things for which the agreement provides, why may it not strike or use equivalent economic pressure to secure an agreement to provide them? It is also urged that defendants are seeking to "coerce" plaintiff to "unionize" its mine. But coercion, in a legal sense, is not exerted when a union merely endeavors to induce employees to join a union with the intention thereafter to order a strike unless the employer consents to unionize his shop. Such pressure is not coercion in a legal sense. The employer is free either to accept the agreement or the disadvantage. Indeed, the plaintiff's whole case is rested upon agreements secured under similar pressure of economic necessity or disadvantage. If it is coercion to threaten to strike unless plain- tiff consents to a closed union shop, it is coercion also to threaten not to give one employment unless the applicant will consent to a closed non-union shop. The employer may sign the union agree- ment for fear that labor may not be otherwise obtainable; the work- man may sign the individual agreement for fear that employment may not be otherwise obtainable. But such fear does not imply coercion in a legal sense. In other words an employer, in order to effectuate the closing of his shop to union labor, may exact an agreement to that effect from his employees. The agreement itself being a lawful one, the em- ployer may withhold from the men an economic need — employ- ment — until they assent to make it. Likewise an agreement closing a shop to non-union labor being lawful, the union ihay withhold from an employer an economic need — labor — until he assents to make it. In a legal sense an agreement entered into, under such circumstances, is voluntarily entered into; and as the agreement is in itself legal, no reason appears why the general rule that a legal end may be pursued by legal means should not be appHed. Or, CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 503 putting it in other words, there is nothing in the character of the agreement which should make unlawful means used to attain it, which in other connections are recognized as lawful. Fifth: There was no attempt to induce employees to violate their contracts. The contract created an employment at will; and the employee was free to leave at any time. The contract did not bind the em- ployee not to join the union; and he was free to join it at any time. The contract merely bound him to withdraw from plaintiff's employ, if he joined the union. There is evidence of an attempt to induce plaintiff's employees to agree to join the union; but none whatever of any attempt to induce them to violate their contract. Until an employee actually joined the union he was not, under the contract, called upon to leave plaintiff's employ. There consequently would be no breach of contract until the employee both joined the union and failed to withdraw from plaintiff's employ. There was no evi- dence that any employee was persuaded to do that or that such a course was contemplated. What perhaps was intended was to secure agreements or assiu-ances from individual employees that they would join the union when a large number of them should have consented to do so; with the purpose, when such time arrived, to have them join the union together and strike -r— unless plaintiff consented to unionize the mine. Such a course woiild have been clearly permis- sible under the contract. Sixth: Merely persuading employees to leave plaintiff's employ or others not to enter it was not unlawful. To induce third persons to leave an employment is actionable if done maHciously and without justifiable cause although such per- sons are free to leave at their own will. Truax v. Raich, 239 U. S. 33, 38; Thacker Coal Co. v. Burke, 59 W. Va. 253. It is equally actionable so to induce others not to enter the service. The individ- ual contracts of plaintiff with its employees added nothing to its right in this connection, since the employment was terminable at will. As persuasion, considered merely as a means, is clearly legal, de- fendants were within their rights if, and only if, their interference with the relation of plaintiff to its employees was for justifiable cause. The pm-pose of interfering was confessedly in order to strengthen the union, in the belief that thereby the condition of workmen engaged in mining would be improved; the bargaining power of the individ- ual workingman was to be strengthened by collective bargaining; and collective bargaining was to be ensured by obtaining the union agreement. It should not, at this day, be doubted that to induce workingmen to leave or not to enter an employment in order to ad- vance such a purpose is justifiable when the workmen are not bound by contract to remain in such employment. Seventh: There was no "threat, violence or intimidation." 504 UNION ORGANIZERS IN NON-UNION FIELDS [CHAP. X The decree enjoined "threats, violence or intimidation." Such action would, of course, be unlawful though employed in a justifiable cause. But there is no evidence that any of the defendants have resorted to such means. The propaganda among plaintiff's em- ployees was conducted almost entirely by one man, the defendant Hughes, a District No. 6 organizer. His actions were orderly and peaceable, consisting of informal talks with the men, and a few quietly conducted public meetings, in which he argued the benefits of organization and pointed out to the men that, although the com- pany was then paying them according to the union scale, there would be nothing to prevent a later reduction of wages unless the men united. He also urged upon the men that if they lost their present jobs, membership in the union was requisite to obtaining employ- ment in the union mines of the neighboring states. But there is no suggestion that he exceeded the moderate bounds of peaceful per- suasion, and indeed, if plaintiff's witnesses are to be believed, men with whom Hughes had talked, his argument made no impression on them, and they expressed to him their satisfaction with existing conditions at the mine. When this suit was filed no right of the plaintiff had been infringed and there was no reasonable ground to believe that any of its rights would be interfered with; and, in my opinion, the Circuit Court of Appeals properly reversed the decree of the District Court, and directed that the bill be dismissed. Me. Justice Holmes and Mr. Justice Clarke concur in this dissent.^ DIAMOND BLOCK COAL CO. v. UNITED MINE WORKERS OF AMERICA Court of Appeals of Kentucky. 1920 188 Ky. 477 Opinion by Judge Sampson. — Dissolving injunction. The Diamond Block Coal Co., a Virginia corporation doing a coal mining business in Perry county, Kentucky, filed its petition in the Perry Circuit Court on March 10, 1920, praying the clerk to 1 For a careful discussion of the Hitchman case, see Cook, Privileges of Labor Unions in the Struggle for Life, 27 Yale Law Jour. 779. Speaking of the Hitchman case, Taft, C. J., in American Steel Foundries v. Tri- City Central Trades Council, 257 U. S. — , 42 Sup. Ct. 72, said: "The plan thus projected was carried out in the case of the complainant company by the use of deception and misrepresentation with its non-union employees, by seeking to in- duce such employees to become members of the Union contrary to the express term of their contract of employment that they would not remain in complainant's employ if union men, and after enough such employees had been secretly secured, suddenly to declare a strike against complainant and to leave it in a helpless situa- tion in which it would have to consent to be unionized. This Court held that CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 505 grant it an immediate temporary restraining order and that the court make this perpetual, enjoining and restraining the defendants, United Mine Workers of America, and seventeen individuals named in the petition as defendants, and all persons working by, through or under them, or in their employment, from proceeding to erect, con- struct or build or attempting to erect, construct or build, near the coal plant of the plaintiff, shacks, houses or tents, or shelter of any kind, and from placing therein, or attempting to place therein any person or persons for the purpose of inducing or persuading any of its employees, laborer or laborers to break their contracts of em- plo3Tnent with the plaintiff, and from doing divers other things set forth in the prayer of the petition. . . . After alleging that the plaintiff is a corporation organized under the laws of Virginia for the purpose of mining and selling coal, . . . and that its employees, about seventy-five in number, were content and well-satisfied with the labor conditions prevaihng at the mines, [the petition] alleges that the defendants, naming them, "are each claiming to have some connection of some sort with their co-defendant, United Mine Work- ers of America, and as such, with the exception of the defendants, Jack Morris and Lee Marks, are and have been for some time hold- ing meetings for the purpose, as the plaintiff is informed, of attempt- ing to interfere in some way with what they term the miners em- ployed and engaged in its mine, and all workers employed by it in and about its mine, but so far have failed to make any headway thereat, but the plaintiff now says that the defendants acting to- gether and in concert with each other, and individually are now threatening to come near to and in to the plant of the plaintiff and erect nearby its plant, and within 200 yards thereof, houses, tents, shacks and buildings." . . . No witness for the plaintiff relates any fact which proves, or in any measure tends to prove that the defendants, or either of them, have used unlawful means, or have threatened to use any unlawful means to promote the interest of the union, or to injure the plaintiff in its property or its property rights. No witness for plaintiff testifies to any act or threat of either of the defendants, except that the organization and some of the other defendants named have been endeavoring peaceably to organize and institute local unions of laboring people in the Hazard district and have solicited persons to become members of the organization, and have attempted to peace- ably persuade workingmen of that district to join the union. . . . the purpose was not lawful, and that the means were not lawful and that the defendants were thus engaged in an unlawful conspiracy which should be en- joined. The unlawful and deceitful means used were quite enough to sustain the decision of the court without more. The statement of the purpose of the plan is sufficient to show the remoteness of the benefit ultimately to be derived by the members of the International Union from its success and the formidable country- wide and dangerous character of the control of interstate conunerce sought." 506 UNION ORGANIZERS IN NON-UNION FIELDS [CHAP. X From all the evidence, of which there is a great quantity, the following facts may be adduced: Some months before this litigation started, three or four local unions among mine workers were organized in the Hazard field, but neither one was located at Diablock; however a few of the men employed at plaintiff's mines became members of one of these locals and were discharged by the company for no other cause than that they had become members of the union. The union was trjdng to increase its membership and to organize other locals, while the opera- tors and the different members of their association were attempting to suppress union labor and to expel it from that coal field. WhQe this struggle was going on the men who were discharged for joining the union were evicted by the companies from their houses and as they could not obtain employment at other camps in that vicinity, were often unable to find shelter, and to overcome this obstacle the mine workers leased three or four small pieces of ground at different places in the Hazard field, one of the tracts being the W. 0. Davis tract mentioned in the evidence. It contains about five acres, lies upon a hillside near the Kentucky river and about one-half to three- fourths of a mile from the place of business of the plaintiff. Diamond Block Coal Co. It was the intention of the mine workers to use these scraps of ground as building sites for shanties or cheap dwelling houses and tents to be occupied by such of their membership as were evicted by the companies from their tenant houses. A few days before this litigation started, the United Mine Workers entered into a written contract with defendants, Marks and Morris, carpenters and builders of Hazard, to erect ten shanties of given dimensions, upon the W. O. Davis tract, and these workmen in pmsuance to their contract began the erection and had completed three of the houses at the time the injunction was sued out and served on them. The uncontradicted evidence shows that the mine workers had great difficulty in finding and locating land that they could lease for the purpose of erecting abiding places for their men, and that the Davis tract was not selected because it was near the Diamond Block Coal Co., nor because it was especially desirable, but rather because it was the only tract obtainable in that vicinity. It further appears that while defendants were anxious to organize the men working about the mines throughout the Hazard field, they were not espe- cially interested in the organization of the men at plaintiff's place. On this hearing the circuit judge, sitting as a chancellor, overniled the motion of defendants to dissolve the temporary restraining order and entered an order continuing the injunction in force until the case was prepared upon its merits, or until defendants could apply to a judge of this court for a dissolution. As there is no evidence to support the allegations of the petition, that defendants have used threats, intimidation, coercion and fraud to accomplish their purposes, and as these allegations are specifically CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 507 denied by defendants, thus putting the burden of proof upon the plaintiff, and as it is admitted by plaintiff and its officers that its mines continue uninterruptedly to run, and no employee has been induced by defendants, or either of them, to leave its employment, and that its employees have the right to quit its employment at any time, it follows that the plaintiff has wholly failed to make out its case unless it be that the peaceable solicitation of miners to be- come members of the organization in that district was a violation of the rights of the plaintiff, or that the leasing of the ground by defendants from Davis and others and the erection, or attempted erection, of the shacks or tenant houses was an invasion of the rights of plaintiff. In its last analysis, plaintiff's only complaint supported by evidence is that defendants have leased the ground and are pro- posing to erect shacks thereon, and are soliciting other employees to become members of the union. While the United Mine Workers of America is a voluntary associa- tion and not a corporation, it is recognized both by federal statutes and the statutes of Kentucky. The association, through its officers, had a right to enter into a lease contract with Davis and to erect the houses for the shelter of its membership. Of this there can be no doubt. That it was going to house and care for laboring men who had been discharged and evicted by employers in that vicinity because the men joined the unions, does not militate against thi; manifest right of the association to otherwise make a lease and erect houses. So long as the union keeps within its legal rights it may lease as much ground and erect as many houses as may satisfy its purpose, and it violates no right of the plaintiff because the rights of two persons never conflict. Labor organizations have a status in this country the same as other associations. Courts without exception have recognized the right of laboring men to associate themselves together to better their conditions and to increase their wages by lawful means. They may organize new lodges and sohcit membership at any time or place so long as they do not trespass upon the rights of another. . . . The general rule seems to be that organizers of labor unions may use any peaceable means, not partaking of fraud, to induce persons to become members, and equity will not enjoin such organizers, or their associates, from attempting by proper argument to persuade others to join the union so long as they do not resort to force or intimidation. If the union should induce employees of the plaintiff to become members of its organization, and the plaintiff, as it has done in the past, should discharge such employees because of their membership in the union, and the plaintiff should thereby lose the service of the employee, the proximate cause would not be the join- ing of the union by the employee but the discharge of the employee by the plaintiff, and the plaintiff could have no legal redress of the defendant, even though all its employees should so join the union 508 UNION ORGANIZEKS IN NON-UNION FIELDS [CHAP. X and should in consequence suffer discharge by the plaintiff and its business should be closed. Neither will an injunction issue in a case of this character where there is no proof of irreparable injury or the evidence fails to show that the acts complained of are hkely to be continued, nor will an injunction lie because of a single act of trespass in entering upon the premises of the complainant where there is no threatened repetition of the act. . . . In this jurisdiction the rule is thoroughly established that a labor organization, through its officers and agents, may organize new branches and sohcit membership among employees of concerns that are opposed to union labor so long as they use only peaceable means, such as persuasion and argument, and are not guilty of threats against the person or property, intimidation, coercion or fraud. No sufficient facts were shown on which the extraordinary remedy of injunction should have been granted to complainant in this case, as injunctive relief can be had in no case except where it is made to appear that complainant has no adequate remedy at law and that great and irreparable injury will result. Capital may lawfully organize for its advancement and protec- tion. It does so every day. Labor may rightfully do the same thing. This is the American way — the best known way. A business man decides he would like to go into the coal mining business; he knows if he does he will, to some extent, reduce the business chances and profits of those concerns already in the business of producing coal, but he has the right, if he can, to engage in the business and to peace- ably organize capital to aid him in carrying out his plans, and in doing this he may approach other business men and persuade or induce them or any number to join him in his new enterprise. Such men join their fortunes to make themselves more powerful, their business chances greater and their profits larger. For the same rea- son workingmen get together and organize. They want to increase their efficiency, power, influence and business chances. We are born equal in civil rights and so remain although our avocations and fortunes are widely different. What capital may lawfully do, labor may do with equal right. Neither has the lawful power to invade the rights of the other, nor would it be to the advantage of either. The two are inseparable companions. One cannot exist without the other. Some common basis can and must be found on which to work out the diflaculties which confound industrials today without stifling initiative, hope and ambition ;— the spirit of our institutions. An hour.'s labor in a given community at a given calling should bring the toiler a given sum, with purchasing power, measured in the common necessities of life, sufficient to carry him, if judiciously employed, for a given time. This basis must bear a fixed relation to the cost of production of such articles as wheat, corn, meat, cot- ton, wool and hides, as well as the value of the finished product of CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 509 the hour's labor. When this plan is worked out and properly ad- ministered, both labor and capital will be benefited and there will cease to be strikes and other manifestations of industrial unrest. . . . An order has been entered dissolving and setting aside the tem- porary injunction granted by the judge of the Circuit Court. Whole court sitting. GASAWAY V. BORDERLAND COAL CORPORATION U. S. Circuit Court of Appeals, Seventh Circuit. 1921 278 Fed. 56 Before Baker, Alschuler and Page, Circuit Judges. Baker, Circuit Judge. The general nature of the case is stated in the opinion filed by the District Judge : "The bill avers and the proof shows a combination and work- ing arrangement, — a conspiracy, between the United Mine Workers of America and the coal operators in the so-called Central Competitive Field, to destroy what some of the con- spirators call the ' vicious competition ' of the West Virginia mines. "Almost all of the coal produced in West Virginia is shipped out of the state in interstate commerce, and the business of the plaintiff is shown to be interstate. It Hfts its coal out of its mines in one state and places it upon cars for shipment in an- other. The evidence shows that the competition complained of and sought to be destroyed, is competition in the sale of bituminous coal throughout the several states. A conspiracy to destroy such competition is in direct contravention of the Sherman Anti-Trust Act. . . . "The bituminous coal fields of the United States are already unionized except a portion of West Virginia and a small section of the Southwestern part of the country, and an effort to union- ize the West Virginia mines is part of an effort to monopoUze all the coal industry in the United States until, as one of the conspirators says, the United Mine Workers' organization 'shall cover every coal-producing state in the republic' "The method agreed upon and adopted by the conspirators to thus destroy competition was to organize or unionize the West Virginia field. These West Virginia operators desire to run their mines on a non-union basis. The effort on the part of the defendants to unionize these mines and thus compel the operators to unwillingly run upon the union basis, would result either in the suppression of this non-union mining altogether, or would put such restrictions on it as to accomplish the objects of the conspiracy, — namely, raise the price of the West Vir- ginia product so that it could not compete with the so-called 510 UNION ORGANIZEKS IN NON-UNION FIELDS [CHAP. X Central Competitive Field. The attempt to do this was con- tinued for some time by the usual incidents of violence and exhibitions of force, and matters progressed until a state of war existed in West Virginia which the state government was unable to put down, and upon the call of the state authorities, the President of the United States declared martial law, sent federal troops into West Virginia and restored order. "The evidence shows that members of the Mine Workers' Union purchased firearms and ammunition and otherwise financed the violent activities in behalf of the unionizing forces in West Virginia, and this state of war continued until the President sent troops into the state, and it is only held in abey- ance because of that fact. "The evidence shows that the revenues of the Mine Work- ers' Union are produced from dues and assessments laid upon the members; that these fines and assessments are by an arrange- ment between the Miners' organization and the operators, taken from the wages of the workers in the mines by the opera- tors and paid by them to the organization of Mine Workers. This is the ' check-off ' system. The membership is large and the dues and assessments yield an enormous sum. "Statements made by officers of the United Mine Workers show that the Miners' organization has sent into West Vir- ginia to carry on this struggle more than two and a haK miUion dollars, and the secretary-treasurer of that organization, in his report to the Convention recently held in this city, stated that during the year ending August 1, 1921, the organization had sent into West Virginia more than a million dollars. This money was derived from the ' check-off ' system, and was sent to West Virginia to assist in the effort to organize the West Virginia field. "The evidence without contradiction shows that ammuni- tion and arms were purchased by members of the Mine Work- ers' Union and used for the purpose of carrying on this struggle. It is claimed on the part of the defendants that the money used to purchase these arms and this ammunition and to mobilize and direct these armies came from the locals, and that no part of the money sent from here was used for that purpose, but that such money was and is used only in such peaceable ways as caring for and feeding and furnishing supplies to those union miners who have been evicted from their homes or deprived of a living or otherwise put to a disadvantage in carrying on this struggle. "If this be true, it is quite apparent that there is no difference in the activities of those who furnish the food and supplies for the army, and those who furnish it its arms and ammunition. The money sent by the Miners' organization derived from the CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 511 ' check-off ' system, as above stated, is sent there to aid, abet and assist those on the ground, actively engaged in the unlaw- ful attempt to unionize the non-union mines in West Virginia and destroy competition, as above stated. "The evidence clearly shows that the mine operators know — at least they know now^ — that this money thus contributed by them through the ' check-off * system is used in this unlaw- ful manner. It therefore follows that the use of such money should be enjoined, and the carrying on of the ' check-off ' system as a means for raising it should hkewise be enjoined. . . . "This court cannot poHce West Virginia, nor does it hold that the United Mine Workers' Union is itself an unlawful organization, nor wiU it in any way attempt to curtail its law- ful activities; but it can enjoin the unlawful activities of the parties here in Indiana who are here now under the jurisdiction of this court, and a temporary injunction to that effect will be issued." And thereupon the District Court entered the following decree: . . . "That the defendants, P. H. Penna, J. H. Seifert and W. J. Snyder, citizens and residents of the state of Indiana, Jackson Coal and Coke Co., Queen Coal and Mining Co., Rowland Power Cons'ohdated CoUiers Co. and Lower Vein Coal Co., corporations organized under the state of Indiana and citizens and residents of said state individually and as representatives of the class of persons made defendants in the original and amended bill of complaint filed herein, be, and they are hereby, and each of them is hereby, enjoined and restrained from col- lecting over and through their pay rolls, or over and through the pay rolls of either of them, or in any other manner, any and aU moneys as dues and assessments levied or charged by the said United Mine Workers of America, its officials or members, upon or against its members, employees of said individuals and of said defendant corporations, or who may hereafter be employed by them, or either of them, under the check-off pro- visions of the contracts in evidence herein and heretofore exe- cuted by, or on behalf of, said named defendants and the officials or members of said United Mine Workers of America, or under any and all contract or contracts that may hereafter be executed between the said defendants and the officials or members of the said United Mine Workers of America, and from paying the same to the officials, members or representatives of said United Mine Workers of America. "That the defendants Ora Gasaway and W. D. Van Horn, citizens and residents of the state of Indiana, individually and as members of the International Executive Board of said United Mine Workers of America, and their respective successors in 512 UNION ORGANIZERS IN NON-UNION FIELDS [CHAP. X office, and their committees, agents, servants, confederates and associates and all the other officials, representatives, members, agents, attorneys and servants of said United Mine Workers of America, and all persons who now are, or hereafter may be, members of said United Mine Workers of America, and all per- sons combining, confederating or conspiring with the said designated persons, and all other persons whomsoever, and each and every one of them, be, and they are hereby, en- joined and restrained: "From advising, assisting, encouraging, aiding, abetting or in any way or manner and by any and all means whatsoever, by the use of any funds or moneys howsoever collected by the International Union United Mine Workers of America, its officers, members, agents or represehtatives, to the unionization or the attempted unionization of the non-union mines in Mingo county, West Virginia, and Pike county, Kentucky; but this injunction and restraining order is not to be interpreted or understood to prevent the payrhent by Wm. Green, secretary- treasurer of the United Mine Workers of America, of sufficient funds to the members of said United Mine Workers of America, now living in tents, or out of emplojonent, in Mingo county, West Virginia, and Pike county, Kentucky, for their actual necessities until the further order of this court, this exception, however, not to include any person or persons not bona fide miners and not now members of said United Mine Workers of America and their dependents." This is an appeal from an interlocutory decree of injunction. The controversy has its roots in the alleged conspiracy of mine operators in the Central Competitive Field (Western Pennsylvania, Ohio, Indiana and Illinois) with their miners, members of the United Mine Workers of America, a voluntary unincorporated labor union, to coerce the mine operators of the WiQiamson district (Mingo county. West Virginia, and Pike. county, Kentucky), who are con- ducting closed non-union mines, into unionizing their mines, to the injury of their rights in interstate commerce secured to them by the Constitution and laws of the United States. Appellee's bill named as defendants the United Mine Workers of America, the president, vice-president, and secretary-treasurer thereof, numerous individuals described as members of the execu- tive board, twenty-four district local unions of the United Mine Workers, and numerous individual and corporate mine operators. On motion the District Court dismissed the bill as to the United Mine Workers, the district locals, and all the individuals described as officers of the United Mine Workers except appellants Gasaway and Van Horn who are citizens and residents of Indiana and who alone were within the jurisdiction of the District Court of Indiana. CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 513 This appeal is prosecuted by Gasaway and Van Horn. Inasmuch as the mine operators, defendants below, are not parties to this appeal, the decree is not reviewable as to them except so far as it may affect the rights of these appellants. Because the bill states a good cause of action, and because the decree is merely interlocutory, nothing is now involved but the ques- tion whether the decree clearly discloses an improvident exercise of judicial discretion. . . . Injunction is an extraordinary remedy. It is limited to the pro- tection of property from unlawful invasion. Execution' in advance of a fuU hearing and final determination of the issues is a drastic measure which may deprive defendants of rights confirmed in them by the final decree. Because the preliminary injunction is neces- sarily so drastic in its nature, great care should be had in exercising the discretion. What we have already said with respect to the facts indicates our approval of the granting of a preUminary injunction herein of whatever scope is necessary to protect the property be- fore the court. But no injunction, preliminary or final, should for- bid more than the particular unlawful invasions which the court finds woxild be committed except for the restraint imposed. Swift V. United States, 196 U. S. 375; Hitchman Coal Co. v. Mitchell, 245 U. S. 229. Appellee's property, which was being injured by appellants' tres- passes (which, unless enjoined, would be continued), was its busi- ness of mining coal and shipping it in interstate commerce. . . . Inasmuch as appellee's bill is the oldtime and familiar one to protect property from injury through continuing direct trespasses thereon, proof of the iniquitous conspiracy between the United Mine Workers and the operators of the Central Competitive Field was useful only in showing that the illegal acts of the tort-feasors in the William- son district would be continued unless restrained and that appel- lants in Indiana were parties to the threatened invasions. For it was not the conspiracy that was inflicting the damage to appellee's property. Bill and affidavits show the following trespasses upon appellee's property rights in interstate commerce: Destruction of appellee's property used in operating its mine; interference with and intimida- tion of appellee's officers, agents, and employees, by armed forces, by assaults, by threatening and abusive language, and by intrusions upon their privacy without invitation or consent; inducing appellee's employees secretly to change from non-union to union men and to remaia in appellee's employment in violation of their contracts, the terms of which were known to the trespassers; and in using money, sent into West Virginia by the United Mine Workers' general or executive officers, to aid in the commission of the foregoing trespasses. All these unlawful acts (none of which was specified in the decree) should be enjoined by the preliminary injunction, with leave to the 514 UNION ORGANIZERS IN NON-UNION FIELDS [CHAP. X District Court to restrain other specifically threatened trespasses upon appellee's property rights, if any is shown. But appellee was not satisfied with such a decree. It asked that the United Mine Workers be dissolved or enjoined from functioning, on the ground that it is a seditious and otherwise unlawful organiza- tion. The District Court declined to find that the union is an unlaw- ful body. But, as we have already indicated, appellee must stand solely on its own private rights; appellee is not the guardian of others; appellee is not the vindicator of the pubhc's rights, criminal or civil; anil it was not the conspiracy, but the trespasses of joint tort-feasors, who are hable independently of the conspiracy as a ground of action, that iaflicted the injury upon appellee's property. Appellee sought and obtained a decree restraining "the unioniza- tion or attempted unionization of the non-union mines" in the Wil- Uamson District. Appellants, and their agents and representatives in West Virginia, are thus enjoined from publishing lawful union arguments and making lawful union speeches in the closed district; from making lawful appeals to those in the pool of unemployed labor to join the union rather than the non-union ranks; and from using lawful persuasion to induce any one of appellee's employees to join the union and thereupon instantly and openly to sever his re- lationship with appeUee, not in violation of, but in exact accordance with, his contract with appeUee. Manifestly the purpose of such publications, pubhc speeches and personal persuasions would be to enlarge the membership of the union. If completely successful, these means would compel appellee, if it staid in business, to deal with the union, and thus "unionize" its mine. And use of these means, short of complete success, would be an "attempted unioniza- tion." This broad sweep of restraint makes it necessary to refer briefly to the rights of employers and of labor unions. Unions of owners of capital may bargain collectively, through their ofiicers, with laborers either individually or collectively. Unions of laborers may bargain collectively, through their officers, with employers either individually or collectively. Employers may bargain for a closed non-union shop. Laborers may bargain for a closed union shop. Both are entitled to free and equal access to the pool of un- employed labor for the purpose of secm-ing recruits by peaceable appeals to reason. Employers may persuade a union man, provided they do not violate his right of privacy nor invade the rights of an- other, to become non-union. Union laborers may under the same conditions persuade a non-union man to become union. If the argu- ments of the owners of closed non-imion shops should be universally accepted, labor unions would have no ground of complaint, either legal or equitable, for their decline and fall. If the arguments of the advocates of the closed union shop should prevail, then similarly their opponents would have no legal or equitable cause of action. In either case the outcome would be due to the exercise of reason CHAP. X] UNION ORGANIZERS IN NON-UNION FIELDS 515 and free will. In this as in every other instance of antinomy, of con- flicting interests and mutually restricting rights, the rule of conduct is that each side shall so exercise its rights as not to injure the rights of the other. Hitchman Coal Co. v. Mitchell, 245 U. S. 229; Ameri- can Steel Foundries v. Tri-City Central Trades Council, 257 U. S. — , 42 Sup. Ct. 72 (Dec. 5, 1921) ; Respective Rights of Capital and Labor in Strikes, 5 Illinois Law Review, 453. In the present state of the law, and without a constitutional exercise of the legislative power of regulation, appellee had no greater right to a decree suppressing law- ful action (such as the publications, speeches and personal persuasions heretofore mentioned in this paragraph) in support of the closed union shop program than appellants had to a similar decree suppress- ing similar lawful action in support of the closed non-union shop program. Neither side had any such right. Appellee sought and obtained a decree enjoining the performance of existing contracts between the operators and their union employees in the Central Competitive Field with respect to what is called the check-off provision. So far as the contracts themselves and this record disclose, the check-off is the voltmtary assignment by the employee of so much of his wages as may be necessary to meet his union dues, and his direction to his employer to pay the amount to the treasurer of his union. In that aspect the contract provision is legal, and quite evidently there are many lawful purposes for which dues may be used. If in truth the bargaining with respect to the contract was not free, if either the employee or the employer put the other under duress, the injured party might have cause to seek cancellation. (But if he had nothing to urge in the way of duress, except "economic necessity," he might not succeed.) If in bargain- ing one of the parties was not free by reason of the greatly prepon- derant power of the other, the Legislatures of these central states and the Congress might consider whether pubhc interest required or justified the limitation of the otherwise existent freedom of contract by aboKshing the check-off as a subject-matter of contract, in simili- tude to the legislative abolition of truck stores, dangerous appliances, unsanitary working places, exhausting hours, etc., as permissible subject-matters of contract. But appellee is not a party to the con- tract, is not the attorney of either contracting party, and is not the agency to establish the public welfare. If nothing else should prevent appellee's being given that part of the decree now under consideration, the lack of injury to appellee by the existence of the check-off contracts would suffice. The injury to appellee's property rights in interstate commerce, of which ap- pellee was apprehensive, was that it would be coerced into paying the high costs of production prevalent in the Central Competitive Field, and thus be unable to meet, or at least to meet so profitably, the existent competition in interstate commerce. As long as appellee is assured, as it now is, that it will have full protection in operating 516 UNION ORGANIZERS IN NON-UNION FIELDS [CHAP. X its closed non-union mine and in marketing its coal in interstate commerce without interference, appellee should rather pray that all the elements causiag high cost of production in the Central Com- petitive Field should be maintained. But appellee insists that it is entitled to have the performance of the existent check-off contracts enjoined, because the check-off is the "heart" of the United Mine Workers' Organization. Appellee is confusing a series of remote causations with the proximate cause of the injury. The only property that was injured was appellee's freedom in operating its mine and in putting its coal onto cars in West Virginia to be shipped in interstate commerce. The proximate cause of the injury was the described interferences in the Wilham- son district with appellee's aforesaid right to freedom. Without the direct and immediate interfering acts, the desires and intents of the conspirators in the Central Competitive Field would have been innocuous. In the series of causations the check-off provision was imdoubtedly one of the elements. Manifestly unless money was collected, the union's executive officers could not send it into West Virginia to aid or promote the interfering acts. But in the same contracts that contain the check-off feature were provisions for the payment of wages and the recognition of the miners as himian beings with the physical capacity to labor. On a parity with appellee's contention respecting the check-off element, aU the other elements in the series of causation leading up to the proximate cause should also be enjoined. Money could not be sent into West Virgiuia by the executive officers, unless it was collected from the miners' wages; nor unless the miners earned wages; nor unless the miners were human beings having the capacity to labor. From the record as it now stands we are convinced that the Dis- trict Court committed substantial errors in exercising its judicial discretion in the following particulars: (1) In not confining the grant of rehef to appellee; (2) in not limiting the prohibition of the union- ization or attempted unionization of appellee's mine to the threat- ened direct and immediate interfering acts shown by the biU and affidavits; (3) in not limiting the prohibition of the sending of money into West Virginia to the use thereof in aiding or promoting the interfering acts; and (4) in enjoining the performance of the exist- ent check-off contracts in the Central Competitive Field. The decree should be recast, and for that purpose the cause is remanded, with the direction to the District Court to enter a pre- Uminary injunction decree which shall be in consonance with this opinion. PART II CHAPTER XI CORPORATE RIGHTS, POWERS AND LIABILITIES . *0F UNINCORPORATED LABOR UNIONS i Section 1. Suits By and Against Unincorporated Labor Unions ST. PAUL TYPOTHET^ v. ST. PAUL BOOKBINDERS' UNION NO. 37 SUPBEME CotTET OF MINNESOTA. 1905 94 Minn. 351 Brown, J. This action was brought by the St. Paul Typothetse, an unincorporated association of persons, firms, and corporations engaged in the business of printing and bookbinding, and the West Pubhshing Co., a corporation and member of the association, against the St. Paul Bookbinders' Union No. 37, an unincorporated associa- tion of printers and bookbinders, and the members thereof, to re- cover damages for an alleged breach of contract. Separate demurrers were interposed to the complaint, one by the Bookbinders' Union, and one by the iadividual members thereof, the grounds of which are (1) that plaintiff St. Paul Typothetse has no legal capacity to sue, and (2) that the complaint does not state facts sufficient to con- stitute a cause of action against the union in favor either of the TypothetsB or the West Publishing Co. The demurrer as to the West Publishing Co. was sustained, but overruled as to the Typothetse. Both parties appealed. The complaint, alleges that the persons, firms, and corporations named therein, twenty-five in number, are associated together and doing business in St. Paul under the name and title of "St. Paul Typothetse"; that each of the said persons, firms, and corporations were at all times named therein engaged in pubhshing and book- binding, and employers of such printers as were necessary to carry 1 As to the general subject, see Maehem, Corporate Personality, 24 H. L. R. 253, 347; Geldart, The Status of Trade Unions in England-, 25 H. L. R. 579; Laski, The Personahty of Associations, 29 H. L. R. 404; Wrightington, Unin- corporated Associations, Chapter 5. For a brief discussion of the attitude of the Roman law toward this general problem, see Sohm, Institutes of Roman Law (transl. by Ledlie) (2d ed.), see's. 37, 38. 517 518 CORPORATE FEATCTHES OF LABOR UNIONS [CHAP. XI on and conduct their several enterprises; that the object in the formation of the Typothetse was the protection and promotion of the interests of its several members, correcting abuses, promoting concerted action, reconciling differences, and adjusting contro- versies between employer and employee, and particularly in securing definite, stable, and harmonious relations between the various mem- bers of the association and their respective employees. It further alleges that defendant St. Paul Bookbinders' Union No. 37, is an unincorporated association composed of the persons named therein, the object and purpose of which is the advancement and protection of the mutual and individual interests of all its members in the mat- ter of employment, labor, and wages, and especially the regulation of the relations between employer and employee in the bookbinding trade. It further alleges that on November 21, 1903, plaintiff St. Paul Typothetse and defendant Bookbinders' Union, for a valuable consideration, by and through their officers entered into a certain contract, a copy of which is attached to and made a part of the complaint. It is unnecessary here to set out the contract in fuU. It provides generally the terms of employment between the firms and corpora- tions forming the Typothetse, and the members of the imion; classify- ing employees, and fixing their compensation in accordance with the nature of the work of each, and specifying generally the terms and conditions of employment. It specially provides that during the hfe of the contract no strike or lockout shall occur, and that any differences which may arise as to the construction of the con- tract shall be settled by arbitration, providing the parties do not reach an amicable agreement. The complaint alleges a breach of this contract on the part of the union and its members; that the members of the union in the employ of the West Pubhshing Co., a party plaintiff and member of the Typothetse, went out on a strike without cause or provocation, and without a submission of their grievance to arbitration, to the great damage of that company. The complaint further alleges that at the time the contract was entered into it was well known, understood, and agreed by aU the parties that said association, St. Paul Typothetse, was not an em- ployer of labor, and did not intend to employ any labor or workmen whatsoever, and that each and all the provisions, covenants, condi- tions, and agreements in said contract to be performed and kept by the union and its members were made for the benefit of each and all the members of the Typothetse who were then employing, or should thereafter during the life of the contract employ, workmen. The only questions necessary to be considered on this appeal are (1) whether the Typothetse has legal capacity to sue, and (2) whether the complaint states a cause of action against the Bookbinders' Union. Whether the complaint states a cause of action in favor of the West Pubhshing Co. against the individual members of the SECT. I] SUITS BY AND AGAINST LABOR UNIONS 519 union is not presented by the demurrer. And whether it states a cause of action in favor of that company against the union, as an organization, is determined by the further question whether the union may be sued in its association name. The Typothetae and Bookbinders' Union, so far as their legal status is concerned, occupy the same position. Both are unincor- porated voluntary associations, and the principles of law applicable generally to unincorporated clubs and societies apply to each. The position such organizations occupy under the law is a question upon which the courts are not fully agreed. It is generally acknowledged that they are sui generis, but the courts have had difficulty in agree- ing upon the legal principles to apply to them. Many cases hold that ia some of their relations they are to be regarded as copartner- ships, and governed by the general laws apphcable to that relation, and that in other respects the law of corporations apphes to their affairs. The distinction in this respect is made (1) as to cases in- volving rights between the association and third parties dealing with it, and (2) as to cases involving controversies between the members respecting the property owned by the association. Niblack, Ben. Soc, 221. Such organizations are properly divided into two classes, viz., those organized for the purpose of conducting some business enterprise, and those whose purpose is solely the promotion of the interests and welfare of their members, unaccompanied by any business functions. As to this class, it would seem that the law of principal and agent should apply. Ehrmanntraut v. Robin- son, 52 Minn. 333, 54 N. W. 188. Both the Typothetae and the union come within this class. The Typothetae is not a business association within the proper meaning of the term; it is not engaged in employing labor, or entering into trade contracts on its own behalf. Its exclusive occupation, as dis- closed by the complaint, is that of promoting and protecting the persons, firms, and corporations composing it in controversies with their employees, and, as their representative or agent, entering into on their behalf contracts with such employees. So far as the com- plaint discloses, it has no capital stock and no property. The union is an association of employees or workmen organized for similar purposes; it has no capital stock or property; its members do not work under its authority or in its behalf, but for themselves. But whatever may be the law applicable to such associations generally, there is one respect in which the authorities are agreed, and that is that at common law they are not, whether organized for business or other purposes, entitled to recognition in the courts in their association name. It is well settled that, in the absence of a statute otherwise providing, to be entitled to conduct judicial pro- ceedings in court, a party litigant must be either a natural or artificial person. The rule is correctly stated in 22 Enc. PI. & Pr. 230, where, in speaking of unincorporated societies, such as those here involved, 520 CORPOEATE FEATURES OF LABOR UNIONS [CHAP. XI it is said that such societies cannot maintain an action in their asso- ciation name, but must sue in the name of the individuals composing them, however numerous they may be. Such societies, in the absence of statutes recognizing them, have no legal entity distinct from that of their members. The rule is followed by an unbroken line of authorities, though a different rule has been apphed in many of the courts in actions purely of an equitable nature. On the question generally, see Niblack, Ben Soc. 183; Richardson v. Smith, 21 Fla. 336; Mexican v. Yellow Jack, 4 Nev. 40; Detroit v. Detroit, 44 Mich. 313, 6 N. W. 675; Danbury v. Bean, 54 N. H. 524; Mayer V. Journeymen, 47 N. J. Eq. 519, 20 Atl. 492; Nightingale v. Bar- ney, 4 G. Greene (Iowa), 106; Barbour v. Albany Lodge, 73 Ga. 474; Steamboat Pembinaw v. Wilson, 11 Iowa, 479. The rule has been changed and modified in many of the states by statutory enactments permitting such associations to sue and be sued in their adopted name. . . . An examination of the authorities discloses that in many of the states authority is expressly granted in such cases to sue and be sued, but such is not the statute in this state. The Typothetse comes within the rule, and it is clear that it has no legal capacity to sue. The rule apphes equally to defendant Bookbinders' Union. That is an unincorporated association similar to the Typothetse, and cannot be sued in its common name. Many of the cases above cited were actions against such associations, in which the rule of the com- mon law was apphed. See also 22 Enc. PL &. Pr. 242, where it is said that an unincorporated society or association, being considered at common law a copartnership, cannot, in the absence of statute, be sued in its society or association name; but all the members must be made parties, since such associations have, in the absence of statutory recognition, no legal entity apart from their members. This rule apphes to the union, imless it comes within the scope of the statute providing for actions against persons doing business under a common name. The statute, it is clear, was not intended to include associations of this character. Its purpose was to authorize the courts to take jurisdiction over unincorporated associations engaged under a common name in some sort of business in which property is bought and sold, debts contracted — • concerns owning and holding property, and incurring pecuniary habihty — and not associations of the character of labor unions, having no property, engaged in no business occupation, in a proper sense of the term, and whose only function is the promotion of the interests and wel- fare of the persons who are members thereof. Such an association is not a copartnership, and the members thereof are hable, if at all, on the contracts of the association on the law of principal and agent. Ehrmanntraut v. Robinson, 52 Minn. 335, 54 N. W. 188. It is not a copartnership, because the association is engaged in no business enterprise. ... SECT. I] SUITS BY AND AGAINST LABOR UNIONS 521 We have been cited to no case where the court has entertained an action of this kind against an association in its common name, where the point has been raised, and om- research has disclosed but one, the Taff Vale case, which arose in England in 1901. Taff Vale v. Amalgamated, L. R. App. Cas. 1901, 426. It was there held that an association of employees, similar to that of the Bookbinders' Union, might be sued in its common name. But the decision was placed squarely upon the ground that such associations are expressly recognized and their organization provided for by act of parliament, and, though the act authorizing their organization did not expressly provide that they might sue or be sued, the court held that the right arose by necessary implication from the fact of legislative recogni- tion and the provision of the law empowering the association to own and hold property. Many cases have been found where injunctions have been issued restraining labor unions, their officers, and members, from threatened violations of the law, but cases of that natiu'e are not in point. It follows that the Typothetse has no legal capacity to sue, and cannot maintain the action; that the Bookbinders' Union cannot be sued in its association name, and neither the Typothetae nor the West Pubhshing Co. can maintain the action against it. Whether, within the rule announced by this court in Ehrmanntraut v. Robin- son, supra, on the law of principal and agent, a cause of action is stated in favor of the West Publishing Co. against the individual members of the union, is not presented, and we do not determine it. The demurrer interposed by the individual members of the union does not raise the question, and we leave it for future consideration, should it ever arise. i The order of the court below overruling the demurrer as to the Typothetse is reversed; that sustaining the demurrer as to the West Publishing Co. against the union, as such, is affirmed.^ ' Accord: American Steel & Wire Co. v. American Wire Drawers', etc., Union, 90 Fed. 598; Grand Int. Brotherhood of Locomotive Engineers v. Green, 89 So. (Ala.) 435; Baskins v. United Mine Workers of America, 234 S. W. (Ark.) 464; Agricnltiiral Extension Club v. Hirsch, 179 Pac. (Cal.) 430; Karges Furniture Co. V. Amalgamated Woodworkers' Local Union, 165 Ind. 421; Diamond Block Coal Co. V. United Mine Workers, 188 Ky. 477; Pickett v. Walsh, 192 Mass. 572, 589; Cleland v. Anderson, 66 Neb. 252; Branson v. Industrial Workers of the World, 30 Nev. 270; Mayer v. Journeymen Stonecutters' Assn., 47 N. J. Eq. 519, 520; McMahon v. Rauhr, 47 N. Y. 67; Hanke v. Cigar Makers' Interna- tional Union, 27 Misc. (N. Y.) 529; Simpson v. Grand International Brotherhood, 83 W. Va. 355. Waivbk of Objection. In Iron Molders' Union v. AUis-Chalmers Co., 166 Fed. 45, at p. 48, Baker, J., said: "No Wisconsin statute authorized an unin- corporated voluntary association to be sued in its common name. So the objec- tion might have prevailed if it had been seasonably made. Karges Furniture Co. V. Amalgamated Woodworkers' Union, 165 Ind. 421, 75 N. E. 877, 2 L. R. A. (n. s.) 788; Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753, 6 L. R. A. (n. s.) 1067, 116 Am. St. Rep. 272. But the members could have been reached, of course, either by naming and serving them all, or, if that were impracticable on account 522 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI UNITED STATES HEATER CO. v. IRON^ HOLDERS' UNION Supreme Court of Michigan. 1902 129 Mich. 354 Bill by the United States Heater Co. against the Iron Molders' Union of North America and others to enjoin interference with the conduct of complainant's business. From an order refusing to dis- solve a temporary injunction, and overruling a plea to the jurisdic- tion, defendants appeal. . . . MooRE, J. . . . A preliminary writ of injunction was issued against all the defendants; the language used in the injunction fol- lowing that used in the case of Beck v. Protective Union, 118 Mich. 497 (77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421). A refer- ence to that case will make it unnecessary to set out more of the injunction here. Certain of the defendants interposed a plea, the essential parts of which are as follows: "The plea of the Iron Molders' Union of North America, an unin- corporated society, and its officers and members. Local Union No. 31 of the Iron Molders' Union of North America, and its officers and members. Local Union No. 244 of the Iron Holders' Union of North America, and its officers and members, a part of the above- named defendants, to the bill of complaint of the United States Heater Co., a Michigan corporation: "These defendants, and each of them, specially appear in this court, and file this their joint and several plea to the bill of com- plaint filed in this cause, and . . . say that they, nor either of them, are a legal body capable of suing or being sued by the laws of the State of Michigan, nor of any other state or country in this world, and therefore not capable of being subjected to this suit by law in any but their individual members' names. The complainant having averred that these pleading defendants are but a volxmtary association of citizens throughout the United States and the Domin- ion of Canada, and therefore not subject to suit, therefore these so- called defendants, who have no legal form, shape, or substance, and who are not, as voluntary, unincorporated societies, subject to be of their numbers, by suing some as representatives of all. The bill treated the unions as representative of their membership; an individual member filed a veri- fied answer in the names of the unions, alleging that he had been authorized by them so to do; and the case was carried through three hearings (temporary in- junction, contempt, final decree) without a suggestion that there was a defect of parties, or rather a defect in the form under which appellee asked to have the membership of the unions brought into court. An objection of this kind will not be entertained on appeal unless it has been first duly presented in the trial court. Barnes v. Chicago Typographical Union, 232 111. 424, 83 N. E. 940, 14 L. R. A. (N. s.) 1018." SEC". I] SUITS BY AND AGAINST LABOR UNIONS 523 sued as a single individual, do plead their said want of legal capacity in bar to complainant's bill of complaint." . . . We now come to the question, Was the court right in overruling the plea? Section 1 of Act No. 25 of the Public Acts of 1897 reads as follows : "Sec. 1. The People of the State of Michigan enact, That when- ever any imincorporated voluntary association, club, or society shall be formed in this State, composed of five members or more, having some distinguishing name, actions at law or in chancery may be brought by or against such association, club, or society by the name by which it is known: Provided, that this act shall not take away the right of the litigant to proceed against all the members of such association, club, or society, if such litigant shall so elect to proceed." This provision of the statute would seem to answer the question in the affirmative. Counsel says the legislature had no right to pass such a law. His position stated in the brief is : "Now, this raises the question, flatly put, of the ability of the law- making power to authorize suits to be maintained against nothing. Second, if it may, has the law been complied with in this case? And, first, am I not correct in assimiing that there must be a person or thing about which a suit is to be maintained? Would a law authoriz- ing suits to be maintained against the air, the sun, moon, or stars, be effective? This law does not give these associations, clubs, or societies any legal standing, nor make them persons or legal entities. They cannot bring suit in the club, association, or society name. When they sue they must sue as a copartnership, under well-recog- nized legal rules. The person who seeks to deal with them can, by the provisions of this act, still hold them as copartners, and there- fore would seem to have two remedies, while the club, society, or association has only one. The only object of this law is to hold by injunctions men who may or may not be citizens of this State. It is very clever in the use to which it is put. In other words, no mat- ter what the original object of the act, it can only be effectively used against what is known as ' organized labor.' " We do not see the same difficulties in the law or its provisions which are seen by counsel. The law deals with conditions as they exist. It recognized that there may be unincorporated voluntary associations, clubs, and societies in this State which do or may do things which make it desirable for them to have the right to bring actions at law or in chancery, and also that it may be necessary or desirable to make them defendants in an action at law or pro- ceeding in chancery. If the allegations contained in the bill of com- plaint in this case are true, the wisdom of such legislation is made apparent. There is nothing in the provisions of the law which indicates it is aimed at organized labor. There is hardly a town, village, or city, 524 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI or a college or university, in this State, which has not its voluntary associations, clubs, or societies, to which the provisions of the law would apply. It is for the legislature to determine who naay sue and be sued, so long as it does not interfere with vested rights or deny any renaedy. "As a general rule, every State has complete control over the remedies which it offers to suitors in its courts. It may abolish one class of courts, and create another. It may give a new and additional remedy for a right or equity already in existence. And it may abolish old remedies and substitute new. . . . And any rule or regulation in regard to the remedy which does not, under pretense of modifying or regulating it, take away or impair the right itself, cannot be re- garded as beyond the proper province of legislation." Cooley, Const. Lim. (6th ed.) 442. The appeal is dismissed as to that part of the order refusing to dis- solve the injunction. As to that part of the order overruUng the plea, the action of the court below is aflSrmed. HooKEE, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. GUILFOIL' V. ARTHUR Supreme Court of Illinois. 1895 158 III. 600 Appeal from the Circuit Court of Coles county; the Hon. Francis M. Wright, J., presiding. This was a bill in equity, brought by P. M. Arthur and others, grand officers of the Grand International Brotherhood of Locomo- tive Engineers, against John H. GuiKoil. It is alleged, in substance, in the bUl, among other things, that certain real estate in Coles county, Illinois, was conveyed by deed, on August 2, 1886, by Mary J. Mitten to John H. Guilfoil, in trust for the widows and orphans of deceased members of the Brotherhood of Locomotive Engineers, and under such rules and regulations as shall be provided by the brotherhood; that the rental value of said property is $1000 per year over and above taxes, repairs, etc.; that John H. Guilfoil en- tered into the possession of said property immediately after such conveyance, with his family; that he has received the uses, rents, and profits thereof and converted them to his own use; that he refuses to accotmt to the officers of said brotherhood for such rents, or any part thereof; that Guilfoil, as such trustee, has mismanaged said estate, is committing waste thereon, and that he is insolvent, and prays that he may be removed as such trustee; that a trustee be appointed by the court to take charge of said property; that an account be taken of the rents and profits received by Guilfoil from said estate, and a decree therefor, etc. . . . SECT. I] SUITS BY AND AGAINST LABOR UNIONS 525 On the hearing the court found the allegations of the bill true that said Grand International Brotherhood of Locomotive Engineers is an organized body, with constitution and by-laws, etc. A decree was rendered removing Guilfoil as trustee and appointing William Burgess trustee of said property, etc., for the uses and purposes, etc., with bond at $20,000; orders and adjudges that said Guilfoil pay to said Burgess, as trustee, $3652, as found by the court to be due from him; that said Guilfoil deliver up possession of said premises to said Burgess, and that said Guilfoil, within twenty days, execute and deliver to said Burgess a proper and sufficient conveyance of said premises, and in default thereof that the master make such deed. . . . Mk. Chief Justice Ceaig delivered the opinion of the court: . . . Guilfoil entered into possession of the lands conveyed under the deed. He has received the rents and profits ever since, but has failed to account for the rents, and has suffered the property to run down. The Brotherhood of Locomotive Engineers, by resolutions duly adopted, accepted the conveyance for the uses and purposes named in the deed, but Guilfoil has absolutely refused to hold and manage the property as contemplated by the deed or as required by the rules and regulations adopted by the brotherhood. Indeed, he has ignored the trust, and holds the property in defiance of the terms and conditions of the deed upon which he received it. Under such circumstances, was the decree removing Guilfoil as trustee authorized, or was it erroneous? . . . It is said in argument that the brotherhood is not a corporate body, and cannot sue or be sued, and having no power to sue or be sued it cannot authorize any of its members or officers to bring this action, and hence the biU cannot be maintained by complainants. The brotherhood is an organized body, with a constitution and by- laws, but was never incorporated. At common law a voluntary association not incorporated cannot sue or be sued. But this action was not brought in the name of a voluntary association, and the rule excluding such associations from suing or being sued has no application in this case. It is a general rule, and one weU understood, that all persons interested in the subject matter of the litigation should be made parties complainant or defendant. But there are exceptions to this general rule. In sec. 97 of Story's Equity Plead- ing, in speaking on this subject, the author says: "The most usual cases assigning themselves under this head of exceptions are, (1) where the question is one of a common or general interest, and one or more may sue or defend for the benefit of the whole; (2) where the parties form a voluntary association for public or private pur- poses, and those who sue or defend may fairly be presunied to repre- sent the rights and interests of the whole; (3) where the parties are very numerous, . . . and it is impracticable to bring them all before the coxirt." In sec. 107, in the discussion of the second class 526 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI of cases, where the persons in interest are numerous, it is said: "As there is privity of interest the court will allow a bill to be brought by some of the parties in behalf of themselves and of all the others, taking care that there shall be due representation of all substantial interest before the court." In Beatty v. Kuntz, 2 Pet. 584, where a bill was brought by and in the name of a committee of a voluntary society, regularly appointed for the purpose of protecting certain property, it was held that complainants were entitled to maintain the bill. It is there said: "If they (the complainants) are proved to be the regularly appointed committee of a voluntary society of Lutherans in actual possession of the premises, and acting by their direction to prevent a disturbance of that possession, under cir- cumstances hke those stated in the bill we do not see any serious objection to their right to maintain the suit." See also, Mears v. Moulton, 30 Md. 145; Philhps v. Jones, 20 Pa. St. 263; 2 Beach on Private Corp. sees. 901, 902; Birmingham v. Gallagher, 112 Mass. 190; Lloyd v. Loring, 6 Ves. 773. Here, as has been seen, the real estate was conveyed in trust for the widows and orphans of deceased members of the Brotherhood of Locomotive Engineers, with power conferred on the brotherhood to dispose of the property for the uses and purposes specified. The organization appointed a committee to look after the property, with authority to employ counsel, and sell the lands, etc. This committee instituted suit in the name of the complainants, officers of the Brotherhood of Locomotive Engineers, to enforce the trust, and the action of the committee having been reported to the asso- ciation, the institution of the suit in the names of .the complainants was ratified and confirmed. It thus appears that the action was brought in the names of the complainants for and in behalf of the members of the organization, the Brotherhood of Locomotive En- gineers. From the allegations of the bill, and from the evidence in- troduced in its support, it is plain that the complainants are not suing in their own interest, but, on the other hand, the sole object of the bill is to enforce the trust and save the property involved for the members of the brotherhood. The bill might have been brought, in the names of all the members of the Brotherhood of Locomotive Engineers, as persons jointly interested in the property; but where the members of an unincorporated association are numerous, as is the case here, the action may be brought in the names of a portion of the members, who sue for themselves and in behalf of all the other members) or, as was done in Beatty v. Kuntz, supra, the action may be maintained in the name of a committee of persons regularly ap- pointed by the organization. The allegations of the bill are not as specific and definite in regard to the capacity in which the com- plainants sue, if tested by a technical rule, as they should be; but when all the allegations of the bill and amended bill are considered. SECT. I] SUITS BY AND AGAINST LABOR UNIONS 527 wejthink the capacity in which the complainants sue sufficiently appears. . . . The decree of the Circuit Court will be affirmed. Decree affirmed.^ FEDERAL EQUITY RULE No. 38 , 226 U. S. 659 REPRESENTATIVES OP CLASS When the question^is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring themfall before the court, one or more may sue or defend for the|whole.^ TAFF VALEiRAILWAY CO. v. AMALGAMATED SOCIETY OF RAILWAY SERVANTS House of Lords. 1901 [1901] A. C. 426 A strike havinglarisen in August, 1900, among the appellants' servants, in which Bell, the general secretary of the respondent society, and Holmes, the organising secretary thereof for the West of England, took part, the appellants brought an action against the respondent society in its registered name, and against Bell and Holmes, claiming an injunction and such further relief as the Court might direct. A summons for an interim injunction having been taken out by the plaintiffs, and a notice of motion having been given by the respondents to strike out the name of the defendant society, Farwell, J., sitting as vacation judge, on the 5th September, 1900, dismissed the respondents' appHcation, and granted an interim injunction against the society in terms similar to those of the in- junction previously granted against BeU and Holmes, restraining the society, their servants, agents, and others acting by their author- ity from watching or besetting or causing to be watched or beset 1 Accord: Hetterman Bros. & Co. v. Powers, 102 Ky. 133; Birmingham v. Gallagher, 112 Mass. 190; Snow v. Wheeler, 113 Mass. 179. Similarly it has been held that ia an action in equity against a volimtary unincorporated organiza- tion where the members comprising the same are numerous, such organizations may be made parties to an action where a few of the members thereof are made defendants for the purpose of representing the organization. St. Germain v. Bakery & Confectionery Workers' Union, 97 Wash. 282, 294; Pickett v. Walsh, 192 Mass. 572, 589, 590; Reynolds v. Davis, 198 Mass. 294, 300, 301; Branson V. Industrial Workers of the World, 30 Nev. 270, 288, 289 {semhle); Seattle Brew- ing Co. V. Hanson, 144 Fed. 1011. Compare Flaherty v. Benevolent Society, 99 Me. 253. * Promulgated by the Supreme Court of the United States, Nov. 4, 1912. — Ed. 528 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI the Great Western Railway Station at Cardiff, or the works of the plaintiffs or any of them, or the approaches thereto, or the places pf residence, or any place where they might happen to be, of any work- man employed or proposing to work for the plaintiffs, for the pur- pose of persuading or otherwise preventing persons from working for the plaintiffs, or for any purpose except merely to obtain or com- municate information, and from procuring any persons who had or might enter into any contracts with the plaintiiffs to commit a breach of such contracts. The following judgment was deUvered by Faewell, J. The defendant society have taken out a summons to strike out their name as defendants, on the ground that they are neither a corporation nor an individual, and cannot be sued in a quasi^corporate or any other capacity. FaiKng this, they contend that no injunction ought to be granted against them. I reserved judgment last week on these two points, because the first is of very great importance, and counsel were unable to assist me by citing any reported case in which the question had been argued and de- cided. Now it is undoubtedly true that a trade union is neither a corpora- tion, nor an individual, nor a partnership between a niunber of in- dividuals; but this does not by any means conclude the case. A trade union, as defined by sec. 16 of the Trade Union Act, 1876, "means any combination, whether temporary or permanent, for regulating the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or for im- posing restrictive conditions on the conduct of any trade or business, whether such combination would or would not, if the principal Act had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade." It is an association of men which almost in- variably owes its legal validity to the Trade Union Acts, 1871 and 1876. In the present case the foundation of the argument that 1 have heard on behalf of the society is that it is an illegal association — an argument that would have more weight if the action related to the enforcement of any contract, and were not an action in tort. The questions that I have to consider are what, according to the true construction of the Trade Union Acts, has the Legislature en- abled the trade unions to do, and what, if any, liabilitj'- does a trade union incur for wrongs done to others in the exercise of its authorized powers? The Acts commence by legaUsing the usual trade union contracts, and proceed to establish a registry of trade unions, give to each trade union an exclusive right to the name in which it is registered, authorise it through the medium of trustees to own a limited amount of real estate, and unlimited personal estate "for the use and benefit of such trade union and the members thereof"; provide that it shall have ofiicers and treasurers, and render them Hable to account; require that annual returns be made to the registry SECT. I] SUITS BY AND AGAINST LABOR UNIONS 529 of the assets and liabilities and receipts and expenditure of the soci- ety; provide that it shall have rules and a registered office, imposing a penalty on the trade union for non-compHance; and permit it to amalgamate with other trade unions, and to be wound up. The funds of the society are appropriated to the purposes of the society, and their misappropriation can be restrained by injunction: Wolfe V. Matthews, (1882) 21 Ch. D. 194; and on a winding-up, such funds are distributed amongst the members in accordance with the rules of the society: Strick v. Swansea Tinplate Co., (1887) 36 Ch. D. 558. . . . Now, although a corporation and an individual or in- dividuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a part- nership nor an individual a capacity for owning property and act- ing by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law. The Legislature has legalised it, and it must be dealt with by the Courts according to the intention of the Legisla- ture. For instance, a lease in perpetuity is imknown at common law, but such a lease granted by one railway company to another when confirmed by the Legislature becomes vahd and binding (see Sir George Jessel's judgment in Sevenoaks, etc., Ry. Co. w. London, Chatham and Dover Ry. Co., (1879) 11 Ch. D. 625, 635); nor can it be said for this purpose that the association is illegal, for the Legis- lature by sees. 2 and 3 of the Act of 1871 has rendered legal the usual purposes of a trade union, and has further enabled the trade imion to carry into effect those purposes by the provisions to which I have already referred. This is not a case of suing in contract to which the provisions of sec. 4 of the Act would apply; it is an action in tort, and the real question is whether on the true construction of the Trade Union Acts the Legislature has legalised an association which can own property and can act by agents by intervening in labour disputes between employers and employed, but which can- not be sued in tort in respect of such acts. Now, the Legislature in giving a trade union the capacity to own property and the capacity to act by agents has, without incorporat- ing it, given it two of the essential qualities of a corporation — essen- tial, I mean, in respect of Hability for tort, for a corporation can only act by its agents, and can only be made to pay by means of its property. The principle on which corporations have been held liable in respect of wrongs committed by its servants or agents in the course of their service and for the benefit of the employer — qui sentit commodum sentire debet et onus — (see Mersey Docks Trustees V. Gibbs, (1866) L. R. 1 H. L. 93), is as applicable to the case of a trade union as to that of a corporation. If the contention of the 530 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI defendant society were well founded, the Legislature has authorised the creation of numerous bodies of men capable of owning great wealth and of acting by agents with absolutely no responsibiUty for the wrongs that they may do to other persons by the use of that wealth and the employment of those agents. They would be at liberty (I do not at all suggest that the defendant society would so act) to disseminate libels broadcast, or to hire men to reproduce the rattening methods that disgraced Sheffield thirty or forty years ago, and their victims would have nothing to look to for damages but the pockets of the individuals, usually men of small means, who acted as their agents. . . . The proper rule of construction of statutes such as these is that in the absence of express contrary intention the Legislature intends that the creature of the statute shall have the same duties, and that its funds shall be subject to the same liabilities as the general law would impose on a private individual doing the same thing. It would require very clear and express words of enactment to induce me to hold that the Legisla- ture had in fact legalised the existence of such irresponsible bodies with such wide capacity for evil. Not only is there nothing in the Acts to lead me to such a conclusion, but sees. 15 and 16 of the Act of 1871 imposing penalties on the trade union, and sees. 8 and 15 of the Act of 1876 point to a contrary intention; nor do I see any reason for sajdng that the society cannot be sued in tort in their registered name. Sees. 8 and 9 of the Act of 1871 expressly provide for actions in respect of property being brought by and against the trustees, and this express intention impHedly excludes such trustees from being sued in tort. If, therefore, I am right in concluding that the society are liable in tort, the action must be against them in their registered name. The acts complained of are the acts of the association. They are acts done by their agents in the course of the management and direction of a strike; the undertaking such management and direction is one of the main objects of the defend- ant society, and is perfectly lawful; but the society, in undertaking such management and direction, undertook also the responsibility for the manner in which the strike is carried out. The fact that no action could be brought at law or in equity to compel the society to interfere or refrain from interfering in the strike is immaterial; it is not a question of the rights of members of the society, but of the wrong done to persons outside the society. For such wrongs, arising as they do from the wrongful conduct of the agents of the society in the course of managing a strike which is a lawful object of the society, the defendant society is, in my opinion, liable. I have come to this conclusion on principle, and on the construc- tion of the Acts, and there is nothing to the contrary in any of the cases cited by the defendants' counsel. ... I accordingly dismiss the society's summons with costs. SECT. I] SUITS BY AND AGAINST LABOR UNIONS 531 I have now to consider the question whether an injunction should be granted against the society in addition to that granted last week against Messrs. Bell and Holmes, and I am of opinion that it should. The objects of the society comprise promoting the settlement of disputes between masters and men by arbitration, or, failing that, by other lawful means, and of course a strike is perfectly lawful: the general management of the society is vested in an executive committee, with power to represent the members in disputes about hours and wages; a protection fund is set apart out of the funds of the society for the more effectual protection of the labour and rights of members and for the better carrying on of any movement having that end in view, and in pursuance of its objects and powers. The society by their letter of August 20, signed by the defendant Bell, informed the plaintiffs that they had decided to support the men in their action, and had instructed Bell to take charge of the move- ment with a view of bringing it to a conclusion, and that all further negotiations were to be dealt with through him. The defendant Bell was the general secretary and the defendant Holmes was the local organising secretary of the society; they, as agents for the society, and on their instructions and for their benefit, put them- selves in charge of the strike, and on the evidence that was read last week illegally watched and beset men to prevent them from work- ing for the company, and illegally ordered men to break their con- tracts. I have already held that the society are liable for the acts of their agents to the same extent that they would be if they were a corporation,, and it is abundantly clear that a corporation under the circumstances of this case would be hable. See, for example. Ranger v. Great Western Ry. Co., (1854) 5 H. L. C. 86, where Lord Cranworth points out that, although a corporation cannot in strict- ness be guilty of fraud, there can be no doubt that if its agents act fraudulently, so that if they had been acting for private employers the persons for whom they were acting would have been affected by their fraud, the same principles must prevail where the principal under whom the agent acts is a corporation. It is not a questionfof acting ultra vires, as in Chapleo v. Brunswick Permanent Building Society, (1881) 6 Q. B. D. 696, but of improper acts in the carrying out of the lawful purposes of the society. In such cases the principal, whether an individual or a corporation, or a body like turnpike trustees, is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved. Granted that the principal has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he is answerable for the manner in which the agent has conducted himself in doing the business with which the principal has entrusted him: see Barwick v. English Joint Stock Bank in the Exchequer 532 COKPORATE FEATURES OF LABOR UNIONS [CHAP. XI Chamber, (1867) L. R. 2 Ex. 259. Therefore, if it is any longer necessary to grant an injunction, I grant an injunction against the defendant society in the same form as that granted last week against the other defendants. These two orders of Farwell, J., were set aside by the Court of Appeal (A. L. Smith, M.R., CoHins and StirUng, L.JJ.), who held that a trade union society cannot be sued in its registered name, [1901] 1 K. B. 170. The railway company appealed. . . . The House took time for consideration. July 22. Eahl op Halsbury, L. C.^ My Lords, in this case I am content to adopt the judgment of Farwell, J., with which I entirely concur; and I cannot find any satisfactory answer to that judgment in the judgment of the Court of Appeal which overruled it. If the Legislature has created a thing which can own property, which can employ servants, and which can inflict injury, it must be taken, I think, to have impliedly given the power to make it suable in a Court of Law for injuries purposely done by its authority and procurement. I move your Lordships that the judgment of the Court of Appeal be reversed and that of Farwell, J., restored. Lord Brampton. My Lords, I shall trouble your Lordships with but a few words, for I entirely concur in the judgment and words of the Lord Chancellor in adopting the judgment of Farwell, J. . . . I think that a legal entity was created under the Trade Union Act, 1871, by the registration of the society in its present name in the manner prescribed, and that the legal entity so created, though not perhaps in the strict sense a corporation, is nevertheless a newly created corporate body created by statute, distinct from the unin- corporated trade union, consisting of many thousands of separate individuals, which no longer exists under any other name. The very omission from the statute of any provision authorising and directing that it shall sue and be sued in any other name than that given to it by its registration appears to me to lead to no other reasonable conclusion than that in so creating it, it was intended by the Legisla- ture that by that name and by no other it should be known, and that for all purposes that name should be used and applied to it in all legal proceeding unless there was any other provision which militated against such a construction. . . . Lord Lindley. ... I entirely repudiate the notion that the effect of the Trade Union Act, 1871, is to legalise trade unions and confer on them the right to acquire and hold property, and at the same time to protect the union from legal proceedings if their man- agers or agents acting for the whole body violate the rights of other people. For such violation the property of trade unions can un- '■ Separate conctirring opinions were rendered by Lord Maonaghten and Lord Shand. — Ed. SECT. I] SUITS BY AND AGAINST LABOR UNIONS 533 questionably in my opinion be reached by legal proceedings properly framed.! ... Your Lordships have not now to consider how a judgment or order against a trade union in its registered name can be enforced. I see no difficulty about this; but, to avoid misconception, I wUl add that if a judgment or order in that form is for the payment of money it can, in my opinion, only be enforced against the property of the trade union, and that to reach such property it may be found necessary to sue the trustees. I am of opinion that the orders of Farwell, J., were right and should be restored. Orders of the Court of Appeal reversed and judgments of Farwell, J., restored with costs here and below; cause remitted to the King's Bench Division.^ THE UNITED MINE WORKERS v. THE CORONADO COAL CO. Supreme Court of the United States. 1922 -U.S.-^ ^u^-^f.y?^ This is a writ of error brought under Section 241 of the Judicial Code, to review a judgment of the Circuit Cotirt of Appeals of the Eighth Circuit. That court on a writ of error had affirmed the judgment of the District Court for the Western District of Arkansas, in favor of the plaintiffs, with some 'modification, and that judg- ment thus affirmed is here for review. The plaintiffs in the District Court were the receivers of the Bache- Denman Coal Co., and eight other corporations in each of which the first-named company owned a controlling amount of stock. They were closely interrelated in corporate organization and in the • As to the widespread dissatisfaction which this decision created in the trade union world, see Webb, History of Trade Unionism (1920 ed.), pp. 600-604. The resulting demand for a legislative reversal of the Taff Vale doctrine led to the passage of the Trade Disputes Act of 1906 (see supra, p. 24). A brief comment upon the American law will be foimd in 33 H. L. R. 298-300. On p. 300 it is said: "As a practical matter, a voluntary association does act as a unit, and it would appear that the liability ought to be primarily that of the unit. To the man in the street who deals with a labor union or a club, there is no difference apparent between the conduct of that organization, unincorporated, and the conduct of a similar incorporated association. Nor is any difference ap- parent to a member. Affairs are managed in quite the same fashion : business is transacted in the association name: the entity in the world of things is quite as definite." For a Canadian view of the matter, see Metallic Roofing^Co. v. Amalgamated Assn., 6 Ont. L. Rep. 424. Compare Dock, Wharf, Riverside & Genl. Laborers' Union v. White, 65 Sol. Jour. 723. 2 Decided June 5, 1922 (October Term, 1921. No. 31). C*^ >Vxt^ xv^ '^^\'^K '^%' 534 CORPOEATE FEATURES OP LABOR UNIONS [CHAP. XI physical location of their coal mines. These had been operated for some years as a unit imder one set of officers in the Prairie Creek Valley in Sebastian County, Arkansas. In July, 1914, the District Court for the Western District of Arkansas, appointed a receiver for all of the nine companies by a single decree. The receiver then appointed was succeeded by Franklin Bache, who as such is defendant in error here. The defendants in the court below were the United Mine Work- ers of America, and its officers. District 21 of the United Mine Work- ers of America, and its officers, 27 local unions in District No. 21, and their officers, and 65 individuals, mostly members of one union or another, but including some persons not members, all of whom were charged in the complaint with having entered into a conspiracy to restrain and monopolize interstate commerce, in violation of the first and second sections of the Anti-Trust Act, and with having, in the course of that conspiracy, and for the purpose of consummating it, destroyed the plaintiff's properties. Treble damages for this and an attorney's fee were asked under the seventh section of the act. The original complaint was filed in September, 1914, about six weeks after the destruction of the property. It was demurred to, and the District Court sustained the demurrer. This was carried to the Court of Appeals on error, and the ruhng of the District Court was reversed. Dowd v. United Mine Workers, 235 Fed. 1. The case then came to trial on the third amended complaint and answers of the defendants. The trial resulted in a verdict of $200,000 for the plaintiffs, which was trebled by the Court, and to which was added a counsel fee of $25,000, and interest to the amount of $120,600, from July 17, 1914, the date of the destruction of the property, to November 22, 1917, the date upon which judgment was entered. The verdict did not separate the amount found between the com- panies. On a writ of error from the Court of Appeals, the case was reversed as to the interest, but in other respects the judgment was affirmed. 258 Fed. 829. The defendants, the International Union and District No. 21, have given a supersedeas bond to meet the judgment if it is affirmed as against both or either of them. The third amended complaint avers that of the nine companies, of which the plaintiff was receiver, and for which he was bringing his suit, five were operating companies engaged in mining coaLand shipping it in interstate commerce, employing in all about 870 men, and mining an annual product when working to their capacity valued at $465,000, of which 75 per cent was sold and shipped to customers outside of the State. Of the five operating companies, one was under contract to operate the properties of two of the others, and four non-operating companies were each financially interested in one or more of the operating companies either by lease, by contract, or by the ownership of all or a majority of their stock. The defendant, the United Mine Workers of America, is alleged to be an unincor- SECT. I] SUITS BY AND AGAINST LABOR UNIONS 535 porated association of mine workers, governed by a constitution, with a membership exceeding 400,000, subdivided into thirty districts and numerous local unions. These subordinate districts and unions are subject to the constitution and by-laws not only of the Inter- national Union, but also to constitutions of their own. The complaint avers that the United Mine Workers divide all coal mines into two classes, union or organized mines operating under a contract with the union to employ only union miners, and open shop or non-union mines, which refuse to make such a contract; that owing to the uru'easonable restrictions and regulations imposed by the union on organized mines, the_cost of production of iinion coal is imnecessarily enhanced so as to prevent its successful com- petition in the markets of the country with non-union coal; that the object^ of the conspiracy of the United Mine Workers and the union operators acting with them is the protection of the union-mined coa l by the pr evention and restraint of all interstate trade and com- petition in the products of non-union mines. The complaint enu- merates twenty-three States in which coal mining is conducted, and alleges that the coal mined in each comes into competition in inter- state commerce, directly or indirectly, with that mined in Illinois, Kentucky, Alabama, New Mexico, Colorado, Kansas, Oklahoma and Arkansas, in the markets of Louisiana, Texas, Oklahoma, Ne- braska, Kansas, Missouri, Iowa and Minnesota, where, but for the defendants' imlawful interference, plaintiffs would have been en- gaged in trade in 1914; that the bituminous mines of the greater part of the above territory are union mines, the principal exceptions being Alabama, West Virginia, parts of Pennsylvania and Colorado, which the defendant has thus far been unable to organize. The complaint further avers that early in 1914, the plaintiff com- panies decided that the operating companies should go on a non- union or open shop basis. Two of them, the Prairie Creek Coal Mining Co. and the Mammoth Vein Coal Co., closed down and dis- continued as union mines, preparatory to reopening as open shop mines in AprU. They were to be operated under a new contract by the Mammoth Vein Coal Mining Co. Another of the companies, the Hartford Coal Co., which had not been in operation, planned to start as an open shop mine as soon as convenient in the summer of 1914. The fifth, the Coronado Coal Co., continued operating with the union until April 18, 1914, when its employees struck because of its unity of interest with the other mines of the plaintiffs. The plain- tiff says that in April, 1914, the defendants and those acting in con- junction with them, in furtherance of the general conspiracy, already described, to drive non-union coal out of interstate commerce, and thus to protect union operators from non-union competition, drove and frightened away the plaintiffs' employees including those directly engaged in shipping coal to other States, prevented the plaintiffs from employing other men, destroyed the structures and 536 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI facilities for mining, loading and shipping coal, and the cars of inter- state carriers waiting to be loaded, as well as those already loaded with coal in and for interstate shipment, and prevented plaintiffs from engaging in or continuing to engage in interstate commerce. The complaint alleges that the destruction to the property in busi- ness amounted to the sum of $740,000, and asks judgment for three times that amount or $2,220,000. Certain of the funds of the United Mine Workers in Arkansas were attached. The defendants, the United Mine Workers of America, District No. 21, and each local union and each individual defendant filed a separate answer. The answers deny all the averments of the complaint. The trial began on October 24, 1917, and a verdict and judgment were en- tered on November 22, following. The evidence is very voluminous, covering more than 3000 printed pages. Mr. Chief Justice Taft, after stating the case, delivered the opinion of the court. There are five principal questions pressed by the plaintiffs in error here, the defendants below. The first is that there was a misjoinder of parties plaintiff. The second is that the United Mine Workers of America, District No. 21, United Mine Workers of America and the local unions made defendants are unincorporated associations and not subject to suit and therefore should have been dismissed from the case on motions seasonably made. The third is that there is no evidence to show any agency by the United Mine Workers of America in the conspiracy charged or in the actual destruction of the property, and no liability therefor. The fourth is that there is no evidence to show that the conspiracy alleged against District No. 21 and the other defendants, was a conspiracy to restrain or monopolize inter- state commerce. The fifth is that the court erred in a supplemental charge to the jury, which so stated the court's view of the evidence as to amount to a mandatory direction coercing the jury into finding the verdict which was recorded. . . . Second.' Were the unincorporated associations, the International Union, District No. 21, and the local unions suElble iiL-theirmmes? The United Mine Workers of America is a national organization. Indeed, because it embraces Canada it is called the International Union. Under its constitution, it is intended to be the union of all workmen employed in and around coal mines, coal washers and coke ovens on the American continent. Itsdeclared purpose is to increase wages and improve conditions of employment of its members by legislation, conciliation, joint agreements and strikes. It demands not more than eight hours a day of labor. The union is composed of workmen eligible to membership and is divided into districts, subdistricts and local unions. The ultimate authority is a general convention to which delegates selected by the members in their ' That part of the opinion dealing with misjoinder of parties plaintiff and hold- ing that there was no such misjoinder is omitted. — Ed. SECT. I] SUITS BY AND AGAINST LABOE UNIONS 537 local organizations are elected. The body governing the union in the interval between conventions is the International Board consisting of the principal officers, the president, vice-president and secretary- treasurer, together with a member from each district. The president has much power. He can remove or suspend International officers, appoints the national organizers and subordinates, and is to interpret authoritatively the constitution, subject to reversal by the Inter- national Board. When the Board is not in session, the individual members are to do what he directs them to do. He may dispense with initation fees for admission of new locals and members. The machinery of the organization is directed largely toward propaganda, concihation of labor disputes, the making of scale agreements with operators, the discipline of officers, members, districts and locals, and toward strikes and the maintenance of funds for that purpose. It is ad mirably f ramed^for_unit„a,Qtion , under the direction of the NationaTo fficers. It has a weekly journal, whose editor is appointed by the president, which publishes all official orders and circulars, and all the union news. Each local union is required to be a sub- scriber, and its official notices are to be brought by the secretary to the attention of the members. The initiation fees and dues collected from each member are divided between the national treasury, the district treasury and that of the local. Should a local dissolve, the money is to be transmitted to the national treasury. The_rules a§_tOjStrikes are important here. Sec. 27 of the constitu- tion is as foUows: "The Board shall have_£Ower between conventions, by a two- thirds vote, to reconunendthe^ calling of a general strike, but under no circumstances shall it call such strike until approved by a ref- erendinn vote of the members." Under article 16, no district is permitted to engage in a strike in- volving all or a major portion of its members without sanction of the International Convention or Board. Sec. 2 of that article provides that districts may order local strikes within their respective districts "on their own responsibility," but where local strikes are to be financed by the International Union, they must be sanctioned by the International Board. Sec. 3 provides that in imorganized fields the Convention or Board must sanction strikes and no financial aid is to be given until after the strike has lasted four weeks, unless otherwise decided by the Board. The Board is to prescribe conditions in which strikes are to be financed by the International Union and the amount of strike relief to be furnished the striking members. In such cases, the president appoints a financial agent to assume responsibility for money to be expended from the International funds, and he only can make binding contracts. There is a uniform system of account- ing as to the disbursements for strikes. The membership of the union has reached 450,000. The dues re- 538 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI ceived from them for the national and district organizations make a very large annual total, and the obligations assumed in travelling expenses, holding of conventions, and general overhead cost, but most of all in strikes, are so heavy that an extensive financial business is carried on, money is borrowed, notes are given to banks, and in every way the union acts as a business entiJ22_distiQCJt_from its members. Nb'organized corporation has greater uni^ of action^and in none is more power centered in the governing executive bodies. Undoubtedly at^onomon law, an imincorporated association jf^r- sons was not recognized as having any other character ^ajD^a^partner- ship in whatever was~3bne, and it could only sue or be sued in the names of its members, and their liability had to be enforced against each member. Pickett v. Walsh, 192 Mass. 572; Karges Furniture Co. V. Amalgamated Woodworkers Local Union, 165 Ind. 421 ; Bas- kins V. United Mine Workers (Ark.), decided Nov. 7, 1921 (234 S. W. 464). But the growth and necessities of these great labor organiza- tions have brought affirmative legal recognition of their existence and usefulness and provisions for their protection, which their mem- bers have found necessary. Their right to maintain strikes, when they do not violate law or the rights of others, has been declared. The embezzlement of funds by their officers has been especially de- nounced as a crime. The so-called union label, which is a quasi trade- mark to indicate the origin of manuf actiu-ed product in union labor, has been protected against pirating and deceptive use by the statutes of most oFEhe States, and in many States authority to sue to enjoin its use has been conferred on unions. They have been given^istinct and separate representation and the righT'to_appear to represent union interests in statutory arbitrations, and before officiaPTabor boards. . . . More than this, equitable procedure adapting itself to modern needs has grown to recogniieTEeTneed of^ representation by one person of xnanyTtoo nmnerous to sue or to be sued (Story, Equity Pleadings, 8th ed., sees. 94, 97; St. Germain v. Bakery Union, 97 Wash. 282; Branson v. Industrial Workers of the World, 30 Nev. 270; Barnes v. Chicago Typographical Union, 232 111. 402) ; and this has had its influence upon the law side of litigation, so that out of the very ne- cessities of the existing conditions and the utter impossibility of doing justice otherwise, the suable character of such an organiza,tion as this has come to be recognized in some jurisdictions, and many suits for. and against labor unions are reported in which no question has been raised as to the right to treat them in their closely united action and func- tions as artificial persons capable of sxoiag and being sued. It would^ be unfortunate if an organization with as great power as this Inter- national Union has in the raising of large funds and in directing the conduct of four hundred thousand members in carrying on, in a wide territory, industrial controversies and strikes, out of which so much unlawful injury to private rights is possible, could assemble its assets to be used therein free from liability for injuries by torts committed SECT. I] SUITS BY AND AGAINST LABOR UNIONS 539 in course of such s trikes. To remand persons injiured to a suit against eadronEe'400,000 members to recover damages and to levy on his share of the strike fund, would be to leave them remediless. In the case of Taff Vale Co. v. Amalgamated Society of Railway Servants, [1901] A. C. 426, an EngHsh statute provided for the regis- tration of trades unions, authorized them to hold property through trustees, to have agents, and provided for a winding up and a ren- dering of accounts. A union was sued for damages growing out of a strike. Mr. Justice Farwell, meeting the objection that the union was not a corporation and could not be sued as an artificial person, said: "If the contention of the defendant Society were well founded, the legislature has authorized the creation of numerous bodies of men capable of owning great wealth and of action by agents with absolutely no responsibility for the wrongs that they may do to other persons by the use of that wealth and the employment of those agents." He therefore gave judgment against the imion. This was aflarmed by the House of Lords. The legislation in question in that case did not create trade unions but simply recognized their existence and regulated them in certain ways, but neither conferred on them general power to sue, nor imposed liability to be sued. See also, Hildenbrand v. Building Trade Council, 14 Ohio D. C. N. P. 628. HoUand Jurisprudence, 12th ed. 341 ; Pollock's First Book on Jurisprudence, 2d ed. 125. Though such a conclusion as to the suability of trades unions is of primary importance in the working out of justice and in pro- tecting individuals and society from possibility of oppression and injury in their lawful rights from the existence of such powerful entities as trade unions, it is after all in essence and principle merely a procediu-al matter. As a matter of substantive law, aU the mem- bers of the union engaged in a combination doing unlawful injury are liablelEo suit and recovery, and the only question_^^whether when lEejUiaxe. voluntarily, and for the purpose of acquiring con- | centrated strength and the faculty of quick unit action and elasticity, ; createcL a self-acting body with ^eat funds to accomplish their purpose, they may'not be sued as this jjody, and the funds they have accimiulaj.ed.jnay not be made to satisfy claims for injm-ies unlaw- fully caused in carrying out their united purpose. Trade unions ; have_ been recog nized as lawful by th£Claytori Act;, they have been \ ^EfndereiLJormar incorporation as National Unions by the act qf Congress approveO^e 29, 1886 (24 Stat. 86). In the act of Con- gress, approved August 23, 1912 (37 Stat. 415), a commission on industrial relations was created providing that three of the Com- missionCTS_^puU represent organized labor. The Transportation AcToTl^O^ Sees. 302^307 (41 Stat. 469), reco gnize s labor unions in creation of railroad boards of adjustment, and provides for ac- 540 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI tion by the Railroad Labor Board upon their application. The act of Congress approved August 5, 1909, Chap. 6, Sec. 38, 36 Stat. 112 and the act approved October 3, 1913, Chap. 16, subd. G. a. (38 Stat. 172), expressly exempt^ labor unions jfrOTn_excise taxes. Periodical publications issued by or under the auspices of trades unions are admitted into the mails as second class mail matter. Acts of 1911-12, Chap. 389 (37 Stat. 550). The legalityjrf laborjiniqns of postal employees is expressly recognized~by:act_of Congress, ap- pfoved August 24, 1912, Chap. 389, Sec. 6 "(37 Stat.~539, 555). By act of Congress, passed August 1, 1914, no money was to be used from funds therein appropriated to prosecute unions under the Anti- Trust Act '(SS Stat. 609, 652) . In ihii state of federal legislation, we think that such organiza- tions are suable in the federal courts for their acts, and that funds accumulated to be expended in conducting strikes are subject to execution in suits for torts conunitted by such unions in strikes. The fact that the Supreme Court of Arkansas has since taken a different view in Baskins v. The United. Mine Workers of America, supra, cannot under the Conformity Act operate as a limitation on the federal procedure in this regard. Our conclusion as to the suabiUty of the defendants is confirmed in the case at bar by the words of sections seven and eight of the Anti-Trust Law. The persons who may be sued under Sec. 7 in- clude "corporations and associations existing under or authorized by the laws of either the United States, or the laws of any of the territories, the laws of £lny State, or the laws of any foreign coun- try." This language is very broad, and the words given their natural signification certainly include labor unions Hke these. They are, as has been abundantly shown, associations existing under the laws of the United States, of the territories thereof, and of the States of the Union. Congress was passing drastic legislation to remedy a threatening danger to the public welfare, and did not intend that any persons or combinations of persons should escape its apphca- tion. Their thought was especially directed against business as- sociations and combinations that were unincorporated to do the things forbidden by the act, but they used language broad enough to include all associations which might violate its provisions recog- nized by the statutes of the United States or the States or the Terri- tories, or foreign countries as lawfully existing; and this, of course, includes labor unions, as the legislation referred to shows. Thus it was that in the cases of United States v. Trans-Missouri Freight Asso- ciation, 166 U. S. 290, United States v. Joint Trafiic Association, 171 U. S. 505, Montague & Co. v. Lowry, 193 U. S. 38, and Eastern States Lumber Association v. United States, 234 U. S. 600, unin- corporated associations were made parties to suits in the federal courts under the Anti-Trust Act without question by anyone as to the correctness of the procedure. SECT. I] SUITS BY AND AGAINST LABOR UNIONS 541 For these reasons, we conclude that the International Union, the District No. 21 and the 27 Local Unions were properly made parties defendant here and properly served by process on their principal officers. Third. The next question is whether the International Union was shown by any substantial evidence to have initiated, participated in or ratified the interference with plaintiffs' business which began April 6, 1914, and continued at intervals until July 17, when the matter culminated in a battle and the destruction of the Bache- Denman properties. The strike was a local strike declared by the president and officers of the District Organization No. 21, embrac- ing Arkansas, Oklahoma and Texas. By sec. 16 of the International constitution, as we have seen, it could not thus engage in a strike if it involved all or a major part of its district members without sanc- tion of the International Board. There is nothing to show that the International Board ever authorized it, took any part in preparation for it or in its maintenance. Nor did they or their organization ratify it by paying any of the expenses. It came exactly within the definition of a local strike in the constitutions of both the Na- tional and the District organizations. The District made the prep- arations and paid the bills. It does appear that the president of the National body was in Kansas City and heard of the trouble which had taken place on April 6 at Prairie Creek and that at a meeting of the International Board he reported it as something he had learned on his trip for their official information. He said that a man named Bache had demanded in a suit an accounting of the funds of the Southwestern Coal Operators' Association, that when he secured the information, he "went down to Arkansas and started to run his mine non-union. The boys simply marched in on him in a day down there and kicked his Colorado guards out of there and broke their jaws and put the flag of the United Mine Workers on top of the tipple and pulled the fires out of the boilers, and that was all there was to it, and the mines have been idle ever since. I do not say our boys did this, but I mean the people from all through that country marched in and stopped the work, and when the guards offered resistance, several of them were roughly handled but no lives were lost as I understand it." Later in May he made a long speech at a special convention of District No. 21 held at Fort Smith for a purpose not connected with this matter in which he referred especially to the Colorado and West Virginia strikes in which the International Union was engaged with all its might, but he made no specific allu- sion to the Prairie Creek difficulty. It does appear that in 1916 after Stewart, the president of District 21, had been convicted of con- spiracy to defeat the injunction issued to protect the Prairie Creek mines in this conflict, and had gone to the penitentiary and was pardoned, White, the National president, wrote a letter thanking the President for this, and that subsequently he appointed Stewart to a 542 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI position on a District committee. It would be going very far to consider such acts of the president alone a ratification by the Inter- national Board creating liability for a past tort. The president had not authority to order or ratify a local strike. Only the Board could do this. White's report in an executive meeting of the Board of the riot of April 6 shows sympathy with its purpose and a lack of respect for law but does not imply or prove on his part any prior initiation or indicate a desire to ratify the transaction as his work. The Board took no action on his report. He did not request it. Communications from outsiders and editorials published in the United Mine Workers jom-nal giving accounts of the occurrences at Prairie Creek and representing that the troubles were due to the aggression of the armed guards of the mine owners and that the action of the union men was justified because in defense of their homes against night attacks do not constitute such ratification by the Board or the president after the fact as to make the Interna- tional Union liable for what had been done. The argument of counsel for the plaintiffs is that because the Na- tional body had authority to discipline District organizations, to make local strikes its own and to pay their cost, if it deemed it wise, the duty was thrust on it when it knew a local strike was on, to superintend it and prevent its becoming lawless at its peril. We do not conceive that such responsibility is imposed on the National body. A corporation is responsible for the wrongs committed by its agents in the course of its business, and this principle is enforced against the contention that torts are ultra vires the corporation. But it must be shown that it is in the business of the corporation. Surely no stricter rule can be enforced against an unincorporated organi- zation like this. Here it is not a question of contract or of holding out an appearance of authority on which some third person acts. It is a mere question of actual agency which the constitutions of the two bodies settle conclusively. If the International body had interfered or if it had assimied liability by ratification, different questions would have arisen. Counsel cite sec. 2 of article 12 of the constitution of District No. 21 to show that questions of aU strikes must be referred by District officers to the National president for his decision, and sug- gest that in the absence of a showing it is to be inferred that they did so here and the strike was approved by him. They misconstrue the section. It applies only to a proposed strike T\hich would affect two Districts and to which one District is opposed. It does not apply to local strikes like this. But it is said that the District was doing the work of the Inter- national and carrying out its policies and this circumstance makes the former an agent. We cannot agree to this in the face of the specific stipulation between them that in such a case unless the International expressly assumed responsibility, the District must SECT. I] SUITS BY AND AGAINST LABOR UNIONS 543 meet it alone. The subsequent events showing that the District did meet the responsibiUty with its own fimds confirm our reliance upon the constitutions of the two bodies. We conclude that the motions of the International Union, the United Mine Workers of America, and of its president and its other officerSj that the jury be directed to return a verdict for them, should have been granted. Fourth. The next question is twofold: (a) Whether the District No. 21 and the individual defendants participated in a plot unlaw- fully to deprive the plaintiffs of their employees by intimidation and violence and in the course of it destroyed their properties, and, (b), whether they did these things in pm-suance of a conspiracy to restrain and monopolize interstate conamerce. The case made for the plaintiff was as follows: (a) In March of 1914, when the Prairie Creek No. 4, Mammoth Vein Coal Mine, and the Coronado mines were operating with union labor and under a District No. 21 contract and scale of wages and terms which did not expire until July 1 following, Bache, the manager of all the properties, determined to run his mines thereafter on a non-union or open basis. He had his superintendent prepare a letter setting forth his reasons for the change and f orw arded it to his prin- cipals in the East to justify the change of poHcy which he insisted would result in a substantial reduction in the cost of production. To avoid the charge of a breach of the union scale, he had a contract made between the Mammoth Vein Coal Mining Co., ■which he con- trolled, and the Prairie Creek Coal Co. and the Mammoth Vein Coal Co., by which the Mammoth Vein Coal Mining Co., a corporation with $100 capital, agreed to run the mines. As it had signed no scale, he considered it free from obligation to the union. He then shut down the mines and prepared to open them on a non-union basis on April 6. He anticipated trouble. He employed three guards from the Burns Detective Agency, and a number of others to aid them. He bought a number of Winchester rifles and ammunition. He surrounded his principal mining plant at Prairie Creek No. 4 with a cable strung on posts. He had notices prepared for his former employees, who occupied the Company's houses, to vacate. He had notices warning trespassers from the premises posted at the entrance to the tract that was enclosed within the cable. He sent out for non-xmion men and had gathered some thirty or more at the mine by the day fixed for the opening. The mines of the plaintiffs lie in the County of Sebastian on the west border of Arkansas, next to Oklahoma, in a hilly country. The whole country is full of coal mines. The annual coal-producing capacity of Arkansas is about 2,000,000 tons. The product is a smokeless coal like the Pocohontas of West Virginia. All the Arkan- sas mines but one small one were union. The towns in the neighbor- hood, Hartford, Huntington, Midland, Frogtown, and others were 544 COEPORATE FEATURES OF LABOR UNIONS [CHAP. XI peopled by union miners and the business done in them was depend- ent on union miners' patronage. Hartford, a town of twenty-five hundred, was about three miles from Prairie Creek; Midland, less in size, lay about the same distance away in another direction; and Huntington was a mile or two further in still another direction. Frogtown was a small village about a mile and a half from Prairie Creek. Stewart, the president of the District No. 21, and the other officers promptly declared a local strike against the Prairie Creek and Mammoth Vein mine and the union miners who had not been discharged from the Coronado mine of the plaintiffs left. Through the agency of the officers of District No. 21 and the local unions, a pubHc meeting was called at the schoolhouse, about a quarter of a mile from the Prairie Creek mine. The influence of the union men was exerted upon the shopkeepers of the towns above named to close their stores and attend the meeting. It was given a picnic character and women and children attended. The meeting, after listening to speeches, appointed a committee to visit the super- intendent in charge of the mine. On this committee was one Slan- kard, a constable of the town of Hartford, and a imion man, to- gether with two other union miners. They asked the superintendent that the non-union men be sent away and the mine resume opera- tions with union men. The committee was attended by a very large body of union miners. They were met at the entrance to the enclosure by two guards with guns carried behind them. The com- mittee was admitted to see the superintendent and the crowd dealt with the guards. The guards had been directed not to use their guns save to defend their own hves or another's. The imion miners assaulted the guards, took the gims away, and so injured a number of the employees, that four or five had to be sent to a hospital. The crowd swarmed over the premises, forced the pulling of the fires and hurled stones at the fleeing guards. The result was that all the employees deserted the mine, and it was completely filled with water which came in when the pumps stopped. One of the crowd went up to the top of the coal tipple and planted a flag on which was the legend, "This is a imion man's country." Mr. Bache, after the riot and lawless violence of April 6, secured from the Federal District Court an injunction against those union miners and others whom his agents could identify as having been present and having taken part. This included the president and secretary-treasurer of the District No. 21 and others. Bache then made preparation to resume mining. The mine was fuU of water and it required a considerable time to pump it out and get things into proper condition. Because of further threats, the court was applied to to send United States Deputy Marshals to guard the property, and they were sent. Meantime the work of reparation progressed, and Bache's agents were engaged in securing the coming of miners and other employees from in and out of the State to en- SECT. I] SUITS BY AND AGAINST LABOR UNIONS 545 large his force. The attitude of the union miners continued hostile, and constant effort was made by them to intercept the groups of men and women who v,eve brought in by Bache from Tennessee and elsewhere, and to turn them away either by peaceable inducement or by threats and physical intimidation. The vicinage was so per- meated with union feeling that the public officers did not hesitate to manifest their enmity toward the non-union men, and made arrests of the guards and others who were in Bache's employ upon frivolous charges. Rumors were spread abroad through the county that the guards employed by Bache were insulting and making indecent proposals to very young girls in and about Prairie Creek, and P. R. Stewart, the president of District No. 21, in the presence of some ten persons on the public street of Midland, in the latter part of May, denounced the guards for these insults and proposals, and said that he would furnish the guns if the people would take them. The evidence also disclosed that through the secretary- treasurer of District No. 21, some forty or more Winchester rifles were bought from the Remington Arms Co. and secretly sent to Hartford for the purpose intended by Stewart. They were paid for by a check signed by Hull, the secretary-treasurer of District No. 21, and countersigned by Stewart, the president.* Conversations with Stewart, which Stewart did not take the stand to deny, were sworn to, in which he announced that he would not permit the Prairie Creek men to run "non-iuiion" and intended to stop it. McLachlin, who was a member of the Executive Board of District No. 21, in the first week of July gathered up some of the guns, exactly how many does not appear, and shipped them sixty miles to McAlester, Okla- homa, the headquarters of District No. 21. It appeared that guns of like make and caliber were used by the assailants in the attack on the Prairie Creek mine on July 17. The United States Marshals had been withdrawn from the premises of Prairie Creek Mine No. 4, before July 1, though the guards were retained. The evidence leaves no doubt that during the month of June there was a plan and movement among the union miners to make an attack upon Prairie Creek Mine No. 4. By this time the number of men secured by Bache had increased to seventy or eighty, and prepara- tions were rapidly going on for a resumption of mining. The tense feeling in respect to the coming attack increased. On Sunday night, July 12, about midnight, there was a fusillade of shots into the vil- lage of Frogtown, a small collection of houses, already mentioned, about a mile and a half from Prairie Creek mine. A number of people in fright at the cry that "the scabs were surrounding the town" left and went to Hartford, about two miles away, and thereafter guards were put out at Hartford to defend that town against attack by the guards at Prairie Creek. The ridiculous improbability that the guards at Prairie Creek who were engaged in protecting themselves and the property and in constant fear of attack should make this 546 COEPOKATE FEATURES OF LABOR UNIONS [CHAP. XI unprovoked assault upon the town of Frogtown, is manifest from the sUghtest reading of the evidence, and there crept in through a statement of one of the defendants, an active union man, to a wit- ness who testified to it, that this shooting had been done by the Hartford constable Slankard, and himself, in order to arouse the hostility of the neighborhood against the men at Prairie Creek. On the night of the 16th, the union miners' families who lived in Prairie Creek were warned by friends to leave that vicinity in order to avoid danger, and at 4 o'clock the next morning the attack was begun by a volley of many shots fired into the premises. A large force with guns attacked the mining premises from all sides later on in the day. The first movement toward destruction of property was at Mine No. 3, a short distance from No. 4, where the coal washhouse was set on fixe. The occupants of the premises were driven out except a few who stayed and entrenched themselves behind coal cars or other protection. Most of the employees and their families fled to the ridges behind which they were able to escape danger from the flying bullets. The forces surrounding the mine were so numerous that by one o'clock they had driven out practically aU of the de- fenders and set flre to the coal tipple of Mine No. 4, and destroyed all the plant by the use of dynamite and the match. The assailants took some of Bache's employees prisoners as they were escaping, and conducted them to a log cabin behind the school- house near the mine to which reference has already been made, and where the flrst riot meeting was held. The four or five prisoners were taken out of the cabin where they had been for a short time confined, and two of them, one a former union man, were deliberately murdered in the presence of their captors, by a man whose identity it was impossible to establish. The evidence in this case clearly shows that Slankard, the constable of Hartford, was present at the killing, and that the men who were killed were in his custody on the way, as he said, to the grand jury. He was subsequently tried before a Sebastian County jury for murder, and was acquitted on an ahbi. Slankard, though a defendant and in court, did not take the stand in this case. The overwhelming weight of the evidence establishes that this was purely a union attack, under the guidance of District officers. The testimony offered by defendants to show that it was only an uprising of the indignant citizens of the countryside really tended to confirm the guilt of the District No. 21. Its palpably artificial character showed that basis for it had been framed in advance for the purpose of relieving the officers of District No. 21 and the union miners of that neighborhood from responsibihty for the contemplated execution of their destructive and criminal purpose. It is a doubt- ful question whether this responsibility was not so clearly established that had that been the only element needed to justify a verdict, the court properly might have directed it. The president of District SECT. I] SUITS BY AND AGAINST LABOR UNIONS 547 No. 21 and the union miners, including Slankard, whose agency in and leadership of this attack were fully proven, were present in the courtroom at the trial, but did not take the stand to deny the facts estabhshed. Indeed they had been previously brought to trial for conspiracy to defeat the federal administration of justice and for contempt because of these very acts, had pleaded guilty to the charges made, and had been sentenced to imprisonment, and their expenses as defendants in and out of jail had been paid by the Dis- trict out of the District treasury and the disbursements approved by the District in convention. It is contended on behalf of District No. 21 and the local unions that only those members of these bodies whom the evidence shows to have participated in the torts can be held civilly liable for the damages. There was evidence to connect all these individual de- fendants with the acts which were done, and in view of our finding that District No. 21 and the unions are suable, we cannot yield to the argument that it would be necessary to show the guilt of every member of District No. 21 and of each union in order to hold the union and its strike funds to answer. District No. 21 and the local unions were engaged in a work in which the strike was one of the chief instrumentalities for accomplishing the purpose for which their unions were organized. By sec. 1 of Article 12 of the constitution of District No. 21, it is provided that: "When trouble of a legal character arises between the members of local imions and their employer, the mine committee and officers shall endeavor to effect an amicable adjustment, and failing they shall immediately notify the officers of the district and said district officers shall immediately investigate the cause of the complaint, and faHing to effect a peaceful settlement upon a basis that would be equitable and just to the aggrieved members, finding that a strike would best subserve the interests of the localities affected, they may, with the consent and approval of the officers, order a strike." Thus the authority is put by all the members of the District No. 21 in their officers to order a strike, and if in the conduct of that strike unlawful injuries are inflicted, the District organization is responsible and the fund accimiulated for strike purposes may be subjected to the payment of any" judgment which is recovered. (b) It was necessary, however, in order to hold District No. 21 liable in this suit under the Anti-Trust Act, to estabUsh that this conspiracy to attack the Bache-Denman mines and stop the non- imion employment there, was with intent to restrain interstate commerce and to monopolize the same, and to subject it to the control of the union. The evidence upon which the plaintiffs relied to establish this and upon which the judgment of the trial court and of the Court of Appeals went, consisted of a history of the relations between the International Union and the union coal operators of certain so-called competitive districts from 1898 until 1914. The 548 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI miners of Ohio, Indiana and Illinois, large bituminous coal produc- ing States, were members of the union and the coal operators of those States, in spite of strikes and lockouts from time to time, were properly classed as union operators. They met yearly in conference with the union's representatives to agree upon terms of employment from April 1st to April 1st. In these conferences the operators frequently complained that the competition of many non-union mines in Western Pennsylvania and the whole of West Virginia was ruinous to their business because of the low cost of production of coal in such mines due to the lower wages and less expensive conditions of working than in union mines, and iirged that something must be done to stop this, or that the union scale of wages be reduced. By sec. 8 of the contract between the operators of the Central Com- petitive Coal Field and the United Mine Workers of America, dated Chicago, January 28, 1898, it was stipulated "That the United Mine Workers organization, a party to this contract, do hereby further agree to afford all possible protection to the trade and to other parties hereto against any unfair competition resulting from a failiu^e to maintain scale rates." From this time on in every annual conference until after the controversy in the case before us in 1914, the subject recmrred. It does not appear when, if at any time, wages were reduced because of this plea by the operators. Sometimes the contention of the operators as to the effect of non-union competition was conceded and greater activity in unionizing non-union territory was promised. Again pleas were made by the miners' representatives of the great amoimt of money expended by the union and in one or two instances, of the sacrifice of hxmian lives to effect this result. Again the union leaders flatly refused to be further affected by the argument and charged that the non-union competition of West Virginia, which was always the principal factor, was only possible because some of the most important union operators in Ohio and the central com- petitive field really were interested as non-union operators in West Virginia. There was considerable discussion as to the non-union competition of Kentucky fields as a basis for the operators' com- plaints. At times, there were suggestions from the miners' side that the operators ought to contribute funds to enable the cam- paign of unionizing to go on, but they never seem to have met with favor. . . . At the convention [of the union] in 1906, a resolution that Dis- tricts 13, 14, 21, 24 and 25, be admitted to the interstate joint con- ferences, was adopted. This was urged by President Mitchell of the Union, and the Secretary, W. B. Wilson. The latter said: "If I understand the principle upon which this movement is based, it is to bring into the joint conference those operators and those miners of the Southwestern District whose competitive busi- ness is closely related to each other; and in asking that the oper- SECT. I] SUITS BY AND AGAINST LABOR UNIONS 549 ators of the Southwestern District be admitted to this conference, we are simply carrying out that principle. The coal mined in West- ern Pennsylvania comes in immediate competition and direct com- petition with Ohio; that mined in Ohio, as well as that in Pennsyl- vania, comes in competition with Indiana and Illinois; that mined in Illinois comes in contact with Iowa; that mined in Iowa comes in competition with Missouri and coal mined in Missouri comes in competition with Kansas, Arkansas, and the Indian Territory. They are aU related to one another. They are all competitors with one another, and it is but just and fair that each of these fields should have a representation in the joint conference that sets a base for the prices of the ensuing year. This is the first conference that is held. Whatever wages are agreed upon here, whether it is an increase in wages, a decrease in wages, improved conditions or otherwise, it sets the pace for other districts and those other districts have no voice in saying what that price shall be. In order to avoid that condition of affairs, in order to give justice to the operators and miners in other fields 'not represented here at the present time, we ask you as a matter of fairness and justice to permit those whose operators and miners are represented here, to participate in this joint conference." In 1910, Bache, as a union operator, took part for his mines in fixing the scale of wages in District No. 21. Later on, at the time of a conference, he made a separate scale with the District No. 21 more favorable in some respects than that subsequently agreed on in the conference with the other operators, and he was for that reason expelled from the operators' association. He was permitted at a later time to rejoin it, but he had some litigation with it in respect to their funds, the nature of which is not disclosed by the record. In 1913 and 1914, and in the years preceding, the International Union had carried on two strikes of great extent covering the Colo- rado fields, and the Ohio and West Virginia fields, in which very large sums of money had been expended and there was much law- lessness and violence. Its treasury had been drained and it bor- rowed $75,000 from District No. 21 during this period. The foregoing will enable one to acquire a fair idea of the national situation, shown by the record, in respect to the mining and sale of coal so far as it bears upon this case and upon this state of fact. The plaintiffs charge that there has been and is a continuously operat- ing conspiracy between union coal operators and the International Union to restrain interstate commerce in coal and to monopolize it, and that the work of District No. 21 at Prairie Creek was a step in that conspiracy for which it can be held liable under the Anti- Trust Act. Coal mining is not interstate commerce, and the power of Con- gress does not extend to its regulation as such. In Hammer v. Dagen- 550 CORPORATE PBATURES OF LABOR UNIONS [CHAP. XI hart, 247 U. S. 251, 272, we said: "The making of goods and the mining of coal are not interstate commerce, nor does the fact that these things are to be afterwards shipped or used in interstate com- merce make their production a part thereof. Delaware, Lackawanna & Western R. R. Co. v. Yurkonis, 238 U. S. 439." Obstruction to coal mining is not a direct obstruction to interstate commerce in coal, although it, of course, may affect it by reducing the amount of coal to be carried in that commerce. We have had occasion to consider the principles governing the validity of congressional re- straint of such indirect obstructions to interstate commerce in Swift V. United States, 196 U. S. 375; United States v. Patten, 226 U. S. 525; United States v. Ferger, 250 U. S. 199; Wisconsin R. R. Com- mission V. C. B. & Q. R. R., decided February 27, 1922; and Staf- ford V. Wallace, decided May 1, 1922. It is clear from these cases that if Congress deems certain recurring practices though not really part of interstate commerce, likely to obstruct, restrain or burden it, it has the power to subject them to national supervision and restraint. Again, it has the power to punish conspiracies in which such practices are part of the plan, to hinder, restrain or monopohze interstate commerce. But in the latter case, the intent to injure, obstruct or restrain interstate commerce must appear as an obvious consequence of what is to be done, or be shown by direct evidence or other circumstances. What really is shown by the evidence in the case at bar, drawn from discussions and resolutions of conventions and conference, is the stimulation of union leaders to press their unionization of non-union mines not only as a direct means of bettering the condi- tions and wages of their workers, but also as a means of lessening interstate competition for union operators which in turn would lessen the pressure of those operators for reduction of the union scale or their resistance to an increase. The latter is a secondary or ancillary motive whose actuating force in a given case necessarily is dependent on the particular circumstances to which it is sought to make it applicable. If imlawful means had here been used by the National body to unionize mines whose product was important, actually or potentially, in affecting prices in interstate commerce, the evidence in question would clearly tend to show that that body was guilty of an actionable conspiracy under the Anti-Trust Act. This principle is involved in the decision of the case of Hitchman Coal Co. V. Mitchell, 245 U. S. 229, and is restated in American Steel Foundries v. Tri-City Central Trades Council, decided Decem- ber 5, 1921. But it is not a permissible interpretation of the evidence in question that it tends to show that the motive indicated thereby actuates every lawless strike of a local and sporadic character, not initiated by the National body but by one of its subordinate sub- divisions. The very fact that local strikes are provided for in the union's constitution, and so may not engage the energies or funds SECT. I] SUITS BY AND AGAINST LABOR UNIONS 551 of the National body, confirms this view. Such a local case of a lawless strike must stand on its own facts and while these conven- tions and discussions may reveal a general policy, the circumstances or direct evidence should supply the link between them and the local situation to make an unlawful local strike not initiated or financed by the main organization, a step in an actionable con- spiracy to restrain the freedom of interstate commerce which the Anti-Trust Act was intended to protect. This case is very different from Loewe v. Lawlor, 208 U. S. 274. There the gist of the charge held to be a violation of the Anti-Trust Act was the effort of the defendants, members of a trades union, by a boycott against a manufacturer of hats to destroy his interstate sales in hats. The direct object of attack was interstate commerce. So, too, it differs from Eastern States Retail Lumber Dealers' Association v. United States, 234 U. S. 600, where the interstate retail trade of wholesale lumber men with consumers was restrained by a combination of retail dealers by an agreement among the latter to blacklist or boycott any wholesaler engaged in such retail trade. It was the commerce itself which was the object of the conspiracy. In United States v. Patten, 226 U. S. 525, running a corner in cotton in New York City by which the defendants were conspiring to obtain control of the available supply and to enhance the price to all buyers in every market of the country was held to be a conspiracy to re- strain interstate trade because cotton was the subject of interstate trade and such control would directly and materially impede and burden the due course of trade among the States and inflict upon the pubhc the injuries which the Anti-Trust Act was designed to prevent. Although running the corner was not interstate conunerce, the necessary effect of the control of the available supply would be to obstruct and restrain interstate commerce and so the conspirators were charged with the intent to restrain. The difference between the Patten case and that of Ware & Leland v. Mobile County, 209 U. S. 405, illustrates a distinction to be drawn in cases which do not involve interstate commerce intrinsically but which may or may not be regarded as affecting interstate commerce so directly as to be within the federal regulatory power. In the Ware & Leland case, the question was whether a State could tax the business of a broker dealing in contracts for the future delivery of cotton where there was no obligation to ship from one State to another. The tax was sustained and dealing in cotton futures was held not to be interstate commerce, and yet thereafter such dealings in cotton futures as were alleged in the Patten case where they were part of a conspiracy to bring the entire cotton trade within its influence, were held to be in restraint of interstate commerce. And so in the case at bar, coal mining is not interstate commerce ~and obstruction of coal mining, though it may prevent coal from going into interstate commerce, is not a restraint of that commerce unless the obstruction to mining 552 COEPORATE FEATURES OF LABOR UNIONS [CHAP. XI is intended to restrain commerce in it or has necessaril^^u ch a direct, matefiar arid' substantial effect to restrain it that the intenLreason- ably must be inferred. In the case at bar, there is nothing in the circiunstances or the declarations of the parties to indicate that Stewart, the president of District No. 21, or Hull, its secretary-treasurer, or any of their accomplices had in mind interference with interstate commerce or competition when they entered upon their unlawful combination to break up Bache's plan to carry on his mines with non-union men. The circumstances were ample to supply a fuU local motive for the conspiracy. Stewart said: "We are not going to let them dig coal — the scabs." His attention and that of his men was fastened on the presence of union men in the mines in that local community. The circtunstance that a car loaded with coal and billed to a town in Louisiana was burned by the conspirators has no significance upon this head. The car had been used in the battle by some of Bache's men for defense. It offered protection and its burning was only a part of the general destruction. Bache's breach of his contract with the District No. 21 in em- ploying non-union men three months before it expired, his attempt to evade his obligation by a hugger-mugger of his numerous cor- porations, his advertised anticipation of trespass and -violence by warning notices, by enclosing his mining premises with a cable and stationing guards with guns to defend them, all these, in the heart of a territory that had been completely unionized for years were calculated to arouse a bitterness of spirit entirely local among the union miners against a policy that brought in strangers and excluded themselves or their union colleagues from the houses they had oc- cupied and the wages they had enjoyed. In the letter which Bache dictated in favor of operating the mines on a non-union basis, he said, "To do this means a bitter fight but in my opinion it can be accomplished by proper organization." Bache also testified that he was entering into a matter he knew was perilous and dangerous to his companies because in that section there was only one other mine running on a non-union basis. Nothing of this is recited to justify in the slightest the lawlessness and outrages conomitted, but only to point out that as it was a local strike within the mean- ing of the International and District constitutions, so it was in fact a local strike, local in its origin and motive, local in its waging, and local in its felonious and murderous ending. But it is said that these District officers., and their^lieutenants among the miners must be charged with an intention to^o what would be the natural result of their own acts, that they must^have known that obstruction to mining coal in the Bache-Uenmanmines would keep 75 per cent of their output from being shipped_out^ of the State into interstate competition, and to that extent would help SECT. I] SUITS BY AND AGAINST LABOR UNIONS 553 union operators in their competition for business. In a national production of from ten to fifteen million tons a week, or in a pro- duction in District NorSl^f'ISD^DOlTtoiis a week, five thousand tons a week whi ch the Bache-Denman mines in most prosperous times could not exceed, wouldThaye no appreciable effect upon the price of coa3~Dnion-union^ coinpetition. The saving in the price per ton of coal under"lion-union conditions was said by plaintiff's witnesses to be from seventeen to twenty cents, but surely no one would say that such saving on 5000 tons would have a substantial effect on prices of coal in interstate commerce. Nor could it be inferred that Bache intended to cut the price of coal. His purpose was probably to pocket the profit that such a reduction made possible. If it be said that what District No. 21 feared was that if Bache were successful, the defection among union operators would spread and ultimately the whole District field of District No. 21 in Arkansas, Oklahoma and Texas would become non-union, and interstate commerce would then be substantially affected, it may be answered that this is remote and no statement or circumstance appears in the record from which it can be inferred that the participants in the local strike had such a possibility in mind or thought they were thus protecting union operators in a control or monopoly of interstate commerce. The re- sult of our consideration of the entire record is that there was no evi3ence~"siiB5Stted to the jiiiy xipon which they properly could flmnEat the "ouQfages, felonies and murders of District 21 and its compaiirons in crime were committed by them in a conspiracy to f^trainljr inonopolize interstate commerce. The motion to direct the^Jury'to^fetufn a verdict for the defendants should have been granted. Fifth. These conclusions make it unnecessary to examine the ob- jection which the plaintiffs in error make to the supplemental charge of the court. The case has been prepared by counsel for the plaintiffs with rare assiduity and abihty. The circumstances are such as to awaken regret that in our view of the federal jurisdiction, we cannot affirm the judgment. But it is of far higher importance that we should preserve inviolate the fundamental limitations in respect to the federal jurisdiction. The judgment is reversed, and the case remanded to the District Court for further proceedings in con- formity to this opinion.^ ' See also the cases in Section 3, infra, pp. 577 et seq. 554 corporate|features of labor unions [chap. XI Section 2. Ownership of Property EAST HADDAM CENTRAL BAPTIST CHURCH v. EAST HADDAM BAPTIST ECCLESIASTICAL SOCIETY Supreme Court of Errors of Connecticut. 1877 44 Conn. 259 Carpenter, J. The petitioners allege that they are a corpora- tion, and, as such, the owners of a church edifice and a parsonage; that a pretended meeting of the church which constitutes the cor- poration was secretly and fraudulently held, at which it was voted to convey the property to the respondents, and that it was so con- veyed; that the meeting was held without any legal notice or warn- ing; that the respondents are using the property and have hired and put into the church and parsonage the Rev. Mr. Beebe, a person who is not a regular Baptist clergyman; and that the petitioners have lost the use of the property, and that the deed is a cloud upon their title. They pray that the respondents and the said Beebe may be re- strained from using the property, and from interfering with the petitioners in their use of it, and that the deed may be decreed to be null and void. It is obvious from this statement of the case that the allegation of title is essential to the cause of action. If the petitioners have no title they have no standing in court. It will be observed that they do not come iato court as individuals having an equitable interest in the property, seeking the aid of a court of chancery to enforce a trust and carry out the intention of the donors, but they come claim- ing to be the absolute owners, not only of an equitable interest, but of the legal title. The report of the committee shows that the petitioners are not a corporation but a voluntary association. As such they are not the legal owners of the property in question, and by the laws of this state cannot own real estate. On this ground alone it is difficult to see upon what principle the petitioners can claim the relief prayed for. But this is not all. The land on which the church edifice stands was deeded in 1844 by George Higgins to Elijah Spencer. In 1849 Spencer conveyed it to Stanton S. Card and others, trustees of the First Baptist Society in East Haddam — presumptively a corpora- tion. In 1854 the society deeded it to said Card and others, trustees for the church, "for the sole use of the First Baptist Church, to be held by said trustees subject to the control and direction of the church, as shall appear by their vote at any meeting of said church, called or assembled in the ordinary manner of holding their church meetings." SECT. II] OWNERSHIP OF PROPERTY 555 We do not find that the title ever passed from these trustees. It appears that they, in behalf of the church, took possession of the property and continued to hold possession for about twenty years. The legal title therefore appears to be in the trustees to whom it was conveyed in 1854, and, as at present advised, we are unable to see how the deed referred to in the petition, which was dated April 20th, 1875, purporting to be executed by "the Central East Haddam Baptist Church," can have any effect upon the title. The other piece of property, the parsonage, was conveyed in 1869 by John Comstock to Henry J. Holmes and others, trustees for said church, "to be used as a parsonage forever." So far as the record discloses the title is in these trustees at the present time. It is quite clear therefore that the petitioners are not the legal owners of the property in dispute; but so far as we know the property is owned by trustees who are not parties to this proceeding. It is possible that the trustees have allowed the property to be used for other purposes than those for which it was originally in- tended; but before the coiu-t can properly take any action in respect to that matter, aU persons interested in it, legal as well as equitable, should be made parties to the proceeding and have an opportunity to be heard. For these reasons we advise the Superior Court to dismiss the bill. In this opinion the other judges concm-red.^ BROWN V. STOERKEL SxTPBEME Court of Michigan. 1889 74 Mich. 269 MoESE, J. This is an action of assumpsit. The declaration contained three special counts, but the trial was had upon the third count alone, which alleged, in substance, that the defendants had converted and appropriated to their own use moneys belonging to Local Assembly No. 8,104 of the Knights of Labor, which was an unincorporated association, and that the mem- bers of said local assembly had assigned their right, title, and interest 1 In most jurisdictions according to the orthodox view, except where statutes provide otherwise, a grant or devise of realty to an unincorporated association is void, since the association as a body is said to be incapable of taking title to realty and the individual members were not intended to take as individuals. In the case of In re Amos, [1891] 3 Ch. 159, accordingly, a devise of land to the " Boiler Makers and Iron Ship Builders' Society," an unincorporated trade union, was held invaUd. See also, Greene v. Dennis, 6 Conn. 293, 299; Brewster w. McCall, 15 Conn. 274, 294; Barker v. Wood, 9 Mass. 419; Marx v. McGlynn, 88 N. Y. 357, 376; Goesele v. Bimeler, 5 McLean (U. S.), 223, 229 (affd. in 14 How. 589). So, it has been held that "a grant to such association eo nomine would pass no title." German Land Association v. SchoUer, 10 Minn. 331, 338. But property may be acquired by trustees for the benefit of an unincorporated association. Martin v. Board of Directors of German Reformed Church, 149 556 COKPORATB FEATURES OF LABOR UNIONS [CHAP. XI in said moneys over to plaintiff. The jury, in the Wayne Circuit Court, returned a general verdict in favor of the plaintiff for the sum of 1355.50, but, in response to special questions submitted to them, found as follows: "1. Did all the members of the 530 members contributing money to the Peninsular Car-works Assembly of Knights of Labor intend that the money so contributed should be used as initiation fees in ' a local assembly of the Knights of Labor as existing throughout the United States? "A. Yes. "2. Did all the members interested in the fund contributed join in the assigimient to plaintiff? "A. No. "3. Did the members, organizing under the name of the ' Penin- stilar Car-works Assembly,' intend, when they organized, to form another and distinct organization, which should be a successor to the association so formed? "A. Yes. "4. Did any member who originally joined the Peninsular Car- works Association of the Knights of Labor ever withdraw from the order? "A. No. "5. Was it ever intended that the money contributed by the 530 original members should become the property of Local Assembly No. 8,104? "A. Yes." A motion was therefore made by the defendants that the general verdict of the jury be set aside, and that judgment be entered upon the second special verdict found by the jury, because the jury an- swered to the second special question that all the members "in- terested" in the fund contributed did not join in the assignment to the plaintiff. This motion was granted, and judgment thereupon Wis. 19; Attorney General v. The Proprietors of Meeting House, 3 Gray, 1; Earle v. Wood, 8 Gush. 430, 445; Mendenhall v. First New Church Soc, 177 Ind. 336. A few courts have decided otherwise. Trustees v. Trustees, 84 Md. 173; Little w. Willford, 31 Minn. 173; Downmg v. Marshall; 23_N. Y. 366, 382. So, it .has been held that an unincorporated association cannot gain title to realty by prescription. Stewart v. White, 128 Ala. 202, 208. Some states, however, have followed a more hberal course. It has been held that a grant of land to an unincorporated association may be construed aS a grant to the individual members as tenants in common (Byam v. Bickford, 140 Mass. 31). See also, Curtiss v. Hoyt, 19 Conn. 154; Guild v. Allen, 28 R. 1. 1430. Com- pare Johnson v. Mayne, 4 Iowa, 180; Congregational Unitarian Society v. Hale, 51 N. Y. Supp. 704, 707; Glover v. Baker, 76 N. H. 393, 402. On the other hand, a few courts have held even bequests of personalty to an unincorporated association void. State v. Warren, 28 Md. 338, 352; Owens v, Methodist Soc, 14 N. Y. 380, 385; Re Compton's Will, 131 N. Y. Supp. 183; Ely V. Ely, 148 N. Y. Supp. 691, 707; Reeves v. Reeves, 73 Tenn. 644, 647; Bible Soc. V. Pendleton, 7 W. Va., 79, 86. The weight of authority, however, is other- wise. SECT. II] OWNERSHIP OF PROPERTY 557 entered for the defendants. The plaintiff brings error, and here insists that judgment be entered on the general verdict in his favor for the amount of such verdict. Was the special verdict inconsistent with the general one? This is the point before us. In order to fully understand the question to be determined, it will be necessary to state the facts, about which there is but little, if any, dispute. In May,. 1886, there was a strike at the Peninsular Car-works. The men in the works formed a preliminary organization, prepara- tory tO' forming a local assembly of the Knights of Labor. This preliminary body was called the "Peninsular Car-works Assembly," and was designed by its organizers to hold the workmen together until they could be initiated in squads into the Knights of Labor. When this was completed, the preliminary organization ceased to exist, and the society known as "Local Assembly No. 8,104 of the Knights of Labor," was fprmed, imder the rules and laws of that order. The persons joining the preliminary organization were re- quired to pay one dollar, and also another dollar when they were initiated into the local assembly of the Knights of Labor. The fund thus raised was to be used in assisting members in need. Some of it was thus used, and in paying expenses, and some was deposited in the People's Savings Bank of Detroit. The money was put in the hands of Edward Heurion and the defendants, and they made the deposit, in all of $400. The defendants, Gregory and Stoerkel, drew this money from the bank, — $50 July 8, 1886; and the bal- ance December 20, 1886. Gregory was treasurer of the association, and Stoerkel one of the trustees, at the time the deposit was made. Heiuion was recording secretary. The defendants, on demand, refused to pay the money over to a committee of the local assembly or to plaintiff. Both of these associations were voluntary and imin- corporated. There were 530 members of the preliminary organiza- tion. Some of the members did not go into the local assembly; quite a large number of them. One witness testifies that not over 100 of them went into the Knights of Labor Assembly No. 8,104; others swear that about 200 joined. The assignment claimed by the plaintiff was proven by a resolution passed at a meeting of Local Assembly No. 8,104, March 26, 1887: "Committee on the defaulters' question, and Br o. Brown elected as assignee. Motion made and supported that each and every mem- ber, initiated before January 1, that his signature be received, and signed over to Bro. Brown, and let him put it through the court. •Carried." An assignment was drawn up in pursuance of said action of the assembly, and signed by 37 members. These are claimed by plaintiff to have been all the members in good standing at the time of the assignment. The conflicting claims in the evidence were these: 558 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI 1. The plaintiff claimed that the money paid in by the persons joining the preliminary organization known as the "Peninsular Car-works Assembly" was to go into the funds of the Local As- sembly No. 8,104 of the Knights of Labor. The defendants, on the other hand, claimed that the dollar paid in by each of the 530 men was contributed for the sole purpose of aiding the families of these men in distress, and was not to go into the local assembly. This dispute was settled by the jury in favor of the plaintiff by their answers to questions Nos. 1, 3, and 5, in which answers they found that the money paid in was intended by all the persons paying it in to go into the funds, and become the property, of the Local As- sembly No. 8,104, which was by all of them intended to be a distinct organization from, and a successor to, the preliminary association. 2. The plaintiff claimed that all the meinbers in good standing of the local assembly joined in the assignment to him, and that that was sufficient; and the defendants insisted that he must, in order to prevail, have an assignment from all the persons who contributed to the fund, which he did not have. The jury found that all the members "interested in the fund contributed" did not join in the assignment. They did not find specially how many members there were in good standing, or whether or not all the members of Local Assembly No. 8,104 in good standing joined in the assignment. The court held in his instructions to the jury that, under the rules of the Knights of Labor, all the money belonging to Local Assembly No. 8,104 was vested in those who were in good standing, and those not in good standing had no rights in this money; and he seemed to take it for granted that the evidence was conclusive that all the members in good standing, under the constitution and laws of the order, had joined in the assignment to plaintiff, and therefore only submitted to the jury the question of the intent of the parties who paid in the money as to where it was to go, and instructed them that they must find that every man who paid in his dollar at the prelim- inary meeting paid it in with the understanding as to what the con- stitution and rules of the Knights of Labor called for as to the rights of members in the fund, and that the money was to go towards his initiation into the Knights of Labor, and that by paying this dollar he subscribed to the constitution and by-laws of this association of the Knights of Labor, — "Thus giving the members of this association the right to divest him of the interest in the dollar he had paid, by insisting upon the loss of his right to this dollar by failure to comply with the by-laws." That they must find all this before they could return a verdict for the plaintiff. If they did so find, the plaintiff could recover. If the circuit judge was correct in his submission of the case to the jury, we fail to see any such inconsistency between the general verdict and the answer to the second special question as would render SECT. II] OWNERSHIP OF PROPERTY 559 the general verdict nugatory. The jury did not mean by this answer that all the members did not pay in their dollar with the intent that it should go into the local assembly of the Knights of Labor, and be- come the property of said assembly, to be controlled by their con- stitution and by-laws, because in answer to special questions Nos. 1, 3, and 5 they found specially to the contrary. Did they mean that all the members of the local assembly in good standing at the time the assignment was made did not join in the assigimaent? It is evident they did not. The judge correctly took it for granted from the evidence that all the members in good standing did join, — and there was really no testimony tending to show otherwise, — and did not submit that matter to them. If they did mean this, it can have no effect, because there is no evidence in the record to support the special finding, if such is the sense of it. What was evidently meant by the jury in this answer was that all the persons originally contributing to the fund, and originally interested in it, did not join in the assignment. Of this there was no dispute; and the judge assumed it to be of no consequence, and we think he was right. In the light of the evidence in the case, the contention of the parties upon the trial, and the instructions of the court, and all the findings of the jury, both general and special, no other construction than the one last above can be put upon this answer to the second special question submitted. The parties who originally joined the Local Assembly No. 8,104 might, in a certain sense, be said to be "interested" in the funds belonging to the assembly, because it is provided by the rules of the order that they can, at any time, by paying their arrearages of dues, resume their rights as members. This would reinvest them with the rights in the funds of the association, and in the moneys sought to be collected in this suit, but until they paid their dues, and while they were in arrears and suspended, they had no rights or legal in- terest in the moneys of the assembly. They had perhaps while suspended a contingent interest, depending upon their regaining their rights, but not such an interest as made them necessary parties to the assignment. The jury must have had reference to this con- tingent interest in their answer to tlie second question. But the defendants claim that the judgment of the court is right, because, under all the evidence, the plaintiff was not entitled to re- cover, and the jury should have been so instructed in the first place. This claim is based upon the proposition that this voluntary unin- corporated association, consisting of many members contributing to a fund for the joint benefit of all, is a copartnership, and therefore the respective rights and duties of the members, with regard to their common property, can only be settled in a court of equity; that the rights of the individual members are entitled to as much respect in the courts as are the rights of any number of associates less than the 560 CORPORATE FEATURES OF LABOR UNIONS [CHAP, XI whole; and it would be manifestly improper for the court to permit 37 members, out of any greater number, to recover for themselves that which belongs to all the members. This association was in no sense a copartnership. There was no business carried on by it, and nothing involving loss or profit in a business sense. Burt v. Lathrop, 52 Mich. 106 (17 N. W. Rep. 716). It was purely a benevolent and social organization, having also in view the protection, benefit, and welfare of its members in their various employments. It must now be considered as weU settled that persons have a rght to enter into such associations, and to bind themselves as to their membership and rights in such societies, and the funds of the same, by the constitution and by-laws of the asso- ciation which they adopt, or subscribe to after adoption. Such an organization may be neither a partnership nor a corporation. The articles of agreement of such an association, whether called a "con- stitution," "charter," "by-laws," or any other name, constitute a contract between the members which the courts wiU enforce, if not immoral or contrary to public poUcy or the law of the land. Hyde V. Woods, 94. U. S. 523, 2 Sawy. 655; Bac. Ben. Soc, sees. 37, 91, and sec. 116, subd. 1; Austin Abbott's note to Ebbinghousen v. Worth Club, 4 Abb. N. C. 300, 301; Nibl. Mut. Ben. Soc, secs.'92, 93. The only persons having control of these funds were the members in good standing in the local assembly, by the agreement of all the members, as shown by the constitution and by-laws of the Knights of Labor, which constitution and by-laws in this respect were known to all the members when they paid in their money, as found by the jury under the charge of the court. Not only did the assembly in regular lodge meeting vote this assignment to plaintifif, but, in pur- suance of that vote, all the members of the assembly in good stand- ing executed an assignment to plaintiff of their right, title, and interest in this money to plaintiff. He was thereby, imder the law of the order and of the land, entitled to sue and recover the money in the hands of the defendants, if it belonged to the assembly, as the jury found it did. The defendants divided this money up between themselves and Heurion, relying upon difiiculties and technicaUties in the law as they supposed it to be to keep it. It is not to be re- gretted that they were mistaken in the law, and therefore deprived of the fruits of at least an attempted moral larceny. The judgment of the court below will be reversed, and judgment will be entered in this court for the plaintiff upon the general verdict for the amount thereof, and with interest from the date thereof. The plaintiff will recover costs of both courts. The other Justices concurred. SECT. II] OWNERSHIP OF PROPERTY 561 WALLACE V. THE PEOPLE Supreme Court of Illinois. 1872 63 III. 451 Writ of error to the Circuit Court of Perry county; the Hon. M. C. Crawford, Judge, presiding. . . . Per Curiam: At the May term, 1871, of the Perry County Circuit Court, the plaintiff in error was indicted for the crime of larceny. The indictment contains but a single count, in which it is charged that the property alleged to have been stolen was the property of the "American Merchants' Union Express Co." A motion was entered to quash the indictment, which motion the Circuit Court overruled. A trial was subsequently had, and the plaintiff in error was found guilty, and thereupon he entered a mo- tion in arrest of judgment, which was also overruled. The rulings of the court on these motions are now assigned for error. We are of opinion that the ownership of the property is defectively stated. It is not averred that the American Merchants' Union Express Co. is a corporation. The rule seems to be well settled that property, vested in a body of persons, ought not to be laid as the property of that body unless such body is incorporated, but should be described as belonging to the individuals composing the company. Wharton's American Crim. Law, sec. 1828, p. 659 ; 2 Russell on Crimes, p. 100. In this indictment, the property is not described as belonging to any natural person or persons, nor to any corporate body, and this defective statement was the ground of the motion in arrest. The error was fatal, and the judgment must be reversed and the cause remanded. Judgment reversed. LAVRETTA v. HOLCOMBE Supreme Court of Alabama. 1893 98 Ala. 503 A.PPEAL from the City Court of Mobile. Tried before the Hon. O. J. Semmes. This was a suit by John L. Lavretta to recover of Wm. H. Hol- combe, the sheriff of Mobile county, the amount remaining unpaid on a venditioni exponas, which was placed in his hands for collection, and which was issued in an attachment suit brought by the said Lavretta against one Moraquez, his tenant. The complaint alleged that the sheriff had levied upon sufficient property to satisfy the 562 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI claim, and had illegally discharged from the levy some portion thereof, leaving an unsatisfied balance due the plaintiff. It was shown that the sheriff had levied an attachment upon certain property found in the building occupied by said Moraquez, and which, under one aspect of the evidence, belonged to him at the time he leased the premises from Lavretta, but which he subsequently sold to the El Cosmopolitano Social and Literary Club. After the sheriff had taken the property under the attachment writ, but before a sale, he was notified that some of the property levied upon was claimed by said club. He thereupon made demand upon the plaintiff, Lavretta, for an indemnifying bond as to that part of the property, and upon Lavretta's failure to give the bond, the property claimed by the club was released. The defendant filed a number of pleas all of which, with varying phraseology, set up that after he had levied on the property and was about to sell under the writ in his hands, a portion of the property was claimed by affidavit as the property of the Cosmopolitano Club, and that he had a reasonable doubt whether said property was subject to said levy, and that he had therefore demanded an in- demnifying bond from the plaintiff, which was refused. To these pleas the plaintiff demurred. The demurrers were overruled, and this action of the court is the chief ground of error assigned in this court. . . . Hakalson, J.^ The plaintiff, Lavretta — appellant here — sued out an attachment against Moraquez, returnable to the City Court of Mobile, placed it in the hands of the sheriff, Holcombe • — ap- pellee here — who levied it on personal property supposed to belong to the defendant in attachment. The suit was prosecuted to judg- ment in said court, for the sum of $478.24 and costs; the property levied on was condemned to be sold for the satisfaction of the judg- ment, and a writ venditioni exponas issued and was placed in the hands of the defendant, as sheriff, who advertised it for sale, and on the day of the sale, and before it came off, and the property which had been levied on was about to be sold under that writ, one Gerald, as president of the "Cosmopolitano Club," by his affidavit, made claim to a part of said property as being the property of said club and not of the defendant in execution; and defendant, having rea- sonable doubt whether the property he had levied on, which was claimed by said club, belonged to the defendant in attachment, and was Uable to levy and sale under said writ, notified the plain- tiff of this claim and of his reasonable doubt as to the ownership of the property, and required of him a bond of indemnity, before pro- ceeding to sell that portion of it which was claimed by said club; and plaintiff refused to give a bond of indemnity, and after ten days from the time he required said bond — no bond having been given — i \[j- Only that part of the opinion dealing with the question of ownership by the club is given. — Ed. SECT. II] OWNERSHIP OF PROPERTY 563 defendant released that portion of it which was so claimed, and sold and accounted for the balance. . . . In the course of the trial, an effort was made, by the defendant as is stated, to establish that the Cosmopolitano Club, which claimed the part of the property levied on, was a corporation, and for that purpose, offered in evidence the incorporation book, kept in the office of the judge of probate, and the proceedings touching the organization of said Club, as found in said book, but they were ruled out, on the motion of the plaintiff, "because they did not show a corporate organization as required by law." It could have served no indispensable purpose, to show that the Club was organized, for an unchartered association of individuals, styling themselves the "Cosmopolitano Social and Literary Club," could have owned the property levied on, and made claim to it, as well as if they had been incorporated. Having objected to defendant proving the corporate existence of said Club, the plaintiff could not well object to proof of a voluntary association of individuals under that name, and the objection to the question propounded to the witness, L. B, Gould. — " Do you know whether or not several people, or a number of people, acted together, and claimed to be a Club under the name of the ' El Cosmopohtano Social and Literary Club,' " was properly allowed, the other evidence tending to show that this Club made claim to a part of the property levied on, which the sheriff demanded indemnity to sell. For the same reasons, the question propounded to and answered by the same witness, which constitutes the basis for the 5th assignment of error, was allowable. The statements of said witness, that he had been elected as president of the Club, as shown by its minutes and that he was, in May, 1889, and prior thereto, acting as the president of an organiza- tion or a society of gentlemen, designating themselves, the "El Cosmopohtano Social and Literary Club," were very proper to be answered. They tended to show a voluntary organization under that name, which claimed this property, and that the claim was not simulated but real. The question propounded was, "if he claimed to be an officer of that Club?" The answer was, "that he did not claim to be an officer thereof, but that he had been elected as the president of the Club, as shown by the minutes." Whether the minutes of the Club showed he was elected or not, was immaterial, if he acted, and the statement of the witness was about a collateral fact, which was also a collective fact, to which he was competent to testify, as much so as when a witness testifies he executed a deed or brought a suit. . . . We find no error in the record, and the judgment of the City Court is affirmed. Affirmed. 564 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI LE BLANC V. LEMAIRE Supreme Court of Louisiana. 1901 105 La. 539 The opinioii of the court was deUvered by Blanchard, J. This case presents the question whether church property, to wit: three lots of ground in the town of Abbeville, Louisiana, on one of which lots is a church building, on another a small building formerly used for church services, and the third in use as a place of burial for the dead, aU of the aggregate value of $2,050, is subject to partition at the instance of a minority, among those who, at this time, claim membership in the church. The church in question is known as the Pleasant Green Baptist Church of Abbeville. It is an unincorporated rehgious society, but has maintained its informal organization and its church for many years. The rolls of the church showed in 1898 a membership of about two hundred persons. In 1897 or 1898 trouble developed over the pastor. A portion of the membership desired to retain the then incumbent; another portion opposed him and wanted a change. The result was great discord and dissension and the formation of rival and hostile factions. This continued until finally the pastor seems to have been forced out — at least he withdrew, and, with a portion of the membership still adhering to him, is conducting religious services in another place in the neighborhood. Meanwhile, the remaining portion of the congregation, constitut- ing, it seems, the large majority, chose another pastor and with him are in possession of the church and other property and claim to be the Pleasant Green Baptist Church of Abbeville. This majority portion of the congregation is, it seems, holding regularly religious meetings and services in the church and is en- gaged in other work usual to organizations of the kind. That portion of the congregation which formed the faction that supported the former pastor instituted the present suit. They are in number, as we count the names in the petition, about fifty — or about one-fourth of the total membership as disclosed by the roll made up in 1898. They sue the remaining members of the congregation — that portion (the majority) in possession of the church and who recognize the spiritual authority of the new pastor. They (the plaintiffs) claim to be members of the Pleasant Green Baptist Church, and as such to be common owners, with the other members of that organization, in the church property. As owners in common they demand a partition of the property. SECT. II] OWNERSHIP OF PROPERTY 565 Their prayer is that the three church lots, with the improvements thereon, be sold for cash for the purpose of partition, that the debts of the society be first paid out of the proceeds, and that "the residue be distributed among all the members of the church, share and share ahke." Those members made parties defendant answered, in substance, that the property sought to be made the subject of partition stands on the record as the property of the Pleasant Green Baptist Church, and that plaintiffs have no such interest therein as entitles them to demand its partition. Their position is. that the property belongs to the church organiza- tion, that it was acquired and must be maintained for church pur- poses, that its partition would work its destruction for such purpose, and that membership in the church was not intended to carry and did not carry with it ownership in fee in any member or minority of members entitling him or them to force its partition as owner or owners in common. There was judgment in the court a qua rejecting the demand of the plaintiils and they appeal. Ruling. — We find that the lots in question were acquired for this church years ago — one of them as early as 1871. The price paid for same was small, less than one himdred dollars for aU the lots, and was settled out of the common church funds, with, perhaps, some assistance from certain members. We gather from the record that the title was taken, as to one of the lots, directly in the name of the Pleasant Green Baptist Church at the time of its acquisition in 1871. As to the other two lots the title was first taken in the name of Woodson Mitchell, the pastor at the time, who acted for and on behalf of the church in making the purchase. For about fourteen years the title remained in his name, when in 1891 he made formal conveyance of the same to "the Pleasant Green Baptist Church." The act recites that in this purchase from Mitchell the church is represented by its trustees, eight in number, who are named — "to have and to hold the above described property unto the said Pleasant Green Baptist Church forever, from and after the date hereof." The Pleasant Green Baptist Church is not an incorporated body. It has no legal existence as a corporation. It is, though, a religious society. It has organization and a church government. Our law speaks of unauthorized corporations and private societies and refers to them as capable of acquiring and possessing estates and having common interests. C. C. 446. ^rom this, it would seem that such a society as the one we are dealing with possesses at least a limited legal status. It was organized for a purpose not only not illegal but commend- able. To effectuate this purpose it has the right to use and enjoy the lots of ground in question, to erect and maintain a church thereon. 566 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI This use of property is essential to its organization and being so it would seem that this church congregation, as such, may lawfully be the beneficiary or holder of the lots. The acquisition of the lots was by specific devise to a particular society for a pxu-pose named and we find this purpose being now executed. The present membership in control of the church, being a large majority, represent the succession of the original congregation and constitute the Pleasant Green Baptist Church of Abbeville. A minority of the congregation, under the case as presented, have no right to break up the church by forcing the sale of its property for purpose of partition on the plea of being owners in indivision. While they may, perhaps, have certain property rights in the church holdings, they are not considered such owners in indivision as give them a standing in court to provoke, against the will of the njajority, a partition of that which, by common understanding, was intended to remain intact for the purpose of religious worship. We regard this controversy as presenting merely the case of a small minority of a church congregation seceding from the majority (not on doctrinal grounds or questions of religious faith or worship, but on differences of church government), refusing to acquiesce in the will of the majority, and taking steps to force the sale of the church property — a course likely to lead to the breaking up of the church organization itself. The rule that the will of the majority must prevail applies as well to religious as to secular societies, so long as the former conform to the faith and to the forms of worship of the church to which they pertain. This is so unless the church government or articles of agreement otherwise provide. Here, there being nothing to the contrary shown, the minority of the congregation, who are plaintiffs herein, when they became members of the church bound themselves to be governed by the voice of the majority in the matter of church government and the control and administration of the chin-ch property. They cannot now be permitted to gainsay this and to force the sale of the church edifice and other property against the will of the majority. If this minority of (say) one-fourth of the membership of the Pleasant Green Baptist Church could do this, one member — a minority of one out of the total membership of two hundred — could do it. This would practically put every unincorporated church or re- ligious society in the State, owning or holding property, at the mercy of any one recalcitrant member. It appears from the evidence that the minority of this church congregation are not deprived by the majority of any right held in common by all the members. SECT. II] OWNERSHIP OF PROPERTY 567 The seceding members are at liberty to return and occupy their places in the church and enjoy all their rights of membership therein. This congregation (both factions thereof) should come together and legally incorporate their church, and when this is done the trustees should make formal conveyance of the church property to the corporation. The church debts, including that due the deposed pastor, should be paid by the society thus legally incorporated, and the congrega- tion should endeavor otherwise and in all things to attain to and live in that state of harmony, good-will and brotherly love inculcated by the precepts of the Divine Master whose disciples they profess to be. Judgment aflBrmed. Rehearing refused. MoNBOE, J., dissents.^ McLaughlin v. wall SuPHEME Court of Kansas. 1909 81 Kan. 206 Pek Cttbiam: The title and body of the petition show that the, action is brought by an association of individuals as an entity, the character of which is fuUy described, but. in their own names, so that capacity to sue appears. The petition does not disclose a joint ownership or tenancy in common of the property with the defend- ants. It shows ownership by the association, of which the defend- ants are no longer members. The allegations respecting ownership by the associated plaintiffs are plain enough. Since the facts are stated it is not necessary to name the kind of ownership by calling it either general or special. If the so-called disjunctive allegation confused the matter, then the amendment ought to have been al- lowed. The petition shows that the defendants withdrew from the association but wrongfully keep its property, hence a formal allega- tion of demand is not essential. The allegations of value in the petition control in this proceeding. If, as the petition alleges, the defendants are not members of the order they have no standing to invoke its laws, but if they have there is nothing in the laws pleaded to prevent the civil comi;s from settling the title to this property. The demurrer to the petition was rightfully overruled and the objection to the introduction of testimony was wrongfully sustained. The judgment is reversed and the cause is remanded.^ 1 Robertson v. Walker, 3 Baxt. (Tenn.) 316, 318; Thomas v. Ellmaker, 1 Pare. Eq. Cas. (Pa.) 98, 111. 2 Alchenburgs v. Lodge, 138 111. App. 204, 209; Ahlendorf v. Barkons, 20 Ind. App. 657, 659; McFaddon v. Murphy, 149 Mass. 341, 344; Hill v. Rauhan Aarre, 200 Mass. 438; Schiller Commandery No. 1, U. F. M. v. Jaennichen, 116 Mich. 129, 130; Moore v. Telephone Co., 171 Mich. 388, 399. 568 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI RUSE V. WILLIAMS Supreme Court of Arizona. 1913 14 Ariz. 445 Franklin, C. J. This is an action of assumpsit brought by the plaintiff, in two counts, against the defendants on an alleged joint and several liability for cash, goods, wares, and merchandise fur- nished and advanced by plaintiff and his assignor, one A. G. Kurvess. In the first paragraph of the complaint the allegation is made that the defendants and each of them are transient persons in a roving band without residence, but at present domiciled in Yuma county. A judgment on a joint and several liability of the defendants to plaintiff was entered for $1,600, interest and costs. The appeal is prosecuted from the judgment and from the order overruling the defendants' motion for a new trial. A consideration of appellants' assignment questioning the sufficiency of the evidence to support the judgment is determinative of the case. . . . There was no evidence offered by defendants, but a fair inference drawn from the evidence in behalf of plaintiff discloses that he and his assignor, A. G. Kurvess, together with the defendants and others to the mmiber of about twenty-nine persons, formed themselves into a voluntary association, unincorporated, calling themselves as thus associated a "Spiritual Class." The term "association" is a word of vague meaning used to indicate a collection of persons who have joined together for a certain object, and the Spiritual Class thus formed may properly be included within the meaning of the terms as so defiped. The object of the Spiritual Class was to aid in effectuating certain ideals in religious fife, especially those relating to the communistic ownership of property. Their aim was to five such a Hfe as Christ lived, and the mode of hfe described in the Acts of the Apostles was the foundation stone upon which was to be erected the arch of a high ideal in religious belief. Before joining the Spiritual Class, each person passed a "novitiate," as it were, and before being for- mally considered a member in good standing was subjected to rather a rigid examination as to his fitness. It may be stated in the words of a witness: "We were asked if we were willing to give up all for the Lord, and were referred to the fourth and fifth chapters of Acts to read; and, of course, we said we were wiUing to give up all and spend our tune for the benefit of saving souls and for the benefit of the Lord. . . . We were supposed to live as one family, and when one needed anything, whether they put anything in the treasury or not, they were to have it." The class was formed in Findlay, Ohio, some time about February, 1911, and its membership con- sisted of persons who had hitherto been acquainted with each other for some time. SECT. II] OWNERSHIP OF PROPERTY 569 When the plaintiff joined, he gave up all his worldly possessions to promote its objects and further his rehgious belief, the under- standing being that the class was to live as one family, and the money he then had and the proceeds of his future labors were to be used for the support of the class, under the Apostolic doctrine that all things were to be held in common, and all were to subsist out of the common treasury; also that no stranger, or any person who was weary and heavy laden, was to be turned away without food and comfort. ... The evidence is rather vague as to how many of the class had worldly possessions to seU, and having sold placed the price thereof in the common fund. Quite a number of them did, and others had nothing wherewith to replenish. This, however, was their faith, that the poorest in goods were the richest in spirit. Thus equipped the Spiritual Class chartered a special car, traveling over the coun- try and to California. Upon arriving in California they discarded the car and procured wagons and teams, traveling thereby up and down California and thence to Yuma. On the way they devoted their time to preaching the Gospel and in the interpretation of the Scriptures according to their understanding, and with such powers to speak the Word as they possessed. Such converts were made to their belief as were disposed to look upon individual ambitions and the separate ownership of property as a selfishness to be eradicated for the better opportunity of knowing and serving God. Quite a number were thus attracted and converted and, of course, fed from the common table, which caused some isolated feelings of discontent among some of the older members; for it is not shown that any of the new converts were possessed of goods wherewith to augment the treasury. Street meetings were held, jails were visited, and the himgry never turned away from the common treasury. It is an in- controvertible truth in arithmetic that the result of subtracting, if continued, without adding, is nothing. However, these high ideals of self-abnegation and the crucifixion of such desires and appetites as tend to divert attention from God were at times tinged with just a little corruption and bitterness of spirit. It began to be noticed that as many as thirty hungry strangers sat in one day at the com- mon table; that some of the members of the class consumed more of the food and of a better quality than was considered their portion; that some were less inclined than others to outstrip their brethren in the severer and less attractive tasks of work so necessary to re- plenish the conamissary. It was noticed there was wanting, at times, that esTprit de corps with which each should have striven, one with the other, to accomplish the most for the common good, and which spirit of emulation is, perhaps, somewhat necessary for perfect accord among those who practice the doctrine of conmiunal life. In fact, the plaintiff is not entirely without fault; for at times he became petulant over somewhat trifling considerations. Thus at 570 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI one time he complains because his wife desired a spool of white thread., which was not forthcoming, and upon another occasion his boy required a pair of socks, which by others of the class were thought unnecessary for his welfare; and plaintiff's wife could iU conceal a feehng of disgust because everybody that came along hungry got something to eat, when her boy was refused the socks. . . . It does not seem that in any of the cases before the courts has a society, whose religious tenets inculcated communistic featiures, been regarded open to objection as contravening law or any pubUc pohcy. Waite v. Merrill, 4 Me. (4 Greenl.) 102, 16 Am. Dec. 238; Gass V. Wilhite, 2 Dana, 170> 26 Am. Dec. 446; Schwartz v. Duss, 187 U. S. 10, 47 L. Ed. 53, 23 Sup. Ct. Rep. 4; Goesele v. Bimeler, 14 How. 590, 14 L. Ed. 554; Burt v.' Oneida Community, 137 N. Y. 346, 19 L. R. A. 297, 33 N. E. 307; State v. Amana Society, 132 Iowa, 304, 11 Ann. Gas. 231, 8 L. R. A., n. s., 909, 109 N. W. 894. In Schriber v. Rapp, 5 Watts (Pa.), 351, 30 Am. Dec. 327, it was said: "It may be true that the business and pursuits of the present day are incompatible with the customs of the primitive Christians; but that is a matter for the consideration of those who propose to hve in conformity to them. Our laws presume not to meddle with spiritualities; and religious societies are regarded by them but with an eye to their temporal consequences." . . . The record in the cause shows that appellee revolted from the Spiritual Class at Yuma some time during February, 1912, perhaps overlooking the admonition in the second epistle of St. John: "Who- soever revolteth and continueth not in the doctrine of Christ hath not God, but he that continueth in the doctrine hath both the Father and the Son." One remaining matter may be adverted to. The necessity for a divine revelation is evident from the universal desire for it. The testimony shows that this Spiritual Class desired revelations, and believed such would be brought by the ghosts of dead men speaking through a tin horn or trumpet. The spirit at times spoke to the class through the trumpet, and this circumstance lately caused ap- pellee to feel that, perhaps, it was of the devil, and some fraud may have been practiced. Such a mS,tter may not be determined by this court. That a revelation may come through a trumpet hath also some countenance in the Holy Writings; for St. John, the Apostle, says: "In the days of the seventh angel, when he shall begin to sound the trumpet, the mystery of God shaU be finished, as he hath declared by his servants the prophets." Many, perhaps, will con- ceive the impossibility of a revelation being so afforded; but such statement must be interpreted by the reader according to his own judgment, and then he must determine for himself whether that be one of the parts inspired by God^ or merely emanating from the unaided reason of the writer. We cannot pretend to determine it. SECT. II] OWNERSHIP OF PROPERTY 571 Upon a careful consideration of the whole record, we cannot con- clude that the appellee is entitled to recover. The judgment of the lower court must accordingly be reversed, with instructions to vacate the judgment and dismiss the action. It is so ordered. CxJNNiNGHAM and Ross, JJ., concur.' MINOR V. ST. JOHN'S UNION GRAND LODGE OF FREE AND ACCEPTED ANCIENT YORK MASONS OF THE UNITED STATES OF NORTH AMERICA, COLORED, OF TEXAS CouHT OF Civil Appeals of Texas. 1910 130 S. W. 893 Action by St. John's Union Grand Lodge of Free and Accepted Ancient York Masons of the United States of North America, Col- ored, of Texas, and others, against Peter Minor and others, trustees of Gate City Masonic Lodge, of Orange, Tex. Judgment for plain- tiffs, and defendants appeal. Affirmed. Reese, J. This is an ordinary action of trespass to try title, instituted by the above-named Grand Lodge (whose full title we cannot undertake to repeat in this opinion, but wiU simply use the term "Grand Lodge" in referring thereto) and Joe Harris, Clem Green, and Ben Wilkes, who sue as trustees of Prince Edwin Masonic Lodge, against the Gate City Masonic Lodge and its trustees, Jones Robinson, . Will Banks, and D. D. Wells, to recover the title and possession of certain real estate in the city of Orange, Tex. The contest is over the ownership and right of possession of the property, which was on April 16, 1898, conveyed by L. Miller to named parties as trustees of Prince Edwin Masonic Lodge of Orange, Tex., a Ma- sonic body subordinate to and under the jurisdiction of the Grand Lodge aforesaid, which is claimed by defendants to have become merged in the aforesaid Gate City Lodge, another colored Masonic body subordinate to, and subject to the jurisdiction of, another and rival colored Grand Lodge. Defendants pleaded their title, founded upon such merger, and prayed affirmatively for judgment removing the cloud of plaintiffs' claim, and establishing their title. The character of the plaintiffs' and defendants' respective title will fully appear from the court's finding of fact, and need not be further stated here. The case was tried without a jury, resulting in a judg- ment that the plaintiffs, Joe Harris, Clem Green, and Ben Wilkes, ' Gass V. WilMte, 2 Dana (Ky.), 170, 172, 178; Waite v. Merrill, 4 Greenleaf (Me.), 102, 117; Gaselys v. Separatist Soc, 13 Ohio St. 144, 154; Speidell v. Henrici, 120 U. S. 377. See also, Schwartz v. Duss, 187 U. S. 8, 24; Goesele v. Bimeler, 14 How. 589. 572 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI as trustees of Prince Edwin Masonic Lodge, of Orange, Tex., re- cover the property, and that the said Grand Lodge, plaintiff, take nothing, and that defendants take nothing by their cross-action. From the judgment, the said defendants prosecute this appeal. The trial court prepared and filed the following conclusions of fact.i ... "(2) I find that prior to 1898 there existed at Orange, Tex., a voluntary association of negroes, which association was known as the Prince Edwin Masonic Lodge of Orange, Tex., and said Prince Edwin Lodge, of Orange, Tex., wiU hereinafter be styled the Prince Edwin Lodge. " (3) That the Prince Edwin Lodge was subordinate to said Grand Lodge, and was conducted upon the authority of a dispensation, called ' warrant ' (and hereinafter styled warrant) issued by said Grand Lodge. "(4) That the Grand Lodge had the exclusive power to grant said warrant and revoke the same at any time, and that grievances of the Prince Edwin Lodge were appealable to the Grand Lodge, that the Prince Edwin Lodge had local by-laws regulating the time and amount of dues to be paid to the local lodge, and the time and the place of meeting of said lodge, and such regulations as affected its local government, but that it only had such power in making by-laws as was delegated to it by the Grand Lodge, and that the right of the Prince Edwin Lodge to exist or to dissolve was not lodged in its local government, but in the Grand Lodge, to which it owed allegiance. "(5) That the Prince Edwin Lodge could not dissolve, or cease to exist, or pass into another organization, by a vote of its members, except by and with the consent and approval of the Grand Lodge. . . . "(11) That on the 12th day of May, 1902, a meeting was held in the said lodge building and in the lodgeroom of the Prince Edwin Lodge. . . . That there was present at said meeting 11 members of the Prince Edwin Lodge and 10 others, not members of the Prince Edwin Lodge. "(12) That at said meeting a motion was made to dissolve the Prince Edwin Lodge and to create a new lodge, to be known as the Gate City Masonic Lodge, of Orange, Tex., which last-named lodge will hereinafter be styled the Gate City Lodge. . . . "(14) That at said meeting there was present all three of the members of the Prince Edwin Lodge who were at the time the trus- tees of said Prince Edwin Lodge. That, when the vote was taken upon said motion, all of said trustees and said secretary voted in favor of same, and in fact all of the members of the Prince Edwin Lodge who were present voted in favor of said motion to dissolve the Prince Edwin Lodge and create the Gate City Lodge. 1 Part of the conclusions of fact are omitted. — Ed. SECT. II] OWNERSHIP OF PROPERTY 573 "(15) That about 9 or 10 months afterwards there was a meet- ing held at a private residence, at which was present Clem Green, who had for some years been a member of Prince Edwin Lodge, but who on said night of May 12, at said meeting, and upon faith of the representations made by the said Abe Roberts, voted to dissolve said Prince Edwin Lodge and join Gate City Lodge, but, having remained in said Gate City Lodge long enough to ascertain that said representations were untrue, had refused to attend further meetings of said Gate City Lodge, or to longer affiliate with its members as Masons, and.A. C. Freelow, Joe Harris, and Bob Martin, who at the time of said meeting on May 12th were suspended mem- bers of Prince Edwin Lodge. That at said meeting all of those pres- ent expressed their loyalty to the Prince Edwin Lodge, and it was decided to communicate with the master of the Grand Lodge and have him assist them in the difficulties of the Prince Edwin Lodge. " (16) That in response to a letter written after said meeting, and as a result of same, the master of the Grand Lodge, E. W. Atkinson, came to Orange, and held a meeting, at which were present the same parties named in the fifteenth finding above. " (17) That shortly after the organization of the Gate City Lodge some of its members became dissatisfied, and in March, 1903, wrote to the Grand Master of the Grand Lodge, to which Prince Edwin Lodge was a subordinate, telling of their troubles. That in response to said letter Grand Master Atkinson visited Orange, and found a few members of the Prince Edwin Lodge without a warrant or place to meet, and that the Gate City Lodge had taken all the property of the Prince Edwin Lodge of every kind and refused to give it up. That said Grand Master recognized the Prince Edwin Lodge and issued it a permit to work in lieu of its warrant usurped by the Gate City Lodge. That Prince Edwin Lodge is an existing lodge, and has been so recognized by the said Grand Lodge ever since its or- ganization. "(18) That the Prince Edwin Lodge did not hold any meeting from the said 12th day of May until they received the substitute or provisional warrant mentioned in the foregoing finding, which was about 10 months, after which time they proceeded under the same name using the same seal and in aU things proceeding in the same manner as Prince Edwin Lodge had always proceeded, and electing a regular succession of trustees; the said Joe Harris, Clem Green, and Ben Wilkes being at present the regularly elected and qualified I trustees of the Prince Edwin Lodge. " (19) That, some months after said May 12th, Ben Wilkes, Ed. Hill, and Edmund Love, all of whom had voted at said meeting hereon May 12th in favor of the dissolution of the Prince Edwin Lodge and the creation of the Gate City Lodge, abandoned said Gate City Lodge and refused to any longer participate in the same or affiliate with its members, came back to the Prince Edwin Lodge, 574 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XX and have since iDeen loyal members thereof, of the latter lodge, in which they were members in good standing on May 12, 1902. "(20) That the said Edmund Love, Ben Wilkes, Ed. Hill, and Clem Green, who were never shown by the records of the Grand Lodge to have been expelled or suspended, but upon their offering to return to said Prince Edwin Lodge, the master of said Grand Lodge, being informed of their rebellion, forgave them, and they have since been regular and loyal members of same Prince Edwin Lodge, except the said Ed. HiU, who was a regular and loyal member of the same untU his death some time ago. "(21) That the action taken at said meeting on said night of May 12, 1902, was done without the knowledge or consent of the Grand Lodge. " (22) That the Prince Edwin Lodge has never met in said lodge building since the 12th day of May, 1902. " (23) That there are at present only four active members of the Prince Edwin Lodge, to wit, Clem Green, Joe Harris, Ben Wilkes, and Edmund Love. That in accordance with the rules of the Grand Lodge of the order an active lodge may be maintained by three members, and a quorum for the transaction of business in said order is complete when three members are present. " (24) That the Gate City Lodge, from the time of its organization on said May 12, 1902, has recognized and paid dues to and received visitations from a certain Grand Lodge which has no connection with the Grand Lodge under which the Prince Edwin Lodge acted or is acting. The Gate City Lodge recognizes its Grand Lodge as the superior body in the same way that the Prince Edwin Lodge recog- nizes its grand body as its superior; but that, although both bodies claim to be Masons, they do not affiliate or recognize one another as Masons, and are distinct and separate orders, and the purposes of their organization and existence are not shown to be the same. "(25) That since the said night of May 12, 1902, the Gate City Lodge has retained the possession of the said lodge building, and continued in regular existence, and has elected a regular succession of trustees, who claim to be the regular successors of the trustees to whom the land in controversy was deeded. . . . " (27) That the records of the Grand Lodge do not show the Prince Edwin Lodge was ever dissolved, suspended, or in any way ceased to exist. That the Prince Edwin Lodge has had a regular delegate or representative at each meeting of the Grand Lodge since the year 1898, and had received all visitations of the Grand Lodge since said time, and is and has ever been in good standing with the said Grand Lodge. . . . " (31) That by the laws of the Grand Lodge, when a subordinate lodge ceased to exist, its property became the property of the Grand Lodge. "(32) That the Prince Edwin and Gate City Lodges are each SECT. II] OWNERSHIP OF PEOPERTY 575 bound by the rules and regulations of the Grand Lodges with which they are afEhated." . . . The first and second assignments of error attack the judgment of the court adjudging the property to appellees. Appellants' con- tention, presented by these assignments, is that the present trustees of the Gate City Lodge are the legal successors of the trustees of Prince Edwin Lodge to whom the property was conveyed. The court's conclusion of law, upon which the judgment is based, is that the present trustees of Prince Edwin Lodge are such successors, and are entitled to the property for the use and benefit of Prince Edwin Lodge, the original cestui que trust. It follows from the court's findings of fact that Prince Edwin Lodge is not an independent organization, existing solely for the benefit of its members, but that it is a part and parcel of a larger organization, known as the Grand Lodge, organized for specific piu-- poses, which purposes are to be accomplished by and through such subordinate bodies as the local lodge in this case. The local lodge came into being by virtue of the power conferred upon its members to organize themselves into a subordinate lodge. The conveyance of Miller to the trustees named in the deed placed the legal title in them and their successors for the benefit, not of the individual mem- bers then composing Prince Edwin Lodge, but for the benefit of the lodge itseK as an existing entity, the membership of which was liable to continual change. When a member ceased to become such, his interest in this property also ceased, and this makes a radical dif- ference between the rights of the members, as individuals, and the members of a joint-stock association organized for purely business purposes, as in the case of AUen v. Long, 80 Tex. 264, 16 S. W. 43, 26 Am. St. Rep. 735, to which the present case bears no sort of anal- ogy. This was not a business enterprise at all, but an organization, as its name indicates, for purely benevolent and fraternal purposes. When the property was conveyed to the trustees of Prince Edwin Lodge, it was for the use and benefit of this body in carrying out the purposes of its organization under the jurisdiction and authority of the Grand Lodge from which it received the warrant for its exist- ence. It was in the power of the members of this lodge to destroy the old organization and form a new one entirely foreign to the original lodge, and thereby pass the title of this property to this new organization. A majority of them, no matter how large, could just as well have dissolved Prince Edwin Lodge and formed them- selves into a business association of any kind, thus devoting the prop- erty to purely business purposes. The action of the members in forming Gate City Lodge was not simply to change the name of Prince Edwin Lodge; but its necessary result, if carried out, was to destroy the old lodge, and, without any authority from the original parent body, to create a new one. The court finds that Prince Edwin Lodge has never ceased to exist, that enough members thereof to 576 CORPORATE FEATtJRES OF LABOR UNIONS [CHAP. XI constitute a lodge under the laws of the governing body have al- ways remained, and still remain, preserving their allegiance to the Grand Lodge, and through it the life of the subordinate lodge, and that appellees are the true and lawful successors, under the laws of the order, of the original trustees of Prince Edwin Lodge to whom the property was conveyed. This being true, they are entitled to hold the property for the use of this lodge. The case of Brown v. Clark, 102 Tex. 323, 116 S. W. 360, 24 L. R. A. (n. s.) 670, is, we think, in point. Watson v. Jones, 13 Wall. 679-734, 20 L. Ed. 666; McKinney v. Griggs, 5 Bush (Ky.), 401, 96 Am. Dec. 360; Harper V. Straws, 14 B. Mon. (Ky.) 48; Godfrey v. Walker, 42 Ga. 562. This disposes of the first, second, and third assignment of error, which are overruled. . . . The essential facts showing the character and purpose of the original Prince Edwin Lodge, and its continued existence, and that the Gate City Lodge is, as to the original organization, an entirely foreign body, still remain. ... We are of the opinion that the trial court arrived at a correct conclusion as to the rights of the parties in the property in contro- versy. Appellants are mistaken as to their right to sever their rela- tions with their Grand Lodge and take their lodge as an organized body with them into this foreign jurisdiction. We find no error in the record, and the judgment is affirmed. Affirmed.^ SHIPWRIGHTS, JOINERS & CALKERS ASSOCIATION V. MITCHELL Supreme Court of Washington. 1910 60 Wash. 529 RuDKiN, C. J. The Shipwrights, Joiners & Calkers Association was organized in the city of Seattle about 25 years ago. The asso- ciation is unincorporated, and is composed of niunerous craftsmen voluntarily banded together for their mutual benefit and protection, and to provide health and death benefits for members. It is sup- ported wholly by dues collected from members, which have varied from 25 cents to 70 cents per month, per capita, for several years last past. At various times since its organization, the association has affiliated with different labor organizations, such as the Ameri- can Federation of Labor, the Central Labor Council of Seattle, The International Union of Shipwrights, Calkers & Joiners, and the Pacific Coast Maritime Builders Federation. From 1902 until late in 1906, the association was affiliated with the International Union 1 See also, Grand Lodge of Int. Assn. of Machinists v. Reba, 116 Atl. (Conn.) 235; Manning v. Shoemaker, 7 Pa. Super. Ct. 375; Horton v. Chester Baptist Church, 34 Vt. 309. SECT. Ill] LIABILITY IN KBSPECT TO ASSETS 577 of Shipwrights, Calkers & Joiners, as Local No. 11, and from the latter date until the present controversy arose, with the Pacific Coast Maritime Builders Federation, as Local No. 2. While the membership in the association is continually changing by deaths, withdrawals, and removals, and while its affiliations with other organizations have changed from time to time, the association itself remains, and has at all times maintained its entity and separate existence. On the 21st day of August, 1907, the association had, in the Na- tional Bank of Commerce in Seattle, the sum of $1,138.51, deposited in the name of the Shipwrights, Joiners & Calkers Association, L. No. 2. On the latter date, the defendants, who were or had been president and treasurer respectively of the association, withdrew these funds from the bank and turned them over to three persons, claiming to be trustees of the Shipwrights, Joiners & Calkers Asso- ciation, Local No. 11. The present action was instituted by the association, and by a large number of its members in its behalf, to recover the above sum for the benefit of the association. The case was tried before the court without a jury, and from a judgment in favor of the plaintiffs, the defendants have appealed. The case presents questions of fact only. The fundamental error underlying the defense grows out of the erroneous assumption that the respondent association changed and became a different and separate entity every time it changed its affiliations with other labor unions or organizations. This assumption has no foundation in law or in fact. Regardless of the changes in membership and the changes in its affiliations, the association itself has remained the same, and the appellants were guilty of a gross breach of trust when they took it upon themselves to pay over its funds to a rival organization without warrant or authority. The judgment of the court below is therefore affirmed. Chadwick, Mobeis, Crow, and Dunbab, JJ., concur. Section 3. Liability in respect to Association Assets^ MOORE V. STEMMONS Kansas City Coubt of Appeals. 1906 119 Mo. App. 162 Bboaddus, p. J. This is an appeal from the action of the court in overruling a motion to quash an execution. Appellants are trustees of the Methodist Episcopal Church (col- ored) of Carthage, Missouri. Respondent in an action at law re- ' In addition to the cases under thia section, see' the cases and excerpts in Chapter IV, Section 6, pp.237 et seq., supra. 578 CORPOEATB FEATURES OF LABOR UNIONS [CHAP. XI covered judgment against the appellants on a promissory note executed by their predecessors in office. It is alleged in the petition that the said church was an association for religious purposes and that the property of the association was vested in, held and con- trolled by a board of trustees, and that its business and financial affairs were transacted by said board of trustees, and the promis- sory note in suit was executed by the members of the board of trustees on behalf of the church in consideration of a debt due by the associa- tion to the respondent, and by virtue of their authority as such trustees, and that appellants herein were the successors of the trustees who executed the note. Judgment was rendered against the appellants in their represen- tative capacity as such trustees, and it contained a direction for satisfaction out of the property of the association. Upon this judg- ment respondent caused an execution to be issued against appellants, in their representative capacity as trustees of the church only, to be satisfied out of the property of the Methodist Episcopal Church (colored) of Carthage, Missouri. The return of the officer upon the execution shows that it was levied upon all the right, title, interest and claim of title of John Stemmons, Geo. Patterson, and Henry Tidwell, trustees of said church in Carthage, Missouri,, in their re- presentative capacity as trustees of said church only, of, in and to certain described real estate (describing it). The title of a part of the property seized was conveyed to the predecessors of appellants, "as Trustees of the Wesley Chapel, M. E. Church of Carthage, Missouri," as foUows: "In trust that said premises shall be used., kept and maintained and disposed of as a place of divine worship for the use of the ministry and membership of the Methodist Episcopal Church in the United States of America." The title to the remainder was conveyed to the trustees of the "Meth- odist Episcopal Church," Carthage, Jasper county, Missouri, in trust for the same purpose as that of the other part described. The motion to quash the execution was based upon the following grounds: 1st. Because the judgment upon which the same was issued is void. 2d. Because the interest of the defendants in the property described is not subject to levy and sale under execution issued against the trustees in their representative capacity. 3rd. Because the title to the property is held by the trustees for the use and benefit of the Methodist Episcopal Church of the United States of America, and not for the use and benefit of the Methodist Episcopal Church (colored) of Carthage, Missouri. The appellants contend, and justly, that the motion should have been sustained. It seems from the statement of counsel for respond- ent that the court relied for its action in overruling the motion on the law as decided in Bushong v. Taylor, 82 Mo. 660, and cases there SECT. Ill] LIABILITY IN RESPECT TO ASSETS 579 cited. And respondent's counsel depends solely upon said decision for an affirmance of the judgment. That was a case, however, in equity and no one disputes but what the decision is supported by the authorities. The proceeding was in rem to subject the res to the payment of a debt contracted for the use and benefit of the Methodist Episcopal Church. The local church in that case, as in this, was unincorporated. It was held that, it being a voluntary association, "the trustees, from the nature of the government of the Methodist Episcopal Church were the agents of the aggregate body of the members, and of each member to the extent of his beneficial interest in the church property, in respect to the debts contracted by the trustees for the benefit of the church premises." And the court said further that, "The trustees are the only necessary parties defendant in a suit in equity, to enforce the debt against the church property." Judge Biggs of the St. Louis Court of Appeals in Limiber Co. v. Ohver, 65 Mo. App. 435, held, "that when property belongs to an unincorporated association, the title of such association or its mem- bers in the aggregate will not be bound by making the trustees of the association parties defendant to a proceeding for the enforce- ment of a mechanic's hen." After stating the rule in equity adopted in Bushong v. Taylor, supra, that, "when the cestuis que trustent are numerous and it would be oppressive or inconvenient to compel the plaintiff to make them all parties, one or more may be sued as rep- resenting the aggregate body," added, "But it is believed that no case can be found which authorizes this practice in actions at law, except where there is a statute authorizing it to be done." We concur fully in what the learned judge said. "An execution upon a judgment or decree against a trustee cannot be made to run against trust property. That can only be reached, in the absence of statute, by a proceeding in chancery to which the cestuis que trustent are made parties. [22 Ency. of Pleading and Practice, p. 197.] We agree with appellants that the judgment itself is a nullity for want of jurisdiction. What has been said dispenses with the necessity of passing upon appellants' third contention. The cause is reversed with directions to set aside the judgment overruling the motion to quash the execution and to enter a judgment sustaining the same. All concur. VAN HOUTEN v. PINE Court of Chanceby of New Jeesey. 1882 36 N. J. Eq. 133 The Chancellor. The complainant, widow of James H. Van Houten, deceased, brings suit against an unincorporated society named The Masonic Mutual Life Insurance Co., of which her husband was, at one time, 580 CORPOBATE FEATURES OP LABOR UNIONS [CHAP. XI a member. The company is a voluntary association located in this state, and its object is, as its name imports, mutual life insurance. Its members are freemasons, of the degree of master mason. The maximum number of members is one thousand two hundred. On the death of a member, each surviving member is required to pay into the treasury, on ten days' notice, $1. The by-laws provide for a second notice, if payment be not made on the first, in which case the delinquent is required to pay, instead of $1, $1.10; and in case of non-payment in ten days after the second notice, his name is to be erased from the roll of. members, and he is to forfeit all claims on the company; but the board of directors may reinstate him, if he is apparently in good health, on his giving a satisfactory excuse for his default and pajdng all assessments up to the date of rein,state- ment. The treasurer is, within thirty days after notice of the de- cease of a member, to pay to the widow or family of the decedent, or to the person to whom the decedent may have directed payment to be made, $1000. According to the bill, Van Houten was a mem- ber of the company. Shortly before his death he received notice to pay an assessment, and six days from the time when he received the notice (he beirig then confined to his house by illness), he offered to pay the assessment to one of the directors, who then called on him on a visit of sympathy, but the director dechned to receive it; at the same time, however,; he told him to give himself no trouble about the matter, and assured him that he would pay the assessment for him immediately. The director did not tender the money for him until one day after the expiration of the ten days, when the treasurer refused to receive it. Subsequently, when Van Houten learned (which was within two days from the refusal) that the tender had been made out of time, and that the treasurer had refused to receive the money, he gave the amount to the same director, and requested him to tender it again, which he did, with like result. Van Houten afterwards applied for reinstatement, but without success. The bill alleges that he never received but one notice, while, by the by-laws, he was entitled to two, and, by custom, to a third. It claims that the offer of the money to the director was a compliance with the requisition of the by-law, and that if Van Houten's name was stricken from the roll of members, it was, under the circumstances, done unjustly. The bill is filed against William E. Pine, president, and Charles H. Ingalls, secretary and treasurer, of the company, and "twelve hundred other copartners, as The Masonic Mutual Life Insurance Company." It prays a decree that they pay the $1000 to the complainant, with interest and costs; that all proceedings taken by the company to annul the contract between Van Houten and them may be declared void,' and also all the proceedings on the refusal to reinstate; that at his death he was entitled to all the benefits of full membership, and that the com- plainant is entitled to receive, up to the sum of $1000, the assess- SECT. Ill] LIABILITY IN RESPECT TO ASSETS 581 ments payable by the surviving members on the death of a member, and that if the company has not sufficient funds to pay the com- plainant's claim, with interest and costs, the proper officers may be ordered to raise the money by an assessment on the surviving mem- bers. There is also the prayer for general relief. The defendants, Messrs. Pine and Ingalls, demm-. The demurrer assigns, for causes, want of equity and want of parties. On the argument, objection was also made to the bill for impertinence. The Masonic Mutual Life Insurance Co. is not a corporation; it is a voluntary, friendly life insurance society. Equity takes cog- nizance of the affairs of such associations and grants relief by treat- ing them as partnerships, or by looking into the scheme and compeUing conformity to it, or reforming it and enforcing it; or if the plan is deemed impracticable, decreeing a dissolution and distributing the funds; and speaking generally^ it redresses, as far as it can, the griev- ances of the members of these societies who complain to it of injustice affecting their pecuniary interests therein. . Pearce v. Piper, 17 Ves. 1; Buckley v. Cater, 17 Ves. 15; Beaumont v. Meredith, 3 Ves. & B. 180; Wordsworth on Joint Stock Companies, 186, 187. In the case in hand (though it is not stated in the bill to be so) the company, as appears by the copy of the by-laws put in on their part on the argument, has a very large accumulated surplus fund, amounting to over $20,000. Apart from that admission, and looking at the state- ments of the bUl alone, it does not appear that the company has not a fund out of which the complainant may be paid. It is, therefore, unnecessary now to consider whether the court would, if there were no other means, order payment through an assessment on the mem- bers. It is enough to say that it is not an absolute, certain and clear proposition that the bill would be dismissed for want of merits on the hearing. The objection on the ground of want of equity cannot be sustained, therefore. As to want of parties: Only two of the members (one of them is the president, and the other the secretary and treasurer) are made parties to the biU. To require the complainant to make all the other members parties, would practically be so obstructive as sub- stantially to put an end to the suit. But the practice of this court does not require it. In a suit in equity against an unincorporated company of numerous members to enforce a right against the whole body, it is not necessary to make all the members parties, but it is enough if so many be made parties as to insure a fair and honest trial. Story's Eq. PI., sec. 107. Here, though only two of the mem- bers are made parties, they are the persons who hold the offices of president and secretary and treasurer, and are manifestly enough to insure a fair trial of the matter in dispute. . , . The demurrer will be overruled, with costs. ^ 1 Fletcher v. Tribe, 9 Pa. Sup. Ct, 393, 397 (held, a member camiot sue an un- incorporated Friendly Society at law for sick benefits). Leahy v. Williams, 141 582 COEPORATE FEATURES OF LABOR UNIONS [iqHAP. XI SOCIETY OF SHAKERS v. WATSON U. S. ClBCUIT COUBT OF APPEALS, SiXTH CIRCUIT. 1895 68 Fed. 730 Appeal from the Circuit Court of the United States for the Dis- trict of Kentucky. This was a suit by Oliver Watson and Letitia Souther, as exec- utrix of Henry Souther, deceased, against the Society of Shakers at Pleasant Hill, Ky., Napoleon D. Brown, James W. Shelton, and Mary Jane Sutton, trustees of said society, to subject the property of the society to a charge for the payment of a note. The Circuit Court rendered a decree for the complainants. Defendants appeal. Affirmed. The original bill in this case was filed on the 11th day of May, 1891, in the names of Oliver Watson and Henry Souther, as com- plainants, against the defendants above named, for the purpose of subjecting the property of the said Society of Shakers, one of the above-named defendants, to an equitable charge for the payment of a promissory note alleged to have been executed by the said society on the 18th day of October, 1882, and given to one M. M. Mays, of which the following is a copy: "$9985. October 18, 1882. "Seven years after date, we promise to pay to the order of M. M. Mays, or bearer, the sum of nine thousand nine hundred and eighty- five dollars /lOO dollars, value received, with interest at the rate of 6 per cent per annum from date until paid. Negotiable and payable at the Fourth National Bank, Cincinnati. If not paid when due, to bring 8 per cent from date. "Dunlavy & Scott, "Trustees of the Society of Shakers at Pleasant Hill, Kentucky." At the time of the bringing of this suit, the defendants Brown, Shelton, and Sutton were the trustees of the society, and were made parties as such, and also in their individual capacities as members thereof. Dunlavy and Scott and one Boisseau were, at the time of making the note, trustees of the society. This note was sold and indorsed by Mays to the complainant Watson on or about July 2, 1889j, in part payment for a farm known as "Chatham," near- Fred- ericksburg, Va. In August, 1889, Watson borrowed from the com- plainant Souther the sum of $5000, and, as collateral security for the payment of that sum, pledged the above-mentioned note to Souther, and delivered it to him, but did not indorse it. . . . Mass. 345, 357. See also, The United Mine Workers v. The Coronado Coal Co., — U. S. — (decided June S, 1922), supra, p. 533. SECT. Ill] LIABILITY IN RESPECT TO ASSETS 583 Before Taft and Lurton, Circuit Judges, and Seveeens, District Judge. Having stated the case as above, Severens, District Judge, de- livered the opinion of the court. ^ . . . The next ground of defense is that the court had no jurisdiction, because there was a plain and adequate remedy at law. What the supposed plain and adequate remedy at law is in such a case is not very clearly shown to us. It was the society, and not the individual members, which made the note. Some of the members were adults, and some infants. The society was not a "partnership." Neither was it a "corporation," in the proper sense of that term. The mem- bers have no property, having renounced all to the society. It is a somewhat anomalous case, but is yet of a kind which occasionally appears in the books of reports, and in regard to which the law has been settled by a number of decisions. It is urged that the statute of Kentucky in regard to the remedy in such cases is of no avail. It is said that it is unconstitutional, in that it attempts to vest a court of equity with jurisdiction of a purely legal right. . . . That the rights here dealt with partake of an equitable character had been decided in the courts of chancery long before the date of this statute, and the doctrine has now become so well established that we should not hesitate to support the jurisdiction if the Ken- tucky statute had never been enacted. Let us first suppose that the note constitutes a legal obligation upon which an action at law can be maintained. Against whom shall the suit be brought.? Not against the society, for it is not a corporation, and has no legal exist- ence as an aggregation. If the suit be brought against the members, what members are liable? Probably such only as were sui juris at the time of making the note. But some of these are dead, and others may have withdrawn. The suit, if brought, would be liable to re- peated abatements. Perhaps these difficulties could be got along with. But a greater one would be experienced in the remedy for the satisfaction of the judgment. The members have no private prop- erty. All is merged in the common mass. There is no inheritance and no estate which would go to an administrator. It would be an extremely embarrassing task to identify any legal interest of the members in the common property upon which an execution could be levied. . . . It would result from these considerations that this bill could be maintained if the note could be regarded as imposing a technically legal Hability. But we doubt if it can be so regarded, and are in- clined to think that the rights secured by it are of a purely equitable character. Looking to the circumstances in which this note was given, we think it cannot be doubted that it was intended to charge the property of the society. The society itself, as has already been ' Only that part of the opinion dealing with the defense that the court had no jurisdiction because there was an adequate remedy at law is given. — Ed. 584 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI said, was not a corporation of which the law could lay hold, nor was it a partnership. It was but a mere name given to a community whose membership is constantly shifting. The note was not effectual against anything but this changing body, and that only by suppos- ing it to be intended to be a charge against the property which all the members of the society had concurred in putting in a common mass in the hands of the trustees of the society. It could not be accepted that the society intended to obtain the money, appropriate" it to its own use, and give this note as an idle form, which it is unless it charges their property. And the consideration of the note went to augment the fund upon which it is sought to charge it. "Rights in equity equivalent to liens may arise under various circumstances. Thus, real or personal estate may be charged by an agreement, ex- press or implied, creating a trust which equity will enforce." Snell, Eq. (2d ed.) 274. "In courts of equity the term ' lien ' is used as synonymous with a charge of incumbrance upon a thing, where there is neither jus in re, nor ad rem, nor possession of the thing. The term is applied as well to charges arising by express engagement of the owner of property, as to a duty or intention impHed on his part to make the property answerable for the specific debt or en- gagement. Mr. Justice Erie once remarked [Brunsdon v. Allard, 2 El. & El. 27] that ' the words "equitable lien" are intensely un- defined.' It is necessarily the case that something of vagueness and uncertainty should attend a doctrine that is of such wide and varied application as is this of equitable hen; and yet the principles are as well defined as other equitable principles, and their application to certain well-estabUshed classes of liens is well settled. To apply them to that undefined class of liens which arises from the contracts of parties may be more difficult, because these liens are as various as are the contracts, and precedents which exactly apply may not be found. This wide application of the doctrine is one element of the importance of this branch of equity jurisprudence." 1 Jones, Liens; sec. 28. And Pomeroy, in discussing the subject of equitable liens, says: "There is no doctrine which more strikingly shows the difference between the legal and equitable conceptions of the judicial results which flow from the dealings of men with each other from their express or implied undertakings." 3 Pom. Eq. Jur., sec. 1234 The bill in this case makes the society, the trustees, and three of the members parties defendant. In our opinion, this was sufficient. It belongs to that class of cases in which it has been held that when the parties are numerous, and it is inconvenient to bring them all before the court, a representation of them may be constituted, and the representatives be made parties to prosecute or defend for all. . . . This was a case where the parties themselves had lodged the au- thority of management in certain officers. The same principle ob- tains where the court itself adopts a few as representatives of the whole. Story, Eq. PL, sees. 117, 118. SECT. Ill] LIABILITY IN KESPECT TO ASSETS 585 We therefore conclude that the suit is properly brought in equity, and that the defendants are rightly constituted. . . . We think the decree of the court below is right, and it is accord- ingly aflBirmed.i RoDENBECK, J., IN MICHAELS V. HILLMAN 112 Misc. (N. Y.) 395, 412 (1920) All of the defendants who acted in concert with respect to the illegal means conceived and employed are liable for damages oc- casioned thereby. The national organization must bear its share of the responsibihty. It had two national organizers on the ground before the strike was called and it is a fair conclusion that they were directing the action of the joint board and the conduct of the strike in the interest of the national body. The national officers may not have been informed of the strike before it was called, but they had sent two national organizers to Rochester for no other purpose than to handle the situation which it is claimed was of more than local importance. The national organization cannot escape responsi- bihty for a situation which through its direct representatives it took part in shaping and for acts in which through its organization it participated. The familiar rule that a principal is hable for the acts of his agent done in the course of his employment, applies to the national organization and its membership. 5 C. J. 1364. An or- ganization of 175,000 members cannot escape responsibility because a direct personal connection cannot be traced between each individ- ual member and the acts complained of. Such a body must act through agents just like a corporation and both are responsible for the authorized acts of such agents. The general executive board and the general president, acting under its direction, had the un- doubted right to call the strike (Amalgamated C. Workers const, art. VI, sees. 1, 13) and in sending national organizers to Rochester the organization must assume the responsibility for their acts. - All of the defendants are liable who knew or ought to have known of the concerted action for the common object (Lawlor v. Loewe, 209 Fed. 721, 727) and the national body is responsible as such, under the doctrine of agency. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229. The calling of the strike was also ratified and its conduct sanctioned by the president of the Amalgamated Clothing Workers and the national organization must be held liable with the other de- fendants both for the initiation of the strike and its subsequent con- duct. This responsibility, however, does not impose a personal liability upon the entire membership but only upon those who are named as defendants and personally participated, directly or in- ' Accord: Gortemiller v. Rosengarn, 103 Ind. 414; Bushong v. Taylor, 82 Mo. 660; Harrisburg Co. v. Washburn, 29 Ore. 150; Linn v. Carson, 32 Gratt. (Va.) 170, 183. 586 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI directly, in the wrongful acts complained of. It was claimed that the situation in Rochester was of general concern to the organization and it cannot be successfully maintained that the strike was not a con- ception of the national organization in the interest of its general membership and especially its membership in Rochester. The meet- ings of its members employed by the plaintiffs and the actions of com- mittees and the joint board were only the local machinery for putting the strike in operation. As soon as it was launched the national or- ganization took an active and open part in conducting it through national representatives, including the president, and through financial assistance. It cannot be possible that a great organization like the Amalgamated Clothing Workers can project and carry on a strike in the manner in which it was conducted in this case and avoid responsibility and liability for its acts. A concert of action by a labor organization and its members to compel recognition of a union or to redress grievances by means of threats, intimidation, force, violence or similar coercive measmres constitutes a conspiracy, whether such intention was present at the inception of the strike or afterward, and a national unincorporated labor union is liable for damages if its ofiicers and agents acting within the scope of their authority as such called and carried on the strike with the intention of using such unlawful means, and used such means, but the liability does not extend to the individual members who are not specially connected with such acts. The plaintiffs are entitled to a permanent injunction restraining the defendants substantially in the terms of the temporary injunc- tion heretofore granted and to damages to be hereafter determined. Judgment accordingly.^ THE UNITED MINE WORKERS v. THE CORONADO COAL CO. Supreme Court of the United States. 1922 — U.S.— See supra, p. 533, for a report of the case. OPINION OF THE JUSTICES Of the Supreme Judicial Court of Massachusetts. 1912 211 Mass. 618 The following order was passed by the Senate on April 22, 1912, and on April 26, 1912, was transmitted to the justices of the Supreme Judicial Court. On May 8, 1912, the justices returned the answer which is subjoined. ' Accord: St. Germain v. Bakery & Confectionery Workers' Union, 97 Wash. 282, 294. Compare Denaby and Cadeby Collieries v. Yorkshire Miners' Assn., [1906] A. C. 384; Crawley v. American Society of Equity, 153 Wis. 13. SECT. Ill] LIABILITY IN RESPECT TO ASSETS 587 Ordered, That the opinion of the justices of the Supreme Judicial Court be^required by the Senate upon the following question of law: Is an act of the Legislature constitutional which provides that an action shall not be entertained by any court against a trade union, or an association of employers, or against any members or officials thereof, in respect to a tortious act alleged to have been committed by or on behalf of a trade union or an association of employers? . . . To the Honorable Senate of the Commonwealth of Massachusetts: We, the justices of the Supreme Judicial Court, have considered the question upon which our opinion is required by the order of April 22, 1912, a copy of which is hereto annexed, and respectfully submit this opinion: The Constitution of the United States in Art. 14 of the Amend- ments expressly provides that: No State shall "deprive any per- son of life, Uberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Absolute equahty before the law is a fundamental prin- ciple of our own Constitution. Frequent expressions to this effect are found in various articles. For example, it is said that "All men are born free and equal"; that "Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws"; that "Every subject of the Conunonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character"; and that the several departments of government are separated "to the end it may be a government of laws and not of men." Declaration of Rights, Art. 1, 10, 11, and 30. The proposed bill to exempt associations of employers and trade unions and their members and officials from actions of tort com- mitted by or on behalf of such association or union is plainly con- trary to these constitutional guaranties. It gives to certain favored ones, selected arbitrarily, immunity from that equal liability for civil wrongs which is a sign of equality between citizens and resi- dents. It undertakes to clothe combinations of employers and laborers with special power denied to other employers and laborers and other members of society. In another aspect, it deprives all individuals and associations, other than those named, of the pro- tection to safety, liberty, and property which any free government must secure to its subjects. It takes from them the unhampered right to assert in the courts claims against all who tortiously assail their person and property and to recover judgment for the injuries done. It would prevent all persons from having recourse to law for vindication of rights or reparation for wrongs against the privileged few therein designated. It imposes upon some burdens of which others in like situation are relieved. It throws obstacles in the path- 588 COBPORATE FEATTJEES OF LABOR UNIONS [CHAP. XI way of those outside unions or associations in the pursuit of their hvelihood and in the prosecution of their business not interposed in the way of members of such organizations. It piuposes to give to one class of wage-earners advantages withheld from others not be- longing to a trade imion who are engaged in the same kind of work and for the same employer. It frees one set of employers from obliga- tions to which their competitors, who are independent of the asso- ciation, are subjected. In short, it destroys equaUty and creates special privilege. Manifestly, it needs no discussion and no fmliher statement to demonstrate that legislation Hke that embodied in the bill would violate in many respects underlying principles and fimdamental provisions of the Constitution of this Commonwealth and of the United States.^ Akthuh p. Rugg. James M. Morton. John W. Hammond. William Caleb Lohing. Henky K. Bralet. Henry N. Sheldon. . Charles A. DeCotircy. LINAKER V. PILCHER King's Bench Division. 1901 70 L. J. K. B. 396 The plaintiff was employed by the London and North-Western Railway as a district superintendent of the railway at Manchester. The defendants John Pilcher, Phihp Hewlett, and George Alcock were the trustees of the Amalgamated Society of Railway Servants of England, Ireland, Scotland, and Wales, which was registered under the Trade Union Acts, 1871 and 1876, and whose registered office was situate in the county of London. The society and the defendants, the trustees, were the proprietors and pubHshers of a certain weekly newspaper, called the Railway Review, and the defendant George Wardle was the editor of the news- paper. The action was brought to recover damages for a Ubel contained in the newspaper charging the plaintiff with drunkeimess. The defendants, the three trustees, by their defence put in a plea of justification, and objected that as a matter of law they could not in this action be sued in their capacity of trustees in any way so as to bind the society or the property thereof. The jury found a verdict for the plaintiEf with lOOOi. damages, » Compare the English Trade Disputes Act, 1906, Section 4 (6 Edw. VII, c. 47), supra, p. 24. SECT. Ill] LIABILITY IN EESPECT TO ASSETS 589 and the question as to the validity of the defendants' objection to the action in point of law was reserved for argument. . . . Mathew, J. This was an action for libel in which the plaintiff recovered a verdict for damages against the defendants. The de- fendants were trustees of a trade union, the Amalgamated Society of Railway Servants, and the sole question at the trial, all others being reserved, was whether or not there had been a libel for which it was assumed for the purposes of the case that the defendants as proprietors of the newspaper were responsible. In the defence a point was made which was reserved for further consideration — namely, that "the defendants" (the trustees) "will object that as a matter of law they cannot in this action be sued in their capacity as trustees in any way so as to bind the Amalgamated Society of Railway Servants of England, Ireland, Scotland, and Wales, or the property thereof." . . . Under sec. 8 of the Trade Union Act, 1871, it appears that the property of the society is vested in the trustees, and by sec. 16 the trustees of the society are bound to publish annual reports shewing the position of the affairs of the society, and from time to time in these annual returns the newspaper in question had been treated as an asset of the society, and there was a profit and loss account shewing that the newspaper had been carried on upon nearly even terms, the expenditm-e being sUghtly in excess of the receipts from the . newspaper. That being so, the trustees being the owners of this property under the rules for the management of the society, and under the Act of 1871, and particularly sec. 8, it was said on behalf of the plaintiff that the trustees are in the ordinary position of those who have a liabiHty cast upon them within the limits of their trust by reason of their position as trustees, and therefore that the rule apphed that the trustees were ^titled to be indemnified in respect of any responsibUity and Uability cast upon them on behalf of those for whom they were acting. It was admitted that the funds of the society are ample, while the trustees are not in a position to meet the liability, and that therefore, under the rule to which I have referred, those who placed the trustees where they were as proprietors of this paper and thereby rendered them liable in this action for damages, are bound to indemnify them, and that the assets of the society are therefore liable. In answer to that position it was con- tended for the defendants — first, that this is an action of tort, and that the persons who were made responsible in the action for that tort were alone liable, and that there was no right of recourse to the society, and that there was no authority for transferring the liability in that way or treating such a case as within the ordinary rule be- tween trustee and cestui que trust. The defendants were therefore, it was said, alone bound to pay the damages, and had no right to claim any indemnity from the society. It was admitted that the trustees were not personally liable as wrongdoers in the sense that 590 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI they authorised the publication in any way. They had no more to do with it than the proprietor of a newspaper whose editor, without his knowledge or sanction, inserts something in it that is defamatory, and gives rise to a cause of action. There was no evidence that the three trustees had anjrthing whatever to do with the conduct of the paper. It was however said on behalf of the plaintiff that there was no reason why they should not be indemnified, seeing that their hability arose from the fact that the society placed them in the posi- tion of legal proprietors of the newspaper, and made them therefore responsible for this action. On behaff of the plaintiff it was asked for what reason was it said that the society was not to be responsible as any ordinary cestui que trust would be. In answer to that ques- tion no principle of law was relied upon, but it was said that if the Trade Union Act, 1871, were carefully examined, clear indication would be found that a trade union was never intended to be made responsible in respect of a cause of action against its trustees, how- ever clearly it may appear that that cause of action has arisen within the limits of the trust and by reason of the position in which the trustees have been placed by their principals. In support of that argument attention was called to sees. 8 and 9 of the Act of 1871. Sec. 8 is the provision for vesting the property. That is followed by sec. 9,' to which my attention was called as containing a very im- portant provision, as it was suggested, for the protection of trade unions; and certainly, if the contention submitted to me upon it was well founded, it was a very important point in the interest of trade unions, because it would foUow that for any breach of con- tract, for any tort committed by a trade union and for which their trustees are liable, the trade union would be free from any liability, and enjoy complete immunity. I was therefore not surprised that this contention was strongly urged by those who support the in- terests of the trade union in this case. It was said that it is notice- able that what the trustees are empowered to do by sec. 9 is to bring or defend an action in respect of any right or claim or habiUty to the 1 Sec. 9 of the Trade Union Act, 1871, is as follows: "The trustees of any trade union registered under this Act, or any other officer of such trade union who may be authorised so to do by the rules thereof, are hereby empowered to bring or defend, or cause to be brought or defended, any action, suit, prosecution, or complaint in any Court of law or equity, touching or concerning the property, right, or claim to property of the trade union; and shall and may, in all cases concerning the real or personal property of such trade imion, sue and be sued, plead and be impleaded, in any Court of law or equity, in their proper names, without other description than the title of their office; and no such action, suit, prosecution, or complaint shall be discontinued or shall abate by the death or removal from office- of such persons or any of them, but the same shall and may be proceeded in by their successor or successors as if such death, resignation, or removal had not taken place; and such successors shall pay or receive the like cost as if the action, suit, prosecution, or complaint had been commenced in their names for the benefit of or to be reimbursed from the funds of such trade union, and the summons to be issued to such trustee or other officer may be served by leaving the same at the registered office of the trade union." — Ed. SECT. Ill] LIABILITY IN KESPECT TO ASSETS 591 property of the trade union, and to recover goods or land the prop- erty of the trade union, and that, although an action might be brought to defend any proceedings against property belonging to the trade union, the intention was to protect specific property alone, and that, as this is not a case of specific property, the liability established by this and all analogous actions must rest where it falls — -that is, upon the trustees or the executive committee — and cannot be transferred to their principals, if the trade union may be so described. I am of opinion that that would be an extremely narrow construction of the section. There seems to me to be no reason why there should be that disability imposed upon the trustees in respect of any except specific property, and it is difficult to conjecture why any such mean- ing should be attributed to the Legislature. I am satisfied that there was no such intention. ... It therefore follows that, in my judgment, the construction sought to be put on that section is not the correct one. . . . My judgment is therefore for the plaintiff with reference to this point raised in the defence, and I hold that the defendants the trustees are, as such trustees, entitled to be indemnified out of the funds of the society. There will therefore be judgment for the plain- tiff for 1000?. damages and costs against the defendants the trustees, as well as against the defendant Wardle, as to whom no point arises, and a declaration that they are entitled to be indenmified out of the funds of the society. Judgment accordingly.'- ENGLISH TRADE DISPUTES ACT, 1906, Section 4 6 Edw. VII, c. 47 See supra, p. 24, for the text of this Section. VACHER & SONS, LIMITED v. LONDON SOCIETY OF COMPOSITORS House of Lords. 1912 [1913] A. C. 107 Appeal from an order of the Court of Appeal reversing an order of Channell, J., in chambers, [1912] 3 K. B. 547. The appellants were general and parHamentary printers carrying on business at Westminster^ The respondent society was a registered trade union.^ On July 28, 1911, the appellants commenced an action against the respondent society and two other defendants, Naylor 1 Accord: Rickards v. Bartram, 25 T. L. R. 181 (1908). As to the English law concerning the Hability of trade unions for tortious acts committed on their behalf, see Geldart in 25 H. L. R. 594-598. Compare Denaby and Cadeby Collieries v. Yorkshire Miners' Assn., [1906] A. C. 384. 692 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI and Holmes, who were respectively the secretary and thte organizing secretary of the society, for damages for conspiracy to libel and for libel. On January 27, 1912, the appellants delivered an amended state- ment of claim containing particulars of their complaints. The libels alleged in the amended statement of claim were con- tained (1) in a new edition of a document entitled "The Composi- tors' Fair List and Guide to the London Printing Oflaces," from which the appellants' name was omitted, and a covering letter en- closing the list, copies of which were sent by the defendant Naylor in December, 1909, to various customers of the appellants; (2) in a letter, dated July 13, 1911, addressed by the defendant Holmes to the United Committee of the Taxation of Land, who were cus- tomers of the appellants. The meaning of these documents, as al- leged by the appellants, was that the appellants had been guilty of unfair dealings in their business, that they were in the habit of treat- ing their employees harshly, that they never employed trade union compositors, and that they were not fit and proper persons to be entrusted with the execution of orders for printing. On February 22, 1912, the respondents obtained from a Master an order that their name should be struck out of the writ of sum- mons and all subsequent proceedings in the action upon the ground that under sec. 4, sub-sec. 1, of the Trade Disputes Act, 1906, the action was not competent as against them. On February 26 this order was reversed by ChanneU, J., in cham- bers, the learned judge being of opinion that this question was one which ought not to be decided summarily, but ought to be dealt with at the trial. On April 3 the Court of Appeal (Vaughan Williams, and Ken- nedy, L.JJ., Farwell, L. J., dissenting) rescinded the order of Chan- neU, J., and restored the order of the Master. . . . The House took time for consideration. VisccDNT Haldane, L. C.^ My Lords, this appeal raises the ques- tion of the true construction to be put on sec. 4 of the Trade Disputes Act, 1906. That Act was passed five years after the decision of this House in the case of Taff Vale Ry. Co. v. Amalgamated Society of Railway Servants, [1901] A. C. 426. It had been there decided that a trade union, registered under the Trade Union Acts, could be sued in its registered name, and also that a trade union, whether registered or not, could, since the Judicature Acts, be sued in a rep- resentative action at common law, if the persons selected as de- fendants were persons who from their position might fairly be taken to represent the union. It was pointed out by Lord Lindley that if a judgment so obtained was for the pajTnent of damages it could be enforced only against the property of the union, and that to reach 1 Separate opinions were rendered by Lord Macnaghten, Lord Atkinson, Lord Shaw of Dunfermline, and Lord Moulton. — Ed. SECT. Ill] LIABILITY IN KESPBCT TO ASSETS 593 such property it might be necessary to make the trustees parties to any proceedings. It is common knowledge that this decision gave rise to keen con- troversy as to whether the law required amendment. On the one hand it was contended that the principle laid down ought to remain undisturbed, because it simply imposed on the trade unions the legal liability for their actions which ought to accompany the im- mense powers which the Trade Union Acts had set them free to exercise. On the other side it was maintained that to impose such UabUity was to subject their funds, which were held for benevolent purposes as well as for those of industrial battles, to undue risk. It was said that by reason of the nature of their organization and their responsibihty in law for the action of a multitude of individuals who would be held in law to be their agents, but over whom it was not possible for them to exercise adequate control, they were, by the decision of this House, exposed to perils which must cripple their usefulness. My Lords, we have heard, in the course of this case, suggestions as to the merits of the conflicting points of view and as to the reason- ableness, in interpreting the language of Parliament in the Trade Dis- putes Act of 1906, of presuming that the Legislature was acting with one or other of these points of view in its mind. For my own part, I do not propose to speculate on what the motive of Parhament was. The topic is one on which judges cannot profitably or properly enter. Their province is the very different one of construing the language in which the Legislature has finally expressed its conclusions, and if they undertake the other province which belongs to those who, in making the laws, have to endeavour to interpret the desire of the country, they are in danger of going astray in a labyrinth to the character of which they have no sufficient guide. In endeavouring to place the proper interpretation on the sections of the statute be- fore this House sitting in its judicial capacity, I propose, therefore, to exclude consideration of everything excepting the state of the law as it was when the statute was passed, and the light to be got by reading it as a whole, before attempting to construe any particular section. Subject to this consideration, I think that the only safe course is to read the language of the statute in what seems to be its natural sense. The first question before us is whether a trade union, if it has committed a tortious act, such as a libel, can be sued for damages at all, even if the act is not committed in contemplation or in fur- therance of a trade dispute. Before the Trade Disputes Act was passed it undoubtedly could have been so sued, and the question is whether Parliament has put an end to this liability. The Act is confined to trade unions within the definition of the Trade Union Acts of 1871 and 1876. The title is " An Act to provide for the Regulation of Trades Unions and Trade Disputes." This 594 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI appears'to me to indicate that the scope of the statute was not con- fined to the regulation of trade disputes merely. Sec. 1 is confined to cases of trade disputes and amends the law of conspiracy in such cases by precluding legal remedy unless the act done would have been actionable apart from the circumstances of agreement or com- bination to do it. Sec. 2 is also confined to cases of trade disputes. It legalizes what is popularly called "peaceful picketing." Sec. 3 takes away the actionable character of any act done by a person in contemplation or furtherance of a trade dispute if the ground of action is only that what was done induced another person to break a contract of employment, or was an interference with the trade, business, or emplojnnent of another person, or with his right to dis- pose of his capital or his labour as he pleases. It will be observed that these three sections all relate to trade disputes, but that none of them relates exclusively to the case of a trade union. Sec. 4, sub- sec. 1, the section which has to be construed in the present appeal, does, however, relate exclusively to the case of a trade union. It enacts that an action against such a union, whether of workmen or masters, or against any members or officials of the union on behalf of themselves and all the other members, in respect of any tortious act alleged to have been committed by or on behalf of the union, shall not be entertained by any Coiu-t. I draw attention to the fact that this section differs from the three preceding sections not only in relating exclusively to the case of a trade union, but in that sub- sec. 1 omits mention of any restriction which would confine the tor- tious act to one in contemplation or in furtherance of a trade dis- pute. Upon this point it has been contended by the learned counsel who addressed the House for the appellants that such a restriction ought to be implied. It is said that sec. 5, which proAddes that the Act may be cited as the Trade Disputes Act, 1906, and the scheme of the first three sections, which deal only with trade disputes, shew that the Act is to be interpreted as so confined, and that it cannot be supposed that the Legislature intended to free trade imions from Habihty to the extent which a literal reading of sec. 4, sub-sec. 1, would indicate. My Lords, with this contention I am unable to agree. It is true that it is provided that the Act may be cited by the short title of the Trade Disputes Act, 1906. But the governing title is that which introduces the statute as an Act to provide for the regulation of trade unions and trade disputes. The first three sections regulate trade disputes. The 4th section appears to me to carry out the other intention indicated by the initial title by laying down new law as to trade unions. I find no context in the Act read as a whole which indicates an intention to cut down the Uteral meaning of the wide language of sec. 4, sub-sec. 1. For reasons which I have already assigned, I think that it would not only be beyond the functions of a Court of justice to presume that the Legislature could not when it SECT. Ill] LIABILITY IN RESPECT TO ASSETS 595 passed the Act have intended to go as far as the plain words used say, but that if judges could speculate as to its intentions they would probably speculate wrongly. I pass, therefore, to the next point which was made for the ap- pellants. This turns on the effect of sub-sec. 2 of sec. 4, a sub-section which, it is said, ought to be read as a proviso to sub-sec. 1 restrict- ing its operation. Sec. 4, sub-sec. 2, is in these terms: "Nothing in this section shaU affect the liability of the trustees of a trade union to be sued in the events provided for by the Trade Union Act, 1871, section nine, exceptin respect of any tortious act committed by or on behalf of the union in contemplation or furtherance of a trade dispute." The Act of 1871 enables trade unions to register, and provides by sec. 9 that the trustees of a registered trade union may sue or be sued as such in cases concerning the property of the trade union. The Legislature appears to have desired to draw a distinction be- tween the union and its trustees and to preserve the liability of the trustees under this section, even in the case of tortious acts com- mitted by the union, damages arising out of which might, as pointed out by Lord Lindley in his judgment in the Taff Vale Case, [1901] A. C. 426, have been made effective against property in the hands of the trustees. But a restriction is put on the liabihty of the trus- tees by excepting from it HabiUty in respect of a tortious act com- mitted by or on behalf of the union in contemplation or in further- ance of a trade dispute. Having regard to the distinction drawn in the wording of the statute between the liability of the trade union and the habihty of its trustees, I see no justification for importing the provision restricting liability enacted in the latter sub-section into the words of sub-sec. 1, and I think that on the second point made the argument which was addressed to us to the effect that the words of exception in the 2d sub-section must be read as qualifying the whole section cannot succeed. . . . I therefore move that this appeal be dismissed with costs. Lord.Macnaghten. My Lords, the .point raised by this appeal is a very short one and, in my opinion, absolutely clear. If I had not had the pleasure of listening to a most ingenious argument on the part of the appellants, I should not have thought the question arguable here or anywhere else in the world. . . . Now there is nothing absurd in the notion of an association or body enjoying immunity from actions at law. Some people may think the policy of the Act unwise and even dangerous to the com- munity. Some may think it at variance with principles which have long been held sacred. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the Court, and its only duty, is to expound the language of the Act in accord- ance with the settled rules of construction. It is, I apprehend, as 596 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI unwise as it is. unprofitable to cavil at the policy of an Act of Parlia- ment, or to pass a covert censure on the Legislature. . . . I am of opinion that the action as against the trade union was incompetent and that the appeal should be dismissed with costs. Order of the Court of Appeal affirmed and appeal dismissed with costs} Section 4. Doctrine of "Ultra Vires" ABELS V. McKEEN Court of Chancery op New Jersey. 1867 18 N. J. Eq. 462 The Chancellor. This suit is brought by Abels, Nichuals, Ross, Murphy, Williams, Muldoon, Smoker, Paul, and Curlis, nine of the contributors to a fund raised by voluntary contribution, to free the north ward of the city of Camden from a draft, in the late rebellion. It is brought for themselves, and all of their associates, who should come in and con- tribute to the expenses of the suit. It is brought against the de- fendants McKeen and Garrison, to whom the excess of the fund raised by voluntary contribution, above the amount expended for the purpose for which it was raised, had been paid over by Vogel, the paymaster of the association. In February, 1865, of the quota of sixty-six men allotted to the north ward of the city of Camden, on the caU of President Lincoln, made in December previous, for three hundred thousand men, there remained fifty-six to be furnished. The quota had been sixty-two, and, according to the regulations, one hundred and twenty-six had been drafted to supply the deficiency. On the twenty-fifth of that month, a meeting was called at Hill's tavern, in that ward, to raise money for enlisting men to fill the quota, and release the men who had been drafted. They organized themselves into a society, and were called "the drafted men's association of north ward." A written article was drawn, to be subscribed, by which the subscribers agreed to pay the sums affixed to their names, for the purpose of filling the quota of north ward, in the city of Camden, under the last draft, and to exempt the drafted men; to be paid to Jesse Townsend,, treasurer. This was dated February 25, 1865, and was signed by thirty-one persons, among whom were the complainants, Nichuals, Muldoon, Paul, and Murphy. Others who did not subscribe to this agree- ment, contributed to the funds. The contributors were one hundred and eight in all, of whom seventy-nine were drafted men, and twenty- 1 Compare Bussy v. Amalgamated Soc. of Railway Servants, 24 T. L. R. 437 (1908) (personal liability of trade union official for tortious acts committed on behalf of the trade union). SECT. IV] DOCTRINE OF "ULTRA VIRES" 597 nine men not drafted. The amount contributed was $8423, of which' $7326 was contributed by the drafted men, and $1097 by others. Of this amount, $3956.96 remained unexpended at the close of the war, after the quota had been filled, and when all danger of further draft had passed. This sum was paid by Vogel, the paymaster, to the defendants. The association had its permanent president, treasurer, and secre- tary, and held its meetings at Hill's tavern, upon adjournment, and upon call, from February twenty-fifth until some time in June. At a meeting held on the seventh of March, a resolution was passed, without dissent, that after the number of men necessary to clear the contributors from that draft had been procured, if there was any overplus of the fund unexpended, it should be paid into the hands of the defendants, as the nucleus of a fund to release the ward from any future draft; and in case the war should cease, and there be no further draft, it should then be donated to some charitable institu- tion of the city. On the sixth of April, 1865, Vogel, the paymaster, in whose hands the surplus was, on the faith of that resolution paid it over to the defendants, taking their receipt annexed to a copy of the resolution. The defendants have appropriated this surplus to establish a city' dispensary, which they claim that they were directed and authorized to do, by a vote of the association, at a meeting held on the sixth of April. The fact of such vote is disputed; the evidence is conflicting on the point, and the decided weight of evidence is against the fact that such vote was had. The complainants named in the bill, are the only persons who can have the benefit of this suit. Whether, if any of their associates had offered to come in, make themselves parties, and contribute to the suit, they could have been admitted so to do, it is not neces- sary to decide, as none of them have been made parties, or applied for that purpose. The claim of the complainants, that the contributors to a fund raised and placed in the hands of trustees for a specific purpose, have a right to have any surplus not needed for the object, repaid to them in proportion to their contributions, is a just claim, founded in equity, and will be enforced by this court. The first question is, what power the meetings of the association had over this fund by vote of the majority of those present, and what effect the vote of March seventh had upon its application. The fimd, from the manner of its being raised and the organiza- tion of the association previous to its being raised, I think, was in- tended to be placed in the control of the association, for the purposes for which it was raised. That association, being without constitu- tion or by-laws, from the necessity of the case must be held to have power to act at any regular meeting, by the voice of a majority of the members present. If, at such meeting, the fund had been dis- 598 CORPOKATE FEATURES OF LABOR UNIONS [CHAP. XI posed of for any purpose within the object for which it was raised, although it was by a bare majority of a meeting of a minority of the members, it would be binding on all the members. As in all part- nerships or corporations, without articles, or charter, or by-laws, regulating it, a majority governs; so, in an association governed by popular vote, in analogy to the established rule at popular elections, the control is in the majority of those who attend to their duty and exercise their right; those voluntarily absenting themselves, are held as agreeing to the vote of the majority of the attending mem- bers or voters. But as in partnerships and corporations the majority can only govern within the object for which the partnership or corporation was formed; so here, that vote must be for some purpose for which the money was subscribed or contributed. That purpose was to free the north ward from draft, and the money of no contributor could be used for any other purpose, without his consent. A majority could not devote the money of the minority to estabUsh a city dis- pensary, any more than they could have appropriated it to enlist men for the confederate army. Ninety-nine out of a hundred could not so apply the funds of the remaining one. But five of the nine complainants, to wit, Muldoon, Paul, Nichuals, Murphy, and Smoker, were present at the meeting of March seventh. At such a meeting, if a vote is taken, and no one dissents, all who do not vote are considered as voting with the majority for the motion. And a vote of three ayes at a meeting of twenty, where no one dis- sents, is considered as the affirmative vote of all present. These five complainants, having thus assented to the payment of this money to the defendants, to be donated to a charity, have voluntarily abandoned all right to recover it themselves. Whether this resolu- tion gave to the defendants the right to select the charity, is another question, which is not raised in this suit. But this vote did not bind the four other complainants who were not present. Their right to the surplus of their contribution remains. The difficulty in the way of their recovering is of another kind, but is founded on the fact that they are not bound by the vote of March seventh. If they had authorized their treasmrer, or paymaster, to pay their money to the defendants, and the defendants had ac- cepted it upon that vote, it would have constituted them the agents of these complainants, and given them a right to call upon the de- fendants to appropriate this money rightly. But as it is, the defend- ants have no privity with these complainants. The assets they received were not the property or goods of these complainants, but money or assets which had never been theirs, handed over by Vogel, the treasurer of the association, under a vote of the association. If any one is accountable to them, it is Vogel, who handed over funds without authority from them, when he ought to have accounted^to them for these funds. How far Vogel would be protected by such SECT. IV] DOCTRINE OF "ULTRA VIRES" 599 inference of acquiescence in the resolution of the majority as might be had from their silence for thirty days, will be settled if a suit is brought against him. As against these defendants, the bill must be dismissed.' AMALGAMATED SOCIETY OF RAILWAY SERV- ANTS V. OSBORNE House of Lords. 1909 [1910] A. C. 87 This appeal raised the question of the legality of applying the funds of a trade union towards procxiring or supporting parlia- mentary representation. The Amalgamated Society of RaUway Servants was a trade union established in the year 1872 and registered under the Trade Union Acts of 1871 and 1876. . . . The original rules contained no reference to securing parliamentary representation by means of compulsory levies from the members, but in 1903 words were added to the objects "to secure parhamen- tary representation." In 1902 a body called the Labour Representation Committee was formed for the ptu-pose of establishing a distinct Labour group in Parhament, and to this the society became affiliated, pajdng an aimual fee of 10s. for each 1000 members. In 1903 and 1905 the rules of the society were recast and altered, with the result that the current rules, which came into operation in January, 1906, were, so far as material and with the exception of the words in itahcs, as follows: — ... "Rule XIII, Section IV. "ParUamentary Representation. "1. For the maintenance of parliamentary representation a fund shall be established by the society. The subscription to be Is. Id. per year per member, to be paid quarterly, and forwarded to the head office with the quarter's dues. 2. The objects of the fund shall be (a) to provide for representation of railwaymen in the House of Commons as the annual general meeting may from time to time determine. All candidates shall sign and accept the con- ditions of the Labour Party and be subject to their whip, (b) To con- tribute to the Labom- Representation Committee such sums as the executive committee or the annual general meeting may from time to time direct so long as the society remains affiliated to such com- mittee. ... 5. In the event of a candidate being selected for a constituency his election expenses shall be defrayed. ... 6. Should a candidate be elected he shall be paid a salary of 250L a 1 See also, Leatherman v. Wolf, 240 Pa. St. 557, 566. Compare Parker v. Oliver, 198 Mass. 488 (authorization by a majority vote of an ultra vires act in absence of objection by any donor of fund). 600 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI year and third-class return fare to his constituency so long as he remains a member of Parliament. He shall reside at such place as the executive committee or annual general meeting may consider necessary for the proper discharge of his duties. During the time Parliament is not sitting his services shall be at the disposal of the societj', as the executive committee or general secretary may direct, and be subject to the conditions laid down for organizing secretaries. 7. The executive committee shall make suitable provision for the regis- ' tration of a constituency represented by a member or members, who may be candidates responsible to and paid by this society." . . . The additions to rule XIII, section IV, 2 (a), and 7, shown in italics, were made at the general meeting of the society held in Octo- ber, 1906, but these additions were alleged to have been irregular, as there was no recommendation by the executive cohimittee that the alteration was urgently required in the interest of the society in accordance with rule II, 4 (a). The rules of 1905, and the partial alterations made as aforesaid in 1906, had been duly registered under the Trade Union Acts, 1871 and 1876, and a certificate of such registration had been given by the registrar. ... The plaintiff, who had been a member of the society for some sixteen years, and was now the secretary of the Walthamstow branch, commenced this action against the society and its trustees, and al- leged that rule XIII, sec. IV, above stated, or, alternatively, so much thereof as was partially altered in italics, and the raising by the society by compulsory subscription from the plaintiff and other members of the society, and the distribution of moneys for the pur- poses and in manner in the said rule appearing were not within the objects or purposes of the society or within the purposes mentioned in sec. 16 of the Trade Union Act, 1876, and were ultra vires the society. . . . The defendants did not admit that any part of rule XIII, sec. IV, was not within the objects or purposes of the society, or was ultra vires, and they denied that there had been any non- compliance with the rules. They further contended that under rule II, 4 (a), and rule XVIII the alteration in italics to rule XIII, sec. IV, had been duly submitted to the annual general meeting held in October, 1906, and was carried by large majorities. Neville, J., considering himself bound by the decision in Steele v. South Wales Miners' Federation, [1907] 1 K. B. 361, that the provi- sion of a parliamentary representation fund was within the scope of a trade union, expressed no individual opinion upon this point, but held that the certificate of the registrar was conclusive as to the rules as amended that they had been properly passed, and dismissed the action with costs. The plaintiff appealed.* 1 The statement of facts is taken from the report of the decision of the C!ourt of Appeal, [1909] 1 Ch. 163. — Ed. SECT. IV] DOCTRINE OF "ULTRA VIRES" 601 The Court of Appeal allowed the appeal, [1909] 1 Ch. 163, Cozens- Hardy, M. R., saying: "The appeal must be allowed. There must be a declaration that rule XIII, section IV, is invalid, and that the same is not binding upon the plaintiff and other members of the society, and there must be an injunction restraining the defendants from levying from the plaintiff and other members of the defendant society, and from applying the moneys of the society for any of the purposes mentioned in rule XIII, section IV." LoED Atkinson.^ My Lords, in this case the plaintiff sues a trade union society duly registered, of which he has been contin- uously a member since the year 1892, to haye it declared that rule XIII, sec. 4, of its current rules, which provides, amongst other things, for parliamentary representation and the enforced levy of contributions from the plaintiff and other members of the society towards the payment of salaries, or maintenance allowance, to mem- bers of Parliament pledged to observe and fulfil the conditions im- posed by the constitution of the Labour party therein referred to, is ultra vires and void, and that the society may be restrained from enforcing it, and in the alternative that it may be declared that a certain amendment or addition made to the rules in 1906 may be declared to be illegal and void, and for other relief. The registered rules of 1900 were, for the purpose of the hearing, taken as the original rules of the society, though it had in fact been established in 1871. Under the provisions of the 14th section of the Trade Union Act of 1871 and the schedule therein referred to, those rules must have provided for the "whole of the objects" for which the union was estabhshed, "the purposes for which the funds were to be applicable," "the conditions under which any member might become entitled to the benefit assured thereby," and "the fines and forfeitures to be imposed on any member." It was conceded that these rules of 1900 did not contain any refer- ence whatever to parliamentary representation, or to levies in respect of it; that in 1903, for the first time, there was introduced into the rules, by amendment, the words "to secure parliamentary represen- tation" to designate a purpose to which funds might thereafter be applied; and that in 1906 an amendment was for the first time in- troduced requiring candidates for Parliament to sign and " accept the conditions of the Labour party and be subject to their ' whip.' " As the plaintiff had become a member of the society long before these amendments were made, it is conceded that, if they are illegal or void as being ultra vires, he has not contracted to be bound by them, as he might possibly be held to have done had they been "■ Separate opinions were rendered by the Earl of Halsbury, Lord Mac- naghten, Lord James of Hereford, Lord Atkinson, and Lord Shaw of Dunferm- line. The majority of the House of Lords, as did the members of the Court of Appeal, based their decision on the doctrine of ultra vires. — Ed. 602 COEPORATE FEATURES OP LABOR UNIONS [CHAP. XI made before he became a member, and that, therefore, if his ob- jection to the amendments be well founded, he is within his rights in bringing this action and is entitled to the main reUef he seeks. One question, called for convenience "the constitutional question," was argued before your Lordships which was not argued before Neville, J. It is not specifically raised on the pleadings, nor, as far as appears from the record, was it ever, imtU the hearing of the ap- peal, thought of by the parties to the suit. It is the question whether the members of Parliament who receive salaries or maintenance allowances and sign the pledge to accept the conditions contained in the constitution of the Laboiu- party, referred to in the rules of 1906, and to be subject to their whip, have not thereby entered into an agreement which involves such a sacrifice of their independence and liberty of thought and action that it is illegal and void as against pubHc policy. . . . The questions argued before your Lordships are thus reduced to two — first, whether or not the rule complained of was vitra vires; and, second, the so-caUed "constitutional question." Holding the views I am about to express upon the first question, it is entirely unnecessary for me to express any opinion whatever upon the second, and I abstain from doing so. The contentions rehed upon to establish the validity of the im- peached rule are, as I understand it, first, that the definition con- tained in clause 16 of the Trade Union Amendment Act of 1876 is not, as it is said, exhaustive, and that therefore a trade union, though registered, may have amongst its objects, in addition to one or more of the objects named in the section, any object whatever not in it- self illegal, and accordingly that, provided it be created to effect one or more of the objects named, it is in other respects in the same position as any individual or voluntary association of individuals, and is therefore at liberty to expend its funds to procure the retm-n of members of Parhament, and to maintain them there, as freely as an individual or such an association of individuals is to devote his or its moneys to a hke purpose; and, second, that, even if such a union be not free to aim at all legal objects not named in the section, parhamentary representation, on the conditions prescribed in the rule, is the most effective means of attaining the objects which are named, and may therefore be lawfully provided for in the mode prescribed. The ground upon which it is insisted that the definition is not exhaustive is this. The definition, it is said, contains no reference to the providing of benefits for members, etc., though it is obvious, from the provision of sec. 4 of the Act of 1871 and of the First Sched- ule referred to in that statute, that this was one of the well-known purposes for which trade unions were formed. Farwell, L. J., was apparently of opinion that the provision of such benefits is covered by the words in the definition, "regulating SECT. IV] DOCTEINE OF "ULTRA VIRES" 603 the relations between workmen and workmen"; bjut, whether that be so or not, the providing of benefits was a well-known and well- recognized purpose of trade unions long before any legislation deal- ing with them was passed. It is undoubtedly a purpose collateral or ancillary to the purposes with which the section is conversant; and to argue that because of the omission from this section of a well- known object of this kind therefore all objects not named, however foreign they may be to those objects at which the history of these bodies shews they aimed, may legitimately be promoted is the most obvious non sequitur. Sir George Jessel in Rigby v. Connol, (1880) 14 Ch. D. at p. 489, ana- lysed the legislation passed to deal with trade unions and described its purpose and effect. Farwell, L. J., in his judgment in this case described with accuracy and fulness their present position, their rights and priv- ileges. From these judgments it is clear, in my view, that they are, when registered, quasi-corporations, resembling much more closely railway companies incorporated by statute than voluntary associations of individuals merely bound together by contract or agreement, express or impHed. And it is plain that, as soon as this character was given to them, and the rights and privileges they now enjoy were conferred upon them, it became a matter of necessity to define the purposes and objects to which they were at Hberty to devote the funds raised from their members by enforced contributions. A definition which per- mitted them to do the particular things named and in addition all things not in themselves illegal would be no definition at all and would serve no purpose at all. There must be some limit. The question for decision, therefore, is whether parhamentary representation falls within or without that hmit, or, in other words, whether the Legis- lature, expressly or by fair imphcation, has conferred upon registered trade unions power and authority to subsidize, in the manner pro- vided by the impeached rule a scheme of parliamentary representa- tion. . . . It is not suggested that registered trade unions have the powers of common law corporations. . . . Now it is not contended that it is a matter of necessity for registered trade unions to secure parlia- mentary representation on the lines indicated in tins rule, or on any other fines. Their whole history refutes such a suggestion. But it is contended that it is only fair to imply that they have this power, because such a representation would afford the most effective means of accompUshing the objects mentioned in sec. 16, inasmuch as legislation might be introduced to help or hinder them in the pros- ecution of those objects, and that it is vital to their interests to have in Parliament members in sympathy with their views to sup- port the one form of legislation and to oppose the other; and, fur- ther, that they cannot procure the return of such members unless they pay out of their funds the election expenses of chosen candidates and by the same means maintain them if returned to Parliament. 604 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI The answer to that argument is, I think, this. Trade unions are in this respect in precisely the same position as all corporations, municipal or commercial, including in the latter all limited liability- companies created under the Act of 1862. These bodies, like the trade unions, may by legislation be helped or hindered in carrying out the objects which they were formed to carry out. Their most vital interest may be seriously prejudiced by taxation which the Legislature may impose, or enabhng statutes, general in character, may be introduced calculated to enlarge their powers, increase their privileges, or remove restraints upon their action, or against some of them may be under the necessity of promoting private Bills to meet their own special needs. If, despite all this, the intention never has been and cannot be imputed to the Legislature to confer upon such corporations as these power or authority to devote their funds to the procurement of parliamentary representation in the manner in this case contended for, how can such an intention be imputed to it in the case of quasi-corporations such as registered trade unions? And if this intention cannot be imputed to the Legislature in the case of registered trade unions, as in my view it cannot be, there can be no such thing as an impUed grant of the desired powers, be- cause an addition to a grant is only introduced by imphcation in order to carry out the presumed intention of the grantor. . . . It is not disputed that up to 1903, at aU events, members of trade unions were not on joining required to subscribe to any pohtical creed, or submit to any political test, no more than are persons who become shareholders in a railway company, and, for all that appears, there may be as great a diversity of political views amongst the mem- bers of the one class as of the other. Freedom of opinion was probably permitted amongst the members of both classes because it was not the business of either of the bodies to which they respectively be- longed to support particular pohtical parties or to promote a partic- ular pohtical policy. It would be as unjust and oppressive as, in my view, it is illegal to compel, by passing rules such as that im- peached, a member of a trade union, who like the respondent joined in the days when freedom of action was permitted, either to con- tribute to the promotion of a political policy of which he might possibly disapprove, or be expelled from the union to which he be- longed for so many years and forfeit all benefit from the money he had subscribed. I am therefore of opinion that power and authority such as are in this case claimed for the appellants have not been conferred upon them expressly or by implication; that the impeached rule is uUra vires; that the decision appealed from was on this point right and should be upheld, and the appeal dismissed with costs. For the reasons already given I express no opinion on the other question so elaborately argued before your Lordships by Mr. Spencer Bower. SECT. IV] DOCTRINE OF "ULTRA VIRES" 605 Lord James op Hereford. My Lords, after much considera- tion I have come to the conclusion that your Lordships' judgment should be given in favour of the respondent. But I desire to explain that the opinion I thus express is founded upon one particular fact existing in the case. With much of the argument adopted by counsel at the bar on behalf of the appellants I agree. For instance, I think it may well be in the interests of trade unionism and labour that the funds of a trade union should be devoted to the payment of the expenses of a member of Parliament, who should represent such interests. I also concur in the view presented to your Lordships by Sir Robert Finlay, that sec. 16 of the Act of 1876 is not a clause of limitation, or exhaustive definition. It seems to me that the Legislature only intended to require certain qualifications to exist before an entity could become a trade union, but the objects or limits of action of a properly qualified trade union are not dealt with by the section. So far I am in agreement with the case presented by the appellants. But my difficulty in the way of complete concurrence arises in con- sequence of the terms of rule XIII, sec. 4, as amended in October, 1906: "All candidates shall sign and accept the conditions of the Labour party and be subject to their ' whip.' " The effect of this rule and others that exist is that a member of the trade union is compelled to contribute to the support of a mem- ber of Parhament, who is compelled "to answer the' whip of the Labour party." I construe this condition as meaning that the mem- ber undertakes to forego his own judgment, and to vote in Parlia- ment in accordance with the opinions of some person or persons acting on behalf of the Labour party. And such vote would have to be given in respect of all matters, including those of a most gen- eral character, such as confidence in a Ministry or the policy of a Budget — matters unconnected, directly at least, with the interests of labour. Therefore I am of opinion that the application of money to the maintenance of a member whose action is so regulated is not within the powers of a trade union. If your Lordships decide on this branch of the case that the re- spondent is entitled to judgment, it is unnecessary that any opinion should be expressed upon the very broad constitutional question raised for the first time in the Court of Appeal affecting the general support of members, and upon which the President of the Court, the Master of the Rolls, has given no judgment. However, I desire to add that my silence upon this question of the judgment of the two Lords Justices must not be regarded as denoting agreement with it. Lord Shaw of Dunfermline. . . . There were two arguments presented. (1) The expenditure of the society's members' con- tributions in pajang members of Parliament, whether the payments be part of an illegal or unconstitutional compact or not, is not in 606 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI fact authorised by the terms of association. (2) The payment in respect of which the contributions are enforced, whether such pay- ment be authorised by the terms of the association or not, is part of a compact which in its nature is illegal or unconstitutional. Under the first argimient, if the contravention of the terms of association be affirmed, the constitutional question is superseded. Under the second argument, if essential illegality be affirmed the consideration of the terms of association is unnecessary. My Lords, in the Court of Appeal the learned Master of the Rolls decided only the first and the learned Lords Justices Fletcher Moul- ton and Farwell decided both of those questions. I should have been very glad if your Lordships had also seen your way to adopt the latter course. But I quite agree that, strictly considered, the one question saves the other. As so often happens with propositions so related, the selection between them is not governed by any canon of logic, but is optional. Yoiu- Lordships' choice has fallen on the point as to the rules and objects of the society, which I gather that you hold did not embrace the payment of members of Parliament. My Lords, I cannot say that I am entirely clear in my own mind upon that topic. I do not dissent, but I do not decide. Long before the statutes of 1871 and 1876 were enacted trade unions were things in being, the general featm-es of which were famiUar to the public mind. They were associations of men bound together by common interests for com- mon ends. Statute did not set them up, and, speaking for myseK, I have some hesitation in so construing language of statutory recog- nition as a definition imposing such hard and fast restrictive limits as would cramp the development and energies and destroy the natural movements of the living organism. It is in that region that my doubts he. I fully recognise that the introduction of matter either foreign to or subversive of the society's objects is not permis- sible ; but I am not clear that the payment of members of Parliament by associations whose objects embrace the regulation of hours and conditions of labour and of the relations of the employers and work- men is such foreign or subversive matter; and, speaking for myself, I do not think that the problem is solved by designating the new matter political and holding that for that reason it is differentiated from the old. It is in these circmnstances, my Lords, that I find myself com- pelled to consider this appeal upon the other ground taken. . . . In brief, my opinion accordingly is: The proposed additional rule of the society that "all candidates shall sign and respect the conditions of the Laboiu: party, and be subject to their ' whip,' " the rule that candidates are to be "responsible to and paid by the society," and, in particular, the provision in the constitution of the Labour party that "candidates and members must accept this con- stitution, and agree to abide by the decision of the parliamentary SECT. IV] DOCTRINE OF "ULTRA VIRES" 607 party in carrying out the aims of this constitution," are all fun- damentally illegal, because they are in violation of that sound public policy which is essential to the working of representative govern- ment. Parliament is summoned by the Sovereign to advise His Majesty freely. By the nature of the case it is implied that coercion, con- straint, or a money payment, which is the price of voting at the bid- ding of others, destroys or imperils that function of freedom of advice which is fundamental in the very constitution of Parliament. Inter alia, the Labour party pledge is such a price, with its accom- paniments of imconstitutional and illegal constraint or temptation. . . . For these reasons, my Lords, I am of opinion that the appeal should be refused. Order of the Court of Appeal affirmed and appeal dis- missed with costs} 1 Accord: Parr v. Lancashire & Cheshire Miners' Fed., [1913] 1 Ch. 366. In Wilson V. Scottish Typographical Association, [1911] 1 Scot. L. T. 253, 255, Lord Skerrington sought to limit the effect of the Osborne decision. The majority of the Lords who gave judgment in the Osborne case, he said, "held that the new political purposes of the Society were matters outside the purview of the Trade Union Acts, and therefore ultra vires of the Society. It is apparent that this groimd of judgment has no application to a society, which has no statutory con- stitution, and which is merely a voluntary association, such as an unregistered trade union." For a criticism of the Osborne judgment, see Webb, History of Trade Unionism (1920 ed.), pp. 608-631. The widespread dissatisfaction caused by the Osborne judgment led to the passage ofi the Trade Union Act of 1913 (see supra, p. 25). ' 'It is not easy to sum up the whole effect of the legal assaults upon Trade Unionism between 1901 and 1913. Politically, the result was to exasperate the active-minded workmen, and greatly to promote, though with some delay, the growth of an independent Labour Party in the House of Commons. . . . The final result of the successive attempts between 1901 and 1913 to cripple Trade Unionism by legal proceedings was to give it the firmest possible basis in statute law." Webb, History of Trade Unionism (1920 ed.), pp. 632, 633-634. CHAPTER XII RIGHTS AND LIABILITIES OF MEMBERS OF LABOR UNIONS IN RESPECT TO THIRD PARTIES Section 1. Officers and Agents WINONA LUMBER CO. v. CHURCH Supreme Couet of South Dakota. 1895 6 S. D. 498 Kellam, J. The complaint of the appellant, who was plaintiff in the court below, after alleging its incorporation, as its cause of action against respondents as defendants alleged as follows: "Second, that upon the 1st day of June, 1889, certain persons of the city of Watertown, South Dakota, met together and organized a voluntary, unincorporated association under the name of the Watertown Trot- ting Association, with the following persons as officers thereof: The defendant Charles G. Church as the president; the defendant J. E. Kelley as the vice-president; the defendant Ole Gesley as the treasurer, and the defendant A. L. Buell as the secretary. That said unincorporated association continued in existence until some time after the 1st day of August, 1890, without any change whatever being made as to the persons who acted as the officers of the said association. That the defendants herein, and each of them, from the time the said Watiertown Trotting Association was organized until the 1st day of August, 1890, were members of the said associa- tion, and took an active and aggressive part in the management and control of its Affairs. Third, That during the months of June and July in the year 1890 the plaintiff, at the instance and request of the said association known as the Watertown Trotting Association, and with the knowledge and sanction of each of the defendants herein, furnished, sold, and deHvered to the said unincorporated association certain lumber and building materials, which were used in the con- struction of buildings and structures used by the said Watertown Trotting Association. Fourth, That the lumber and building ma- terial so furnished by the plaintiff to the said Watertown Trotting Association were of the value of $333.70, and the last of the said lumber and building material was furnished and delivered upon the 10th day of July, 1890. Fifth, The plaintiff further aUeges that the lumber and building material furnished, sold, and delivered as herein set forth were furnished, sold, and delivered upon the in- SECT. I] OFFICEHS AND AGENTS 609 dividual responsibility of the defendants herein named, and that the plaintiff, in furnishing, selling, and delivering the said lumber and building material, relied solely upon the said defendants for the payment of the piu-chase price thereof; and that the purchase price of the same, or any part thereof, has not been paid." The defend- ants, except Buell, who has removed from the state, and was not served, answered separately, denying the allegations of the com- plaint. Upon the trial the court sustained an objection to the in- troduction of any evidence by plaintiff, on the ground that the complaint did not state a cause of action, and on motion rendered judgment against plaintiff, dismissing the action. From this judg- ment plaintiff appeals. The single question therefore is, do the facts stated in the complaint constitute a cause of action against these , defendants? While there are a good many reported cases presenting facts analogous to this, the courts do not seem to have adopted the same view as to the relation of the individual members of an unincorporated association to each other. In many cases the members of such an associatioii have been held to be partners, and liable as such. See Gorman v. Russell, 14 Cal. 531; Babb v. Reed, 5 Rawle, 158; Taft V. Ward, 106 Mass. 518; Lynch v. Postlethwaite (La.), 12 Am. Dec. 495. In other cases, like Ash v. Guie, 97 Pa. St. 493 ; Lewis v. Tilton, 64 Iowa, 220, 19 N. W. 911, — it has been held that members of such an association are not partners. A decision of this case does not seem to us to require the express adoption of either of these views. The complaint shows that these defendants were the general ofiicers of an unincorporated association, under the name of the Watertown Trotting Association. Its purpose and object is disclosed only as suggested by its name. It is further stated that with the knowl- edge, approval, and sanction of these defendants, as its general managing ofiicers, the association purchased the materials named in the complaint from the plaintiff, and that such materials were used in the construction of buildings for such association. The associa- tion itself was the nominal or theoretical principal, of which these defendants were the officers and agents, but the nominal principal had no legal existence. As said by Judge Seevers in Lewis v. Tilton, supra, it was a myth. The members of the association, as a matter of convenience, transacted their business connected with this enter- prise under an assumed associate name. The acts of the association, it not being a legally responsible body, were the acts of its members, who instigated and sanctioned the same. They made the purchase in the name of a fictitious principal. As a matter of law, the plain- tiff, in giving credit to the associate name, gave credit to the parties who adopted and operated under such name. To hold otherwise would defeat the plain requirement of justice. It is not sought in this case to impose liabihty upon any except those who were actively responsible for the purchase. Possibly others besides those named 610 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XII as defendants may also be liable in this case, but there is nothing in the complaint so showing. It does appear that the defendants named instigated and sanctioned the purchase, and they are liable on the ground that one who, as agent, assumes to represent a prin- cipal who has no legal existence or status, is himself liable. Mechem, Ag. sec. 557. The principal which seems to us controlling in this case is tersely stated in Lewis v. Tilton, supra: "But it is said these defendants did not contract. They certainly represented that they had a principal for whom they had authority to contract. They, for and in behalf of an alleged principal, contracted that such principal would do and perform certain things. As we have said, there is no principal, and it seems to us the defendants should be held liable, and that it is immaterial whether they be held liable because they held themselves out as agents for a principal that had no existence or on the ground that they must, under the contract, be regarded as principals, for the simple reason that there is no other principal in existence." That members of an unincorporated association, having no legal status, are personally hable, independent of the question of partnership, on contracts which they have assented to or assisted to make in its name, is fully declared in Lewis v. Tilton, supra; Davison v. Holden, 55 Conn. 103, 10 Atl. 515; Herod v. Rodman, 16 Ind. 241; Ash v. Guie, supra; Heath v. Goslin, 80 Mo. 310. The same doctrine was distinctly recognized, though not so definitely stated, and applied in Ray v. Powers, 134 Mass. 22; Sizer V. Daniels, 66 Barb. 432; Fredendall v. Taylor, 23 Wis. 538, and again in 26 Wis. 286. Tested by these views, we are of the opinion that the court erred in holding that the complaint did not state a cause of action against the defendants, and for such error the judg- ment is reversed, and the case remanded for further proceedings according to law. All the judges concxn-.' BLAKELY v. BENNECKE SuPEEME Court of Missouri. 1875 59 Mo. 193 Sherwood, J., dehvered the opinion of the court. Action on an instrument in this form: $500. Head Qrs. U. S. Forces, Brunswick, Mo., January 3, 1865. Received of Mrs. Catherine Blakely the sum of five hundred doUars, $500, to be used to buy Spencer Rifles, for Co. I., 49th Regt., Mo. Vols. ; said money to be returned as soon as the County bounty is paid to said Company in full without interest. Louis Behtnecke, Capt. 49th Regt., Mo. Vols., Com'd'g Post. • Accord: Crawley v. Amencan Society of Equity, 153 Wis. 13. SECT. I] OFFICERS AND AGENTS 611 The suit was brought by the husband of Mrs. Blakely. There were four counts in the petition; the first charged that plaintiff's wife, acting as his agent, on the 3d day of January, 1865, loaned the defendant the sum mentioned, which he, by the instru- ment referred to, promised to return, etc., without interest, so soon as the county bounty should be paid as therein specified; that such payment was made on ,the 1st day of March, 1866, but the money borrowed was not returned, and judgment was asked with interest from the period last stated. The second count was for money loaned to defendant, and was hke the first as to amount and time of loan, except that no instrument was declared on, nor time of payment designated. The third count was for money had and received; and otherwise was like the second. The fourth count was for the above mentioned sum; and charged that the same was obtained of the wife of plaintiff by duress, etc. To this last count a demurrer was sustained. The defendant then answered to the remaining counts, admitting the execution of the instrument sued on, but denied that it was signed in his individual capacity; and stated that it was only exe- cuted by him as the agent of the company of which he was captain, and alleged that such agency was disclosed as well as the name of his principal, the said company, at and before receiving the money, etc. Neither the agency of Mrs. Blakely nor the payment of the county boimty on the 1st day of March, 1866, was denied. There was a general denial on the other counts. A reply was filed, and the parties went to trial, upon the first count in the petition; and the plaintiff, after reading the instru- ment sued on in evidence, without objection, and after proving by Mrs. Blakely that she was his wife, and that the money loaned be- longed to him, rested. A great deal of testimony was then introduced by the defendant, tending to show that he borrowed the money as the agent of and for the company, and not lq any other capacity. Plaintiff in his turn also produced a large amount of testimony of a contrary tenor and effect. The jury after being abundantly instructed, as well on the part of defendant as of the plaintiff, found for the latter. The defendant, by admitting the execution of the instrument in suit, and faihng to deny that the county bounty had been paid, fixed his habihty, and offered no barrier to plaintiff's recovery, as the in- strument was not at all ambiguous, was couched in plain terms, and therefore offered no opportimity for the introduction of parol testi- mony as explanatory of the intent and meaning of the parties, and all contemporaneous verbal agreements were merged in that writing. But even had this not been the case, it is not seen how the privilege of introducing parol testimony for the purpose of varying the terms of the instrument, would have helped the defendant. He was per- sonally chargeable even on his own showing, with the amount bor- 612 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XII rowed, and six per cent interest from the first day of March, 1866, unless he had disclosed a responsible principal. (2 Kent. Com., 630.) But in this case there was no principal, either responsible, or other- wise, to disclose. "Company I" was incapable of suing or being sued, pleading or being impleaded, contracting or being contracted with. In short, it possessed none of the elements or attributes of a legal entity. The defendant was clearly Hable on the instrument itself when coupled with his admission of the happening of the con- tingency therein referred to. And it was the duty of the court to have declared the legal effect to be given to the instrmnent. The motion in arrest was properly overruled. Although there were several counts in the petition, yet all but the first were aban- doned at the trial, so that the finding, however general, could have reference to but that one. The case was tried on the wrong theory; as the judgment, however, was for the right party, it will be affirmed; all the judges concur.' Section 2. Members CoLLYER, Law of Pahtnebship.^ Societies and clubs, the object of which is not to share profits, are not partnerships in any sense. . . . It is a mere abuse of words to call such associations partnerships; and if Habihties are to be fastened on any of their members it must be by reason of the acts of those members themselves, or by reason of the acts of their agents; and the agency must be made out by him who rehes on it, for none is implied by the mere act of association. EHRLICH V. WILLENSKI United States Circuit Court. E. D. Pennsylvania. 1905 138 Fed. 425 J. B. McPherson, District Judge. Whatever relaxation of the rule that requires all persons interested to be made parties to a suit at law may have been permitted in the case of unincorporated socie- i Accord: Caldicott v. Griffiths, 8 Exch. 898, 903; Osborne v. Dickey, 71 S. E. (Ga.) 763; Lewis v. Tiltoni, 64 la. 220; Comfort v. Graham, 87 la. 295, 298; Riffe V. Proctor, 99 Mo. App. 601, 608; Insurance Co. v. Burkett, 72 Mo. App. 1,3 Bartholomae v. Kauffman, 47 N. Y. Super. Ct. 552 (affd. 91 N. Y. 654) McCartee v. Chambers, 6 Wend. 649; Lincoln v. Crandall, 21 Wend. 101 Fredenhall v. Taylor, 23 Wis. 538, 540 (affd. 26 Wis. 286, 291). In some cases the courts have apparently held the member contracting not personally liable because he acted as agent. Hewitt v. Wheeler, 22 Conn. 557, 563; Edmonds v. Termehr,^ 60 Iowa, 92; Abbott v. Cobb, 17 Vt. 593; Cheney v. Clark, 3 Vt. 431; Johnson v. Welch, 42 W. Va. 18. 2 Collyer, The Law of Partnership (Wood's edition, 1878), sec. 29, p. 47. Al- most the same language will be found in Lindley, The Law of Partnership (sixth ed.). Book 1, sec. 2 (p. 13), citing numerous cases in support. SECT. II] MEMBERS 613 ties, no decision can be found, I think, that allows an action to be brought in the form that has been adopted here. The facts are these : Edward Ehrlich, the legal plaintiff, made a written contract with Local Union No. 165 of the Cigar Makers' International Union of America, by which the local society undertook to furnish him with the union label, to be affixed to the boxes in which he proposed to pack the cigars that he was about to manufacture. For a short time the label was furnished, but was then refused, and this suit in assumpsit is to recover damages for the refusal. The contract was signed as follows: "Local Union No. 165, "Cigar Makers' International Union of America. "ByW. C. Hahn, "Business Agent and Label Secretary." "Edward Ehrhch. [L. S.]". Instead, however, of bringing suit in a form that would indicate a purpose to seek redress merely from the local union, the plaintiff selected four of its members, namely, Charles Willenski, James Mahlon Barnes, William C. Hahn, and George H. Ullrich, and sued them, as the praecipe and the simmions both set forth, "individually and for themselves and others, officers and members of the unincor- porated association known as Local Union No. 165 of Philadelphia of the Cigar Makers' International Union of America." In my opinion, such an anomalous record cannot be sustained, and the non- suit "must therefore be upheld. This is a suit at law, where the judg- ment and execution must be sustained by the record, and nothing upon the record — or in the evidence, for that matter — would justify a judgment and a fi. fa. against the defendants in their in- dividual character. The subject of suits by and against unincor- porated societies has been considered in Ash v. Guie, 97 Pa. 493, 39 Am. Rep. 818; Pain v. Sample, 158 Pa. 428, 27 Atl. 1107; Lieder- kranz Society v. Germania Turn Verein, 163 Pa. 265, 29 Atl. 918, 43 Am. St. Rep. 798; Sparks v. Husted, 5 Pa. Dist. R. 189; Virtue v. loka Tribe, Id. 634; Kurtz v. Eggert, 9 Wkly. Notes Cas. 126; Mc- Dowell V. Smith, 21 Wkly. Notes Cas. 558; Grayson on Social and Beneficial Associations in Pennsylvania, sec. 81 ; Fitzpatrick v. Rut- ter, 160 111. 282, 43 N. E. 392; and Gorman v. Russell, 14 Cal. 531. The Pennsylvania Act of 1876 (P. L. 53), reheving members of a beneficial society (to which class the Local Union seems to belong) from individual liabiUty for claims against the society, is as follows: "That members of lodges of the order of Odd Fellows, Knights of Pythias and other organizations paying periodical or funeral benefits, shall not be individually hable for the payment of periodical or funeral benefits or other liabilities of the lodge or other organization, but that the same shall be payable only out of the treasury of such lodges or organizations: provided, that the provisions of this act shall only 614 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XII apply to unincorporated associations: and provided, further, that this act shall not apply to any liability heretofore incurred." In view of this statute, if it be true that the local union is properly to be classed as a beneficial society, it might be well for the plaintiff to consider whether an action at law is a suitable remedy for enforc- ing liability against the treasury of the association, or whether the more flexible remedy in equity is not better adapted for the purpose. If the action at law is not adequate, or is obviously unsuitable, equity may have jurisdiction on this groimd alone: Bierbower's App., 107 Pa. 14; Brush Elec. Co.'s App., 114 Pa. 574, 7 Atl. 794; Gas Co. V. Gas Co., 186 Pa. 443, 40 Atl. 1000, 65 Am. St. Rep. 865; Thomp- son V. Alien Co., 115 U. S. 550, 6 Sup. Ct. 140, 29 L. Ed. 472; Mc- Conihay v. Wright, 121 U. S. 201, 7 Sup. Ct. 940, 30 L. Ed. 932; KUbourn v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594, 32 L. Ed. 1005; Tyler v. Savage, 143 U. S. 95, 12 Sup. Ct. 340, 36 L. Ed. 82. The motion to take off the nonsuit is refused. Exception to the plaintiff. SIFF V. FORBES Supreme Court of New York. 1909 135 App. Div. 39 Scott, J. Defendant appeals from a determination of the Appel- late Term affirming a judgment of the City Court in favor of plaintiff. The plaintiff sues for money alleged to have been loaned to the Socialist Labor party, an unincorporated voluntary organization. It is conceded that this action is controlled by the rule in McCabe v. Goodfellow (133 N. Y. 89), that in order to succeed the plaintiff must show that all the members of the association are liable either jointly, or severally to pay the debt, and that the indiAridual liability for debts contracted by officers or committees depends upon the application of the principles of the law of agency; that authority to create such liability will not be presumed or implied from the existence of a general power to attend to or transact business or pro- mote the objects for which the association is formed, except when the debt contracted is necessary for its preservation. The loan upon which this action is based was contracted by the national executive committee of the party. It is not contended that this committee had any direct authority to incur indebtedness on behalf of all the members. It is testified to by some of the witnesses that the incurring of the indebtedness was reported to and approved by the national convention, and this is claimed to have been a sufficient ratification. We cannot find in the constitution any direct authority given to the national convention to incur debts which shall be bind- ing upon the members of the party generally. The convention is given power to frame a platform, decide the form of organization. SECT. II] MEMBERS 615 select the seats of the national executive committee and board of appeals and investigate and decide all difficulties within the party. All acts of the convention must be submitted to the sections for a general vote. Assuming that the convention ratified the loan, this was not equivalent to ratification by the party at large, in the absence of a reference to the sections for a general vote. The court below suggested that the report to the national committee gave the part}'- at large a knowledge of the transaction, and that its silent acqui- escence was a sufficient ratification. (63 Misc. Rep. 319.) In the absence of a reference to the sections it cannot be assumed that the party at large had any knowledge of a report made to the convention, and in the absence of knowledge "silent acquiescence" certainly cannot be construed into ratification. Although it seems to be now claimed that the money was advanced to preserve the existence of the party, the evidence does not bear out the claim, and the court expressly took that question from the jury without apparently any objection on the part of plaintiff. It is extremely difficult to trace the disposition of the money, but it appears that at least a part of it was devoted to extricating certain newspapers from difficulties. These papers were issued as organs of the party, but their existence was not so tied up with the existence of the party as to justify a holding that the preservation of the party depended upon their preservation. The determination of the Appellate Term and the judgment of the City Court must be reversed and a new trial granted, with costs to appellant in all courts to abide the result. LsTGRAHAM, McLatjghlin, Laughlin", and Houghton, JJ., con- curred. ^ ■■ In Wrightington, Unincorporated Associations, p. 275, it is said: " The striking distinction between associations for profit and non-profit asso- ciations is in the basis of liability of individual members for association obliga- tions. All members of a partnership are personally liable for partnership debts. In the kind of association now under consideration, only those members are liable who expressly or imphedly with fuU knowledge authorize or ratify the specific acts in question. Matter of St. James Club, 2 De G. M. & G. 383, 390, 16 Jur; 1075 (social club) ; Wood v. Finch, 2 Fost. & Fld. 447 (club to buy coal at whole- sale for members); Fleming v. Hector, 2 Gale, 180, 2 M. & W. 172 (ditto); De- launey v. Strickland, 2 Stark. 416, 3 E. C. L. 470 (social club); Hawke v. Cole, 62 L. T. Rep. N. s. 658 (navy mess) ; Overton v. Hewett, 3 T. L. R. 246, 248 (member of managing committee of club) ; Fox v. Narramore, 36 Conn. 376, 382 (military company); Davidson v. Holden, 55 Conn. 103, 112 (cooperative store); Augusta Club V. Cotton States, etc.. Fair Ass'n, 50 Ga. 436, 442 (committee of arrange- ments of a fair) ; Murray v. Walker, 83 la. 202 (assisting in holding a fair. Liable for prizes) ; Schumaker v. Sumner Tel. Co., 161 la. 326 (members of a farmers' telephone line not liable on a note in name of association) ; Newell v. Borden, 128 Mass. 31 (fire engine company. Vote at meeting); Volger v. Ray, 131 Mass. 439 (poultry association. Liability for prizes) ; Ray v. Powers, 134 Mass. 22 (ditto) ; Ferris v. Thaw, 5 Mo. App. 279, 286 (Masonic lodge); Hammerstein v. Parsons, 38 Mo. App. 332, 335 (benefit certificate); Riffe v. Proctor, 99 Mo. App. 601, 608 (church) ; Hornberger v. Orchard, 39 Neb. 639, 642 (social club) ; Sizer v. Daniels, 66 Barb. 426, 433 (political committee) ; Hosman v. Kmneally, 86 N. Y. S. 263, 43 Misc. 76 (see 90 N. Y. S. 357) (socialistic labor party. Action by employee of 616 LIABILITIES OF LABOK UNION MEMBERS [CHAP. XII Weaver, C. J., in SCHUMACHER v. SUMNER TELE- PHONE CO. 161 Towa, 326, 331-333 (1913) We have next to inquire whether there was a partnership relation in fact or in law between the appellees and Robish, and, if so, whether the note in suit was given under circumstances making it a partner- ship obligation. That there was no express partnership agreement and that appellees never in fact understood or beUeved that they had assumed any such relation is perfectly clear, but this of course would be no defense if it clearly appears that they, with others, entered into a voluntary unincorporated association for the purpose of construct- ing and operating a telephone Une, and it further clearly appears that the indebtedness sued upon was lawfully incurred by the association in the pursuance of the business for which it was organized, for such an association, it is well settled, is to a degree a partnership, and within weU-defined limits the individual member may be made liable upon the contracts of the association, even where he has given no express consent. The power to thus bind the individual member without notice and without his consent is certainly no greater than in other partnerships and extends only to contracts lawfully made and obligations properly incurred. The authority of one or more partners to borrow money and thus create an obligation against other partners without their knowledge or consent is not unlimited, nor is it a characteristic of all partnerships. Partnerships and unincorporated associations of in- dividuals are among the most familiar expedients for the transaction of business. They are usually classified into trading and non-trad- ing partnerships and associations, and in each the authority of one partner or member to bind another partner or member is confined to transactions within the natural and proper scope of the business in which they are associated. 22 Ency. Law (2d ed.), 153, 154; 4 Ency. Law (2d ed.), 61, 62; Sutton v. Weber, 127 Iowa, 364. A trading partnership or association is, generally speaking, one doing business commercially (a business of buying and selling for profit), while those in which the business done is something other than buying and selling for profit constitute the non-trading class. Among the most familiar of the latter are partnerships for the prac- tice of a profession. But they are by no means limited to these. . . . a newspaper conducted by trustees and supported by fixed contributions from members); Lightbourne v. Walsh, 89 N. Y. S. 856, 97 App. Div. 187; Siff v. Forbes, 119 N. Y. S. 773, 135 App. Div. 39 (loan to socialist labor party) ; Devoss V. Gray, 22 Ohio St. 159, 169 (trustees of a church) ; Eichbaum v. Irons, 6 Watts & S. 67 (Pa.) (dinner committee appointed at a public meeting) ; Ash v. Guie, 97 Pa. St. 493, 498 (Masonic lodge) ; Winona Lumber Co. v. Church, 6 S. D. 498, 503 (trotting park) ; Arkins v. Dominion Live Stock Association, 17 Ont. Pr. Rep. 303, 305 (club)." SECT. II] MEMBERS 617 In non-trading partnerships and unincorporated associations the authority of partners to involve each other in financial obligations is much more limited than in trading organizations. While in the latter the authority to borrow money for the real or professed use of the partnership is ordinarily recognized, in the former it is quite as universally denied. According to the great weight of authority, it is not within the power of a non-trading partnership or association to borrow money or make negotiable paper and charge with individ- ual hability partners or members not assenting thereto. This is dis- tinctly held in Scheie v. Wagner, 163 Ind. 20 (71 N. E. 127) ; Snively V. Matheson, 12 Wash. 88 (40 Pac. 628, 50 Am. St. Rep. 877). See also, Ewell's Lindley on Partnership, vol. 1, sec. 130; Lee v. Bank, 45 Kan. 8 (25 Pac. 196, 11 L. R. A. 238); Harris v. City, 72 Md. 22 (17 Atl. 1046, 20 Atl. Ill, 985, 8 L. R. A. 677, 25 Am. St. Rep. 565); McConnell v. Denver, 35 Cal. 365 (95 Am. Dec. 107) ; Dowling v. Bank, 145 U. S. 512 (12 Sup. Ct. 928, 36 L. Ed. 795); Story's Part- nership, sec. 102. Stated in substantially the same form it has been said that in the case of a non-trading concern the burden is upon the plaintiff to prove either express authority, or circumstances from which such authority can be fairly implied, in the partner executing the note. Teed v. Parsons, 202 lU. 455 (66 N. E. 1046); Bank v. Faults, 115 Mo. App. 42 (90 S. W. 755) ; Schellenbeck v. Studebaker, 13 Ind. App. 437 (41 N. E. 845, 55 Am. St. Rep. 240). . . . WISE V. PERPETUAL TRUSTEE COMPANY, LIMITED Pbivy Council. 1902 [1903] A. C. 139 The judgment of their Lordships was delivered by LoED Lindley. This appeal raises the extremely important question whether the members of an ordinary club are personally liable to indemnify the trustees of the club against liabilities in- curred by them as such trustees, and where there is no rule impos- ing such liabiUty. The undisputed facts are shortly as follows: In the year 1886 certain persons, including a Mr. Paling, now deceased, formed a club in Sydney, New South Wales, which was known as the Cercle Frangais. The appellant became a member of the club in July, 1886, and remained a member of the club until its dissolution. In January, 1887, the club adopted certain rules, the 12th and 17th of which were as follows : "(12) The administration of the affairs of the club is entrusted to a committee elected at the first general meeting in each year. The duties of the members of the committee are purely honorary." "(17) The committee disposes of the funds of the society, and 618 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XH has full power to take all measures for the internal management which it may deem necessary." Between July and December, 1887, it was considered by some members of the club that the premises then occupied by the club at No. 50, Wynyard Square were too small, and steps were taken to provide increased Accommodation. A general meeting was called to consider the subject, and a meeting was held on December 9, 1887. Too few members attended to bind the club; but the subject of obtaining a lease of new premises of the club was discussed, and the members present resolved that the matter be left in the hands of M. Lachaume, the president of the club, to make the best arrange- ments in the interests of the club, and the said Lachaume and the said W. H. Paling and Messrs. Doublet and Van de Velde were appointed trustees of the club. A general meeting of the club was held on January 13, 1888, at which the minutes of the meeting of December 9, 1887, were read and confirmed. On July 12, 1888, the above-mentioned Messrs. Paling, Lachaume, Doublet, and Van de Velde became lessees of certain premises known as 50, Wynyard Square and 9, Wynyard Lane for a term of ten years from July 9, 1888, at a rental of 555Z. per annum, and subject also to certain onerous covenants set out in the said lease. After the execu- tion of this lease the above-mentioned premises were used for the purposes of the club, and the club remained in possession thereof until it was dissolved. In July, 1888, after the execution of the lease, the old rules of the club were repealed and new rules were adopted. The 3d, 4th, 14th, and 15th were as follows: " (3) The property of the club, subject to the liabilities thereof, shall belong to the members for the time being. "(4) No member shall, by reason of his membership, have any transmissible or assignable interest, by operation of law or other- wise, in any of the property of the club. On any member ceasing, by death, resignation, or otherwise, to be such, all his interest shall survive, accrue, and belong to the other members for the time being." "(14) The affairs of the club shall be under the management^of the following office-bearers, namely, a president, vice-president, four trustees, a committee, and a treasurer. "(15) All purchases, investments, leases, conveyances, securities, or contracts by, to, or on behalf of the club shall be made, taken, or entered into in the names of the trustees. All the real and personal property of the club shall be vested in, and shall be held by them upon trust for, the members for the time being, and shall (except as to the real property) be subject to the disposition of the committee, whose order, certified in writing under the hand of the chairman of the day and attested by the secretary, shall be obligatory upon and a justification to the trustees as to making, taking, or entering into SECT. II] MEMBERS 619 any such purchase, investment, lease, conveyance, security, or con- tract, or any disposal of any personal property vested in them as such trustees. And the orders of the committee, certified in hke manner as to any purchases necessary for carrying on the internal management of the club, shall also be obhgatory upon and a justifica- tion to the trustees for making the same. The real property of the club shall not be dealt with, except by the resolution of a general or special general meeting of the members of the club." The rules prescribed the entrance fees and subscriptions, but there was no rule imposing any liabihty on any of the members to pay more. The club continued to exist until February, 1891, when it was dissolved. It had eighty members when the lease was obtained, and ninety more joined afterwards. In April, 1891, the above-mentioned lessees sublet the premises comprised in the lease of July 12, 1888, to the Cosmopolitan Club Co., for the unexpired portion of the ten years' term less one day, the underlessees covenanting to pay the same rent and perform the lessees' covenants. The Cosmopolitan Club Co. remained in pos- session until January, 1894, and paid the rent up to that date, when they went into liquidation. The lessees then re-entered into pos- session of the premises, and from time to time relet them, giving the club the benefit of all rentals received. Finally all the trustees except the said William Henry Paling, being unable to pay the rent, the said PaUng in his lifetime, and his executors (the respondents to this appeal) after his death, paid under the lessees' covenants various sums amounting in the aggregate to 2350L or thereabouts in excess of moneys received by them by subletting the premises. On April 22, 1897, the executors of the said William Henry Paling, deceased, filed a statement of claim in an action in the Supreme Court of New South Wales in Equity against certain members of the club selected to represent them aU, and the plaintiffs prayed as follows : " (1) That it may be declared that all persons who were members of the said Cercle Frangais on the 12th day of July, 1888, and all persons who became members of the same Cercle Frangais subse- quent thereto, and the personal representatives of any of such persons respectively who are now deceased, became and are jointly and severally liable to contribute to and indemnify the plaintiffs and the estate of the said William Henry Paling against the rent paid and expenses incurred by the said William Henry Paling during his lifetime, and by the plaintiffs since his death, in respect of the said lease and the covenants thereof, and the future rent and expenses to which the plaintiffs, as executors of the said William Henry Paling, are or may become liable under the said lease and the covenants thereof, and that the defendants, and all such other persons and representatives as respectively aforesaid, may be jointly and sev- 620 ^ABILITIES OF LABOR UNION MEMBERS [CHAP. XII erally"decreed to repay to the plaintiffs and indemnify them against such rent and expenses, with interest on the same at such rate as this Honourable Court shall direct, and also to pay the plaintiffs' costs of suit. " (2) That an account be taken under the direction of this Honour- able Court of the rent and expenses respectively aforesaid. "(3) That an inquiry may be directed as to the persons con- stituting the said several classes of members, and whether any and which of such persons are dead; and, if so, who are their respective legal personal representatives." The appellant was not a party to the said suit, nor was he served with notice of the said statement of claim nor of the proceedings therein. In the statement of claim the plaintiff set out the various classes of members which, each defendant was to represent. They were as follows: (i) a'Beckett as representing members of the committee at the time of the making of the lease. (ii) Fesq as representing members of the club present at the gen- eral meeting of January 13, 1888. (iii) Burne as representing members at the time when the lease was made, but who were not present at the meeting of January 13, 1888. (iv) Woolcott-Waley as representing members of the committee at a date subsequent to the lease being made. (v) Henderson as representing the members of the club elected at a date subsequent to the date of the lease. On May 25, 1897, Manning, Chief Judge in Equity, made an order authorising the above-mentioned defendants to defend the pro- ceedings respectively on behah of the above specified classes. The appellant was not served with and was no party to the said order. On October 27, 1898, Simpson, Chief Judge in Equity, made a decree dismissing the suit against the defendants Woolcott-Waley and Henderson with costs, and declaring (inter alia) that the de- fendants a'Beckett, Fesq, and Burne, and all other persons who were members on July 12, 1888, and who assented to or subsequently ratified the action of the trustees of the club in taking the lease of that date, are and each of them is bound to indemnify the late William Henry Paling and his estate against the rent and other moneys paid by the said William Henry Paling or his executors under the said lease. By the said order it was further decided that the Master in Equity should inquire as to which persons were liable to contribute on the basis of the above decree. On August 5, 1899, the defendants gave notice to the appellant that the Master in Equity was proceeding to settle the said list, and that the appellant's name had been submitted to the master for inclusion therein. SECT. II] MEMBERS 621 On August 25, 1899, the appellant filed an affidavit objecting to his inclusion in the said list, and on November 21, 1899, the appellant filed a notice of further objections. In November, 1899, evidence was taken upon the said matter, and the master found that the appellant had assented to or ratified the action of the trustees in taking the lease, and that he ought to indemnify the plaintiffs with costs to be taxed; and on December 15, 1899, the master made a separate certificate to that effect. On February 15, 1900, the appellant took out a smnmons to vary the master's certificate. The said summons was heard by the Chief Judge in Equity; and on March 5, 1900, the said simimons was dismissed with costs. On March 19, 1900, the appellant filed a notice of appeal against the said order to the Full Court; and on July 23, 1900, the said appeal was dismissed with costs. The present appeal is from these last orders. There is no appeal from the decree of October 27, 1898. In the case lodged by the ap- pellant he stated, and his counsel repeated before their Lordships, that the appellant was always willing to share with all the other members of the club the liabilities vrnder- the said lease, but as the form of the suit and the declarations in the decree rendered only four or five persons liable to make good a sum which (by the addition of costs) amoimted to over 5000i., he objected and objects to take upon himself an individual liabihty not shared by other members of the club. The decree of October 27, 1898, was not made upon the broad ground that the members of the club as cestuis que trustent were bound to indemnify their trustees; it was made upon the theory that only those members of the club were Uable to indenmify the plaintiffs who had assented to or ratified the taking of the lease; and the master's certificate found that the appellant had assented to and ratified it. The Chief Judge refused to vary the certificate, thinking it right. The FuU Court, on appeal, affirmed the decision, but not unanimously, nor on the same grounds. The Chief Justice con- sidered it proved that the appellant had become one of the cestuis que trustent of the lease, and was, therefore, liable to indemnify the plaintiffs. Cohen, J., considered that the appellant had assented to and ratified the taking of the lease, and had, therefore, become Hable. Owen, J., differed. He thought the master's certificate wrong, and that the appellant ought to succeed. With respect to the appellant's assent or ratification to the tak- ing of the lease, much discussion took place as to what was meant in this case by ratification, and it was contended that no ratification, as distinguished from approval, could be established. It is not, however, necessary to do more than to say that it became plain to their Lordships when the evidence had been examined that, although 622 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XII there was ample evidence to prove that the appellant knew that a lease had been taken for the club, and that the club had the use of the property, and that the lease might become a burden to the club, yet that the appellant had done nothing whatever to incur any ha- bility to indemnify the trustees, unless such liability attached to him as a member of the club and as one of the cestuis que trustent of the lessees. It further appeared to their Lordships to be proved that, notwithstanding the irregularities of the meeting of December, 1887, and the doubts thrown on the legal vahdity of its subsequent confirmation, yet that the members of the club generally and the appellant with the others, through the conmiittee of management and otherwise, so far assented to what had been done as to have become cestuis que trustent of the lessees. Their Lordships were satisfied that the relation of trustee and cestui que trust had been created. It follows from this that the lessees as trustees were en- titled to be indemnified out of any property of the club to which their hen as trustees extended. But the evidence against the ap- pellant did not prove anything more than the existence of the above relation; and their Lordships intimated that in their opinion the real question for decision was whether the appellant was liable to in- demnify the trustees under the circumstances thus proved. This view was ultimately accepted by counsel, and their Lordships do not, therefore, think it necessary to allude further to the evidence on the present occasion. In Hardoon v. Belilios, [1901] A. C. 118, this Board had to consider the right of trustees to be indemnified by their cestuis que trustent against liabilities incurred by the trustees by holding trust property. The right of trustees to such indemnity was recognised as well estab- lished in the simple case of a trustee and an adult cestui que trust. But, as was then pointed out, this principle by no means apphes to all trusts, and it cannot be applied to cases in which the nature of the transaction excludes it. Clubs are associations of a peculiar nature. They are societies the members of which are perpetually changing. They are not part- nerships; they are not associations for gain; and the feature which distinguishes them from other societies is that no member as such becomes hable to pay to the funds of the society or to any one else any money beyond the subscriptions required by the rules of the club to be paid so long as he remains a member. It is upon this fundamental condition, not usually expressed but understood by every one, that clubs are formed; and this distinguishing feature has been often judicially recognised. It has been so recognised in actions by creditors and in winding-up proceedings : see Flemying v. Hector, (1836) 2 M. & W. 172; St. James' Club, 2 D. M. & G. 383. Apart from an observation of Lord St. Leonards in the last case, and which observation is in favour of the appellant, the only reported case in which a Court has had to consider the appUcation to a club SECT. II] MEMBERS 623 of this right to indemnity is Minnitt v. Lord Talbot, L. R. Ir. 7 Ch. 407. In that case some members of a club, who had guaranteed the repayment of money borrowed for the club, sought indemnity, not only out of the property of the club, but from the members personally. The Court., which had already given effect to their lien, L. R. Ir. 1 Ch. 143, afterwards made an additional order and inquiry similar to those made in this case. The grounds upon which this addition to the original decree was made do not appear; nor does it appear what were the grounds on which any member was held to have incurred liability, nor, indeed, whether any member had incurred such lia- bility. This case does not, therefore, assist their Lordships on the present occasion. The question now to be decided may be regarded as not yet covered by authority; and a choice must be made between either ignoring the essential features of a club or holding that the general rule estab- lished in Hardoon v. Belilios, [1901] A. C. 118, is inapplicable to such a body of persons. Their Lordships feel no difficulty in making this choice. The trustees of a club are the last persons to demand that the fundamental conditions on which their cestuis que trustent have become such shall be completely ignored. The appellant in this case is not, in their Lordships' opinion, under any legal or equitable obligation to pay or contribute any- thing towards the indemnity of the plaintiffs; but he has offered to do so, and the plaintiffs are not satisfied with his offer. Their en- deavour to obtain more is to be regretted, and cannot succeed. This may seem hard on the trustees; but they have only themselves to blame for their own imprudence in not seeing to their own safety. A decision in their favour would not only be hard on the members of the club, but would be inconsistent with the terms on which they became members. Their Lordships will, therefore, humbly advise His Majesty to set aside the certificate of the master and to reverse the orders of March 5, 1900, and July 23, 1900, with costs. The respondents will pay the costs of the appeal. WILCOX V. ARNOLD Supreme Judicial Court of Massachusetts. 1895 162 Mass. 577 Contract, for work done and materials furnished by the plaintiff? for the defendants. Trial in the Superior Court without a jury, before Hopkins, J., who found for the plaintiffs, and the defendants alleged exceptions, in substance as follows. The Class of 1893 of Tufts College, including all of the defendants and others except one Gifford, at a class meeting duly called voted to publish a volume to be called "The Brown and Blue," and elected 624 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XII the defendant Arnold as business manager of the publication. The class also elected certain other of the defendants as editors of the publication, and the defendant Arnold made with the plaintiffs, who were printers, a written contract for the publication of the book. Certain additions to and changes in the terms of the contract were subsequently made at the request of Arnold; and the plaintiffs by letter to Arnold stated that they intended to hold him personally responsible for the debt to them. The plaintiffs performed their part of the contract according to its terms as modified by the addi- tions and alterations aforesaid, and delivered the pubUcation to Arnold. There was evidence offered by the" plaintiffs tending to show that Arnold told them, when making the contract, that he represented the class; that Martin, one of the defendants, at some time subse- quent told them the class stood behind Arnold; that DeGoosh, also one of the defendants, at some time subsequent told them "we know we owe you a large amount"; that the plaintiffs gave credit to the class; and that aU of the defendants except Gifford were present at the class meeting at which Arnold was elected business manager. There was evidence offered by the defendants tending to prove that they never authorized the defendant Arnold to pledge their credit for the publication of the book; that they never instructed him as to its publication; that he never reported to the class what he had done until he reported that he had not received from sales of the book enough to meet the expenses; that he never consulted with any other of the defendants as to the book, but himself fixed its price and the charge for advertisements, and determined the number of copies to be published; that he sold the copies at a uniform price; that none of the defendants received a copy free, and that he drew no money from the class treasury for expenses, or for any of the pur- poses of the publication; that thereafter, at a class meeting, Arnold reported that he had not collected enough to pay the plaintiffs' bill, and asked the class to help him out; and that thereupon the class voted to raise a certain sum of money to help him make up his deficit to the plaintiffs. The defendants asked the judge to rule that there was no evidence to warrant a finding against any of the defendants, except Arnold. The judge refused so to rule, and found for the plaintiffs against all of the defendants except Gifford, and found for the defendant Gifford. Field, C. J. The evidence was suflicient to warrant the finding of the court. It was competent for the court to infer from all the evidence that the defendants who were present at the class meeting at which it was voted to pubhsh a volume to be called "The Brown and Blue" either voted to publish the volume or assented to the vote. This is also true of the vote by which Arnold was elected "business manager of the pubUcation." The contract made by Arnold was SECT. II] MEMBERS 625 apparently within the scope of his employment, at least the court could so find. Newell v. Borden, 128 Mass. 31. Ray v. Powers, 134 Mass. 22. Exceptions overruled.^ RAY V. POWERS Supreme Judicial Court of Massachusetts. 1883 134 Mass. 22 Bill in equity, by certain members of the New England Pigeon and Bantam Society, a voluntary association, against Lewis J. Powers and Charles S. Lincoln, to compel the defendants, as mem- bers of the society, to contribute their respective proportions of the amount of money lost on account of a public exhibition of the society, which loss the plaintiffs have been obliged to pay, and have paid in full. At the hearing before W. Allen, J., WiUiam G. White, one of the plaintiffs and the treasurer of the society, testified substantially as follows: The New England Pigeon and Bantam Society was or- ganized at Springfield on April 4, 1878, and the persons mentioned in the bill were members thereof. The object of the society was to hold pubhc exhibitions of pigeons and bantams, and the awarding of money premiums thereat, by judges selected for the purpose. The second meeting of the society was held on July 10, 1878, at which meeting a constitution and by-laws were adopted, by vote of the members present.^ At this meeting, it was also voted that the 1 In Lawler v. Murphy, 58 Conn. 294, at p. 313, Seymour, J., says: "The case of Davison v. Holden was a suit against certain individuals who were, in fact, the president and secretary of an unincorporated association. This covat held that ' as a matter of law the plaintiff, in giving credit to the associate name, gave credit to the individuals who upon inquiry should be found to stand behind it.' It seems clear, without pursuing the subject further, that this cause for demurrer cannot be sustained. Individual members of an unincorporated association are liable for contracts made in the name of the association, without regard to the question whether they so intended or so understood the law, and even if the other party contracted in form with the association and was ignorant of the names of the individual members composing it. And it is also held in the case just cited, that the individual members of such an association do not acquire any immunity from individual liability by force of the statutes which provide that any number of per- sons associated and known by some distinguishing name may sue and be sued, plead and be impleaded, by such name; and that the individual property of the members shall not be liable to attachment or levy of execution in a suit brought against the association." * The constitution and by-laws of the society were put in evidence. Article 2 of the constitution defined the object of the society to be " to stimulate a heajthy interest in the breeding and management of pigeons and bantams; to disseminate useful knowledge in relation thereto; and to establish an authoritative standard of excellence for the breeding and judging of pigeons." Article 4, after defining the duties of various officers, was as follows: "The board of directors shall have the general control and management of all the affairs of the society, not herein delegated to other officers, shall have charge of, and be responsible for, aU the property of the society except money in the treasury, and 626 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XII society give a public exhibition in Springfield on December 10, 11, 12, and 13, 1878, and that the control and management of the same be referred to the board of directors. At a meeting of the society, held on July 31, 1878, a premium hst of the exhibition was adopted by vote of the society. This premiima list contained an accurate statement of all premiums that were offered and to be awarded at said exhibition, and the amount of money which would be required to pay the same. It also contained the rules which had been adopted for the management of the exhibition, and the constitution and by- laws of the society. At this meeting, the defendant Lincoln was present, and joined the association. A copy of this premium list was sent to every member of the association as soon as printed, which was directly after this meeting. The defendant Lincoln acted as judge at the exhibition referred to, and awarded a part of the pre- miums offered in said premium list. White also testified that he personally requested the defendant Powers to join the society, informed him that there was to be a public exhibition at the time before stated, and desired his assist- ance at said exhibition; that he told Powers the amount which had been offered for premiums and the probable expenses of the exhibition, and sent him a copy of the premium list; that Powers objected to joining the society because it was not incorporated, and because he would be personally responsible in case of loss; that the witness told Powers that the society had voted to instruct the president to procure an incorporation of the society, and, after it was incorporated, there would be no personal liability; that Powers consented to be- come a member of the association, and that no meeting of the society was held after he became a member. White also testified that no record was kept by the secretary of the doings of the society at its various meetings; that the exhibition was held under the management of the board of directors, and re- sulted in great loss, and the plaintiffs had paid the same; that, previous to the exhibition, a subscription paper to raise a fund to guarantee the society against loss was subscribed by a few members of the society, and by a number of persons who were not members thereof, but the money thus raised was not feufficient to pay the loss; and that the money paid by the plaintiffs was almost entirely in pay- ment of the premiums awarded at said exhibition. Lincoln testified that he received by mail a copy of the premium list referred to after it was printed, but did not read it, and was not familiar with its contents until a few days before the exhibition; that he had no knowledge of the provisions of the constitution and by- laws prior to its reception by mail, and prior to his becoming a mem- shall have the charge and management of any and all public exhibitions of the society." Article 5 provided for the election of members, and also for the payment by each member of an initiation fee of |3, and an annual assessment of $2. SECT. II] MEMBERS 627 ber; that he acted as judge at said exhibition at the request of the officers of the society; and that he had before acted in the same capacity at other exhibitions of other societies. Powers testified that he joined the society, if he joined it at all, some time during October or November, 1878; that, after the con- versation testified to by White, he consented to have him present his name for membership, and paid him the initiation fee of $3; that he had no recollection of receiving the premium list and constitution and by-laws referred to; that he never received any notice of a meeting of the society, and never attended any; that he took no part in the exhibition, but attended it, and paid his admission fee thereto the same as others did. The judge ruled that the evidence was not competent and sufficient to maintain the bill; ordered that the bill be dismissed; and, at the plaintiffs' request, reported the case for the determination of the full court. If the ruling was correct, the decree was to be affirmed; otherwise, such decree to be entered as the court might direct. C. Allen, J. This bill was dismissed on the ground that the evi- dence was not competent and sufficient to maintain it. But, upon consideration, we think the evidence might have warranted a decision for the plaintiffs, as against both of the defendants. It is true that neither the constitution nor the by-laws of the society provide for holding exhibitions with premiums, or for any further liability on the part of the members than for the payment of the initiation fee and annual assessment. But it was not inconsistent with the pur- poses of the society, as shown by the constitution, to hold exhibitions and award premiums. Mere membership would not bind anybody for any further payment than the initiation fee and annual assess- ment; but such members as participated in a vote to incur further expenses for an exhibition with premiums, or as assented to be bound by such vote, would be bound thereby. It therefore became a ques- tion of fact whether either or both of the defendants so participated or assented. It was not necessary to prove such participation or assent by formal records. Newell v. Borden, 128 Mass. 31, 34. The testimony introduced was competent, and its sufficiency should be determined as a question of fact. Case to stand for a further hearing. HORNBERGER v. ORCHARD Supreme Court of Nebraska. 1894 39 Neb. 639 Ragan, C. Samuel A. Orchard sued the plaintiffs in error and forty-five others in the District Court of Douglas county, and in his petition alleged that on the 17th of September, 1887, the parties made defendants were members of an unincorporated association 628 LIABILITIES OF LABOE UNION MEMBERS [CHAP. XII known as the Junior Order of United American Mechanics, organized for social and recreative purposes only, and not for the holding of any property or the carrying on of any trade or business; that prior to the 17th day of September, 1887, the defendants, at a meetmg of said association, ordered that carpets, matting, and shades be pro- cured and placed in a hall for the use of the association; and that Orchard did, on the 17th day of September, 1887, furnish said hall for the defendants' use, with certain carpets, matting, and shades, and performed the necessary work and labor of placing the same in said hall; that said defendants then and there accepted the said carpets, matting, and shades in said hall, and for a long time there- after used the same therein, and repeatedly promised to pay therefor; and that the bill was past due and wholly unpaid. The plaintiffs in error filed separate answers, each consisting of a general denial. There was a verdict and judgment against the plaintitfs in error, who bring the case here for review. In the petition in error on file there are thirty-one errors assigned, only two of which we shall notice. 1. The plaintiffs in error complain because of the refusal of the court to give the sixth instruction asked for by them. That instruc- tion was as follows: "If you find that the goods were sold either to a committee for the use of the society known as the Junior Order of United American Mechanics, and the credit was given either to said committee or even to the Junior Order of United American Mechanics, no person who was not liable, either as principal or agent, at the time of sale or when credit was given can be made so by any promise or words of his that was not in writing, and although if each of these said defendants not so primarily liable had promised and agreed to pay this biU, or any part thereof, he cannot be held thereto unless such promise was in writing; the statute of frauds in our state being that no person can become liable for the debt of another person or persons unless the same shall be in writing and subscribed to by the party sought to be charged therewith." This society was an unin- corporated voluntary association, supported by the initiation fees and dues charged its members, and the liability of its members to its creditors are governed by the law of agency. (Gorman v. Russell, 14 Cal. 532; Moore v. Brink, 4 Hun [N. Y.], 402; Butterfield v. Beardsley, 28 Mich. 412; Tyrrell v. Washburn, 88 Mass. 466; Bul- lard V. Kinney, 10 Cal. 60; Taft v. Ward, 106 Mass. 518; Bodwell V. Eastman, 106 Mass. 525; Davison v. Holden, 55 Conn. 103; Tap- pan V. Bailey, 45 Mass. 529; Park v. Spaulding, 10 Hun [N. Y.], 128.) It will be observed that Orchard based his right to recover of plain- tiffs in error on the ground that they were members of the society and present at the meeting when the goods were ordered, or after- wards learned of the purchase; that the bill was unpaid; attended meetings at which the payment was discussed, acknowledged to be correct, and promised to be paid, and thereby ratified the contract SECT. II] MEMBERS 629 of the society in purchasing the goods, even if they, the plaintiffs in error, were not present at the meeting at which the purchase was ordered. Under the pleadings, oral testimony that plaintiffs in error promised to pay this bill would not have been competent, except upon the theory that they were members of the society when the debt was contracted. But there was testimony which tended to show that the plaintiffs in error were members of the society and present at the meeting at which the goods were ordered; and there was also testimony which tended to show that after the goods were purchased and in the hall, plaintiffs in error were present at meet- ings of the society at which the payment of the bill for the goods was discussed, its correctness acknowledged, and payment promised. This testimony was competent under the issues. The question then at which this instruction was aimed was not one of the statute of frauds, but of agency; the plaintiff's theory being that even if the plaintiffs in error were not present at the meeting when the goods were bought, yet being members at that time, and afterwards learning of the purchase and promising to pay it, they had ratified what the society did. There was no error then in refusing to give this instruc- tion. Again, if the pleadings of the plaintiff had sought to hold the plaintiffs in error hable for this bill by an allegation that they were not members of the society when it was contracted, but joined the society afterwards and then promised to pay it, the plaintiffs in error, to have availed themselves of the statute of frauds as a defense, must have pleaded it. 2. The plaintiffs in error also complain because of the refusal of the court to give the thirteenth instruction asked for by them. It was as follows: "None of these defendants, by becoming members of the Junior Order of United American Mechanics, became liable for any of the past indebtedness that had been incurred, or was owing by said association, or by any member or committee thereof, prior to the time he associated himself therewith." Were the plaintiffs in error entitled to have this instruction given to the jury, and was the refusal of the court to give it error?. This instruction presented the question squarely as to whether these plaintiffs in error were hable for the debts of the association contracted prior to the time they became members of it. Nowhere in the trial of this case, nor in the instructions given by the learned court, was the distinction drawn as to the liability of these plaintiffs in error, as asked for by this instruction. Indeed, the court, by its instructions, told the jury substantially that any defendant who was a member of the order (without reference to the time when he became such) and at- tended its meeting, and knew of the purchase of the goods in question, and used said goods after they were placed in the hall, knowing that they had not been paid for, became liable. The testimony as to whether the plaintiffs in error were members of the society when the goods were purchased was very contradictory. It is not denied 630 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XII that the plaintiffs in error were members of the society, but there was much testimony tending to show that they did not become members until after the purchase of the goods. The plaintiffs in error were entitled to an instruction to the effect that their liability did not attach for any debts of the society prior to the date of their becoming members or it; and nowhere in the record was there any such instruction given; and, as before observed. Orchard based his right to hold the plaintiffs in error Kable on the theory that they were members of the society when the goods were purchased. The charges of the court and the instructions given by him at the request of the plaintiff left room for the jury to infer that if the plaintiffs in error became members after the debt was contracted, and then at- tended meetings of the society at which the debt was spoken of, acknowledged to be unpaid, and promises made to pay it, the plain- tiffs in error thereby ratified and became liable to pay for what the society had done before they joined it. No member of a voluntary unincorporated association is liable for any debt contracted by such society, unless at the time the debt was incurred he was a member thereof, except by an express contract, based on a good consideration, all which must be alleged and proved. Thereis sufficient testimony in the record for the jury to have found that the plaintiffs in error were members of the society when the debt was contracted. On the other hand, there was abundant evidence to support a finding that they were not members at the time the debt was contracted, and the instructions of the court left ample room for them to infer that the plaintiffs in error had become Hable, even if they joined the society after the debt was contracted, by attending its meetings after that time at which the debt was discussed and promised to be paid. It is impossible for us to say whether the jury's finding is predicated upon the evidence that the plaintiffs in error were members at the time the debt was contracted, or whether it is predicated upon the evidence that they attended meetings after it was contracted at which the debt was discussed and promises made to pay it. The authorities cited by the defendant in error, none of them, reach the point raised by this instruction. In all the cases cited by him the parties sued were members of the association at the time the debt was contracted, and, so far as appears from the reported cases, that was not a disputed question on the trial. We are constrained to say, after much reflection and research, that the plaintiffs in error were entitled to have the instruction asked for given to the jury, and its refusal was error to their prejudice. The judgment of the court below is therefore reversed and 'the cause remanded to that court to grant the plaintiffs in error a new trial. Reversed and remanded. SECT. II] MEMBERS 631 VREDENBURG v. BEHAN Supreme Couet of Louisiana. 1881 33 La. Ann. 627 The opinion of the court was delivered by Todd, J. Mrs. V. Vredenburg, in her own behalf as the widow of William Hazard Vredenburg, deceased, and as tutrix of his minor children, brings this suit against the defendants, and claim from them in solido fifty-five thousand dollars damages. . . . The case was tried by a jury, and from a verdict and judgment against them in solido for fifteen thousand dollars, the defendants have appealed. ... 1. The facts out of which this controversy grew are, substantially, as follows: The defendants were members of an association or society known as the Crescent City Rifle Club. In July, 1877, the club, wishing to send some of its members North to participate in an inter-State rifle shooting match, about to take place in New York, for the purpose of providing means therefor, concluded to give an entertainment at Milneburg, on Lake Pont- chartrain. The Continental Guards, a mihtary company of the city of New Orleans, to further the object in view, and as a contribution to the proposed entertainment, offered to the club a bear, owned by the ofiicers of the company, "as a prize to be shot for" on the occasion. The offer was accepted, and a member of the club was instructed to make the necessary arrangements for shooting for the bear. The entertainment came off on the 3d of August, 1877; the bear was brought on the ground and was offered as a prize, as previously arranged. He was won by WiUiam Arms, a member of the club, and one of the defendants. Arms put him up again to be shot for, and this time he was won by another person, who, however, declined to claim the prize. Arms had the bear taken to the grounds of the club, and caused him to be chained to the corner of the club-house; and there the bear remained untU the 30th of October, 1877. These grounds had been leased by the club, and the house erected by it belonged, by the terms of their charter, to the members of the club. The pasture of Mr. Vredenburg, who was engaged in a dairy busi- ness, adjoined the grounds of the rifle club, and he and his employees in going to and from the pasture passed through these club grounds. On the evening of the 30th of October, Mr. Vredenburg went to the pasture after his cows. A short time thereafter, as he was returning from the pasture, he was attacked by the bear, which in the mean- time had gotten loose, and received the injuries of which he sub- sequently died. Tetanus or locked-jaw supervened, attended with great suffering, and his death occurred on the 27th November, twenty-one days after the wounds were inflicted. . . . 632 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XII 3. Another defense urged against the plaintiff's right to recover, is that the defendants are sued in their individual capacity, as ad- mitted in the record, and cannot be held liable for acts done as mem- bers of a society, and as stockholders in a corporation known as "the Crescent City Rifle Club." According to the language of the petition, fairly construed, and the admissions in the record, the suit is against the defendants as individuals, and they are not sought to be made responsible as mem- bers of a corporation or because of such membership. Their being designated and referred to as members of this rifle club, may be re- garded as descriptive, and at the same time as bearing directly on the causes and motives that led to the acts and neghgences charged against them. It might be argued, and it is in fact lu-ged by plaintiff's counsel, that keeping a bear or other wild animal was not one of the objects for which the association or alleged corporation in question was formed, was not within the scope or purposes of its organization; and that it is only for acts done or omitted by a corporation, in its corporate capacity, and within the limitation suggested, that it is bound; and that, if the members of such corporation are guilty of acts of commission or omission entirely foreign to the purposes of the corporation, and not connected with their duties as ofBcers or mem- bers of such body, they, the members, become personally and in- dividually hable. . . . Article 446 C. C. provides: "Corporations unauthorized by law or by an act of the Legislature enjoy no public character, and cannot appear in a court of justice, but in the individual name of all the members who compose it, and not as a political body; although these corporations may acquire and possess estates, and have common interests as well as other private societies." Was this rifle club a corporation authorized by law? It was not chartered by a special act of the Legislature, but claims its existence as a corporate body under the provisions of sec. 677 of the Revised Statutes of 1870, authorizing the creation of corpora- tions for literary, scientific, and charitable purposes. . . . After a careful examination of the authorities that offered light on the subject, we are constrained to conclude that the declared object of the association in question does not fall within the purview, the letter or the spirit of the law relied on; that the act of incorpora- tion for such purpose was unauthorized by law, produced no legal effect and conferred no legal right. In other words, we cannot, by any reasonable rule of construction, term "rifle shooting" a science. . . . The Crescent City Rifle Club never had a corporate existence. To give it or decree it one would be to pervert the plain intent of the law. SECT. II] MEMBERS 633 Reaching this conclusion, we must regard this club as a voluntary association of persons, and their rights and responsibilities must be tested and determined by the same rules that apply to individuals or members of a private society. Thus, the use of the club grounds and the club building and their appurtenances belonged jointly to the individual members, and such joint proprietorship imposed correlative duties and responsibiUties. . . . The salient facts of the case, and upon which our conclusions mainly rest, simunarized from the statement heretofore given, are these : That the bear was accepted by the rifle club as a prize to be shot for under the auspices of the club, and to raise a fund for the purposes of the club; that it was shot for, and subsequently carried to the club grovmds by the direction of a member of the club and one of the defendants; that it was kept there and fed there for nearly three months by an employee of the club, and the expenses for its keeping and feeding paid for by the treasurer of the club, and an account of such expenses submitted to the governing committee of the club, of which some of the defendants were members; that it was seen from time to time at the club house by members of the club and by all of the defendants save one; that no one objected to his being there; that whilst thus kept on the club grounds in charge of a keeper, he broke loose, attacked and wounded Mr. Vredenburg, who died of the wounds inflicted. The Code declares, "that every act whatever of man that causes damage to another obUges him by whose fault it happened to repair it." That a person is responsible for the damage resulting from "his negligence or imprudence." That he is answerable, not only for his own acts, but for the acts of persons for whom he is responsible, and of things in his custody. C. C. 2315, 2316, 2317, 2321. The law upon this subject is to the same effect under every en- hghtened system of jurisprudence. . . . "The owner of wild and savage beasts, such as lions, tigers, wolves, bears, etc., if he neglects to keep them properly secured, is liable for injuries committed by them according to their nature, without any evidence that he knew them to be ferocious, or that he was neg- ligent in the mode of keeping them, since he is bound in ordinary prudence, to know that fact and to secure them from doing harm." Sherman and Redfield on Negligence, sec. 188. "One who harbors a dangerous animal on his premises, though not his owner in any sense, is nevertheless responsible for injuries committed by it while on or near his premises, to the same extent as if he owned it." Sherman and Redfield on Neghgence, pp. 227, 228. . . . There is a recognition of their spirit in an ordinance of the City of New Orleans on the subject, which declares: 634 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XTl "No wild or ferocious animals shall be kept within the limits of the city, on the premises of individuals, or in menageries, unless such animals be under the charge of an armed guard day and night." Leovy's City Laws and Ordinances, Art. 703. And it is to be noted that this bear was kept on the club grounds, within the city limits, in open disregard of this ordinance. . . . Proprietors or co-proprietors of lands or houses must not permit their property to be put to such uses as to cause injury to others, whether by being made a refuge for noxious animals or a magazine for gunpowder, dsmamite or other explosive substances, or as a generator of foul and pestilential vapors destructive of health. . . . It is, however, urged in behalf of one of the defendants, W. J. Behan, as sufficient to free him from any liabiUty, that he did not know that the bear was on the premises. Under the circumstances of this case we cannot give such effect to this fact; nor do we con- sider it as having any real bearing on the question of his liability. This club was composed of many individuals; it had a complete organization, with regular officers, governing committee, keeper of the grounds, etc. The defendant referred to was the head or chief of the association. Of course from the nature and objects of the organization it was not contemplated, nor was it possible that aU the members thereof, the owners of the club-house and lessees of the grounds should occupy the property; and, therefore, it was neces- sarily placed in the control and keeping of employees of the club, who were charged with its management, and with the proper poUce and superintendence of the club-house and grounds, and generally with the same duties that the owners themselves were subject to, and who in this respect represented the owners, who were legally responsible for the acts and omissions of such keeper or keepers. Nor can the fact of knowledge or ignorance of the employers touch- ing such acts or omissions on the part of the employee, restrict or enlarge that responsibility. It is a case where the principle of re- spondeat superior applies to its full extent. A reference to the authorities on this subject leaves no room for doubt on this point. Thus a distinguished law writer has declared that "the master is liable for the acts of his servants, not only when they are directed by him, but also when the scope of his employment or trust is such that he has been left at liberty to do, while pursuing or attempting to discharge it, the injurious act complained of. It is not merely for the wrongful acts he was directed to do, but the wrongful acts' he was suffered to do, that the master must respond." . . . Cooley on Torts, pp. 534, 538, 539, 540, 549, 562; Sherman & Eed- field on Neghgence, sec. 59; 14 Howard, 468; 15 Ark. 118; 36 Vt. 248; 11 Minn. 277; 98 Mass. 567. The acts and neghgence on the part of the keeper of the grounds and the club-house, first, in receiving the bear on the premises, keep- SECT. II] MEMBERS 635 ing him there for months, and suffering him to get loose, were all within the scope of his employment, and related directly to the duties with which he stood charged under his employment to properly manage and pohce the property, and bound him to exclude there- from all things that might cause injury to others, or if anything dan- gerous was admitted, then at least to use such care and precautions as to render any injury therefrom impossible, and this brings the case clearly within the meaning and intendment of the authorities we have cited. . . . It is, therefore, ordered, adjudged and decreed that the judgment appealed from in case of Mrs. V. Vredenburg v. W. J. Behan et al., No. 7573, on the docket of this Court, be amended by reducing the amount therein decreed against the defendants W. J. Behan, John Glynn, Jr., George Howe, Dudley Selph, William Arms, and William Pierce to seven thousand five hundred dollars; . . . and as thus amended it be affirmed, defendants to pay costs of the lower court and plaintiff of the appeal in said case. . . . Bebmtjdez, C. J. Whatever may be the responsibihty which attaches to owners of property for the wrongful use of the same by employees entrusted with the keeping thereof, I do not think that it fastens when the owner had not the exclusive control of the prop- erty, or having such, was absent, unaware of such use, unable to prevent it, and when such use was not done in, but out of, the course of the legitimate functions or fine of the duties of such sub- ordinates, and was not sanctioned and ratified, and could not even have been foreseen. I think the allowance too large, imless the fact of death, which is entitled to no consideration, assist in the computation and assess- ment. I therefore dissent from the decree. PocHEi, J. . . . I also earnestly differ from the opinion of the majority in visiting habiHty on W. J. Behan, who is shown to have been absent from the State when the bear, after it had been shot for and thus disposed of by the club, was brought back to the club grounds and kept there until the day of the accident without Behan's knowledge or consent; and, therefore, without any opportunity on his part to protest against the presence and keeping of the animal on the grounds and thus to prevent the catastrophe which brought about this litigation. For these reasons I dissent from the opinion and decree rendered in this case.i 1 Compare Inglis v. Millersburg Driving Assn., 169 Mich. 311. 636 LIABILITIES OF LABOR UNION MEMBERS [CHAP, XII LAWLOR V. LOEWE Supreme Couet of the United StAtes. 1915 235 U. S. 522 Mr. Justice Holmes delivered the opinion of the court. This is an action under the act of July 2, 1890, c. 647, sec. 7, 26 Stat. 209, 210, for a combination and conspiracy in restraint, of commerce among the States, specifically directed against the plain- tiffs (defendants in error), among others, and effectively carried out with the infliction of great damage. The declaration was held good on demurrer in Loewe v. Lawlor, 208 U. S. 274,^ where it will be found set forth at length. The substance of the charge is that the plaintiffs were hat manufacturers who employed non-union labor; that the defendants were members of the United Hatters of North America and also of the American Federation of Labor; that in pursuance of a general scheme to unionize the labor employed by manufacturers of fur hats (a purpose previously made effective against all but a few manufacturers), the defendants and other members of the United Hatters caused the American Federation of Labor to declare a boycott against the plaintiffs and against aU hats sold by the plaintiffs to dealers in other states and against dealers who should deal in them; and that they carried out their plan with such success that they have restrained or destroyed the plaintiff's commerce with other states. The case now has been tried, the plain- tiffs have got a verdict and the judgment of the District Court has been affirmed by the Circuit Court of Appeals. 209 Fed. Rep. 721 ; 126 C. C. A. 445. .. . It requires more than the blindness of justice not to see that many branches of the United Hatters and the Federation of Labor, to both of which the defendants belonged, in pursuance of a plan emanat- ing from headquarters made use of such lists, and of the primary and secondary boycott in their effort to subdue the plaintiffs to their demands. The uuion label was used and a strike of the plaintiffs' employes was ordered and carried out to the same end, and the purpose to break up the plaintiffs' commerce affected the quality of the acts. Loewe v. Lawlor, 208 U. S. 274, 299. We agree with the Circuit Court of Appeals that a combination and conspu-acy for- bidden by the statute were proved, and that the question is narrowed to the responsibihty of the defendants for what was done by the sanc- tion and procurement of the societies above named. The court in substance instructed the jury that if these members paid their dues and continued to delegate authority to their officers unlawfully to interfere with the plaintiffs' interstate commerce in such circumstances that they knew or ought to have known, and such officers were warranted in the behef that they were acting in ' See supra, p. 121. — Ed. SECT. II] MEMBERS 637 the matters within their delegated authority, then such members were jointly Hable, and no others.^ It seems to us that this instruc- tion sufficiently guarded the defendants' rights, and that the de- fendants got all that they were entitled to ask in not being held chargeable with knowledge as matter of law. It is a tax on credulity to ask anyone to believe that members of labor unions at that time did not know that the primary and secondary boycott and the use of the " We don't patronize " or " Unfair " list were means expected to be employed in the effort to unionize shops. Very possibly they were thought to be lawful. See Gompers v. United States, 233 U. S. 604. By the Constitution of the United Hatters the directors are 1 In the Circuit Court of Appeals, Coxe, Circuit Judge, commenting upon the charge made to the jury in the District Court, said: " The court charged the jury as follows: "'Now if this evidence falls short of satisfjdng you that certain of these de- fendants did know of this unlawful conspiracy, or were in duty bound to know of it, or did tacitly approve of it, then such defendants should be acquitted, if any there may be; or, in other words, assuming that there was a conspiracy to violate the federal statute, as I have explained to you, and that the statute was, in fact, violated, to the damage of the plaintiffs, then every person who had a part in planning or a hand in executing, or aided, or abetted therein, is jointly liable. Membership in a Labor Union and the payment of dues, are not acts of themselves that necessarily constitute counseling, advising, aiding or abetting. Membership and payment of dues are the life of the voluntary association, and are the foundation of all its authority and the source of financial assistance in executing that authority. "'If these members paid their dues and continued to delegate authority to their officers and agents to commit unlawful deeds, which, in this case, is the interference with the plaintiffs' interstate trade and commerce, under such cir- cumstances as lead you to believe that they knew, or ought to have known, and that such officers and agents were, in that matter, warranted in the beUef that they were acting within their delegated authority, then such members are jointly liable, and no others.' " The defendants excepted to this charge, and have presented the question by proper assignments of error. The principal criticism of the charge is directed to the use of the words ' or ought to have known' in the last paragraph quoted above. If these words had been used alone, with no qualification or explanation, there might be some room for criticism, but when considered in connection with the rest of the charge, we are entirely satisfied that the jury could not have been misled. As previously pointed out, in cases of conspiracy it is sufficient if a state of facts be shown from which the jury are justified in drawing the conclusion that the defendants must have known of the existence of the conspiracy. It was in this sense that the judge used the words ' ought to have known.' He left to the jury the question which the judge, on the preceding trial regarded as estab- lished by such overwhelming proof that he decided it as matter of law, viz. : Did the defendants know of the combination to destroy the plaintiffs' business? " In cases where actual knowledge is not shown, the question is, was the proof of such a character that the jury was justified in finding that a member of the local unions in good standing, attending their meetings, paying his dues, having access to their publications, knowing their methods and having struck with his fellow members because of the plaintiffs' refusal to be dictated to by the union as to the manner in which their business should be conducted, must have known what was being done? A soldier who with his regiment charges the enemy's line can hardly be heard to assert that he did not know a battle was in progress." Lawlor v. Loewe, 209 Fed. 721, 727, 728. — Ed. 638 LIABILITIES OF LABOE UNION MEMBERS [CHAP. XII to use " all the means in their power " to bring shops " not under our jurisdiction " " into the trade." The by-laws provide a separate fund to be kept for strikes, lockouts, and agitation for the union label. Members are forbidden to sell non-union hats. The Federa- tion of Labor with which the Hatters were affiliated had organiza- tion of labor for one of its objects, helped affihated unions in trade disputes, and to that end, before the present trouble, had provided in its constitution for prosecuting and had prosecuted many what it called legal boycotts. Their conduct in this and former cases was made pubHc especially among the members in every possible way. If the words of the documents on their face and without explanation did not authorize what was done, the evidence of what was done pubUcly and habitually showed their meaning and how they were interpreted. The jury could not but find that by the usage of the unions the acts complained of were authorized, and authorized with- out regard to their interference with commerce among the States. We think it unnecessary to repeat the evidence of the pubhcity of this particular struggle in the common newspapers and union prints, evidence that made it almost inconceivable that the defendants, all Hving in the neighborhood of the plaintiffs, did not know what was done in the specific case. If they did not know that, they were bound to know the constitution of their societies, and at least well might be found to have known how the words of those constitutions had been construed in the act. It is suggested that injustice was done by the judge speaking of " proof " that in carrying out the object of the associations unlawful means had been used with their approval. The judge cautioned the jury with special care not to take their view of what had been proved from him, going even farther than he need have gone. Graham v. United States, 231 U. S. 474, 480. But the context showed plainly that proof was used here in a popular way for evidence and must have been understood in that sense. . . . Jvdgment affirmed?- JONES V. MAKER StrPBEME CouET OF New Yobk. 1909 62 Misc. 388 Mills, J. This is an action to enjoin the defendants from per- forming certain acts to the detriment of the plaintiff's business in their conduct of a strike in which a portion of his employees have engaged. . . . The weight of the evidence appears to me to fully establish the following material facts: 1 Compare Lightbourne v. Walsh, 97 App. Div. (N. Y.) 187 (holding that mere membership and payment of dues were not sufScient to create individual liability for acts of association). SECT. II] MEMBERS 639 The plaintiff is and for some years has been engaged in the busi- ness of manufacturing speedometers, — that is, instruments for measuring the speed of automobiles. . . . Some days prior to the fourteenth of March, [1907], he discharged or caused to be discharged from his service one Manning, who was the foreman of the tool room in that factory. There is some conflict in the testimony as to the cause of such discharge; but, in view of the law hereinafter taken and stated, it is unnecessary to solve that conflict. Shortly thereafter, first within a day or two, James P. Schofield, who was the business agent of District Lodge No. 15 of the Inter- national Association of Machinists, called at the plaintiff's office in New York city with a view of seeing him, at least, in regard to the discharge of Maiming, who was also a member of such association. Machinists, or at least many of them, are organized in a volun- tary association, of which the general organization is known as the International Association. Next below that come various district organizations, each for a given territory and known as district lodges; and, finally, below the district lodges are local organizations known as local lodges, several coming imder the jurisdiction of each district lodge. AU the lodges are voluntary associations and are entirely unincorporated . The locaUty of the plaintiff's factory fell within the jurisdiction or hmits of Local Lodge No. 460, and that within those of District Lodge No. 15. In a general way, the object of the association, in its several branches, is, largely, to promote the interests of its mem- bers; and its active work evidently is to promote such interests in the relations of its members with their employers. Many of the men employed in the plaintiff's factory were members of such Local Lodge No. 460. During the forenoon of the 14th of March, 1907, the plaintiff's superintendent by his direction discharged five other foremen at the factory, viz., the defendants William Volkman, Robert Long, Thomas Shore, Frank Meyers, and Alex^ander Robinton. Between the dis- charge of Manning and that of the other foremen, Schofield had several times called at plaintiff's office in New York city to see him, but without success, leaving for him his business card as such busi- ness agent of said District Lodge No. 15. The forenoon of the four- teenth of March he called twice and at the first call left a message for the plaintiff to the effect that there was some trouble at his New Rochelle factory, and that he had better see him about it. About noon he called again, and plaintiff refused to see him. Thereupon he, Schofield, went to New RocheUe, arriving there at the factory about 2 P.M. Upon the discharge of the foremen, most of the people working imder them left with them at noon; and, when Schofield arrived, others, including the defendant Volkman, one of the fore- men discharged that day, also left the factory. The discharged foremen and the employees who had stayed out or gone out, some 640 LIABILITIES OF LABOR UNION MEMBERS [CHAP. XII seventy to ninety in all, thereupon held a meeting and with the aid and counsel of Schofield organized a strike. The object or purpose of the strike seems to have been to secure that the plaintiff reinstate the discharged men and of course, incidentally, take back those who had voluntarily left. The strikers at once in their meeting determined to institute picketing of plaintiff's factory, so as to prevent his secur- ing others to take their places in his work. They agreed that all of the men among the strikers should act as pickets, and appointed as the leader of the pickets the defendant Volkman; and he acted in that capacity throughout the strike, up even to the following Novem- ber. The effort of the strikers was to have at least eight pickets at all times posted at various commanding points in the public streets about and near the factory, so as to guard effectually all approaches thereto. The effort of the pickets was twofold: first to persuade newcomers not to take the places of the strikers, and second to in- duce those who might stiU work at the factory to leave and join the strike. Efforts were also made by some of the strikers to induce the various boarding house keepers in the vicinity to refuse to board any one who might work at the factory, and such efforts for a time were attended with considerable success. Attempts were also made by some of the strikers to establish against the plaintiff a substantial boycott, by preventing his employees being supplied with milk, and by posting and distributing notices and cards containing the well understood condemnatory expression "Unfair," and the express charge that "Jones' speedometers" were then being made not alone by non-union labor, but also by unskilled and incompetent labor; and in substance urging the public not to purchase the plaintiff's product. Such cards were distributed by the defendant Volkman at the annual automobile exhibition in New York city as late as November, 1907. Some picketing was attempted about plaintiff's salesrooms in New York city, but that seems not to have been constant. About the factory at New Rochelle the picketing was constantly and vig- orously maintained for several months, up to October, at least, and even to some extent into November. Approximately 100 men were, by the efforts of the pickets, either turned away from accepting em- ployment or induced to actually leave employment at the factory during the pendency of the strike. It was substantially the daily practice of the pickets, if their per- suasions were not successful, to address openly upon the pubUc streets and near the factory, to the persons whom they accosted as actual or prospective employees, epithets offensive and even indecent. Frequently they jostled and crowded, on and along the pubUc walk leading to the factory, the employees going to and from the factory, and at the same time appHed to them such abusive terms. There were also, occasionally, instances of actual violence, more serious than the mere jostling or "shouldering" (to adopt a phrase from SECT. II] MEMBERS 641 the testimony); but such instances of substantial violence do not appear to me to have been so frequent as to charge with responsi- bility therefor those who did not actually participate therein. It may be said, however, that the use of such epithets might well have been expected to lead to personal affrays; and, indeed, in at least several instances, such was the cause of the actual substantial vio- lence proven. It does not appear that any resolution, of any meeting of the strikers or of either of the lodges ever authorized the use of any epithets or violence by the pickets, or in any way took express cognizance of any such occurrence. The meetings of the lodge, however, were fre- quently advised of the pendency of the strike and made regular contributions in money to the support of the strikers and the picket- ing at stated intervals. For some time after the commencement of the strike, the plaintiff felt compelled, by the manner in which the picketing was conducted, as above stated, to feed and practically keep his employees in the factory itseK; also, for a longer period, to hire and maintain guards; and also to employ legal services, all of which he did to his very con- siderable cost. In May, 1907, he brought this action for injunctive rehef and to recover damages as incidental thereto. The law of this case is well settled, as both counsel seem to agree. It may, therefore, be briefly stated, without attempting to verify the statement by citation of authorities. The "law of strikes" is well established, at least to the following extent. In the absence of a con- tract for an tmexpired specified tern/i of service and hire, there being here no question of any such, the employer has the absolute right, at any time and for any cause, to discharge his employees, one or more; and, on the other hand, his employees have the right, at any time, singly or collectively and for any cause, even at their own mere will, to leave his employment; and, if such employees think they have any grievance against him, their employer, e. g., for the dis- charge of a fellow employee, they may not only strike, that is, them- selves leave his employment, but may, by picketing, attempt to peaceably persuade other workmen not to enter his employment and take their vacant places and even to persuade their former fellow workmen, still remaining in the service, to leave and join them in the strike. Their efforts to attain such result, however, must be confined to acts of peaceable persuasion. Certainly they may not extend to violence, threats or even verbal abuse; and, if they do so extend, they thereby become unlawful. The evidence in this case amply demonstrates that the picketing of the plaintiff's factory at New Rochelle, for the period of at least six months after March fourteenth, when the strike began, was con- stantly, that is practically daily and openly, of such unlawful char- acter, by reason at least of the use of abusive epithets, as is plain from the above recital of facts. There can be no doubt, therefore, 642 LIABILITIES OF LABOE UNION MEMBERS [CHAP. XII that the plaintiff's cause of action has been estabhshed against those of the defendants who have been proven to have personally partici- pated in such overt and unlawful action. The following named defendants have been clearly proven to have so participated, viz.: Thomas Shore, William Volkman, Frank Meyers, Charles Meyers, James Kelly, Frank E. Becker, Robert Long, Howard Grosvenor, George Long, and George Harrison. The grave question for determination is the question whether or not the two lodges, District No. 15, and Local No. 460, each of which is a voluntary association, not incorporated, consisting of more than seven persons and here sued under sec. 1919 of the Code of Civil Procedure by its president as a defendant herein, should be held re- sponsible for such unlawful conduct of the picketing. It is not clear that either lodge can be held responsible for the initiation of the strike, and it is immaterial whether it can be so held, because the strike itself was not unlawful. Both lodges, however, maintained the strike by money contributions made at frequent and stated in- tervals to support the strikers and especially the picketing. It does not appear that the above recited unlawful conduct of the picketing was ever expressly brought to the notice of a meeting of either lodge; but the same must have been well known to their representatives. The business agent of District Lodge No. 15 fre- quently visited the scene of the strike, attended local meetings of the strikers, and, if he had kept his eyes and ears open, must have be- come well informed as to the unlawful character of the picketing, viz., the constant and public use of abusive epithets by the pickets as above described. Those things were done so openly and regularly that any one interested in the conduct of the strike could, by the least observation or inquiry, have ascertained them at any time for months. I think, therefore, that those lodges, in thus regularly sustaining the picketing by pecuniary support for so long a time, must be held to have so acted with knowledge, actual or constructive, of the un- lawful conduct of the picketing, and, therefore, that they must be held to have aided and abetted such unlawful conduct. Hence I conclude that the plaintiff's case is established against the two lodges — District No. 15 and Local No. 460 — as well as against the defendants above named as having been proven to have per- sonally participated in the verbal abuse. The acts of actual, substantial violence proven appear to me not to have been sufficiently frequent or notorious as to charge the lodges or the strikers, other than those who actually participated in them, with having aided and abetted them. Inasmuch as the evi- dence as to the constant use of abusive epithets is so ample and is in itseff sufficient to establish the unlawful character of the picket- ing. I do not deem it necessary to inquire and determine to what extent the efforts at boycotting are to be regarded as illegal. In any SECT. II] MEMBERS 643 event the evidence as to them does not seem to be sufficient to estab- lish that either lodge aided and abetted them. It remains to determine what the plaintiff shall be permitted to recover as incidental damages against the two lodges and the above named defendants who actually participated in the unlawful conduct of the picketing. I think that such damages should include what the plaintiff paid for counsel fees, viz., 1347, and also what he paid for guards about his factory and for maintaining there, in the early part of the strike, a commissariat for feeding and caring for his employees, to protect them from the unlawful efforts of the pickets, which I find amounted to at least the svun of $3500, making an allowance of damages in the total simi of $3847. I do not think that the evidence as to cancelled orders or lessened output of the factory is sufficiently definite to warrant an allowance of damages upon either such account. My conclusion on the whole case, therefore, is that the plaintiff is entitled to judgment for reUef by way of injunction, and inciden- tally for damages in the amount last named against both of said lodges or their representative officers, defendants herein, and also against the individual defendants above stated to have actually participated in the unlawful conduct of the picketing. The form of the decision should be settled upon notice. Judgment accordingly.^ 1 Affirmed in 141 App. Div. 919. See also. Metallic Roofing Co. v. Jose, 12 Ont. L. R. 200- CHAPTER XIII TRADE AGREEMENTS FIRST NATIONAL BANK OF PLATTSMOUTH v. RECTOR Supreme Court of Nebraska. 1899 59 Neb. 77 NoRVAL, J. The unincorporated religious society known as the Methodist Episcopal Church of Weeping Water, in November, 1888, entered into a written contract with the First National Bank of Plattsmouth for the purchase of eighty acres of land in Cass county situate near the town of Weeping Water. The land was bought to enable the society, by the subsequent sale of the premises, to erect and maintain a coUege or seminary of learning, as well as for the advancement of the cause of rehgion. The society sold forty acres of the land, and the proceeds were applied on the claim of the bank. Full payment on the contract of the purchase-money not having been made as therein provided, the bank commenced foreclosure proceedings against the society to subject the other forty acres to the payment of the purchase price. A decree of foreclosure was en- tered, the land sold thereunder, and the sum realized was applied on the decree, leaving a deficiency of $1,573.73, for which sum a deficiency judgment was rendered in favor of the bank on October 10, 1892. Execution was issued on the judgment, and the same was levied on the church property. Simeon Rector and others, as trustees of the Methodist Episcopal Church of Weeping Water, instituted a suit to enjoin the bank from selling the church property, to cancel and annul the deficiency judgment, and to restrain the collection thereof upon various grounds, which need not be here stated. A decree was rendered therein perpetually enjoining the sale of the church building and parsonage, the court refusing to enjoin the collection of the deficiency judgment. The present suit was instituted by the bank against the individual members of the society under sees. 24 and 27 of the Code of Civil Procedure, to sub- ject their individual property to the payment of the deficiency judg- ment. Issues were joined, and a trial thereof was had, which resulted in a decree in favor of the defendants, dismissing plaintiff's petition. The'bank has prosecuted an appeal. The sole question presented by the record is whether under the undisputed facts plaintiff had a right to recover in the present suit under sees. 24 and 27 of the Code of Civil Procedure, which reads as follows: CHAP. XIII] TRADE AGREEMENTS 645 "Sec. 24. Any company or association of persons formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property in this state, and not incorporated, may sue and be sued by such usual name as such company, partner- ship, or association may have assumed to itself or be known by, and it shall not be necessary in such case to set forth in the process or pleading, or to prove at the trial, the names of the persons com- posing such company. "Sec. 27. If the plaintiff, in any judgment so rendered against any company or partnership, shall seek to charge the individual property of the persons composing such company or firm, it shall be lawful for him to file a bill in chancery against the several members thereof, setting forth his judgment and the insufficiency of the part- nership property to satisfy the same, and to have a decree for the debt, and an award of execution against aU such persons, or any of them, as may appear to have been members of such company, asso- ciation, or firm." A reading and consideration of the foregoing provisions leads to the irresistible conclusion that it was never the intention of the legislature that said sec. 27 should apply to members of church societies or rehgious associations. Execution is permissible to issue against the individual under said section only when the partnership property of the company or firm is insufficient to satisfy the debts thereof. A rehgious society, within the meaning of the statute, can have no partnership assets. Such a society is not organized for the purpose of business or profit of its members, but to advance and promote the cause of rehgion. The authorities quite generally agree that members of a voluntary unincorporated association, such as a rehgious society, are not individually hable for its debts, unless they authorized the incurring of the obUgation or subsequently ratified the same. The rule is thus stated in 1 Bates on Partnership at sec. 75: "A club or unincorporated association not formed for the purposes of gain or pecuniary profit is not a partnership. The fact that they have common property or a joint fund does not make them partners. ... As these associations are not formed for profit or loss, if a contract is made in their society name, the associates are not bound by it, unless it was authorized by them; but all the officers or members who joined in making or authorizing the contract are represented by the joint name, and they are liable upon it, on the groimd of principal and agent and not of partnership." To the same effect is Mechem, Agency, sec. 72; and a like doctrine was recognized and apphed by this court in Hornberger v. Orchard, 39 Nebr., 639. In the case with which we are deahng there is no aver- ment or proof that the defendants authorized the making of the contract with the bank, or that they afterward, with knowledge thereof, ratified the same. The decree is right, and is Affirmed. 646 TKADB AGREEMENTS [CHAP. XIII REDING V. ANDERSON Supreme Court of Iowa. 1887 72 I(ma, 498 Action in chancery to enjoin defendants from committing tres- passes by breaking and entering into a hall or room in a building owned by plaintiff. A temporary injunction was allowed, which, after answer, upon motion supported by affidavits, was dissolved. Plaintiff appeals. Beck, J. — I. The petition alleges that defendants have committed frequent acts of trespass by breaking and entering a room or hall in a building owned by plaintiff, and threaten to repeat such trespass. It is alleged that defendants are insolvent, and an injunction is demanded to avoid a multiphcity of suits. The defendants, in their answer, allege that they are members of a post of the Grand Army of the Republic, which acquired the right to the use and occupancy of the hall in question under a lease signed by plaintiff and the prin- cipal officers of the post, and that the lease was ratified by the post, and all rent due was paid or tendered by it to plaintiff. The affidavits support the allegations of the petition, and show that defendants entered the hall as members of the post, in the exercise of the right acquired under the lease, and that the post is an unincorporated association of those who had served in the armies of the Union dur- ing the war of the rebeUion. A copy of the lease is attached to the answer as an exhibit, and is of the character and effect as alleged in defendants' answer. It expresses a contract renting the haU to the post, which is bound thereby to pay rent. It is signed by plaintifi and one of the defendants, P. T. Anderson, to whose signature is attached the words, "Post Com. and Comt." II. The plaintiff insists that the lease is void upon the sole ground that it is made to an unincorporated association. No questions are raised in the case other than those involved in this objection. While it is true that an unincorporated association is not competent to contract, or acquire an interest in lands by deed or grant, yet it is not true that no right or obligation passes to or from the persons constituting the association thereunder. The person making a con- tract in the name of such an association is personally bound thereby, and the members of the association assenting to the contract are bound in the same way. Lewis v. Tilton, 64 Iowa, 220; Keller v. Tracy, 11 Id. 530. (See Code, sec. 1068.) Now, there cannot be a contract in which one of the parties is bound and the other is not bound. It must be binding on both. It follows that, where a con- tract is made with an unincorporated association, or a part of them, the other contracting party is bound by the contract. In the case before us the officer of the association signed a lease, and is person- ally bound thereby. His associates, assenting to the lease, are bound CHAP. XIII] TRADE AGREEMENTS ' 647 in the same way. They, or the association, perform their part of the contract, and pay or tender the rent as it becomes due. The law will not permit plaintiff to recognize the lease as long as it serves his pur- pose, and, after that, renounce and declare it void, and oust the association or the associates from the premises. The fact that the contract secures a leasehold interest in lands will not defeat the rights and obUgations of the parties thereto. There are scores of unincorporated associations, for various pur- poses, in the state, whose business requires the use of rooms, halls and offices, which are rented and occupied by them. It would as- tonish the profession to learn, from our decision in this case, that leases in the name of such associations, signed by their officers or committees, are utterly void, and that the associates and their representatives may be turned out as trespassers at the will of the landlords. The order dissolving the injunction is Affirmed.^ HUDSON V. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY CO. CouHT OF Appeals of Kentucky. 1913 162 Ky. 711 Lassing, J. Prior to June 28, 1907, William Hudson was in the employ of the Cincinnati, New Orleans & Texas Pacific Railway Co., on its Chattanooga division^ as an engineman. Upon that day he was discharged for an infraction of the rules of the company. On September 1, 1911, he brought suit against the company for $2000, the alleged value of time lost by him during the period be- tween the date of his discharge and December 1, 1908, charging that said sum was due him from the defendant because of its breach of a contract entered into by and between the defendant and the Order of Brotherhood of Locomotive Engineers, of which plaintiff was a member in good standing. The particular covenant upon which he bases his cause of action is as follows: "In case an engine- man believes his suspension or discharge unjust he shall within ten days appeal to the superintendent by letter, and if found to have been unjustly suspended or dismissed, he shall be reinstated and paid for all time lost. The proper officers of the company will at all times listen to any complaint that enginemen as a body or individually may wish to present, and under ordinary circumstances make prompt decision in regard thereto." It is charged by plaintiff that his dis- ' See other cases in preceding chapter. Compare Robbins v. Cook, 173 N. W. (S. D.) 445 (defendants, members of a commission requested by the Governor to provide a suitable state exhibit at the PanamarPacific Exposition, ordered pins and badges from plaintiff, who sues defendants as individuals for the price). 648 TRADE AGREEMENTS [CHAP. XIII charge was unjust; that he, within ten days thereafter, by letter appealed to the superintendent of defendant, his superior, for an investigation of the charges against him, offering therein to submit to said officer proof of his innocence of the charges, and asked for a reinstatement, but that said officer refused to make known the result of his investigations or to reinstate plaintiff. A demurrer to this petition was sustained. In an amended petition plaintiff set out in full the contract alleged in his petition, averring that it was duly executed and delivered by the defendant company and by the duly authorized officers and agents of said Order of Brotherhood of Loco- motive Enginemen. It is also alleged that "each and every men- ber of the Order of Railroad Enginemen and this plaintiff was by said contract required to render to the defendant service as engine- man under the terms and conditions set forth in said contract, and at the prices therein specified for two years from December 1st, 1906, unless, by notice as in said contract provided, change was made, which notice was not given or change made." The contract referred to contains, first, a list of stations on the Chattanooga division of defendant's railway and the rates of pay of enginemen for trips between such stations, in the yards and on work trains. Then, under the caption of "Rates of Pay and Regulations," follow thirty- four articles. All deal with rates of pay, hours of work, seniority in service, computation of time and overtime, disputes as to time, tests of hearing and eyesight, and other minor details incident to the operation of engines, except Article XXI, relating to suspension and reinstatement, which has been quoted herein above, and Article XXXIV, which is as follows : " These rules and regulations will be in effect 2 years from date unless 30 days notice is given by either party of any contemplated changes." A demurrer to the petition, as amended, was sustained. Plaintiff, declining to plead further and his petition having been dismissed, appeals. For appellant, it is insisted, first, that the officers of the union of which he was a member in making the contract in question, acted as the agent of all its members; and, second, under said agreement, and partic- ularly under Article XXXIV thereof, the members of said unioi; obligated themselves to work for the railway company, and the railway company bound itself to employ them, for the period be- ginning December 1, 1906, and ending two years thereafter, under the terms and conditions set forth in the other provisions of said contract. However, in one of the briefs filed on behalf of appellant, this contention is abandoned to an extent, and it is insisted that only those members of said union who accepted emplojonent under this contract undertook to work for a period of two years from De- cember 1, 1906, upon the terms and conditions and for the wages therein provided. On the other hand, it is argued for appellee that individual members of a labor union are not bound by contracts between the union and employers, unless such agreements are ratified CHAP. XIII] TRADE AGREEMENTS 649 by them as individuals; that the contract is void for want of mu- tuality of obhgation, as between it and appellant; that the effect of said agreement was merely to fix the rates of pay and regulations by which enginemen employed by it were to be compensated and gov- erned, during their employnaent within the period therein designated; that, if said agreement is a contract of employment, the term of service is indefinite and either party could, at any time, terminate it without cause; and that, under the terms of said agreement, the determination by its superintendent that the discharge of appellant was just is conclusive, and no cause of action arises upon an alleged wrongful decision of said officer. The allegation reUed upon to estabhsh agency of appellant on the part of the officers in the execution of said agreement is, that the contract "was duly signed and executed and dehvered by the duly authorized officers and agents of the defendant company and said Order of Railroad Enginemen." If they were the agents of appellant, it is to be inferred only from the fact that appellant was a member of the organization, the agents of which they are admitted to be. Appellant has failed to enlighten us, by averment, as to the objects of the union of which he was a member, as contained in its charter, if a corporation, or in its constitution, if it is an association, or whether the officers referred to were the agents of a local or general union. However, the court knows, as a part of the history of the times, that the Order of Brotherhood of Locomotive Engineers, and unions engaged in hke efforts, are associations of craftsmen, having for their objects improved working conditions and resisting, in concert, the unjust exactions of capital. Their purposes are social, not commercial. Permanent improved labor conditions, not temporary contractual relations between individuals and employers, are the commendable objects with which they are engrossed. A labor union, as such, engages in no business enterprise. It has not the power, and does not undertake, to supply employers with workmen. It does not, and cannot, bind its members to a service for a definite, or any, period of time, or even to accept the wages and regulations which it might have induced an employer to adopt in the conduct of his business. Its function is to induce employers to establish usages, in respect to wages and working conditions, which are fair, reasonable, and hiunane, leaving to its members each to determine for himself whether or not and for what length of time he will contract with reference to such usages. Contracts between an individual member of a union and an employer for personal service being merely inci- dental to the broad purposes of the union, its agents, in acting for the union, in no way bind the individual members thereof. In Burnetta v. Marcehne Coal Co., 180 Mo. 241, Burnetta, a miner and member of the Miners' Union, entered into the service of the Coal Co., and after continuing therein for a short time, vol- untarily left the company and sued it for the balance of wages due 650 TRADE AGREEMENTS [CHAP. XIII him. The company admitted the amount charged to be owing him, but denied that it was then due. The workman asserted that the union, of which he was a member, had a contract with the company in which certain pay days were provided for, and that under this contract the amount owing was due. The court there in disposing of the question as to whether a contract made by a union, in respect to rates and regulations, iniured to the benefit of its members said: "The Miners' Union is not an organization for the purpose of conducting any business enterprise, but is purely one for the pro- tection of labor against the imjust exactions of capital. The mem- bers of the union do not labor in coal mines for the organization, but each member works for himself, and whatever compensation he re- ceives is for the benefit of himself and family. That the Miners' Union, as an organization, cannot make a contract for its individual members in respect to the performance of work and the payment for it, in our opinion, is too clear for discussion. "While it may be true that a labor organization may have rules requiring the employer to designate a certain pay day, and if you employ a member of the organization or even one who is not a mem- ber, and by agreement his services are to be paid for on the designated pay days, as established by the rules, it could be well insisted that the contract fixes the time of payment, that is upon the theory that the individual so contracts, and, by no means, upon account of his being a member of the organization which has undertaken to con- tract for him. "A contract on the part of an individual that he wiU perform certain work under the rules of an organization, is not to be inferred from the simple fact that he. is a member of the organization. Per- sons work for themselves and are free and independent. Agreements imposing conditions can only be enforced when the entire proposi- tion has been stated and by them freely accepted." . . . Appellant's name is nowhere mentioned in the agreemeiit under consideration. There is in it no language from which it can be in- ferred that the officers of the union, in signing said agreement, were acting as the agents of appellant. The fact that they were agents of the union will not justify the inference that they were acting for appellant, a member of the union. It is not contended that he ever ratified the act of said officers. The fact that appellant entered the service of the railway company as engineman, knew of the usages which the company had adopted at the instance of the union, as- sented to and became bound by them, being a mere incident to the objects of the union, cannot be said to be a ratification. It follows, therefore, that the officers of the union, in the execution of said agreement, were not, and could not be, the agents of appellant. As the relation of principal and agent between appellant and the officers of the union, signing the agreement under consideration, is not shown to exist, no rights accrue to him thereunder by reason CHAP. XIII] TRADE AGREEMENTS 651 of its execution by them, and we now enter into a consideration of the contract that did exist between appellant and the railway com- pany. In this a proper understanding of the contract set out in the pleadings will be of material assistance. That contract was between the union and the railway company alone. It was made, presumably, in furtherance of the policy of the union to secure for its members more remunerative compensation and improved conditions of em- ployment. It does not, in terms, expressly or impliedly obligate any member, or group of members, of the union to work for the rail- way company for two years, or any length of time, or at all. It does not, in terms, require the railway company to employ even union enginemen, or any enginemen. It is just what it, on its face, purports to be, and nothing more. It is merely a memorandmn of rates of pay and regulations governing, for the period therein designated, engine- men employed on the Chattanooga division of the company's rail- way. Having been signed by appellee, it is evidence of its intention, in the conduct of its business with enginemen on said division, to be governed by the wages and rules, and for the time, therein stip- ulated. Enginemen in, or entering, its service, during the time limit, contract with reference to it. There is, on its face, no consideration for its execution. It is, therefore, not a contract. It is not an offer, for none of its terms can be construed as a proposal. It comes squarely within the definition of usage as defined in BjTd v. Beall, 150 Ala. 122. There' the court, in defining usage, said, "usage" refers to "an established method of dealing, adopted in a particular place, or by those engaged in a particular vocation or trade, which acquires legal force, because people make contracts in reference to it." In support of this definition, 29 Am. & Eng. Ency. of Law, 365, and 12 Cyc. 1033, are cited. It follows, therefore, that all appellee assented to in signing that agreement was that it would adopt and maintain the rates of pay and regulations, and for the period of time, therein stipulated in its dealings with enginemen employed by it on its Chat- tanooga division of its railway. If appellant, during the time limit provided in said agreement, entered the service of appellee as engineman on its Chattanooga division, knew and assented to the provisions of said agreement, or if they were so generally known among enginemen as to justify the presmnption that he did know them, and made no express contract in conflict with any of its provisions, the agreement in question en- tered into and became a part of his contract with appellee, as if fully incorporated therein. This agreement, as shown, did not undertake to fix a material element of a contract for personal service, viz. : the period of service. The provision relied upon by appellant to deter- mine this element is Article XXXIV, as follows: "These rules and regulations will be in effect two years from date, unless 30 days notice is given by either party of any contemplated changes." None of the other thirty-three articles of the agreement fixes, or undertakes 652 TRADE AGREEMENTS [CHAP. XIII to fix, the period of service of enginemen who might be in the employ of the railway company, during the time limit, and how, by any kind of construction, "rules" or "regulations" or any other language of this article can be made to mean "period of service," we are at a loss to understand. It is contended, in brief, that as some of the provisions exact of enginemen a service, that when such provision is construed with Article XXXIV, there is an obligation on the part of the employe to work, and the company to employ, for two years. Article I is cited as requiring such service. It reads as follows: "Twelve hours or less will constitute a day's work for switch en- ginemen. They will receive $3.50 per day; 35 cents per hour after 12 hours. In road service they will be paid road rates. One horn- will be allowed for meals at or as near noon or midnight as it is pos- sible." Again, we are at a loss to understand how, by any kind of construction, there has been a meeting of the minds of the parties to this litigation upon the period of service. The contract bears evi- dence of having been drawn with the utmost care to express the agree- ment of the parties thereto. There is an elaborate memorandum of the stations between which runs are made, and the pay for each run is fixed for enginemen on passenger trains, through and local freights. Another provision fixes how much enginemen are to be paid when attending court at the instance of the company. Another requires their tools and necessary equipment, including lamps, to be placed on engines at terminals. When these articles go into the minutest details, it is not reasonable to suppose that if the parties so intended, the draftsman, in the preparation of the agreement, would have used the words usually employed to express agreements as to period of service, such as, engineman, , or a certain number of enginemen, agree to serve the company and the company agrees to employ, for ■ — ■ — — — months or years, etc. The conten- tion that the period of service was fixed by said contract, or was other than indefinite, is without merit. When appellant's contract of employment with appellee is fairly construed, it is evident that the period of service is indefinite, and, that being true, either party had the right to terminate it at any time, for or without cause. L. & N. R. R. Co. v. Offutt, 99 Ky. 427. Ap- pellee did terminate said contract by the discharge of appellant. His claim is for time lost after the determination of the contract be- tween him and appellee and all his rights thereunder had ceased. The trial coiu:t correctly held that his petition stated no cause of action. Judgment affirmed.' > Accord: Burnetta v. Marceline Coal Co., 180 Mo. 241. See also, Scarano v. Lemlein, 121 N. Y. Supp. 351; Keysaw v. Dotterweich Brewing Co., 105 N. Y. Supp. 562. CHAP. XIII] TBADE AGEEEMENTS 653 A. R. BARNES & Co. v. BERRY U. S. Circuit Court of Appeals, Sixth Circuit. 1909 169 Fed. 225 Before Lurton and Severens, Circuit Judges, and Cochran, Dis- trict Judge. Cochran, District Judge. This case has to do with a controversy between certain employers on the one hand and certain employes on the other. The employers are master printers engaged in business in the principal cities of the United States and Canada. They are either corporajiions, firms, or individual natural persons. Those in each citjr are organized into local associations. Each local association has its own distinct name, consisting of the word "Typothetee" pre- ceded by the name of the city where located, as, e. g., the "St. Louis Typothetse." These several local associations are organized into an international association, which has the name of the "United Ty- pothetse of America." The local associations are made up of the individual master printers of the city where located, and the inter- national association is made up of the individual local associations. The local associations send delegates to an annual meeting of the international association, and these delegates at those meetings, amongst other business transacted thereat, elect the officers thereof to represent the association during the ensuing year. All the master printers of the two countries are not in the organization. Many are not. The employes are pressmen and feeders and other assistants of the pressmen. They are all individual natural persons. They are lo- cated and organized as are the master printers. The pressmen and the feeders and other assistants of the pressmen, however, are sep- arately organized so far as the local associations are concerned; the local associations of both being organized into one and the same international association. The local associations of each have their own distinct names; that in the case of the pressmen consisting of the words "Printing Pressmen's Union," preceded by the name of the city where located and followed by its particular number, as, e. g., "St. Louis Printing Pressmen's Union, No. 6," and in the case of the feeders and assistants of the words "Feeders' & Assistants' Union," preceded and followed as in the case of the pressmen, as, e. g., "St. Louis Feeders' & Assistants' Union, No. 43." The name of the international association is the "International Printing Press- men and Assistants' Union." The local associations of both send delegates to an annual meeting of the international association, who elect officers to represent it during the succeeding year. All the press- men and feeders and other assistants are not in this organization. Many are not. It seems that all union employes of this kind are not in it. 654 TRADE AGREEMENTS [CHAP. XIII All the master printers belonging to the Typothetse do not have in their employ pressmen and feeders and other assistants of the Printing Pressmen & Feeders' Union. Nor are all such employes in the employ of the master printers of the Typothetse. Many such employers have no such employes in their employ, and many of such employes are not in the employ of any such employers. But to a large extent such employers have such employes in their em- ploy. The officers of each international association are five in num- ber, 'a president, three vice-presidents, first, second,, and third, and a secretary and treasurer, and these five constitute the board of directors of the association. At least this is the case with the Union, and we will treat it as so in the case of the Typothetee. All of the members of the Union do not approve of the controversy with which this suit has to do. A large number of them, though less than a majority, it would seem, do not approve of it. The suit was brought by 11 master printers belonging to the Typothetse located in the cities of Chicago, St. Louis, New York, and Boston, on behalf of themselves and all the other members of the Typothetse not citizens of Ohio, appellants here, against the president and the secretary and treasurer of the Union, citizens of Ohio and resident in the city of Cincinnati, appellees here. Those officials were sued, not in their official capacity, but in their individual. They were sued, however, because of their official position. The rehef sought was an injunction against action on their part calculated to bring about a breach of a written contract alleged to have been entered into by the two inter- national associations January 8, 1907. . . . The controversy which occasioned the suit involved two matters. One was as to whether there was any such contract between the two international associa- tions. The other was whether, if there was such a contract, the appellants were entitled to the rehef they sought. The lower court held against the appellants as to both particulars and dismissed the bill. ... The contract referred to covered matters within the jvuisdiction of the two international associations. It is not necessary to set it forth verbatim. Three pages of the printed record are taJien to set it forth. It covered three main matters. It provided that disputes between local associations should be settled first by a local con- ference committee and then on appeal by a conunittee of the in- ternational associations; that the Union "shall not engage in any strike, sympathetic or otherwise, or boycott, unless the employer shall fail to Uve up to this contract," and "no employer shall engage in any lockout unless the Union or members thereof fail to live up to this contract"; and "that until January 1, 1909, 54 hours shall constitute a week's work, and that thereafter diu-ing the life of this contract 48 hours, of 8 hours a day, shall constitute a week's work." The contract went into effect May 1, 1907, and by its terms was to continue in force for 5 years; i. e., until May 1, 1912. There were CHAP. XIII] TRADE AGREEMENTS 655 a number of minor provisions which had relation to these main provisions. Amongst others was a provision as to what would con- stitute a fulfillment by the employer of his contract, dependent upon which was the question as to whether there would be a strike. It was that "paying the scale of wages and living up to the shop practices as settled by the committee, regardless of his employes' union affilia- tions," would be such a fulfillment. The clause "regardless of his employes' union affiliations" was considered by both parties to the contract as permitting an open shop as distinguished from a closed shop. The provision in this contract, action calculated to bring about a breach of which on the part of the appellees was sought to be en- joined, was that by which the Union was not to engage in any strike unless the employers should fail to live up thereto. The action on the part of the appellee Berry which was sought to be enjoined was announcing the result of a referendum on the subject and inciting the members of the Union to strike. . . . Now, as stated, there is a controversy as to- whether the appellants were entitled to the rehef they sought, or any part of it, even though it be conceded that there was the contract as claimed by appellants. This phase of the case presents very interesting and possibly novel questions for decision. In order to dispose of them it would have to be settled just who the contract was really between. Nominally it was between the two international associations. But really it could not have been so, because each of said associations lacked juristic personality. So far as there was any real contract at all, it must have been between the individual members of the different local associations. If so, this gives rise to the question whether it was a contract between all the members of the Typothetse, whether they have any members of the Union in their employ or not, on the one side, and all the members of the Union, whether they are in the employ of the members of the Typothetae or not, on the other, open- ing and letting in individuals as they become members of either organization and also opening and letting out such members thereof as might withdraw or be expelled therefrom; or was the contract limited to members of the Typothetse who might have members of the Union in their employ on the one side, and members of the Union who might be in the employ of members of the Typothetae on the other? If it were either, it would seem to be a joint contract on each side. The theory of appellants' case would seem to be that it is neither; for, if it was such, then the right of the members of the Typothetae who were parties to the contract being joint, it might be thought that to a suit brought to protect the contract from in- vasion all of them were indispensable parties plaintiff, and, though some might sue for all, as the suit was limited to those who were not citizens of Ohio, the lower court was without jurisdiction, and the bill should have been dismissed for want of it, and not on the merits. 656 TRADE AGREEMENTS [CHAP. XIII To meet this view it would seem that the theory of appellants' case must be otherwise, to wit, that, though formally the contract was between the two international associations, it was really a separate contract between each member of the Typothetse who had members of the Union in his employ on the one side and the members of the Union in his employ on the other; or rather, that the provisions of the contract, upon its being entered into, became terms of the sep- arate contracts of employment between each member of the Ty- pothetae and the members of the Union in his employ. So taking the contract reaUy to have been, there can be said to be no question as to the jm-isdiction of the lower coiu-t. All members of the Ty- pothetae who had members of the Union in their employ were not indispensable parties plaintiff to the suit, and if any question can be made as to the right of some to sue for all of a limited number thereof — i. e., all not citizens of Ohio — or as to their suing for mem- bers of the Typothetae who had no members of the Union in their employ, it is not a question affecting jurisdiction. On such theory of the case an authority Jn support of the jurisdiction of the lower court and the right of a portion of the Typothetae who had members of the Union in their employ may be found in the case of Bacon v. Robertson, 18 How. 480, 15 L. Ed. 499. This theory of the real natm-e of the alleged contract and of appellants' case is a reasonable one, and without more we accept it as correct and dispose of the appeal on that basis. As to whether otherwise appellants were entitled to the reUef they sought, assmning that such contract was entered into by the two as- sociations, which has been much discussed by counsel, we do not find it necessary to consider, as we are constrained to hold with the lower court that no such contract was entered into, and hence pass it by. The alleged contract, as stated, was executed on January 8, 1907. It was signed on that date in the name of each association by its board of directors. ... It was understood at the time of the signing that the board of directors of the Typothetae had no authority to make a binding contract on its behalf, and the signing so far as it was concerned was expressly made subject to ratification by that association. A meeting thereof was held thereafter on February 2, 1907, at Pittsburg, for the purpose of ratifying the action of its board of directors, and at that meeting that action was ratified. The board of directors of the Union, at the time of the signing of the contract, claimed to have authority to make a binding contract on its behalf, and by their action attempted to do so. . . . There is no question that the board of directors of each association sincerely beheved that the board of directors of the Union had full authority to make a binding contract on its behalf. In this, however, we be- lieve they were mistaken, and it is for this reason that the lower court and we likewise hold that there was no such contract entered into between the two associations. Their authority, like that of the CHAP. XIII] TRADE AGREEMENTS 657 board of directors of the Typothetae, was simply to negotiate a con- tract on behalf of the Union with the Typothetae, and such contract had to be ratified by the Union association before it was binding upon it.i . . . At its next convention, held at Brighton Beach, New York, in June, 1907, the delegates in favor of ehminating [the open shop] provision from the contract were in the majority. They selected a new set of officers with one exception, the appellees being two of the new ones selected; and in relation to the contract in question they took the following action, to wit: "Whereas, our board of directors has renewed the agreement with the United Typothetae of America: Now, therefore, be it "Resolved, that said agreement is ratified and approved, provided the ' open shop ' clause is stricken out and the amendment is inserted providing for nine hours' pay for the eight-hour day. And it is further "Resolved, that, in the event the U. T. A. rejects these amend- ments, oiu- board of directors are instructed to submit the question of the immediate inauguration of the eight-hour day to referendum, said referendum to be taken thirty days after such rejection." . . . The board of directors of the Union and the executive committee of the Typothetae met at Niagara Falls in September, 1907, during the latter's annual convention at that place, and conferred concern- ing their differences. They were unable to agree. The board of the Union urged the acceptance of the two amendments. The execu- tive committee of the Typothetae refused to accept either, claiming that a binding contract existed between the two associations, and demanded that it be lived up to. They parted, each adhering to its position. Thereafter the immediate inauguration of an eight-hour day was submitted to a referendum of the Union by its board of direc- tors, pursuant to the June, 1907, resolution. If carried, it meant a strike if that day was not immediately acceded to by the Typothetae; and before its result was known the union members of Chicago and New York did strike. This submission and these strikes were at once followed by the suit we have here. . . . We hold that the board of directors was without authority to execute the contract on the Union's behalf. The decree appealed from is affirmed.^ ^ The court here enters upon a long and careful examination of the facts, and reaches the final conclusion that the board of directors of the Union had no author- ity to make a binding contract on behalf of the Union. — Ed. " See also, D. L. & W. Ry. Co. v. Switchmen's Union, 158 Fed. 541; Parker v. First Trust & Savings Bank, 266 Fed. 961. 668 TRADE AGREEMENTS [CHAP. XIIl BARZILAY V. LOEWENTHAL Supreme Court of New York. 1909 134 App. Die. 502 McLaughlin, J. The complaint in this action alleges in substance that on the 22d day of November, 1907, the Cloth Spongers Em- ployers' Association, of which the plaintiffs are members, and the Cloth Examiners and Spongers' Union of Greater New York, both being unincorporated associations, entered into an agreement, a copy of which is annexed to the complaint, by the terms of which the union agreed, among other things, to "furnish to members of the 'Association' such competent help as may be required"; that the Union has violated the agreement and wrongfully refused to fur- nish to the plaintiffs such competent help as they required; that it is impossible for them to secure such competent help except through the union and their business has been irreparably damaged. The judgment asked is that the union, its officers and members, be re- quired to supply to the plaintiffs such competent help as may be required, and enjoined from further violating the terms of the agree- ment. The plaintiffs secured an order to show cause why an injunction 'pendente lite should not be granted, the only reason for requesting such an order stated in the moving affidavit being "because plain- tiffs desire a temporary injunction as aforesaid, having given the undertaking required by law." Upon the return of the order the order appealed from was made, which is "that the defendant sup- ply these plaintiffs with such employees who are members of its union, who are not employed at the present time, . . . during the pendency of the agreement between the defendant and the Cloth Spongers Employers' Association bearing date November 22, 1907." There are many objections to this order. It is by no means cer- tain that the complaint states a cause of action, for besides techni- cal defects it is doubtful whether any one but the association could enforce the terms of the agreement, or whether it could be enforced by injunction at all. The agreement is recited to be under seal, and if that is so the plaintiffs certainly could not bring any action thereon. (Henricus v. Englert, 137 N. Y. 488.) In any event, how- ever, the order could not stand because it enjoins the defendant, not during the pendency of the action, but during the 'pendency of the agreement, which was to last until December 31, 1910. It thus grants the very reHef demanded in the complaint, the right to which can be determined only upon the trial of the action. (Oppenheim v. Thanasoulis, 123 App. Div. 494.) The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion denied, with ten doUars costs. Ingraham, Laughlin, Clarke, and Scott, JJ., concurred. CHAP. XIII] TRADE AGREEMENTS 659 LANGMADE v. OLEAN BREWING CO. Supreme Court of New York. 1910 137 App. Div. 355 Appeal by the defendant, the Olean Brewing Co., from a judg- ment of the County Court of Cattaraugus county, entered in the office of the clerk of said county on the 24th day of May, 1909, pur- suant to an order of said County Court dated the 10th day of May, 1909, and entered in said clerk's office, affirming a judgment of a justice of the peace of the city of Olean in favor of the plaintiff. Spring, J. The defendant is a corporation carrying on a brewery in the city of Olean, and in the year 1908 the plaintiff was in its em- ploy as a teamster. When he began work in April of that year he drove his own horse and received two dollars and fifty cents per day. He testified that during this employment an arrangement was made between him and the president and secretary of the defendant to the effect that when horses of its own were used in the business and he became a member of the Olean branch of the International Union of United Brewery Workmen of America the defendant's contract with that organization would regulate the compensation of the plaintiff. It appears that a written agreement had been entered into by the union and the defendant to become operative on the 1st of March, 1908, by which the defendant agreed to employ "only members in good standing" in said Olean branch, and was to pay beer drivers fifteen dollars a week and for overtime, nine hours a day, "to be paid at the rate of time and a half." In the month of May the plaintiff became a member of the Olean branch of this union and about the middle of June he commenced driving on a beer wagon a horse of the defendant, and continued in that employment until he was laid off in January following for the reason that the business of the defendant did not justify his retention. He was paid fifteen dollars each week for his services, signing a receipt therefor upon each payment, and if nothing else appeared there would not be much basis for the claim of the plaintiff. The evidence shows that he worked overtime and he testified that he kept close track of this extra work day by day and presented an itemized statement upon the trial, showing that it amounted during the year to 251 hours, and he has commenced this action to recover for such overtime services. He testified that at several times he made claims to the officers of the defendant for compensa- tion for this extra work as stipulated in the agreement referred to with the union. He testified also that he first made a charge for overtime to Mr. Homer, the secretary, and the latter said to him, "Now, he says, we will have to bring that about. I don't keep the time; Habberstrumpf keeps the time. I says, the contract calls for 660 TRADE AGREEMENTS [CHAP. XIII overtime and the contract was to take effect when I commenced to drive your rigs and I think I am entitled to what the contract calls for. Q. What did he say? A. He said he would have to see. He didn't keep the time." He also made a like claim to Mr. Habber- strumpf, who was the brewmastei: of the defendant and kept the time of the men, but Habberstrumpf did not recognize the claim, telhng the plaintiff if he wa,s not satisfied with the fifteen dollars a week he would give him a job in the botthng works. Mr. Sigel, the president, Mr. Homer, the secretary, and the brew- master deny specifically that there was any promise ever given to the plaintiff to pay him more than fifteen dollars per week. The president testified that the beer drivers employed by a rival brewery in the city received only twelve dollars per week, and that company had also signed an agreement with the union of like import to the one entered into by the defendant. Further, that the defendant was willing to employ the plaintiff in the bottling works, but would not pay him more than fifteen dollars per week as teamster and nothing for overtime. The secretary and Habberstrumpf agree substantially with Sigel, the president. They were all present once or twice when the subject was discussed with the plaintiff and at other times when the president was not present, and the effect of their testimony is that the claim was repudiated whenever consid- ered. The secretary testified also that he told the plaintiff whenever the subject came up that if he did not wish to work for fifteen dol- lars per week he could quit, and notwithstanding this statement the plaintiff kept on working and signing the receipts. The presi- dent testified that he said to the plaintiff if he continued to work "it will be with the distinct understanding there will be no over- time due him. He got up and went out," and nothing further was said on the subject until after the employment was terminated in January. These witnesses are strongly supported by the fact that during all the time of the service of the plaintiff he accepted the fifteen dollars per week, signing vouchers for the same, and no action was taken by him to collect for overtime until he was discharged by the defendant. Such a course is unusual and, ordinarily, would suffice to defeat his claim. (McCarthy v. Mayor, etc., 96 N. Y. 1.) Again, the plaintiff testified on his recross-examination that after he was laid off in January he spoke to Mr. Sigel on the subject, say- ing "it looked funny my being laid off, the oldest driver, after put- ting in overtime all summer"; indicating that he was not expecting pay for such overtime. The putting in of extra time would be no inducement for his continued employment when business was dull, if he was to be paid for that extra time. It is probably true that the contract entered into by the defend- ant with the union can be read into the agreement with the plaintiff. (Keysaw v. Dotterweich Brewing Co., 121 App. Div. 58.) CHAP. XIII] TRADE AGREEMENTS 661 The existence of that agreement, however, did not prevent the parties to this action from regulating the compensation to be paid to the plaintiff. They could make an independent agreement dis- regarding the one with the union, and they did that, if we are to give credence to the great preponderance of the testimony. I think the judgment is against the weight of the evidence, and for that reason should be reversed. The judgment of the' County Court and of the Justice's Court should be reversed, with costs to appellant in this court and in the courts below. AU concurred. Judgment of County Court and judgment of Justice's Court reversed, with costs in all courts to appellant. SCHLESINGER v. QUINTO Supreme Coubt of New York. 1922 117 Misc. 735 Motion for injunction pendente lite. Wagner, J. The plaintiffs move to continue pendente lite a pre- liminary injunction enjoining the defendants from combining and conspiring to order, direct, instigate, counsel, advise or encourage members of the defendant association to violate a certain agree- ment made between the association and plaintiffs' union, and from doing any act in furtherance of such conspiracy. The contract, the subject of this litigation, was entered into be- tween the Cloak, Suit and Skirt Manufacturers' Protective Associa- tion, acting on behalf of its members, employees, and the International Ladies' Garment Workers Union and its subsidiary, the Joint Board of Cloakmakers Unions of the City of New York, representing the employees, on May 29, 1919, to continue operative up to June 1, 1922. This agreement was the culmination of a long-continued economic struggle between the parties, and for the first time recognized in a collective bargaining contract the week-work system in place and stead of the so-called piecework system formerly prevailing in the garment industry, and provided also a reduction in the hours of labor from forty-eight to forty-four hours per week. This innovation the workers regarded as a great stride forward in their struggle to raise their standard of life. Under the piecework system there was no. uniform or fixed scale of wages. Besides the constant disputes that arose as to what the employee should receive for a particular garment, the workers contend that the piecework system was an incentive to work with an intensity injurious to their health, prin- cipally in view of the fact that the industry is seasonal, the periods 662 tra.de agreements [chap, xiii of work, therefore, rare, and the worker in his anxiety to make up for the slack time would strain himself beyond his physical endur- ance and thus fall into ill-health, in many cases hopeless. After the agreement had gone into effect relations theretofore strained were resumed and peace once more restored in the industry, and the workers began operating under the new system. During the transitional period, as might well have been contemplated in so radical a change in the method of production, complaints were made on both sides respecting "soldiering on the job," due to security of position on the one hand and the inadequacy of wages due to the con- stant increase in hving costs on the other. These difficulties, involv- ing isolated instances, were adjusted by voluntary concessions of higher wage and the averting of intended or actual stoppages of work. And so matters proceeded until the request of plaintiffs on behalf of the workers in the early part of November, 1919, for an appreciable increase in the scale of wages provided for in the con- tract due to the more aggravated conditions then prevailing, but which clearly in nowise was to affect the integrity and mutuality of obligations under the agreement. Discussions became more acute on this question as the differences of opinion widened, with the result that the parties found them- selves engulfed in an acrimonious controversy, both private and in the advertising columns of the press, in which the respective con- tentions were strikingly and appeahngly presented to gain for them- selves public approval and support. Apprehensive of public calamity. Governor Smith summoned representatives of the opposing factions to a conference, resulting in their consent to the appointment of a board, with power to make a final and conclusive disposition of the controversial matter. The report of this board, after an extended examination into the statistics as to increased hving costs, made a unanimous finding that the workers were entitled to a wage increase, "called for by certain conditions inherent in the industry," to be absorbed by the increased productivity and conservation of other manufacturing costs. After acceptance of the board's decision its interpretation caused a divergent view as to the parties to be benefited. Because of the equivocal language in portions of the report the difference of opinion as to its interpretation was not without justification. To the plain- tiffs it spelled out a clear increase of the minimum wage scale therein provided. To the defendants the benefits thereunder were to accrue only to those employed at the time of its rendition and future em- ployees were not entitled to participation. Attempts to persuade the defendants to confer failed. They in- sisted upon the correctness of their interpretation and their right of self-construction. SoUcitations that the source of origin, namely, the board, should be requested to interpret its own decision, were summarily refused. CHAP. XIII] TBADE AGREEMENTS 663 The deadlock was further accentuated by plaintiff's claim that inde- pendent contractors who had accepted the new award by private agreement and were now seeking membership in defendant associa- tion for the purpose of taking advantage of its construction as to who shall benefit by the increase were so accepted in violation of the agreement. Discontent among the workers followed disappoint- ment. Their fruitless appeals to the unions, which in view of de- fendants' attitude on the question of interpretation could afford no assistance, resulted in sporadic strikes. These were few, however, in comparison with the extent of the work, and in most instances inconsequential in duration. Importunities by plaintiff union suc- ceeded in many cases to a return of the men to work, though it failed in some few instances, owing to the obdurate conduct and inflexible state of mind of the workers. Finally, on October 6, 1920, the defendant, addressed a com- munication to the union stating on account of strikes against its members the contract obligations had been violated, and threatened a discontinuance of "function of the machinery of the contract for adjustment of grievances." The plaintiffs rephed disclaiming any connection with or instigation of strikes, and again appealed for the submission of the question of interpretation of the board's decision as to awards. From then on, in accordance with their previous notification, the defendants ceased the adjustments of further dis- putes pursuant to the methods set up in the agreement. The letter itself and the developments that followed are significant of its pur- pose in view of the claim made by the defendants that thereafter they considered the binding force of the contract at end. By its terms it made no pretense of abrogating the existing agreement as a whole. It confined the discontinuance of recognition merely to one of its provisions, namely, that involving the adjustment of dis- putes. There was no mention nor imphed abandonment of the pro- visions relating to hours of labor, wages, labor conditions or others that formed the real basis and purpose of the collective bargaining agreement, as indeed there were none in fact, as such were con- tinued and observed in practice long after the adjustment routine had gone into temporary disuse and clearly defendants' refusal to carry out the above-named provision did not, as against plaintiffs' protest and in the absence of rescission, vitiate the agreement. In April, 1921, communications were again resumed by the asso- ciation with plaintiffs with the view of increasing the productivity in the trade by reason of the alleged refusal of the public to purchase their product at high prices then obtaining. The union accepted the invitation to conference on this question, and on June 3, 1921, the parties entered into the following agreement: " (1) Bath sides are in accord that it is in the interest of the industry to readjust the same in such a manner as to enable the manufacturers to sell their product at more attractive prices, and they therefore agree to proceed 664 TRADE AGREEMENTS [CHAP. XIII at once to the organization of a joint commission, to be composed of three members of the association and three members of the unions, whose task it shall be: "(a) To study shop and labor production records and other available data with a view of working out measures which would tend to bring up the productivity of the workers to a point fair and proper to both sides. "(6) The commission shall report once a month, and on November 1, 1921, it shall make a final report of its activities and findings before a joint committee of the representatives of the association and the unions, and shall accompany such report with complete and appropriate recommendations. "(2) Until November 1, 1921, the commission shall also act as a joint appeal committee and shall pass upon all complaints on the part of the em- ployers and discharged workers presented to it by the unions or associations arising out of any controversy or dispute about the adequacy of productivity. In determining any case the labor records of the workers in the shop in question shall be taken as the basis for the committee's decisions. If such records will substantiate the contention of the employer the action of the employer shall be sustained by the committee. "(3) Both sides agree to enforce compliance with the decisions of the joint committee. "(4) All complaints shall first be taken up by the clerks of the unions and the association for investigation and adjudication. "New York, June 3, 1921. "Cloak, Suit & Skirt Mfrs. Pro. Ass'n. " Louis Litstig, Chairman. "By Max Lachman, Vice Chairman. "International Ladies' Garment Workers Union, "Benj. Schlesinger, Pres. "Joint Board Cloak, Skirt & Reefer Makers Union, "Israel Feinbbrg, General Manager." Thereafter the joint commission provided for in the agreement was appointed for the settlement of the disputes arising in regard to lack of productivity and passed upon grievances as presented. Whether the agreement was a supplemental or supplanting one to that of May 29, 1919, is disputed in the affidavits, the employers contending that the June agreement supplanted the earlier one and alone was in force, leaving them free to take whatever action they deemed fit after the date of its expiration, November 1, 1922, while the plaintiffs claim it was but an amendment of and supplementary to that already existing and in force. Looking at the scope of the agreement's provisions, I think it indubitable that it was neither designed to supplant nor interfere with the contract of May 29, 1919, except to devise some agreeable method after suitable investigation to govern the requirements of production. "The working out of measures which would tend to bring up the productivity of the workers" was its expressed and sole purpose. The appointment, of a commission to report its recommendations in that respect was its CHAP. XIII] TRADE AGREEMENTS 665 means. In fact the jurisdiction of the commission to adjust griev- ances related exclusively to those of adequacy of production. More- over, the subsequent actions of defendants furnish conclusive evidence that both they and plaintiffs considered the original collective agree- ment in existence and in full operation. Subsequent complaints of defendants as to shop strikes were couched in the identical language employed before the supplemental agreement had been made. In such complaints distinct reference was made "to the terms of our agreement." Without a single refer- ence to strikes in the one it could hardly be presumed otherwise than that the other was the basis of the complaint. Numerous com- pliances by the association with the requirements of clause 10 as to registration of names and addresses of contractors employed by its members give further support to the view. The distribution of payments for wages collected from employers after dispute, together with written notices to plaintiffs of the admission of new members, both governed by the original agreement, make irresistible the conclusion that the collective agreement was still in force and so regarded by the parties. It therefore, so far as the purposes of this motion are concerned, becomes vmnecessary and immaterial to decide whether, prior to June 3, 1921, either of the parties had violated or breached the conditions of the agreement. Whatever had before occurred was to all intents waived by both, and not only was its full operation rein- stated on that date and its provisions thereinafter complied with, but an additional instrument had been created to adopt procedure to better carry out its terms. So, again, whether in the following Octo- ber, when the association gave notice at a meeting of the commis- sion appointed by the June agreement, through its representatives on said commission, of its intention to substitute the old system of piecework, the plaintiffs protested, as they claim, though this is denied by defendants, that such a recommendation would transcend the powers of the commission and be incompatible with the terms of the collective agreement of May 29, 1919, has no bearing on the legal question here presented. The June agreement being supple- mental to that of May 29, 1919, no reconunendation under the former could override or make nugatory the fundamental benefits secured to plaintiffs under the latter. Subsequently and on October 25, 1921, the association adopted a resolution which in part stated: "It has become necessary to substitute in the industry the piece- work system for the week-work system, to estabUsh an increase of the number of working hours in the week and to fix a reduction of the wages of the workers in those branches of the industry where, by the nature of the services rendered, it is required that they be retained on the week-work system"; and further: 666 TRADE AGREEMENTS [CHAP. XIII "That in order to bring into full force and effect the above changes in the industrial standards of the industry there be promulgated an order, binding upon every member of this association, that beginning Monday, November 14, 1921, each and every member will operate his factory on the piecework system and at the scale of wages and for the working week established by the executive committee," which went into effect on the date named and ever since has been observed and acted upon by the members of said association. Refusal of the plaintiffs to accede to the new system of work set up by the employers, as they claimed, in contravention of the collective agreement resxilted in what is now commonly termed the "garment strike." Thus out of the mass of affidavits submitted by both sides, with denials and some conflict of facts, there survives clearly a preponder- ance of evidence in favor of plaintiff establishing its right to the extraordinary relief sought. While this application is novel, it is novel only in the respect that for the first time an employees' organization is seeking to restrain their employers' organization from violating a contractual obUgation. It is elementary, and yet sometimes requires emphasis, that the door of a court of equity is open to employer and employee alike. It is no respecter of persons — it is keen to protect the legal rights of all. Heretofore the employer alone has prayed the protection of a court of equity against threatened irreparable Ulegal acts of the employee. But mutuality of obhgation compels a mutuality of remedy. The fact that the employees have entered equity's threshold by a hitherto untraveled path does not lessen their right to the law's decree. Precedent is not our only guide in deciding these disputes, for many are worn out by time and made useless by the more enlightened and humane conception of social justice. That progressive senti- ment of advanced civilization which has compelled legislative action to correct and improve conditions which a proper regard for humanity would no longer tolerate cannot be ignored by the courts. Our de- cisions should be in harmony with that modern conception and not in defiance of it. Some nisi prius adjudications rendered in these disputes, disputes in which the public is as much interested as the contending parties, have in my judgment reflected a somewhat im- perfect understanding of the trials and hardships experienced by the workers in their just struggle for better living conditions. Being persuaded by the proof adduced that the contract with its modifications was in force on October 25, 1921, the resolution adopted by the defendant association on said date contemplated a material breach of said contract. Further, such contemplated breach was carried out, for on the appointed day (November 14, 1921) the mem- bers of the association re-established the piecework system in their factories. CHAP. XIII] TRADE AGREEMENTS 667 Since the members of defendant association were by the by-laws bound to and did carry out the directions of the association to re- pudiate its legal obHgatiohs, the act constituted a conspiracy. A combination to procure a concerted breach of contract by the mem- bers constitutes a violation of plaintiffs' legal rights. Hitchman Coal & Coke Co. V. Mitchell, 245 U. S. 257. Is, under such circumstances, a court of equity helpless to give succor to plaintiffs? I -think not. In Grassi Contracting Co. v. Bennett, 174 App. Div. 244, the court said: "Where a strike or other action is threatened by a labor union in violation of its contract or of the contract of its members with their employers, the jurisdiction of a court of equity to issue an in- junction is well recognized." In the case of Beattie v. Callanan, 82 App. Div. 7, the defendant, a labor union, sought to induce workers who were under contract with their employer to quit work and in other ways to interfere with the performance of the employment contract. The union was en- joined from interfering. ... Abundant additional precedents exist supporting plaintiffs' plea for equitable rehef, but it would serve no useful purpose to enumer- ate them. The only distinguishing feature in the instant case is that the applicants are the workers. They are entitled to have exercised in their behalf the restraining power of the court when their legal rights are obstructed to the same extent as it has been exer- cised to protect the contractual rights of the employers. It cannot be seriously contended that the plaintiffs have an ade- quate remedy at law. That the damages resulting from the alleged violation of the agreement would be irremediable at law is too patent for discussion. There are over 40,000 workers whose rights are involved and over 300 members of defendant organization. The contract expires within six months and a trial of the issues can hardly be had within that time. It is unthinkable that the court would force the Htigants into a court of law. A court of equity looks to the substance and essence of things and disregards matters of form and technical niceties. The motion is granted enjoining pendente lite defendants herein, their and each of their agents, servants and attorneys, and each and all of their several members, and every officer, director and representa- tive of every corporate member thereof, and all persons acting in aid of or in conjunction with them, or any of them, including members of the said The Cloak, Suit and Skirt Manufacturers' Protective Association, from combining and conspiring in any way, to order, direct, instigate, counsel, advise or encoiu'age the members of the Cloak, Suit and Skirt Manufactmrers' Protective Association, or any of them, to cease performing or to violate the agreements of May 29, 1919, and Jime 3, 1921, made between the said The Cloak, Suit and Skirt Manufacturers' Protective Association and the In- 668 TRADE AGREEMENTS [CHAP. XIII ternational Ladies' Garment Workers Union, and the Joint Board of Cloakmakers Union of the City of New York, and from doing or sanctioning any act in furtherance or support of such conspiracy; from ordering, directing, instigating, counseling, advising or en- couraging such members of the said The Cloak, Suit and Skirt Manufacturers' Protective Association, or any of them, to abrogate and discontinue the provisions of said agreement for the system of week-work in their establishments prior to June 1, 1922, or to in- crease the hours of labor in their estabUshments above forty-four hours per week until the said 1st day of June, 1922; from supporting, aiding or assisting members of the Cloak, Suit and Skirt Manu- facturers' Protective Association, or any of them, in any effort to abrogate the existing contract as to the week-work system or increase the labor hours in their establishments by money, contributions or in any other manner whatsoever; from expelling from membership in the said The Cloak, Suit and Skirt Manufacturers' Protective Association, fining or otherwise punishing, disciplining or discriminat- ing against such members of the said association as may agree with the International Ladies' Garment Workers Union and the Joint Board of Cloakmakers Union of the City of New York, or either of them, to resimie work in their establishments upon the terms as to the system of work, hours of labor or otherwise, of the agreements between the parties of May 29, 1919; from doing or continuing any act in furtherance of the conspiracy above set forth by means of speech, writing, meeting, or any other fliethod, and from taking any steps whatsoever to put into execution or to retain in force and effect the aforesaid resolution of the said The Cloak, Suit and Skirt Manufacturers' Protective Association, adopted on the 25th day of October, 1921. And from taking further action for the carrying out of said resolu- tion or of any of the purposes thereof, and they are required to abro- gate the same and to cease acting thereunder or under any similar resolution, or from taking or continuing in any concerted action involving the violation or repudiation of said agreement of May 29, 1919, or of any of the terms thereof. Motion granted. NEDERLANDSCH AMERIKAANSCHE STOOMVAART MAATSCHAPPIJ v. STEVEDORES' & LONGSHORE- MEN'S BENEVOLENT SOCIETY United States District Court, E. D. Louisiana. 1920 265 Fed. 397 In Admiralty. Libel by the Nederlandsch Amerikaansche Stoom- vaart Maatschappij against the Stevedores' & Longshoremen's Benevolent Society and another. Decree for the libelant. CHAP. XIII] TRADE AGREEMENTS 669 Foster, District Judge. Libels in personam were filed by the Ned- erlandsch Amerikaansehe Stoomvaart Maatschappij, better known as the Holland-American Line, against the Stevedores' & Longshore- men's Benevolent Society and the Longshoremen's Protective Union Benevolent Association, to recover damages for an alleged breach of contract. Exceptions to the jurisdiction of the court to entertain the suits in admiralty were overruled. The causes were then con- soUdated by consent for trial on the merits, and the evidence was heard in open court. The facts will appear in the course of the opinion. The respondents are incorporated under the laws of Louisiana, for the purpose, among others, of regulating the time and fixing the price of labor of their members for working on the levees of New Orleans. One association is composed entirely of white men, and the other entirely of colored men. The respondents entered into a contract with all of the ship agents and emplojdng stevedores at the port of New Orleans, for a period of three year^, beginning Septem- ber 16, 1917, fixing the hours of labor and the price per hour, with provisions for extra pay for certain cargoes, time and a half and double time for night and Sunday work, respectively, and adopting many rules and regulations regarding working conditions, with the provision that work should be divided equally between the two associations. On November 22, 1919, the national adjustment commission awarded increases of wages and reduction of hours of day work, to wit, 80 cents per hour regular time, $1.20 per hour overtime, and $2 per hour Sunday work, and limiting regular hours to four on Satur- day and Simday and eight hours on other days. The award also provided certain differentials, generally 10 cents additional per hour for handhng certain kinds of cargo, which do not affect this case. It further provided that the contract between the New Orleans ship agents and stevedores and the respondents should remain in full force and effect, except as modified by the award. This award was ratified by general meetings of the respondents. By the terms of the contract the stevedores are required to hire members of the respondent unions as foremen, and the ship agents and stevedores agree to employ only members of the unions, if they are available. There are not enough members of the unions to do all the work on the docks, so non-union laborers are usually employed in addition. The members of the unions pay 5 per cent of their daily, earnings to the imion in lieu of dues. For some unexplained reason the unions also collect 5 per cent from the non-union men, though they receive no benefits. Employment is conducted as follows: The foreman, who is a member of the union, hires the men. If sufficient union men are not present, he supplies the deficiency with non-union men; but as soon as a union man appears and de- mands a job he discharges a non-union man instantly, though he 670 TRADE AGREEMENTS [CHAP. Xllt may have made but part of an hour, and employs the union man in his place. On December 17, 1919, the steamship Amsteldijk, owned by libel- ant, arrived at New Orleans, partly loaded with kainit in bulk and consigned to the Texas Transport & Terminal Co. Libelant is not named as a party to the contract, but the Texas Transport & Ter- minal Co. is, and was then and now, agent for libelant at New Orleans. About 17 men, nearly all members of the respondents, were employed in unloading the kainit from the vessel, and worked until the usual time of quitting on Saturday, December 20, at the contract rate of 80 cents per hour. On Monday the same men refused to continue unloading the kainit unless paid 90 cents per hour. Kainit is not included in the differentials, and the rate is 80 cents per hoiu- for unloading it. The ship declined to pay 90 cents per hour, and the Texas Transport & Terminal Company notified the presidents of the unions to furnish men at the contract rate. The presidents of the unions made some effort to induce the men to resume work, but without avail, and then' notified libelant's agent it might employ non- union men. The ship was delayed in unloading some seven days, by which time general meetings of the unions were held and resolutions adopted ordering the men to resume work, which they then did, and about 45 men were employed day and night unloading the kainit. Libelant is suing for demurrage for the seven days' delay. It is contended on behalf of respondents that the contract is uni- lateral and void for want of mutuality; that hbelant was under no obligation to send its ships to New Orleans and furnish work for respondents' members; that respondents are not bound to furnish labor at all; that the action of certain members in quitting was their action as individuals, and the unions cannot be bound in any event by them, as the officers of the union did not order or approve of their quitting; that non-union labor could have been hired to do the work, and Ubelant's agent was so notified; and that libelant has failed to minimize its damages. The contract is inartificially drawn and in terms imposes no obli- gation on respondents to furnish labor. It must be given a reason- able construction, however, and so as to maintain its vaUdity, if possible. The contract absolutely binds all of the ship agents and employing stevedores of the port of New Orleans to employ none but members of the respondent unions, if they are available. By it the respondents establish the principle of collective bargaining, obtain the closed shop, 44-hour week, extra rates of pay for overtime, and their own working conditions, all that union labor, so far, has ever contended for. I think the contract is valid, and imposes the reciprocal obUgation on respondents to work according to the con- tract in good faith. There is no doubt the action of the men was arbitrary and amounted to a breach of the contract. CHAP. XIII] TRADE AGREEMENTS 671 It is shown that the officers of the unions have no control what- ever over the members. There is no provision in the by-laws by which they may be suspended, or expelled, or disciplined in any way, for refusing to abide by the contract. The contract and the award of the national adjustment commission were not accepted and did not become binding on the unions until ratified by general meetings of all the members. It is shown that some of the men who quit work did not seek employment elsewhere, but remained in the vicinity of the vessel. The foreman, a member of the union, did not seek to employ non-union men. He testified non-union men will not work when union men are on strike. The action of the union men in this case had all the elements of a strike. Considering the control exercised over the non-union men, the fact that the foreman was a member of the union, whom the stevedore was forced to em- ploy, and that luiion men were available, though unwiUing to work, I think the testimony of the foreman is conclusive, though there is some testimony of a general character that non-union men might have been seciu^ed. Under these conditions the respondents are responsible for the action of a considerable number of their members, as here shown. This brings up the question of damages. Undoubtedly the ship was delayed and demurrage accrued; but this might have been avoided by paying the extra wages demanded. The recovery should be confined to what it would have cost for additional wages to un- load the ship at the rate demanded. As the evidence is not certain on that point, the case will be referred to a commissioner to ascertain the damages. Libelant to have a decree for that amount, with interest at 5 per cent from date of decree until paid. Respondents to pay all costs, to be divided between them equally.^ 1 Compare National Fireproofing Co. v. Builders' Ass'n, 169 Fed. 259 (trade agreement, though void as constitutuag a monopoly, cannot be enjoined by a third person whom it injures). CHAPTER XIV INTERNAL GOVERNMENT OF UNIONS' Section 1. Regulation of Internal Affairs HESS V. JOHNSON Supreme Couet of New Yoke. 1899 41 App. LHv. 465 Appeal by the plaintiff, Minnie A. Hess, from a judgment of the Municipal Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court. Per Curiam: The action is brought against the defendant, as treasurer of a voluntary association, to recover the amount of a funeral benefit of $100. The constitution of the association, which was subscribed by the plaintiff's husband, provided that the sum of $100 should, on the decease of any member of one year's standing, be paid to the relative who should assume or be responsible for the expenses of his funeral, but this payment was subject to the proviso that "No funeral benefits shall be paid by this Union in the case of a member who shall have been three (3) months in arrears, during the six months immediately preceding his death." The plaintiff's hus- band was in arrears for a period of over three months, which he dis- charged less than four months before his decease. We think the interpretation of this proviso is clear. It intended that in case of a member being in arrears for three months, even when he paid those arrears, his family should not be entitled to the funeral benefit unless he continued his payments for six months thereafter. It was in- tended as a penalty for defaulting in the payments to be made to the association, and is analogous to the provision that the families of those members only who have been such over a year should be entitled to the benefit. It is urged that the provision is unreason- able, and, therefore, void. In the case of Cartan v. The Father Matthew United Benevolent Society (3 Daly, 20), cited in support of this claim, the defendant was a corporation, and the provision assailed was a by-law. Here the defendant is a voluntary associa- tion, and the provision is contained in its constitution, subscribed by the members. That constitution is the contract between the 1 Wrightington, The Law of Unincorporated Associations, chap. 5. See also, Bacon, Frederick H., Benefit Societies and Life Insurance (3d ed., 1904), vol. 1, chap. 3; Pomeroy, Equity Jurisprudence (4th ed.), vol. 4, sees. 1731 et seq. (Equi- table Remedies, vol. 1, chap. 15, sees. 309-315.) 67* SECT. I] REGULATION OF INTERNAL AFFAIRS 673 parties, and if its provisions are not illegal, immoral or contrary to public policy, it must be upheld whether reasonable or not, for parties have the right to enter into unreasonable or unwise contracts so long as such contracts are not illegal and are fairly made. This is the distinction between the case of a voluntary association and that of a corporation. (Kehlenbeck v. Logeman, 10 Daly, 447; Ulmer v. Minister, 73 N. Y. St. Repr. 260.) The judgment appealed from should be affirmed, with costs. All concurred. Judgment of the Municipal Court affirmed, with costs.^ SCHNEIDER v. LOCAL UNION NO. 60 SUPEEME COUHT OF LOUISIANA. 1905 U6 La. 270 See supra, p. 384, for a report of the case.^ O'BRIEN V. MUSICAL MUTUAL PROTECTIVE & BENEVOLENT UNION, LOCAL NO. 14 Court of Chancery of New Jersey. 1903 64 N. J. Eq. 525 Emery, V. C. This is an application on behalf of complainants, claiming to be the local association in Paterson of the American Federation of Musicians (a labor union), to enjoin the defendants, who also claim to be the local association for Paterson, from acting or holding themselves out as members of the federation. The state of facts presenting the question for decision is substantially as follows : On January 31st, 1902, the American Federation of Musicians, a general or national federation, granted to the seven complainants and one Shannon a charter as a local association (No. 179) of the federation, in Paterson. The American federation and the local were both unincorporated or voluntary associations. In the application for the charter, jurisdiction or exclusive author- ity for the local association was claimed or asked for the territory within ten miles of the Paterson city hall in all directions, except in a southerly direction, and in that direction to the city line. . . . The certificate appears to have been issued by the executive council or board. This board (by-laws, sec. 6) has a general supervision of all matters pertaining to the federation. The executive board, after an investigation and report by the secretary as to the circum- ' Branagan v. Buckman, 67 Misc. (N. Y.) 242 (affirmed in 145 App. Div. 950). 2 As to illegal by-laws, compare Brewster v. Miller, 101 Ky. 368; Snow v. Wheeler, 113 Mass. 179, supra, p. 86; Purvis v. Local No. 500, 214 Pa. St. 348; Gatzow V. Buening, 106 Wis. 1. 674 INTEENAL GOVERNMENT OF UNIONS [CHAP. XIV ■ stances of issuing the charter, made an order on June 7th, 1902, that the charter for the local association (No. 179) be reopened for thirty days, to allow all musicians in its jurisdiction an opportunity to join as charter members. The privileges and fees of charter members are different from and more favorable than those of members ad- mitted subsequently. This order to reopen the charter was not at once obeyed by the officers of the local, but it was subsequently comphed with. ... It appears by the defendants' aflBdavits that one object in reopening the charter was to allow the admission as charter members of a local association then existing in Paterson, known as Local 14, National League of Musicians, and whose mem- bers (one hundred and forty-nine in number) are defendants in this suit. This Local No. 14 is incorporated under the laws of New Jersey. ... The American Federation of Musicians would seem to have the right to supervise the original organization for the purpose of pro- curing a charter, and would, as I am now inclined to think, have the right, in a proper case, to direct the opening of the charter and to supervise or review the proceedings for organization on the re- opening. The executive officer of the district in which the local is situated has (by-laws, sec. 8) charge of the organization of associations within his district, and this officer attended at Paterson for the purpose of supervising or giving directions as to the application for member- ship under the reopening of the charter. This officer, as he says in his affidavits, directed that the members of the association of mu- sicians in Paterson, called the Musical Mutual Protective and Benevo- lent Union, Local No. 14, National League of Musicians, should be allowed to apply and be admitted in a body as charter members. Complainants deny that these directiohs were given, but for the pur- pose of this application the defendants are entitled to the benefit of their statements under oath. The apphcation was made in this form by the president and secretary of Local No. 14 on behalf of the body, and thereupon the complainants, being the officers, or some of the officers named under the existing charter, refused or declined to allow the admission of the members of the musical union as charter members under this appHcation. The claim of the com- plainants is that under the by-laws and charter of the American Federation of Musicians the admission must be of each person sep- arately and under apphcation of the form presented by the rules or by-laws of the association. By reason of this action refusing the admission of the members of the Local No. 14 in a body, upon the reopening of the charter, the charter granted to complainants was revoked. By what officer the formal revocation of the charter was actually made does not appear with exactness by the affidavits on either side, but the fair construction of all of the affidavits is that the charter was revoked by the executive officer of the district, and SECT. I] KEGULATION OP INTEENAL AFFAIRS 675 that his action was approved by the president of the American Federation of Musicians, who, under the by-laws (sec. 1) exercises a general supervision over the affairs of the federation and decides cases of emergency. Under the by-laws (sec. 6) an appeal lies from the decision of an executive officer to the executive board, which is composed (constitution, article 8) of the president, vice-presidents, secretary and executive officers of the districts, and a further appeal lies from the decision of the executive board to the convention of the federation. No appeal from the decision revoking the charter has been taken, nor have complainants taken any steps or intimated any intention to prosecute an appeal within the association, although notice of the revocation of the charter was received about November 1st, 1902, two months before the filing of this bill. Subsequently to this revocation the Araerican Federation of Musicians granted a charter (as Local No. 248) to the defendants, the musical mutual, etc., association; and these defendants now claim to be members of the American Federation of Musicians for Paterson and vicinity. An opportunity was given to the complainants' association to join this local in a body, but they did not accept this offer. The complainants, being the original charter members (except Shannon), claiming under the original charter or certificate as No. 179, and that its revocation is illegal, now apply individually and on behalf of the members of their association (numbering about one hundred) to enjoin the Local No. 14, and all of its individual members (about one hundred and fifty), parties to the suit, from organizing as a local of the American federation in Paterson, or in the territory claimed to belong ex- clusively to complainants, and from continuing this organization or advertising as such, and from applying to the trade unions of Paterson for recognitions as such association. . . . This suit, . . . is not brought ... to assert against the defendant local associa- tion any right to funds or other property, or to the use or enjojonent of any property, real or personal. No right of property is therefore involved in the case, unless the right of membership is to be called property. It is claimed by the bill and affidavits that this member- ship of the American Federation of Musicians, through its local association, carried with it certain advantages and privileges to the individual members, resulting from the practice of labor or trade union organizations, especially in Paterson, to employ no musicians except those connected with the American federation, and it is also claimed that the deprivation of this membership will expose the individual members of complainants' association to a pecuniary loss by reason of the subjection to posting or denunciation by trade unions as "scabs" or "unfair," and to the penalty of being black- listed by labor organizations generally throughout the United States and Canada. If the association were incorporated there would be two vaUd objections to the use of an injunction for the purpose of compelling 676 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV the American federation (if a party to the suit) to continue and to recognize the membership which, rightfully or wrongfully, it has dissolved: First, rights of membership in incorporated voluntary associations are, under the settled practice in this state, and where no right of property of the alleged member is involved, to be deter- mined by the Supreme Court on application for mandamus to admit to membership. Sibley v. Carteret Club, 11 Vr. 295; Zeliff v. Knights of Pythias, 24 Vr. 536 (Supreme Court, 1891). These cases are cases where the individual member who was, as he claimed, wrong- fully expelled appUed for restoration. In the present case the local association is the member of the American federation, and the mem- bership in the American Federation of Musicians is effected only through membership in the local. The constitution (article 3, sec. 1) expressly provides that the local associations are the members of the American federation. In the second place, where the question is one of membership merely, and the decision involves a matter of discipline or application of the rules and regulations of the asso- ciation and not of property right, no court, either of law or in equity, will exercise jvirisdiction until the remedies by appeal to the authori- ties of the association, under its rules, have been exhausted. Zeliff V. Knights of Pythias, supra. The only cases which have come under my observation where the courts afford rehef to a person claiming membership in an incorporated association, who has not exhausted his right of appeal upon the question of membership within the order, are those where the person claiming membership claims also, as a result of membership, some distinct individual property right, under a contract or other obligation of the association with him as a member. Supreme Lodge v. Eskholme, 30 Vr. 255 (Errors and Ap- peals, 1896). In these cases, which involve a recognized property right, the right of membership is decided by the court as incidental to the contract or obhgation of the association; but where the ques- tion is one of settling the general status as to membership, for all purposes, as between the complaining party and an incorporated association, the remedies for restoring to membership provided by the association itself must be first exhausted. Where the associa- tion is unincorporated the personal relation between the members is analogous to that of partners, and the legal remedy by mandamus, which is appropriate for the purpose of restoring the relationship arising from membership in a corporate body, would seem to be inappHcable, and in such associations it may be that the proper pro- cedure to protect the common property rights of a member expelled in violation of the regulations of the order is by an injunction re- straining interference with his use and enjoyment of such common rights. But the rule requiring prosecution of appeal or other reme- dies within the order or association itself, before apphcation to a court of equity, is one which seems to be apphcable to all associations, whether incorporated or unincorporated, where the question is one SECT. I] REGULATION OP INTERNAL AFFAIRS ' ' 677 merely of membership, irrespective of the enforcement of a property right. In some courts the exhaustion of the remedies within a volun- tary association is required before a court of law or equity will in- terfere for their protection, even when a right of property is involved. OUver V. Hopkins, 144 Mass. 175 (1887) ; Grand Lodge Knights of Pythias v. People, ex rel. Waldeck Lodge, No. 136, Knights of Pythias, 60 111. App. 550, cited in 49 L. R. Ann. 379. Other courts take a different view. Cases cited in Nibl. Ace. Ins. & Ben. Soc, 156, 215, inter al. ; Loubat v. Leroy, 40 Hun, 546. Complainants claim that the charter confers a- property right, the right being the exclusive right of membership in the federation within a certain district, and the right to the use of the name of the association. But manifestly the charter, or, more properly, "the certificate of affliation," does not convey, or purport to convey, any property right, either in the name or otherwise, but is only the method by which, under their rules and regulations, the right of membership in the federal association and in the local is evidenced. These rights of membership evidenced by the charter are not, in my judgment, in any sense themselves property rights, but are personal rights only. A member of a local association may have or acquire, as against the federation, rights which are recognized property rights, such as a right to a share of its funds, or to the use or enjoyment of its common property, but the rules and regulations as to membership cannot, in any proper sense, be properly said to confer a property right, and are essentially, in their nature, only rules and regulations describing or defining the method of their voluntary association, with its terms and conditions. Being thus personal rights only, and being also purely voluntary, the enforcement of such rules and regulations governing mere membership, and such of the relations and privileges of the members and of the local and national associa- tions as do not involve property rights, must be left entirely to the association itself, and the penalty of expulsion which it may enforce. But courts, either of law or equity, do not, on the application of either or any party, enforce, either by decrees for specific perform- ance, injunction or otherwise, the continuance of the association or the performance of duties and privileges which, imder their rules, the members or the association, national or local, as mere members, owe to each other. A recalcitrant member or local may be dismissed for violation of the rules of the association. A member of the as- sociation improperly expelled may, by action of the courts, be protected in his rights to the common property. But the mere continuance of the relationship itself, as between aU concerned, is voluntary, not legal. If a member or local desired to withdraw, the withdrawal could not be prevented by injunction or otherwise, on the theory that the agreement of membership created a contract for the performance of the duties resulting from membership which 678 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV a court would enforce by compelling the performance of the rules regulating the duties. And if the national or general association refuses to continue association with a local, whether for a valid or an invalid reason, a court of equity cannot, in the absence of any question of property right, enforce the continuance of the relations voluntarily assumed. In this respect the rights of members of an unincorporated association differ from those of the members of an incorporated association. . . . The application for injunction wUl be denied. RAGGETT v. BISHOP Nisi Prius. 1826 2 Carrington & Payne, 343 Assumpsit to recover 101. 10s., being the amount of one year's subscription, alleged to be due from the defendant as a member of the Cocoa-tree Club, in St. James's Street, for the year 1824. It appeared from the evidence, that the plaintiff was master of that club, and that the defendant became a member in the year 1823, the subscription being ten guineas a-year. By the rules of the club, (which were put in), it appeared that the subscription was to be paid every year, on the 1st of January; and that if no notice were given by members of their intention to discontinue, they were to be con- sidered as members. By one of these rules, the master was em- powered to collect the "house biUs." Scarlett for the defendant. T submit that the plaintiff is not the proper person to sue. The maooer of a club is merely the agent of that club, who have their general meetings, and make regulations independent of the master. Abbott, C. J. I think that as the plaintiff is the master of the house, every member must be considered as a debtor to him for his arrears. The members may take upon them the management of the affairs of the club; but I think they are bound to pay the mas- ter; and if so, the defendant is liable in this action, unless he can shew that in the year 1823, he gave notice of his intention to discontinue his subscription after that year. Verdict for the plaintiff. Damages, 10^ 10s. RAGGETT v. MUSGRAVE Nisi Phius. 1827 2 Carrington & Payne, 556 Assumpsit by the plaintiff, as master of the Cocoa-tree Club, against the defendant as one of its members, to recover 101. 10s., the amount of the defendant's subscription for the year 1825. SECT. I] KEGTJLATION OF INTERNAL AFFAIBS 679 It was proved that the defendant had been a member of the club, and that all the members on their admission agreed to conform to the rules. The rules were put in. By the 1st of them, the club was to consist of three himdred members, at an annual subscription of ten guineas each. By the 8th, every member intending to withdraw from the club, was to signify his intention in writing to the master, and pay his subscription for the current year; and by the 18th, the plaintiff was appointed master of the club. It appeared that the whole of the rules of the club were contained in a book kept by the master, which was accessible to all the members, but that the rules were neither posted up nor sent to the members. Scarlett, for the defendant, objected, that there was no proof that the defendant knew of these rules. Abbott, C. J. I am of opinion, that every member of a club must be presimied to be acquainted with its rules. Verdict for the plaintiff. Damages, 101. 10s. MARSHALL v. PILOTS' ASSOCIATION ' Superior Court of Pennsylvania. 1902 18 Pa. Sup. Ct. 644 Case stated to determine the validity of an amended by-law of the Pilots' Association. The case stated was as follows: That the plaintiff, James W. Marshall, was duly Hcensed an active pilot of the bay and river Delaware, from 1857 until June 29, 1899, holding a "first rate" branch. That on or about the first Tuesday of December, 1896, there was formed and organized a voluntary association, known as the "Pilots' Association for the Bay and River Delaware," which was and is composed of pilots licensed under the laws of the states of Pennsylvania and Delaware, and having its office at No. 319 Wal- nut Street, in the city of Philadelphia. The objects of this association are for the mutual benefits of its members; to equahze the earnings of the pilots; and to provide benefits for sick and disabled members, etc. That said plaintiff became one of the original members of the association, and still continues a member. That the active members of the said association make regular returns thereto of all moneys earned by said members, which earn- ings are distributed at the end of each month among said members, less an amount sufficient to cover expenses, and a certain percentage set aside each month to create a sinking fund, share and share alike. At the time the plaintiff became a member of said association one of the by-laws thereof was as follows: 680 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV "Rule 14. A member losing his license for any other cause than intoxication shall receive haK pay until reinstated." While continuing a member of said association in active service and good standing, complying with all its laws and regulations, and entitled to his full share of the profits and earnings thereof, the plaintiff became disabled by reason of impairment of his eyesight, and could no longer pursue his calling. Accordingly on June 29, 1899, at a special meeting of the pilot commissioners for the state of Delaware, at which the plaintiff was present and concurring, his license as a pilot for the said cause was revoked. Thereupon the Pilots' Association accorded him the half pay provided for in "Rule 14," and he received the same from July, 1899, until March, 1900, inclusive, being one half the amount awarded and paid each month to the pilots in active service. The plaintiff being in the sixty-seventh year of his age, and his disability being permanent, the said defendant association, on or about April 9, 1900, amended "Rule 14" of the by-laws, conformably to the constitution, so as to read as follows: "A member losing his license through accident to the vessel, or through any other cause except intoxication, he shall receive one half pay until reinstated. "A member losing his license for not being capable of following his business shaU receive Fifty ($50.00) dollars per month." The effect of the said amendment was to diminish the allowances or benefits previously paid to the plaintiff under Rule 14, and sub- sequently to the adoption of the said amendment the association declined to continue to pay the plaintiff the half pay provided by Rule 14, and offered him the sum of $50.00 per month, the amoimt provided by the said amended by-law, which amount of $50.00 the plaintiff refused and refuses to accept. That under plaintiff's contention there is due him by the defendant the total sum of $997.14. . . . The court entered judgment for defendants on the case stated. Oblady, J. . . . The office of a by-law is to regulate the con- duct and to define the duties of th^ members towards the corpora- tion and each other. So far as its provisions are in the nature of a contract, the parties thereto are the members of the association, as among themselves; or the corporation on one side, and its individ- ual members on the other: Flint v. Pierce, 99 Mass. 68; s. c. 96 Am. Dec. 691. It must be conceded that a by-law or regulation is a rule for future action, and an association which is authorized to make such by-laws as may be necessary to secure the objects for which it is created, has power to change them by a legal amendment when necessary to carry out such objects. It must also be conceded that the power to amend cannot be so exercised as to impair any right that has become vested by virtue of the by-law. The articles of association and by-laws existing at the time when membership begins are in many respects to be regarded as establishing between SECT. I] Regulation OF INTERNAL AFFAIRS 681 the association and members certain fundamental rights. It is essen- tial to the control and disposition of conditions which cannot be anticipated when an association is formed, that it should have author- ity to provide for them by the amendment or repeal of a by-law, or by enactment of a new one. The power to repeal and amend is an incident to the power to enact: Com. v. Lancaster, 5 Watts, 152. An association can enact "alterations in the by-laws, of a mere regulative kind or which are not inconsistent with the fundamental scheme of the incorporation, but in the line of its original purpose, conducive to perfect equahty of benefits and burdens, though they affect (without destroying) vested rights, so long as the alterations relate to the duties and rights springing from the contract of mem- bership, and not from other purely contract relations; because, on all questions of the rights and duties incident to- membership every member, by his fundamental contract of membership, pledges his assent in advance to every lawful rule adopted by the majority in furtherance of the common objects": 7 Thompson on Corporations, sec. 8769; Supreme Lodge Knights of Pythias v. Knight, 117 Ind. 489, 20 N. E. Repr. 479; s. c, 3 L. R. A. 409. The plaintiff con- tends that the by-law (Rule 14) was a part of his contract, unalterable except with his consent, and rehes on St. Patrick's Male Beneficial Society v. McVey, 92 Pa. 510, and Becker v. Berlin Beneficial Soci- ety, 144 Pa. 233. In the latter case, which distinguishes the earlier one, the status of the plaintiff was definitely fixed, and, to use the words of the de- cision, "the defendant society became hable to the plaintiff for dues at the rate of two dollars and fifty cents per week, and after it had paid them for more than one year it proceeded to amend its by-laws so as to reduce the amount of benefits." It was held that this could not be done, as "he was a creditor whose rights had previously at- tached, and those rights cannot be swept away by such a scheme as this by-law." The most extreme application of that case to the present one would be that the plaintiff had a vested right to receive the half pay allowance under Rule 14 while he was temporarily disabled; but when the new degree of disabihty, which equally affected all in that class, was determined and he was placed in the class of the permanently disabled, he was bound by the designation in the amendment. Having received half pay to the date of the amendment he is bound thereafter by the changed allowance. It is not reasonable to hold, that where an association at its formation has not anticipated all possible contingencies necessary to its suc- cessful government, that the association must follow the original lines even to inevitable bankruptcy by paying improvident allow- ances rather than by preserving the association; but it should carry out the purposes of its formation by the enactment of a reasonable amendment to meet the overlooked contingency. To justify inter- ference by the courts and warrant the overthrow of a by-law, it 682 INTEKNAL GOVERNMENT OF UNIONS [CHAP. XIV must be shown that there has been an abuse of power or that the by-law is unreasonable. This new condition was established by the plaintiff's consent to the revocation of his license by the pilot commissioners by reason of his permanent disability so that he "could no longer pursue his calling." No one has a right to presume that by-laws will remain unchanged. It is not claimed that the organic law of the association forbids the amendment. The permanence and welfare of the pilot's association required that there should be some special provision made for those who became premanently disabled. It would be unreasonable and inequitable that the permanently disabled should receive the half pay which is produced entirely by the yovmg and active members. Fifty dollars per month was considered a reason- able contribution from the funds of the association to such per- manently disabled members. It can readily be seen that on the half pay basis and with the increasing nimibers of aged and disabled members the resources of the association would be so drained as to destroy its object, and new pilots would be deterred from assmning such a liability in becoming members. It was held in McCabe v. Father Matthew Total Abstinence Society, 24 Hun (N. Y.), 149, that when at the time of contract of membership there existed a by-law providing $5.00 a week for sick benefits, that a subsequent by-law, passed before the sickness of a member, reducing the amount of benefits, was valid and binding. As was said in Supreme Lodge v. Knight, supra, "the change from one plan to the other was not an unreasonable exercise of power, because it may well be that the system originally adopted, which gave no heed to age, was so infirm as to be incapable of long endur- ing; it was not arbitrary, because the by-laws were rightly amended and a desire to promote the welfare of the association brought about the change ; it was not the repudiation of a debt, because the right to the avails of the association provided for by the contract was not taken away; it was not the destruction of a vested right, because the power to amend was, as reserved, a part of the contract from which the right emanated." The Hability to be placed in the new class of permanently disabled pilots appHed to all menabers on equal terms. It may soinetimes happen that the interests of an individual, or of a few individuals may be impaired by such amendments, but it is the duty of the association to protect the interests of the many rather than of the few. By this amendment of Rule 14 the active pilots have assumed an obligation which was neither specified nor provided for in the original by-laws, and have agreed to allow their permanently disabled comrades out of their own earnings at the rate of $600 per year. In the fight of the fact that the sole source of income of the association is from the hazardous and skilled labor of the Hcensed active pilots — without whom there could not be SECT. I] BEGtTLATION OF INTEBNAL AFFAIRS 683 any association of this kind — the provision seems to be generous and reasonable. The judgment is affirmed. Rice, P. J., dissenting. . . . The plaintiff was not bound to show- that his disability was temporary. This might be impossible. It was sufficient for him to show that while continuing a member of this association in active service and good standing, complying with all its laws and regulations and entitled to his full share of the profits and earnings thereof, he became disabled by reason of impairment of his eyesight, ^nd therefore could not pursue his calling, and that for that cause alone his hcense was revoked. His rights to receive half pay became vested at that time. As to the by-law passed in April, 1900, I think the remarks of the Supreme Court in Becker v. Berlin Beneficial Society, 144 Pa. 233, are pertinent. "It may be a good by-law as to future cases, but at the time it was passed the plaintiff was something more than a member. He was a creditor whose rights had previously attached, and whose rights cannot be swept away by such a scheme as the by-law." Judge William W. Pohtek concurs in the foregoing dissent.^ ZELIFF V. THE GRAND LODGE OF NEW JERSEY, KNIGHTS OF PYTHIAS Supreme Court of New Jersey. 1891 53 N. J. L. 536 Van Syckel, J. The Grand Lodge of New Jersey, Knights of Pythias, is a corporation organized under the laws of New Jersey. The Henry Clay Lodge, No. 45, Knights of Pythias, is an unincor- porated company and voluntary association, consisting of more 1 The decision was reversed in 206 Pa. 182. The latter decision held that although the by-law might be vaUd as to those who in the future should lose their licenses, so far as the plaintiff was concerned his rights could not be prejudiced thereby. "When subsequently the association chose to alter its by-laws in order to differentiate disabilities and class them as temporary or permanent with dif- ferent results in regard to benefits, it could not affect the rights of plaintiff already vested. However binding in future cases, such change was inoperative and a nuUity as affecting plaintiff." Per Mitchell, J., 206 Pa. 182, 184. In accord with the decision in 18 Pa. Sup. Ct. 644, see Figure v. Mutual Society, 46 Vt. 362. Compare Harington v. Sendall, [1903] 1 Ch. 921 (power of voluntary association to increase its dues against the wish of a minority). Even though a by-law or resolution is passed by a majority, if it is in conflict with the associa- tion's constitution or articles of association it will be held invalid. Sackett & Wilhelms Lith. & Printing Co. v. Nat'l Ass'n of Employing Lithographers, 61 Misc. (N. Y.) 150; see also, Gorman v. O'Connor, 155 Pa. St. 239. The power to bind subsequent meetings is discussed in the interesting case of Richardson v. Francestown Union Cong. Soc, 58 N. H. 187 (question whether a by-law provid- ing that future amendments should require a two-thirds vote could itself be altered by a majority vote). 684 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV than seven persons, organized for social, charitable and benevolent purposes, organized under a charter granted to it by the said Grand Lodge. The Grand Lodge has appellate jurisdiction over the sub- ordinate lodges, and an appeal lies from the Grand Lodge to the Supreme Lodge of the Knights of Pythias, which is a corporation organized under the laws of the District of Columbia. The regular weekly benefits paid by Henry Clay Lodge to sick members in good standing are $6 per week. In the month of June, 1889, the relator was a member in good standing. During that month the relator was charged with entering into a conspiracy with certain other members of the association to black-ball, without cause, all applicants for admission, and thereby prevent an increase of the membership. In execution of this corrupt agreement, it was alleged that the relator did subsequently black-ball an applicant for membership without any just reason. The result of the trial before the Henry Clay Lodge was that the relator was found guilty, and suspended from the lodge for the term of ninety-nine years. The relator thereupon appealed to the Grand Lodge, which dismissed his appeal and affirmed the action of the subordinate lodge. The relator then appUed to this court for a writ of mandamus to the Henry Clay Lodge and to the Grand Lodge to Reinstate him in his said membership. That mandamus is the appropriate remedy to effect the restora- tion of a member of a private corporation who has been irregularly removed from membership is res adjudicata in this court. Sibley v. Carteret Club, 11 Vroom, 295. In determining whether courts wiU take jurisdiction, a distinction must be observed between cases in which the association subjects its members to discipHne for immoral conduct or for violation of the rules of the order, and those instances in which the member appeals to the courts to secure property rights or to enforce money demands. In regard to matters of discipline, the courts will not interfere against the decision of the members of a club professing to act under its rules, unless it can be shown either that the rules are contrary to natural justice, or that what has been done is contrary to the rules, or that there has been mala fides or malice in arriving at the decision, or refusal to give the member a hearing.' Such is the rule declared in Dawkins v. Antrobus, 17 L. R., Ch. Div. 615, aflarming the decision of Jessel, Master of the Rolls. The weight of authority in this country is to a hke effect. Bac. Benef. Soc, sees. 105, 106, and cases cited; Livingston v. Trinity Church, 16 Vroom, 230. In the case before us the prosecutor rests his right to relief upon the allegation that the proceedings against him are irregular and illegal, when tested by the rules and constitution and by-laws of the defendant association. SECT. I] REGULATION OF INTERNAL AFFAIRS 685 Assuming this to be true, we think that he has been premature in invoking the aid of this court before he has exhausted the remedies to which he may resort within the organization itself. Under the rules of the order, to which he voluntarily subscribed, he had an appeal to the Grand Lodge, to which he resorted in this case without success. From the Grand Lodge an appeal lies to the Supreme Lodge, and it is provided by the Constitution of the Su- preme Lodge that unless an appeal be taken from the decision of the Grand Lodge, the decision of the Grand Lodge shall be conclu- sive. Notice of appeal has been given by the relator, but has not as yet been prosecuted to effect. The Supreme Court of Pennsylvania holds that a member of a mutual benefit society must resort, for the correction of an alleged wrong done to him as such member, to the tribunals of the society; and the judgment of such tribunals, when resulting fairly from the application of the rules of the society, is final. McAlees v. Supreme Order of the Iron Hall, 13 Atl. Rep. 755. The same rule has been adopted in Massachusetts. Chamberlin V. Lincoln, 129 Mass. 70; Kauber v. Supreme Lodge, 137 Id. 368. In Laford v. Deems, 81 N. Y. 508, the New York Court of Appeals refused to intervene, on the ground that courts should not, as a general rule, interfere with the contentions and quarrels of voluntary associations, so long as the goverrmient is fairly and honestly ad- ministered, and those who have grievances should be required in the first instance to resort to the remedies for redress provided by their rules and regulations. If there is a right of appeal to a tribunal of the organization, a mandamus wiU not issue until that remedy is exhausted. Members of such associations, having voluntarily constituted tribunals to adjust their differences, should not be permitted to resort to courts of justice to set aside the illegal awards of such tribunals, as long as there is another body which has power to reverse the sentence, and which has not been appealed to. The presimiption is that the Su- perior Court will correct any illegal decision in the forum below. Screwsmen Association v. Benson, 76 Tex. 552; Harrington v. Work- ingmen's Association, 70 Ga. 340. . . . There is no good reason why he should be permitted to repudiate the engagement into which he enters to submit to the by-laws, rules and regulations of the order. It is quite apparent that the efficiency of such organizations can- not be maintained if a member may at his pleasure remove such controversies into the civil courts, to the exclusion of the tribunals which have been estabUshed for their adjudication. The suggestion that the Supreme Lodge is a foreign corporation, over which this court can exercise no jurisdiction, and that, there- fore, the relator should not be required to resort to his appeal, has not, in my judgment, any controUing force. 686 INTERNAL GOVEENMENT OF UNIONS [CHAP. XIV If, after review in the Supreme Lodge, there remains in the pro- ceedings and judgment against the relator any such illegality as will give him a standing in this court, he may sue for relief, and the associations now defendant here will still be within the reach of the mandatory writ. The mandamus should be denied, with costs. ^ Section 2. Admission of Members MAYER V. THE JOURNEYMEN STONECUTTERS' ASSOCIATION CoTTKT OF Chancery of New Jersey. 1890 4:7 N. J. Eg. 519 Green, V. C. The complainants comprise two classes — first, seventeen individuals and copartnerships, embracing all of the mem- bers of the Master Stonecutters' Association of the city of Newark, a voluntary association, not incorporated, composed of master stonecutters engaged in the business of cutting, dressing and selling stone for building and other purposes in the counties of Essex and Hudson; and, second, two individuals, Jacob Hahn and Henry Zimmerman, who are alleged to be skilled journeymen stonecut- ters residing in Essex county. The defendants are "The Journeymen Stonecutters' Association of Newark, Orange, Bloomfield, Avondale, and their vicinities," a voluntary association, not incorporated, and certain individuals the officers of said defendant association. Under the Act of 1883 (Rev. Sup. p. 812, sec. 21) the defendant association can be sued, by its recognized name, in an action affect- ing the common property or the joint rights or Uabilities thereof; but no provision having been enacted to authorize voluntary asso- ciations to prosecute actions by their adopted names, it was neces- sary that the members of the complainant association should pros- ecute, in their individual names, for any infringement of any alleged right of the society. ... The relief prayed for in the bill is, that this court shall require the defendant association to admit Hahn and Zimmerman, and all other journeymen stonecutters residing in Newark and vicinity, to be members of the association, on paying the customary dues and fulfiUing the rules imposed upon other members, and to give to each the customary card or other usual evidence of such member- ship; and (2) that the association, its officers and agents and stewards, be enjoined from denouncing Hahn and Zimmerman as "scabs," or in any manner persecuting or injuring them on account of their ' See Donnelly v. The Supreme Council, Catholic Benevolent Legion, 106 Md. 425. Compare Wuerthner v. Benevolent Society, 121 Mich. 90. SECT. II] ADMISSION OF MEMBERS 687 exercising their lawful trade without being admitted to such member- ship; and from attempting to coerce or intimidate the complainants, who are master stonecutters, or any other master stonecutters, from employing Hahn and Zimmerman or other skillful journejTiien, whether members of said association or not, by means of strikes, boycotts or other methods of violence or intimidation; and that an account may be taken of the damages and losses suffered by the complainants respectively, by reason of the action of the association defendant, its oflScers and agents, and that they may be decreed to pay the same, with a prayer for further relief. This prayer for relief is based on the allegations that the master stonecutters complainants are, in the prosecution of their business, constantly in need of a body of skilled journeymen stonecutters, in order to enable them to fulfill their contracts; that Hahn and Zim- merman are such skilled journeymen stonecutters, desirous of obtain- ing employment at their trade, but prevented from doing so by the acts of the defendants complained of. These are recited substantially as follows, viz.: That it is the avowed purpose of the association defendant to embrace within its membership all the journeymen stonecutters who shall be permitted to pursue their trade in Newark and its vicinity; to prevent any journeyman stonecutter not a mem- ber of the association from working at his trade in Newark and vicinity; and to coerce any master stonecutter to refuse to employ any such journeyman not a member of the association. That the means adopted by the association to accomplish those objects are denunciations and persecution applied to the offending workmen, and boycotting and strikes applied to the offending employer. That the by-laws adopted by the said association provide that any member who works in any place styled in the association as a "scab-shop," or who violates the constitution of the association, is to be denounced as a scab, and forfeits his claim as a member. That similar methods of coercion are employed by the association to prevent journeymen not members from working, and to deter employers from giving them work, by declaring the shops of such employers "scab-shops," and pubhcly declaring such workmen as "scabs," and also as to both such workmen and employers by resorting to strikes and boycotts. That the by-laws of the association also provide for a "shop stew- ard," to be placed in every master stonecutter's shop or yard, to see that the rules of the association are carried out; that, under the practice and regulations of the association, such "shop steward" is required immediately to order a strike of all the workmen in any shop, if the employer allows any journeyman to work unless he pro- duces a card of the association showing that he is a member thereof in good standing, and if such strike should prove inefficient, it is the pohcy and practice of the association to coerce the employer further by boycotting and other alleged unlawful deeds. 688 INTERNAL GPYBRNMENT OF UNIONS [CHAP. XIV That in the month of May, 1889, or about that time,, the asspcia^ tion, by resolution, determijjpd to admit no more members for the space of one year, thus excluding from employment all stonecutters seeking work not already admitted to membership; that in the gumr mer of 1889 the complainants Hahn and Zimmerman, who reside in Essex county, with families dependent on their labor, applied for admission to said association, and offered to pay all dues and contribu- tions, and to fulfill its obligations, in order that they might obtain work at their trade; but their application was refused on no other ground except the said resolution to exclude all new members; that afterwards Hahn and Zimmerrnan applied to two of the complainant master stonecutters for work as journeymen, but they were refused such employment on no other grounds than that they were not mem- bers of the association, and that their employment would result, under the rules of the association, in a general strike of the other workmen and in disaster to their business. It is further alleged that, in consequence of their exclusion by said association, Hahn and Zimmerman have been deprived of the power of exercising their trade, in which they could have made a living and supported their families, and have been compelled to abandon their trade and work at inferior labor with lower wages. , . . The bill asserts that the right of the two to exercise their trade is a right of property, and the right of the master stonecutters to employ laborers to work and needed in their business is also a right of property, and that the action and proceedings of the association deprive complainants of their said rights of property, and are sub- versive of the interest of society. . . . It appears that the complainants Hahn and Zimmerman did make some effort to obtain admission into the defendant associa- tion, but it is quite clear that they did not make application for membership regularly, as required by the by-laws, and that the question was never considered or passed upon by that body. But if it were otherwise, has this court power to require the admission of a person to membership in a voluntary association, when it has been denied by the society.'' These organizations are formed for purposes mutually agreed upon; their right to make by-laws and rules for the admission of members and the transaction of business is unquestionable; they may require such qualifications for membership and such formaUties of election as they choose; they may restrict membership to the original promoters, or limit the number to be thereafter admitted. The very idea of such organizations is association mutually ac- ceptable, or in accordance with regulations agreed upon; a power to require the admission of a person in any way objectionable to the society is repugnant to the scheme of its organization. While courts have interfered to inquire into and restrain the action of such societies in the attempted exclusion of persons who have been regularly ad- SECT. II] ADMISSION OF MEMBERS 689 mitted to membership, no case can, I think, be found where the power of any court has been exercised, as sought in this case, to require the admission of any person to original membership in any such voluntary association. Courts exist to protect rights, and where the right has once attached they will interfere to prevent its violation, but no person has any abstract right to be admitted to such membership; that depends solely upon the action of the society, exercised in ac- cordance with its regulations, and until so admitted no right exists which the courts can be called upon to protect or enforce. Neither is it clear upon what ground of jurisdiction the court can inquire into the action of the defendant association in the passage of the resolution complained of, It is alleged in the bill that this was to shut the door to admission to membership for one year, and to confine employment to the present membership. It appears from the testimony, however, that it was passed to prevent the admission of persons known as "harvesters." This is a term used in the trade to designate foreigners, skilled workmen, who come to this country when work is plenty and wages high, get employment, and in the winter return with their earnings to their homes in foreign countries; and that such was its scope is shown by the fact that persons, not coming within that class, were admitted to membership after the passage of the resolution. In the light of national legislation, with reference to the importation of contract labor, it can scarcely be said that such action is against the poUcy of the law. But the body has clear right to prescribe quahfications for its membership; it may make it as exclusive as it sees fit; it may make the restriction on the hne of citizenship, nationahty, age, creed or profession, as weU as numbers. This power is incident to its character as a voluntary association, and cannot be inquired into, except on behalf of some person who has acquired some right in the organization, and to- protect such right. . . . There is nothing in the evidence to show that the defendants threaten to use any violence or commit any trespass, or do any overt, positive act of injury. . . , There is no evidence to sustain the assumption that any imlawful act to the injury of the complainants' rights of property is threatened by the defendants. They have agreed not to work with any but members of their association, and not to work for any employer who insists on their doing so, by with- drawing from his employment. So long as they confine themselves to peaceable means to effect these ends, they are within the letter and spirit of the law, and not subject to the interference of the courts. These considerations result in the conclusion that this court has no jiu-isdiction to grant the rehef prayed for, and that the bill must be dismissed.' - ' Accord: McKane v. Adams, 123 N. Y. 609; Branagan v. Buckman, 67 Misc. 242, 248; Richardson v. The Union Congregational Society of Francestown, 58 N. H. 187. 690 INTEBNAL GOVERNMENT OF XINIONS [CHAP. XIV Section 3. Discipline of Members BURNS V. BRICK-LAYERS' BENEVOLENT & PROTECTIVE UNION City Court op Brooklyn. 1891 14 N. Y. Supp. 361 CLiEMENT, C. J. The plaintiff brought this action, and asked judgment in his favor (1) that a "strike" claimed to have been ordered by the defendant on or about January 2, 1889, be declared irregular and void; (2) that four fines, amounting to $75, imposed on plaintiff be declared null and void; (3) that the plaintiff be rein- stated in defendant, and to his rights and privileges, as a union man, and that he be given a pass-card to show that he is a member of defendant in good standing. The learned judge at special term found that a "strike" had not been ordered by the defendant; that the fines complained of were legally imposed; and that plaintiff was properly deprived of his pass-card; and rendered judgment in favor of the defendant. We think that the question whether or not a strike was ordered by the defendant is entirely immaterial, for the reason that the plaintiff was fined because he worked for an employer who did not pay his men weekly, and because he worked with non-union men, and for no other reasons. By sec. 9 of the working code of the defendant it was provided that the brick-layers should be paid every Saturday, and by sec. 13 it was further provided that no member should work on the same job with a non-union man. It is conceded that the plain- tiff worked for several weeks for one Thomas H. Robbins, who did not pay his men on every Saturday; and it is also conceded that Mr. Robbins employed, during the same period, non-union brick- layers. The plaintiff clearly violated the rules of the union, and therefore whether a strike was ordered against Mr. Robbins properly or not need not be considered in this case. The next question is as to the reUef asked that the fines for $75 be declared void. We are not called upon to decide whether the fines were lawfully imposed, for the reason that the plaintiff has not exhausted his remedy in the union. The executive committee may not have acted legally in fining the plaintiff without a trial, but their action was valid until reversed by the act of the union; and the plaintiff, as soon as he learned that the fines stood against him, should have appealed, and cannot maintain an action in equity until he has exhausted his remedy in the society. This point seems well settled by a number of authorities. Poultney v. Bachman, 31 Hun, 49; Lafond v. Deems, 81 N. Y. 507; Gebhard v. New York Club, 21 Abb. N. C. 248. The plaintiff was fined on four occasions, SECT. Ill] DISCIPLINE OF MEMBERS 691 as follows: January 7, 1889, $10; January 14th, $25; January 28th, $25; February 11, 1889, $15. He paid $25, and on July 29th was in default over six months for the fine of January 28th. By article 10 of the by-laws, any member in arrears for fines or dues over six months was prohibited from working until the same were paid. The plaintiff was deprived of his card on July 29, 1889, and at that time was in arrears over six months. The card was properly taken away from him, if the fines were valid. We have examined all the questions raised by the appellant, and conclude that, for the reasons above stated, the appeal is not well taken. j;; Judgment affirmed, with costs. O'CONNOR V. MORRIN Supreme Coubt of New York. 1919 109 Misc. 379 Manning, J. The plaintiff O'Connor, as president of Local No. 35 of Long Island of the International Association of Bridge, Structural and Ornamental Ironworkers, and the plaintiffs Gillen and Slattery, as individual members of said local, bring this action against Patrick J. Morrin, as president of the International Association of Bridge, Structural and Ornamental Ironworkers, and others, for equitable relief and also for an injunction, the plaintiffs claiming that said Local No. 35 and the individual members thereof have been illegally suspended by the parent organization, and that by reason of such suspension they have suffered and are likely to suffer damage to what they call their vested rights in and to certain benefits which they say they are entitled to by reason of their membership in the organization. The International Association and the other defend- ants herein, appearing specially upon this motion for injunctive rehef, contend that the plaintiffs' proper forum is within the organiza- tion itself, and that any alleged wrongs which the plaintiffs have suffered can be adequately righted in the manner provided for by the rules, regulations and by-laws of the organization itself, and that as the plaintiffs have failed so far to exhaust their remedy within the organization, the court ought not to interfere and grant the relief prayed for. I am inclined to think that the position assumed by the defendants is correct, as it affirmatively appears by the plaintiffs' complaint and also from the moving papers herein that an appeal lies from the decision of the execiitive board to the succeeding con- vention, and that this convention of the International Association will be held at Cleveland, Ohio, on or about September 14, 1920; and it further appears from an allegation of said complaint that the plaintiff Local Union No. 35 and the individual plaintiffs Slattery and Gillen intend to appeal from the decision of the executive board to the succeeding convention. It is also made to appear that pend- ing the hearing and determination of that appeal the rights and 692 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV interests of the mdividual plaintiffs, and all other members of the Local Union No. 35, are fuUy protected by a provision of the by- laws which enables them to become affiliated with any other local union within the district, without any charge whatsoever, and there- fore they are in no danger of Suffering damage for the loss of their benefit rights. This being the situation, I am inclined to the belief that the cOurt should not be called upon to interfere in the internal dissension occurring within the organization itself. Pprhaps the rule cannot be better stated than in the language of Miller, J., in the case of Lafond v. Deems, 81 N. Y. 514, where he said: "Courts should not, as a general rule, interfere with the contentions and quarrels of voluntary associations, so long as the government is fairly and honestly administered, and those who have grievances should be required in the first instance to resort to the remedies for redress provided by their rules and regulations." To the same effect see Johansen v. Blume, 53 App. Div. 526; Lewis V. Wilson, 50 Hun, 166; Poultney v. Bachman, 31 Id. 49; Burns v. Bricklayers' Union, 14 N. Y. Supp. 361. The application for injunction pendente lite is, therefore, denied. Application denied. JETTON-DEKLE LUMBER CO. v. MATHER Supreme Court of Florida. 1907 53 Fla. 969 CocKBELL, J. A bill of complaint was filed in the Circuit Court for Hillsborough county by the Jetton-Dekle Lumber Co., a corpora- tion, for an injunction against various officers and members of the Building Trades Council, a voluntary organization of representa- tives of organized labor, Carpeihters' Union No. 696 of the United Brotherhood of Carpenters and Joiners, the Bricklayers', Masons' and Plasterers' Union No. 3, Painters' Union No. 88, Sheet Metal Workers' Union No. 88, Electricians' Union No. 108, Plumbers' Union No. Ill, and the Central Trades Labor Assembly. The bill alleges in substance that the complainant is a general contractor and large employer of labor; that in performance of building contracts it had been accustomed to sublet the painting contracts; that it had on hand various contracts in which the paint- ing has been so sublet and that it .was incumbent upon it to complete the contracts under heavy penalties; that a strike of the Painters' Union against the painting contractors was declared February 25, 1906, and had ever since remained in effect; that owing to such strike it became necessary to secure non-union painters, and a general strike resulted. In view of the modification of the injunction, which modification alone is before us for review, but one paragraph of the bill need be quoted. SECT. Ill] DISCIPLINE OF MEMBERS '693 "16th. And your orator further alleges that the said conspiring labor unions and the said Building Trades Council have further con- spired and confederated together for the purpose of preventing any persons but members of the said labor unions from obtaining work or employment in the city of Tampa in the various departments of labor to which members of the said unions belong, respectively, and to enforce the object of such conspiracy by threatening to boycott and by boycotting' all employei's employing other than union laborers belonging to the said respective labor unions, and your orator further alleges that each of the said conspiring labor unions has adopted rules forbidding its members from working for any employer who shall employ non-union labor, and that th^ said rules have been so adopted and contrived for the purpose and with the design and in- tention, and in pursuance of a conspiracy on the part of the said labor unions, to prohibit the employment of any laborers in the city of Tampa except members of the said unions, and with the purpose, design and intention of securing the entire field for the labor in the city of Tampa to members of the said respective unions, and exclud- ing all other persons therefrom, and that the said rules, so made in pursuance of the said conspiracy, have been heretofore and are now enforced and carried out by the said conspiring labor unions, and the enforcement and carrying out thereof is one of the main objects to which the efforts of the said conspiring labor unions have been here- tofore, and are now, directed, and members of the said and other affiliated labor unions in the various departments of labor are bound to comply with the said rules under penalties therein prescribed, and a continued f ailm-e to comply therewith on the part of such members renders them liable to expulsion, and to be considered and treated as non-union workmen." The injunction prayed for was granted without notice. There- upon the defendants answered and asked that the injunction be dis- solved. The answer denies all cast of violence, threats or intimidation, but avers that the agreement which had existed between the painters' union and the master painters wherein the daily wage was fixed at 13.28 a day if the work was done for the master painters and $3.78 a day if done for others, was repudiated and annulled by the national association, and that the master painters would enter into no further agreement satisfactory to the union painters, and employed non- union painters, "whereupon the members of the painters' union re- fused to work on any job or contract on which non-union painters were employed; as they have a legal right to do, and notified, as under their rules and regulations they had a right to do, other unions of thfeir action, and the defendants say that it is a rule of their unions that they and their members will not work in shops or on contracts in which or on which laborers are employed who do not belong to the unions, and they, through their officers, have so notified the com- 694 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV plainant"; further, that they will not use materials furnished by one who employs non-union laborers; the carpenters and other union workmen who were bound by similar rules also went out on strike. Upon the hearing for dissolution upon bill, answer and affidavits, the following provisional order was entered: "It is ordered and decreed that the temporary injunction issued herein on May 5th, ult, be modified as follows: That the said defendants and each of them, their members, officers, agents, and representatives, and each and every of them be, and they are hereby restrained and enjoined, 1st. From using any means, methods or devices whatever to in- timidate or to prevent by any kind of threats, violence or coercion any person or persons, whether members of any labor union or not, from accepting employment from the complainant in any capacity. 2d. From using any means, methods or devices to prevent the complainant from employing any person or persons whomsoever, whether members of any labor union or not, and from interfering with any employee of the complainant while in its employment, and 3d. From boycotting or attempting to boycott the complainant's business, by using any means, method or device to prevent any per- son, firm or corporation from selling to or purchasing from the com- plainant any building material or other article of value. Provided, that nothing herein contained is intended to interfere with the several defendants as unions or societies in imposing upon their own members such pains and penalties as may be prescribed by their respective constitutions, by-laws, rules or regulations, in such case made and provided. It is further ordered that this restraining order shall remain in force until the further decree of the court in the premises." From the modification contained in the proviso the complainant appeals, assigning as error this proviso, the defendants assign no cross errors and are not complaining here. Fortunately there have been few differences in this section of this country between labor and capital, and this is the first case that has reached this court. . . . In a large majority, practically all the cases we have examined, we find complications arising from boycotts, picketing, intimidations or even violence. The instant case, as we apprehend it, is one in- volving the strike only. Unquestionably, an individual can stop work at any time without cause, being liable only for a breach of contract, and no element of contract as between the complainant and these defendants is alleged. Does the fact that more than one individual has quit work make a difference under the circumstances above stated .f* We may assume that it is not universally true that many may do what one may law- fully do, though this must be said with reservation, and that a "con- spiracy" may cause a wrong which one man acting by himself could SECT. Ill] DISCIPLINE OF MEMBERS 695 not commit. But before the courts can punish or prevent a con- spiracy, either the act conspired or the manner of its doing must be unlawful. Are not both alternatives absent in the case of a simple strike? It is certainly lawful to attempt by negotiation or other peaceable, legitimate ways to get higher pay for one's labor, and if the demand is not met to go elsewhere with one's labor or to sit idle if needs be until satisfactory arrangements are made. Labor unions in and of themselves cannot be said to be unlawful, and yet one of the prime objects of their existence is by combinations of the supply to regulate the demand. Some of the cases, particularly the English cases, stress the motive underlying the strike and apparently hold that if the strike is to better the condition of the workman it is law- ful, but if it be to punish the employer it is unlawful. If this be the correct delimitation this case comes up to the rule; there is nothing personal to the complainant in the strike, but simply and entirely an endeavor to obtain advantage for the defendants. No mandatory injunction is asked and nothing can possibly be done as to those laborers who voluntarily left their work and are voluntarily remaining away; but, says the appellant, these various labor unions under the modification can use moral suasion, moral coercion upon its respective members by fines and threats of expulsion. This was a risk voluntarily assumed by the members entering the unions, and if no longer willing to pay the price — if the advantages derived are not equal to the burdens assumed, each member has a perfect right to withdraw from the union, to seek to get back his former emplojonent and to be protected therein by the injunction still in force. It can hardly be questioned that the decided weight, if not the universal rule of the modern American cases sustains the action of the Circuit Court in refusing to extend the effects of the injunction so as to include the peaceable enforcment by labor unions of its reason- able rules. See Karges Furniture Co. v. Amalgamated Woodworkers' Local Union No. 131, 165 Ind. 421, 75 N. E. Rep. 877; Gray v.. Building Trades Council, 91 Minn. 171, 97 N. W. Rep. 633, 63 L. R. A. 753; Longshore Printing Co. v. Howell, 26 Oregon, 527, 38 Pac. Rep. 547; Macauley v. Tierney, 19 R. I. 255, 33 Atl. Rep. 1; Jensen V. Cooks' & Waiters' Union of Seattle, 39 Wash. 531, 81 Pac. Rep. 1069; National Protective Ass'n of Steam Fitters & Helpers v. Cum- ming, 170 N. Y. 315, 63 N. E. Rep. 369, s. c. 58 L. R. A. 135; Arthur V. Oakes, 24 U. S. App. 239, s. c. 63 Fed. Rep. 310, s. c. 25 L. R. A. 414. In Cooke on Trade and Labor Combinations, p. 34, n. 1, it is said that the only modern case to hold a strike illegal is Mapstrick V. Ranige, 9 Neb. 390, and that it is clear the Nebraska court did not consider the point. Is there any declared policy in this state to force us to put our- selves out of alignment with our sister states? Especially must this be clear before we would interfere to lay a heavy hand of injunction 696 INTEENAL GOVEBNMENT OF UNIONS [CHAP, XIV where the circuit judge, more familiar than ourselves with the con- ditions confronting the city of Tampa, has refused to do so. . . . We see no special applicability of either sec. 2405 or 2420 of the Revised Statutes of 1892 to the case here made. Nor does the fact that the common law of England in regard to crimes is by statute in force in Florida necessarily control us now. The English law as to indictable conspiracy against workmen is so interwoven with harsh statutes passed in behalf of those in power that are wholly incon- sistent with our ideas of freedom of contract, of life, liberty and the pursuit of happiness, as not to be applied in its rigor in this coun- try. ... Following the correct principle and the weight of the modern American cases in so far as we are able to ascertain the principle and the weight, we find no error in the modification of the injunction, and therefore it is affirmed. Shacklefoed, C. J., and Whitfield, J., concur; Taylor, Hocker, and Parkhill, JJ., concur in the opinion.^ CONNELL V. STALKER Supreme Court of New York. 1897 21 Misc. 609 Daly, P. J. The plaintiff obtained a verdict against the Jour- neyman Stone Cutters' Association, unincorporated, of which he is a member, for $243, a sum agreed to be the regular wages of a stone cutter for nine weeks, the period for which he was deprived of work on account of the action of the association against him. The defense to the action was that while treasurer of the associa- tion he refused to surrender his books and papers to a special com- mittee appointed to investigate a certain bill or account. The plain- tiff claims that under the by-laws he was required only to surrender his books and papers to the trustees, to be audited, or to be delivered to his successor. It was proved that on the plaintiff's refusal to turn over his books to the special committee, the association, at a regular meeting, adopted a motion that the members refuse to work with him, and that in pursuance thereof when plaintiff went to work the next day at St. Luke's Hospital, where he was employed with the members of the association, they were immediately called out by the walking ' Accord: Harris v. Aiken, 76 Kan. 616; Master Stevedores' Assn. v. Walsh, 2 Daly (N. Y.), 1; Otto v. Journeymen Tailors' Protective & Benevolent Union, 75 Cal. 308 (sembk). See also. Gray v. Bldg. Trades Council, 91 Minn. 171; Longshore Printing & Pub. Co. v. Howell, 26 Ore. 527; Mayer v. Journeymen Stonecutters' Assn., 47 N. J. Eq. 519; Thomas v. Cincinnati, etc., Ry. Co., 62 Fed. 803, 817; Brewster v. Miller's Sons Co., 101 Ky. 368. Contra: L. D. Willcutt & Sons Co. v. Driscoll, 200 Mass, 110 (Sheldon, J., and others dissenting). SECT. Ill] DISCIPLINE OF MEMBERS 697 delegate, and the plaintiff had to be discharged from that employ- ment, in order to induce them to resume work; also, that for nine weeks he was similarly excluded from working in the city of New York, as all the stone cutters there were union men. It sufficiently appears that by the action of the association in adopting the motion in question, the plaintiff was, in effect, sus- pended from his rights as a memlaer, and the question for the trial court to decide was whether such action was within any power con- ferred by the constitution and by-laws, which formed the contract between the parties. White v. Brennan, 4 Abb. Prac. Rep. (n. s.) 162. The only authority contained in the constitution or by-laws for suspending a member appears to be that conferred by article XII of the by-laws which reads as follows: "Any member who will at any time, work in any place styled by this association a scab shop, or violate this constitution and by- laws in any aggravated manner, shall be denounced by us as a scab, and shall forfeit all claim to this association as a member; and be- fore being admitted again as a member, he shall pay a reinitiation fee not exceeding $80.00, and not less than $20.00, to be paid at the rate of not less than $5.00 a month, no part of the fine imposed to be remitted." It does not appear that in refusing to surrender his books to the special committee the plaintiff violated any provision of the con- stitution or by-laws. In the by-law concerning the duties of officers, it is provided that the treasurer: "Shall deliver up, when legally called upon, all moneys, bonds, papers, books, etc., belonging to the association, to the trustees, who shall have them audited by a public accountant, every four months, and also previous to his successor in office receiving them." Special committees are provided for by the by-laws, but their powers and duties are not prescribed. It was not shown what power was conferred upon the special committee in question. So far as the written constitution and by-lawS show, it would appear that the treasurer might lawfully retain in his possession the books and papers until required, as above provided, to deliver them to the trustees for auditing, or to be turned over to his successor in office. It would seem, therefore, that the action of the society in suspending the plaintiff from his rights of membership for failure to comply with its direction was not warranted by anything in the written constitu- tion or by-laws, which constitutes his contract with the association. An attempt was made by the defendant to show a custom of the association by which it had the power, for the purpose of carrying on its investigations, of demanding the property of the association which plaintiff had in his possession. This proof was excluded, and the exceptions taken to the ruling of the court constitute the prin- cipal ground of appeal. It would seem that a custom should not override the express provision of the by-laws prescribing when and 698 INTEHNAL GOVERNMENT OF UNIONS [CHAP. XIV to whom such property must be surrendered, and that if the asso- ciation were accustomed to require the treasurer to do otherwise than as prescribed by the by-laws his refusal to comply should not subject him to the same punishment as a violation of the by-laws themselves. The custom of special committees to require the books of the treasurer in pursuance of their investigation, and the custom of the treasurer to comply with such requisition would not tend to show the adoption by the association of a new by-law on the sub- ject. While it is true that the existence of a by-law may be estabhshed by custom or usage of a society, it appears that this association had prescribed the manner in which its by-laws might be amended, namely, at a regular meeting, after having been presented in writing two weeks previously and by a vote of two-thirds of the members. It would seem that where a member is to be subjected to the severe punishment prescribed for a violation of the by-laws "in any aggra- vated manner," it is not too much to hold that the by-law should be established in the manner pointed out by the instrument by which the association is governed. The appellant did not, on the trial, offer to prove the adoption of any new by-law, even by the offered proof of custom. . . . The defendant attempted to show that the plaintiff, though de- prived of work in New York, could have obtained employment in Brooklyn, and excepted to the exclusion of evidence to that effect, and also to the charge of the trial judge, that plaintiff was not bound to go outside of the city of New York for work. In what respect this was error is not pointed out. Defendant had no right to force the plaintiff to leave his place of residence in order to support him- seK. He had the right to live and work where he chose. The judg- ment should be affirmed. McAdam and Bischoff, JJ., concur. Judgment affirmed, with costs. COTTON JAMMERS & LONGSHOREMEN'S ASSO- CIATION NO. 2 V. TAYLOR Court of Civil Appeals of Texas. 1900 23 Texas Civ. App. 367 Gill, Associate Justice. This suit was brought by appellee for damages alleged to have resulted to him by reason of his wrongful and malicious expulsion from the appellant association. A trial by jury resulted in a verdict and judgment in appellee's favor. The case is here on appeal by the association. The association is a corporation organized for the purposes of secur- ing work for its members, for maintaining fair wages for their labor, and to supply certain tools for their use. These tools are purchased with funds derived from assessments upon the membership, and each SECT. Ill] DISCIPLINE OF MEMBERS member is entitled to their use and to such other benefits as inured to him as a member of the body under certain prescribed rules and regulations. One rule provided that any member who should work for a less sum than 40 cents per hour should be subject to a fine of $10 and suspension from the association for one year, during which time he should be deprived of the benefits of membership. Appellee was a member of the association. At a regular meeting held July 28, 1897, he was by resolution fined $10 and suspended for one year for the alleged reason that he, with certain other mem- bers named in the resolution, had worked for the "Lone Star Line" at a less sum per hour than the smn prescribed in the rule above named. This resolution was carried by the requisite vote, and the suspension resulting therefrom was enforced against appellee. He was present when this action was taken, but had received no pre- vious notice of the purpose to suspend him, and did nothing at the time which amounted to a waiver of such notice. On the contrary, he protested against the summary nature of the proceedings, and demanded the right to be heard, but his protest was ignored. As to whether, at the time of this action, there was in existence any rules prescribing the method of suspension or expulsion, the evidence is conflicting. It was shown that the association had formerly been incorporated under a different name, but had forfeited its charter by non-payment of the franchise tax; that the old concern had by-laws for the government of the body in the suspension and expulsion of members, and that such by-laws provided for notice and a hearing. It was also shown that a committee was then out, engaged in the task of formulating by-laws for the new corporation. It was con- tended that the by-laws of the defunct corporation controlled the new body, and there was some evidence that it had been acting there- under, though none that they had been formally adopted. It was shown that the suspension of appellee was final, if valid, he having no right to appeal to any other tribunal connected with the order. His right of action depends, therefore, upon the invahdity of the action of the association in suspending him. Appellant contends that the suspension was vaUd and binding in the absence of by-laws providing for notice and trial and prescribing the mode of procedvu-e. In support of this contention appellant cites the case of Manning v. San Antonio Club, 63 Texas, 166. In that case the club was organized for literary purposes, and to pro- mote social intercourse among its members. All the members were required to sign the constitution and by-laws. No definite mode of trial was prescribed by the by-laws, but one of the articles provided that any member should forfeit his membership whose conduct should be pronounced, by a majority vote of the directors, to have endangered the welfare, interest, or character of the club. The party complaining insisted that he was entitled to notice. The court 700 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV held that the by-law quoted was a part of the contract of member- ship. That by becoming a member he agreed to be bound by that method of expulsion. The reUef asked was therefore denied him. In discussing the case Justice Delaney, who delivered the opinion, says: "When membership in certain societies confers upon the in- dividual important benefits . . . of pecuhar advantages in trade or business, . . . such rights are protected by the law of the land, and are generally secured in some way by the charter." The case disposed of in that opinion was distinguished from the class of cases mentioned in thfe above quotation. It is conceded in that opinion that cases involving valuable rights, if not protected by the charter, come within the protection of the law. The case before us is one involving valuable rights. In such cases the weight of authority tends to support the doctrine that a by-law providing for expulsion without notice or trial wiU be held invalid. A by-law to be valid must be reasonable. 1 Beach on Priv. Corp., sees. 309, 318, 320; Bacon, Ben. Soc, sees. 82, 85; Ludowski v. Society, 29 Mo; App., 337. In this case, if the association was in fact acting under the by- laws of the old corporation, the suspension was void because their provisions were ignored. If the old by-laws were not operative, then no by-law existed providing rules of procedure in such cases, and appellee was entitled to reasonable notice of the nature of the charges against him and an opportunity to be heard. 9 Am. and Eng. Enc. of Law, 492. An unreasonable by-law has been held binding as a contract when assented to by a member (Bacon, Benefit Societies, sec. 87), and this rule enables us more clearly to distinguish the Manning case, supra, from the case under consideration. In the absence of any by-law there could be no such assent. The contention of appellant that the act of expulsion was binding upon appellee is not tenable. He would be entitled to a judgment for such damages as proximately resulted from the wrong. Benson v. Screwmen's Assn., 2 Texas Civ. App., 66 Appellant also complains that the old by-laws should not have been admitted in evidence, unless shown in some way to have been adopted by appellant. We think this contention sound, and unless the evidence is sufficient at least to raise an issue as to whether they were so adopted, they should be excluded. If such issue is raised, the question of their adoption should be submitted to the jury. It is assigned as error that the court failed to define to the jury what would constitute reasonable notice to appellee. This should have been done, but appellant cannot be heard to complain unless a requested charge had been refused, containing a proper definition. No such charge was requested. By the eighth assignment of error appellant complains of the re- fusal of the trial court to sustain a special exception to the petition. The exception is, that the petition fails to disclose in what manner SECT. Ill] DISCIPLINE OF MEMBERS 701 appellee was deprived of the use of the tools, and how and in what manner his suspension affected his right to engage in remunerative labor, or prevented him from procuring work. The petition is de- fective in the respects pointed out, and the court erred in refusing to sustain the exception. It is impossible to ascertain from the petition what connection existed between his membership in the association and his means of obtaining work, or in what way he was deprived of an opportunity to secure employment. This court's knowledge of the nature of the organization has been gleaned in a general way from the facts adduced upon the trial, and not from appellee's peti- tion. The various questions presented have been discussed and dis- posed of in view of appellee's right to amend before another trial. In this connection we suggest that the nature and extent of the dam- ages alleged should be more explicitly stated. The other assignments need not be noticed, as the matters com^ plained of, if error, are not likely to occur on another trial. For the errors indicated, the judgment is reversed and the cause remanded. Reversed and remanded.^ BURN V. NATIONAL AMALGAMATED LABOURERS' UNION Chancery Division. 1920 [1920] 2 Ch. 364 Witness Action. The defendant Union was established in 1889 for the benefit of all classes of labourers of either sex, and its rules were registered under the Trades Union Acts, 1871 and 1876. It comprised numerous branches, and its material rules were the following: "Rule 2(1) For the supreme government of the Union there shall be an Annual General Meeting. In addition to the President, General Secretary, and one Executive Committee Member, who shall be mem- bers thereof ex-offido, it shall consist of not more than sixty members. . . . Each Branch shall elect its proportion of representatives, and what number that proportion must be shall be decided by the Execu- tive Committee hereinafter mentioned. . . . "(3) The Annual General Meeting shall have power to amend, rescind or make rules to remove from ofiice any officer of the Union. ... It shall also govern the Executive Committee. "Rule 3 (1) For the general management of the Union there shall be an Executive Committee, consisting of the President of the Unioii, General Secretary, and eight representatives chosen by the Annual Meeting. . . . "(3) The meetings of the Executive Committee shall be held quarterly. . . . " (4) The powers of the Executive Committee shall be limited to ' People V. The Musical Mutual Protective Union, 118 N. Y. 101 (accord). 702 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV the management and superintendence of the Union. It shall take every means to secure the observance of the Union's Rules, to perform all duties allotted to it by the said Rules, to further the objects of the Union, and to protect its funds from misappropriation, it shall direct the action of the trustees, and be responsible for the right administra- tion of all the funds. It may suspend, expel and prosecute any member obtaining benefits by misrepresentation or improperly re- ceiving the same. ... It shall have power to determine questions on which any Rule is silent. ... It shall institute legal proceedings on behalf of the members of the Union, and direct the Trustees to prosecute any officer of the Union, or member or other person who appropriates, misappKes or withholds the funds of the Union. It may remove any incompetent or insubordinate officer. It may suspend, expel and prosecute members acting contrary to the Rules. .... In the absence of the Executive Conunittee the General Secre- tary shall have full power to take any action for the Executive Com- mittee that these Rules allow, and report such action to the next Executive Committee Meeting. . . . "Rule 8. Branch Officers and their Duties (1) All Officers (except Treasurer and Secretary) shall be elected quarterly. . . . The Treas- urer and Secretary shall hold office during the pleasm-e of the Branch. " (2) Should any officer, in the opinion of the Branch, be incom- petent, or fail to perform his duty, or act contrary to the interests of the Union, he shall be dismissed, and the Branch shall elect another in his place. . . . "(4) The Branch Secretary shall keep all books and accounts belonging to his office. ... He shall supply the General Office with a quarterly balance sheet . . . showing the income and expenditure of the Branch. "(6) The Treasurer shall receive from the Secretary the money received on account of the Branch, and bank in the name of the Trustees and the Union all money in excess of the amount allowed for the current payments of the Branch, such sum not to exceed 51. . . . He shall hold office during the pleasvire of the Branch and his salary shall be fixed by the Branch. . . . "(8) Each Branch shall have two Auditors. . . . Their duties shall be to audit each quarter all books, receipts, and docvunents connected with the financial transactions of their Branch, and report to the Branch the manner in which they found the books and ac- counts. Before sending the report to the General Office it must be signed by the Treasurer and Auditors." "Rule 16 (3) All members of this Union . . . must conform to these Rules." The plaintiff was a member of the defendant Union, and from July, 1914, to April, 1916, he was Treasurer of the Cardiff No. 1 Branch of the Union, and then ceased to be Treasiuer. In September, 1916, he was elected Chairman of his Branch and continued to hold SECT. HI] DISCIPLINE OF MEMBERS 703 that position until the date of the resolution hereafter mentioned. As a delegate of his Branch he attended the Annual General Meeting of the Union in August, 1917, and was then elected one of the two General Auditors of the Union, and performed the duties of that oflEice for the year ending January 31, 1918. In the summer of 1918 the accounts of the Branch for a period prior to and during the Treasurership of the plaintiff were investi- gated, and it appeared from the report of the investigators that the Secretary of the Branch had during that period misappropriated subscriptions received by him from members, and for this he was prosecuted. It also appeared that the plaintiff had no knowledge of the defalcations of the Secretary, but had been negligent in his duties whilst Treasurer. No imputation however was made against the honesty or integrity of the plaintiff nor did his Branch pass any resolution against him either as Treasurer or Chairman. In October, 1918, an interview took place between the plaintiff and Mr. Twomey, the General Secretary of the Union, on the report of the investigators. Mr. Twomey pointed out to the plaintiff that during his office as Treasurer there was a deficiency in the Branch banking account of 41. 17s., which appeared in the Branch balance sheet for the March quarter of 1916, which he had signed as Treasurer and for which he was responsible, and also that he had not regularly banked the moneys he had received from the Branch Secretary, but had retained them in his hands for an undue length of time. The plaintiff replied that he had banked all that he received from the Secretary and that so far as he was aware his books were quite in order when he gave up the office of Treasurer; he admitted he had not checked the quar- terly balance sheets, but had rehed on the Auditors and had trusted the Secretary, and he asked for an independent audit by a chartered accoimtant at his own expense; and with regard to the undue reten- tion of moneys he alleged that other Treasurers did the same. Mr. Twomey stated that the Executive Committee would deal with the matter at their next meeting, and the plaintiff asked to appear be- fore them to explain his position. The Executive Committee at their next meeting held on November 11, 1918, considered the investigators' report, and Mr. Twomey also reported his interview with the plaintiff, and the Committee, dis- regarding the plaintiff's request to appear before them in his defence, passed a resolution that the plaintiff be removed from any office then held by him and not permitted to hold office or perform any delega- tion on behalf of the Union for a period of five years from that date. This resolution was communicated to the plaintiff on November 30, 1918, and he at once wrote to Mr. Twomey and protested against the resolution and demanded an opportunity of appearing before the Executive Committee to go into the matter. His letter was read at the next meeting of the Executive Committee held on December 30, 1918, and was not complied with, and at the next meeting of the 704 INTERNAL GOVERNMENT OF TJNIONS [CHAP. XIV Executive Committee held on February 11, 1919, the President de- clared that, in consequence of the plaintiff having been removed from the office of Senior Auditor of the Union by the resolution of November 11 last, the office was vacant, and another member was appointed to the office. After some correspondence and county court proceedings the plaintiff on June 19, 1919, commenced this action against the Union claiming a declaration that the resolution of November 11, 1918, was ultra vires as being unauthorized by the constitution of the Union or by any Of its rules, and as being contrary to natural justice in that the Executive Committee had not given the plaintiff an opportunity of stating his case before them and had not acted in the matter of the said resolution in a judicial manner; and an injunction restraining the Union, the Executive Committee, their officers and servants from acting upon or enforcing the said resolu- tion. The Union by its statement of defence referred to its rules, and relied in particular upon rule 3 (4); rule 8 (4) (6) (8); and rule 16 (3); and alleged that it was the duty of the plaintiff as a member of the Union and as Treasurer of the Cardiff Branch to conform to the said rules, and in particular as such Treasurer to bank all money received from the Secretary of the said Branch in excess of the amount allowed for current expenses as soon as possible and not to retain the same in his own hands for an unreasonable time, nor to sign the quarterly balance sheets before ascertaining that the statements made therein were correct; that the plaintiff in not conforming to the said rules was guilty of neghgence and of a breach of duty and by reason of the premises was incompetent to discharge the office of Treasurer of the said Branch and for General Auditor of the Union; that the plaintiff had a full opportunity of explaining his position at his said interview with Mr. Twomey, which was duly- reported to the Executive Committee, and that at the time when the resolution was passed the committee had all the facts before them and no further explanation or inquiry would have added thereto; and that the committee after considering the facts and the plaintiff's said explanation passed the resolution by virtue of its powers in that behalf as a disciplinary measure for the purpose of securing the ob- servance of the rules and of protecting the funds of the Union. The defence also set up that the action was not maintainable by reason of the provisions of the Trade Disputes Act, 1906, sec. 4 (1). The plaintiff attended the Annual General Meeting of the Union held in August, 1919, and spoke at length on his position whilst Treasurer of his Branch, and a resolution was passed that if he with- drew his pending action against the Union and paid all the costs of the Union he should be reinstated to full membership of the Union. P. O. Lawrence, J. On November 11, 1918, the Executive Com- mittee of the defendant Union resolved that the plaintiff should be removed from office and not be permitted again to hold any office SECT. Ill] DISCIPLINE OF MEMBERS 705 pertaining to the Union for a period of five years from that date. The plaintiff complains that that resolution is one which the Execu- tive Committee had no power to pass under the rules; and further that, if they had such power, it was contrary to natural justice to pass the resolution without first hearing the plaintiff. The cir- cumstances under which the resolution was passed are shortly these. [His Lordship stated the facts and continued:] The question is whether that resolution can be justified under the rules and, if it can, whether it can be justified in the circumstances in which it was passed. Dealing with the first part of the question, I hold as a fact that the Executive Conamittee did not purport to exercise the power of removing an officer for incompetence or insubordination. They had that power but they did not exercise it. At the date of the resolution the plaintiff had ceased to be the Treasurer of the Branch, and the only offices which he then held were those of Chairman of Branch No. 1 and of General Auditor of the Union. His conduct in those offices never came in question and was not considered. But it is said that the resolution can be justified as coming under rule 3 (4), because it was passed, either under the power therein contained to take every means to secure the observance of the Union's rules; or under the power also therein contained to suspend, expel and pros- ecute members acting contrary to the rules. In my opinion the power contained in this rxile to take every means to secure the ob- servance of the Union's rules does not authorize the Executive Com- mittee^, to remove a member from office or to prevent a member from holding any office or delegation pertaining to the Union. Nor does this power in my opinion give authority to punish or penalize a member except in the manner prescribed by the rule itself. Then as regards the power to suspend, expel and prosecute members acting contrary to the rules, I think that that power, being in its nature penal, has to be exercised strictly in accordance with the language of the rule and does not justify what was attempted to be done here. The rule does not in my opinion imply a power to inflict penalties of a different kind from those enumerated, although the penalties in fact inflicted may be less severe than those specified in the rules. It is however further argued that the resolution is in fact a resolution for the suspension of the plaintiff, although it operates as a suspension of part only of his rights and privileges. In my view that argument is not sound, and I do not think that the rule, by conferring upon the Committee a power to suspend a member from membership, authorizes the Committee to prohibit a member without suspending him from membership from enjoying some of the rights and privileges of membership. The rule does not in express language permit of that to be done, and I hold that such a power ought not to be implied. 706 INTERNAL GOVERNMENT OF UNIONS [CHAP. XIV But assuming that I am wrong in the construction which I have placed upon rule 3, and that the penalty pm-ported to be inflicted upon the plaintiff is one which the Executive Committee had power to impose, the question arises whether, before inflicting it, they ought not on the principle of natural justice to have given the plain- tiff an opportunity of being heard in his own defence. That in turn depends upon whether the power is one of a quasi-judicial nature, or is, as has been contended, a mere disciplinary administrative power. I have no hesitation in holding that the power to suspend or expel a member for acting contrary to the rules is one of a quasi- judicial nature. It involves an inquiry, because it only arises tf the member has acted contrary to the rules. The first obligation on the Executive Committee before attempting to exercise that power is to satisfy themselves that the member has acted contrary to the rules, and in common fairness a man who is charged with a breach of the rules of the Union to which he belongs ought to be heard so as to enable him not only to rebut the charge if it can be rebutted, but also if it cannot be rebutted to explain the circumstances under which the breach was committed so as to enable the Committee to decide what, if any, penalty should be inflicted. I cannot conceive any- thing more contrary to our notions of justice than to decide against a member that he has committed a breach of the rules and to penalize that member for such breach without giving him a chance of being heard in his own defence. I have no doubt that the Committee in the present case acted in perfect good faith. Not being used to exer- cising quasi-judicial powers however they thought that the case was too clear for argument and that the plaintiff could not have anything to say for himself. A greater fallacy than that I cannot imagine. Judging merely by what happened afterwards I think that there was at least a reasonable probabihty that no such penalty would have been inflicted on the plaintiff if he had been heard and had explained his position. I do not mean to suggest that the omis- sion of the plaintiff to satisfy himself as to the exact amount of the bank balances before signing the quarterly reports was not in the highest degree blameworthy nor that the Committee would have been wrong if after hearing the plaintiff they had rejected his excuses for not checking the bank balances and for not having paid the moneys which he had from time to time received from the secretary promptly into the bank instead of having held them in his own hands for lengthy periods, but in my judgment the Committee were entirely wrong in coming to the conclusion that they ought to judge and pass sentence on the plaintiff without hearing him, and without giving him an opportunity to give such explanation as he desired to give in order to enable them to consider whether they should inflict any and what punishment on him. It is admitted that the penalty which has been inflicted on the plaintiff is a very severe one, ,and in my opinion the Committee acted contrary to natural justice in inflicting SECT. Ill] DISCIPLINE OF MEMBEHS 707 it without giving the plaintiff a chance of being heard. The result is that I have come to the conclusion that the resolution of Novem- ber 11 was one which was not warranted under rule 3 (4); and further, even if it were so warranted, that it was one which cannot be supported because the plaintiff was not given an opportunity of being heard before it was passed. But it is argued by Mr. Morris that even then I ought not to grant the rehef asked for, because at the Annual General Meeting held in August, 1919, after the action had been commenced, the plaintiff, who had been invited to attend, gave his explanation at length, and after he had given his explanation the meeting ultimately resolved to confirm the decision arrived at by the Executive Com- mittee. In my view that proceeding in August, 1919, does not in any way debar the plaintiff from obtaining the relief claimed by him in this action. After the plaintiff had given his explanation, the meeting by an overwhelming majority considered that the plaintiff was a fit and proper person to be admitted a full and free member with the right to hold office in the Union, but they made it a con- dition of passing a resolution to that effect that the plaintiff should pay certain costs amounting to about 251., and that if he did not pay that sxmi the decision of the Executive Committee should be affirmed. The plaintiff did not pay the costs, and Mr. Morris con- tends that the result of this non-payment is that the Annual General Meeting has passed a resolution confirming the decision of the Com- mittee after having heard the plaintiff. I think such a resolution as that come to by the Annual General Meeting stands self-condemned as soon as it is stated. The punishment meted out to the plaintiff was one which could only be properly inflicted upon him if he were proved by his past conduct to be an unfit and improper person to hold office in the Union. To say that the plaintiff is a fit and proper person to hold office, but if he faUs to pay 251. towards the funds of the Union the meeting will resolve to affirm the Committee's decision that he is an unfit and improper person to hold office, appears to me to be an abuse of the power of suspension or expulsion contained in the rules, and moreover is an attempt to impose a pecuniary penalty upon the plaintiff which is wholly unauthorized. For these reasons I have come to the conclusion that the resolution passed by the Annual General Meeting after the date of the commencement of this action does not in any way affect the relief to which I hold the plaintiff to be entitled. I propose therefore to make a declaration that the resolution of November 11, 1918, was not authorized by the rules, and further that it is one which, even if authorized by the rules, was passed contrary to natural justice, inasmuch as the plaintiff was not given an opportunity to defend himself; and I grant the injunction asked for.* ' Harris v. Aiken, 76 Kan. 516 (accord). The prevailing doctrine is that if the court has jurisdiction, it will interfere on the plaintiff's behalf if the plaintiff has 708 INTERNAL GOVERNMENT OF UNIONS [CHAP, XIV Section 4. Expulsion of Members OTTO V. JOURNEYMEN TAILORS' PROTECTIVE & BENEVOLENT UNION Supreme Court of California. 1888 75C Compare Barrier Branch of the Amalgamated Miners' Association v. Broken Hill Proprietary Company, 10 Com. Arb. Rep. (Australia) 155, infra, p. 898. 2 Accord: Chicago & Alton R. R. Co. v. United States, 247 U. S. 197. 826 REGULATORY LABOR LEGISLATION [CHAP, XVII Section 4. Laws Regulating Hours of Labor in General LOCHNER V. NEW YORK Supreme Coubt of the United States. 1905 198 U. S. 45 This is a writ of error to the County Court of Oneida County, in the State of New York (to which court the record had been re- mitted), to review the judgment of the Court of Appeals of that State, affirming the judgment of the Supreme Court, which itself affirmed the judgment of the County Court, convicting the defend- ant of a misdemeanor on an indictment under a statute of that State, known, by its short title, as the labor law. The section of the statute under which the indictment was found is sec. 110, and is reproduced in the margin.^ . . . The indictment averred that the defendant "wrongfully and unlawfully required and permitted an employ^ working for him in his biscuit, bread and cake bakery and confectionery establishment, at the city of Utica, in this county, to work more than sixty hours in one week," after having been theretofore convicted of a violation of the same act; and therefore, as averred, he committed the crime or misdemeanor, second offense. The plaintiff in error demurred to the indictment on several grounds, one of which was that the facts stated did not constitute a crime. The demurrer was over- ruled, and the plaintiff in error having refused to plead further, a plea of not guilty was entered by order of the court and the trial commenced, and he was convicted of misdemeanor, second offense, as indicted, and sentenced to pay a fine of $50 and to stand committed until paid, not to exceed fifty days in the Oneida County jail. A certificate of reasonable doubt was granted by the county judge of Oneida County, whereon an appeal was taken to the Appellate Division of the Supreme Court, Fourth Department, where the judgment of conviction was affirmed. 73 App. Div. N. Y. 120. A further appeal was then taken to the Court of Appeals, where the judgment of conviction was again affirmed. 177 N. Y. 145. Mb. Justice Peckham, after making the foregoing statement of the facts, delivered the opinion of the court. . . . The statute necessarily interferes with the right of contract be- tween the employer and employes, concerning the number of hours ' " Sec. 110. Hours of labor in bakeries and confectionery establishments. — No employ 6 shall be required or permitted to work in a biscuit, bread or cake bakery or confectionery establishment more than sixty hours in any one week, or more than ten hours in any one day, unless for the purpose of making a shorter work day on the last day of the week; nor more hours in any one week than will make an average of ten hours per day for the number of days during such week in which such employ^ shaU work." SECT. IV] HOURS OF LABOR 827 in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amend- ment of the Federal Constitution. AUgeyer v. Louisiana^ 165 U. S. 578. ... If the contract be one which the State, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the Fourteenth Amendment. Contracts in violation of a statute, either of the Federal or state government, or a contract to let one's property for immoral purposes, or to do any other unlawful act, could obtain no protection from the Federal Constitution, as coming under the liberty of person or of free con- tract. Therefore, when the State, by its legislature, in the sissumed exercise of its police powers, has passed an act which seriously limits the right to labor or the right of contract in regard to their means of livelihood between persons who are sui juris (both employer and employe), it becomes of great importance to determine which shall prevail — the right of the individual to labor for such time as he may choose, or the right of the State to prevent the individual from laboring or from entering into any contract to labor, beyond a cer- tain time prescribed by the State. . . . It must, of course, be conceded that there is a limit to the valid exercise of the police power by the State. There is no dispute con- cerning this general proposition. Otherwise the Fourteenth Amend- ment would have no efficacy and the legislatures of the States would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health qr the safety of the people; such legislation would be valid, no mat- tjer how absolutely without foundation the claim might be. The claim of the poUce power would be a mere pretext — become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the pohce power of the State, or is it an imreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.? Of course the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor. This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the State it is vahd, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would 828 REGULATORY LABOR LEGISLATION [CHAP. XVII still remain: Is it within the pohce power of the State? and that question must be answered by the court. The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occu- pations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the shghtest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. It does not affect any other portion of the pubhc than those who are engaged in that occupation. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hoius a week. The limita- tion of the hours of labor does not come within the pohce power on that ground. It is a question of which of two powers or rights shall prevail — the power of the State to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment vahd. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be vahd which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor. This case has caused much diversity of opinion in the state courts. In the Supreme Court two of the five judges composing the Appel- late Division dissented from the judgment affirming the vahdity of the act. In the Court of Appeals three of the seven judges also dis- sented from the judgment upholding the statute. Although found in what is called a labor law of the State, the Court of Appeals has upheld the act as one relating to the pubHc health — in other words, as a health law. One of the judges of the Court of Appeals, in up- holding the law, stated that, in his opinion, the regulation in question could not be sustained unless they were able to say, from common knowledge, that working in a bakery and candy factory was an un- healthy employment. The judge held that, while the evidence was not uniform, it still led him to the conclusion that the occupation of a baker or confectioner was unhealthy and tended to result in diseases SECT. IV] HOURS OF LABOR 829 of the respiratory organs. Three of the judges dissented from that view, and they thought the occupation of a baker, was not to such an extent unhealthy as to warrant the interference of the legislature with the liberty of the individual. We think the limit of the pohce power has been reached and passed in this case. There is, in our jiodgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker. If this statute be vaUd, and if, there- fore, a proper case is made out in which to deny the right of an in- dividual, sui juris, as employer or employ^, to make contracts for the labor of the latter under the protection of the provisions of the Federal Constitution, there would seem to be no length to which legislation of this nature might not go. . . . We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employe. In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others. To the common understand- ing the trads of a baker has never been regarded as an unhealthy one. Very hkely physicians would not recommend the exercise of that or of any other trade as a remedy for ill health. Some occupa- tions are more healthy than others, but we think there are none which might not come imder the power of the legislature to supervise and control the hours of working therein, if the mere fact that the oc- cupation is not absolutely and perfectly healthy is to confer that right upon the legislative department of the Government. It might be safely affirmed that almost all occupations more or less affect the health. ... The act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employes, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts. Statutes of the nature of that vmder review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome inter- ferences with the right of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of the health of the in- dividual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health or to the health of the employes, if the hours of labor are not curtailed. . . . It was further urged on the argument that restricting the hours of 830 KEGULATORY LABOR LEGISLATION [CHAP. XVII labor in the case of bakers was valid because it tended to cleanliness on the part of the workers, as a man was more apt to be cleanly when not overworked, and if cleanly then his "output" was also more likely to be so. . . . In our judgment it is not possible in fact to discover the connection between the number, of hours a baker may work in the bakery and the healthful quality of the bread made by the workman. The connection, if any exists, is too shadowy and thin to build any argument for the interference of the legislature. If the man works ten hours a day it is all right, but if ten and a half or eleven his health is in danger and his bread may be unhealthful, and, therefore, he shall not be permitted to do it. This, we think, is unreasonable and entirely arbitrary. . . . It is manifest to us that the limitation of the hoiurs of labor as provided for in this section of the statute under which the indict- ment was found, and the plaintiff in error convicted, has no such direct relation to and no such substantial effect upon the health of the employ^, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employes (all being men, sui juris), in a private business, not dan- gerous in any degree to morals or in any real and substantial degree, to the health of the employes. Under such circumstances the freedom of master and employ^ to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution. The judgment of the Court of Appeals of New York as well as that of the Supreme Court and of the County Court of Oneida County must be reversed and the case remanded to the County Court for further proceedings not inconsistent with this opinion. Reversed. Mh. Justice Harlan, with whom Mr. Justice White and Mr. Justice Day concurred, dissenting. While this court has not attempted to mark the precise boundaries of what is called the police power of the State, the existence of the power has been uniformly recognized, both by the Federal and state courts. All the cases agree that this power extends at least to the protec- tion of the lives, the health and the safety of the pubUc against the injurious exercise by any citizen of his own rights. . . . I take it to be firmly established that what is called the liberty of contract may, within certain limits, be subjected to regulations designed and calculated to promote the general welfare or to guard the pubhc health, the pubhc morals or the pubhc safety. . . . It may be that the statute had its origin,' in part, in the beUef that employers and employes in such establishments were not upon an equal footing, and that the necessities of the. latter often com- SECT. IV] HOURS OF LABOR 831 pelled them to submit to such exactions as unduly taxed their strength. Be this as it may, the statute must be taken as expressing the behef of the people of New York that, as a general rule, and in the case of the average man, labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor. Whether or not this be wise legislation it is not the province of the court to inquire. . . . But ... I find it impossible, in view of common experience, to say that there is here no real or substantial relation between the means employed by the State and the end sought to be accomplished by its legislation. . . . Professor Hirt in his treatise on the "Diseases of the Workers" has said: "The labor of the bakers is among the hardest and most laborious imaginable, because it has to be performed under con- ditions injurious to the health of those engaged in it. It is hard, very hard work, not only because it requires a great deal of physical exertion in an overheated workshop and during unreasonably long hours, but more so because of the erratic demands of the public, compeUing the baker to perform the greater part of his work at night, thus depriving him of an opportunity to enjoy the necessary rest and sleep, a fact which is highly injurious to his health." Another writer says: " The constant inhaling of flour dust causes inflammation of the lungs and of the bronchial tubes. The eyes also suffer through this dust, which is responsible for the many cases of running eyes among the bakers. The long hours of toil to which all bakers are subjected produce rheimiatism, cramps and swollen legs. The in- tense heat in the workshops induces the workers to resort to cooling drinks, which together with their habit of exposing the greater part of their bodies to the change in the atmosphere, is another source of a number of diseases of various organs. Nearly all bakers are pale- faced and of more delicate health than the workers of other crafts, which is chiefly due to their hard work and their irregular and un- natural mode *of living, whereby the power of resistance against disease is greatly diminished. The average age of a baker is below that of other workmen; they seldom live over their fiftieth year, most of them dying between the ages of forty and fifty. . . . In the Eighteenth Annual Report by the New York Bureau of Statistics of Labor it is stated that among the occupations involv- ing exposure to conditions that interfere with nutrition is that of a baker (p. 52). In that Report it is also stated that "from a social point of view, production will be increased by any change in in- dustrial organization which diminishes the number of idlers, paupers and criminals. Shorter hours of work, by allowing higher standards of comfort and purer family fife, promise to enhance the industrial efficiency of the wage-working class ■ — improved health, longer life, more content and greater intelUgence and inventiveness" (p. 82). . . . The judgment in my opinion should be affirmed. 832 EEGXJLATORY LABOR LEGISLATION [CHAP. XVII Mb. Justice Holmes dissenting. I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent. This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opin- ions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to con- tract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he Ukes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well- known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he hkes it or not. The Four- teenth Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U. S. 11. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Secm-ities Co. V. United States, 193 U. S. 197. Two years ago we upheld the prohibition of sales of stock on margins or for future deUvery in the constitution of California. Otis v. Parker, 187 U. S. 606. The de- cision sustaining an eight-hour law for miners is still recent. Holden V. Hardy, 169 U. S. 366. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternaUsm and the organic relation of the citizen to the State or of laissezfaire. It is made for people of fimdamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any artic- ulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Four- teenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood SECT. IV] HOURS OF LABOR 833 by the traditions of our people and our law. It does not need re- search to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it un- necessary to discuss.^ BUNTING V. OREGON Supreme Couet of the United States. 1917 243 U. S. 426 Mr. Justice McKenna dehvered the opinion of the court. Indictment charging a violation of a statute of the State of Oregon, sec. 2 of which provides as follows: "No person shall be employed in any mill, factory or manufactur- ing estabhshment in this State more than ten hours in any one day, except watchmen and employees when engaged in making necessary repairs, or lq case of emergency, where life or property is in imminent danger; provided, however, employees may work overtime not to exceed three hours in any one day, conditioned that payment be made for said overtime at the rate of time and one-half of the regular wage." A violation of the act is made a misdemeanor, and in pursuance of this provision the indictment was found. It charges a violation of the act by plaintiff in error. Bunting, by employing and causing to work in a flour mill belonging to the Lakeview Flouring Mills, a corporation, one Hammersly for thirteen hours in one day, Ham- mersly not being within the excepted conditions, and not being paid the rate prescribed for overtime. A demurrer was filed to the indictment, alleging against its sufii- ciency that the law upon which it was based is invahd because it violates the Fourteenth Amendment of the Constitution of the United States and the Constitution of Oregon. The demurrer was overruled; and the defendant, after arraign- ment, plea of not guilty and trial, was found guilty. A motion in arrest of judgment was denied and he was fined $50. The judgment was affirmed by the Supreme Court of the State. The Chief Justice of the court then allowed this writ of error. The consonance of the Oregon law with the Fourteenth Amend- ment is the question in the case, and this depends upon whether it ' With the viewpoint of the court in this case may be compared the viewpoint of the Australian Court of Conciliation and Arbitration (see cases jn Chap. 19, section 2, infra), and of the Kansas Court of Industrial Relations (see cases in Chap. 19, section 4, infra). 834 REGULATORY LABOR LEGISLATION [CHAP. XVII is a proper exercise of the police power of the State, as the Supreme Court of the State decided that it is. That the poUce power extends to health regulations is not denied, but it is denied that the law has such purpose or justification. It is contended that it is a wage law, not a health regulation, and takes the property of plaintiff in error without due process. The conten- tion presents two questions : (1) Is the law a wage law, or an hours of service law? And (2) if the latter, has it equahty of operation? Section 1 of the law expresses the policy that impelled its enact- ment to be the interest of the State in the physical well-being of its citizens and that it is injurious to their health for them to work "in any mill, factory or manufacturing establishment" more than ten hours in any one day; and sec. 2, as we have seen, forbids their em- ployment in those places for a longer time. If, therefore, we take the law at its word there can be no doubt of its purpose, and the Supreme Court of the State has added the confirmation of its decision, by declaring that "the aim of the statute is to fix the maximum hours of service in certain industries. The act makes no attempt to fix the standard of wages. No maximum or minimum wage is named. That is left wholly to the contracting parties." It is, however, urged that we are not bound by the declaration of the law or the decision of the court. In other words, and to use counsel's language, "the legislative declaration of necessity, even if the act followed such declaration, is not binding upon this court. Coppage V. Kansas, 236 U. S. 1." Of course, mere declaration can- not give character to a law nor turn illegal into legal operation, and when such attempt is palpable this coiu't necessarily has the power of review. But does either the declaration or the decision reach such extreme? Plaintiff in error, in contending for this and to estabUsh it, makes paramount the provision for overtime; in other words, makes a limitation of the act the extent of the act — indeed, asserts that it gives, besides, character to the act, illegal character. To assent to this is to ascribe to the legislation such improvidence of expression as to intend one thing and effect another, or artfulness of expression to disguise illegal purpose. We are reluctant to do either and we think all the provisions of the law can be accommodated without doing either. First, as to plaintiff in error's attack upon the law. He says: "The law is not a ten-hour law; it is a thirteen-hour law designed solely for the purpose of compeUing the employer of labor in miUs, fac- tories and manufacturing establishments to pay more for labor than the actual market value thereof." And fiu-ther: "It is a ten-hour law for the purpose of taking the employer's property from him and giving it to the employ^; it is a thirteen-hour law for the purpose of protecting the health of the employ^." To this plaintiff in error adds that he was convicted, not for working an employee during a SECT. IV] HOURS OF LABOR 835 busy season for more than ten hours, but for not paying him more than the market value of his services. The elements in this contention it is difficult to resolve or estimate. The charge of pretense against the legislation we, as we have already said, cannot assent to. The assumption that plaintiff in error was convicted for not paying more in a busy season than the market value of the services rendered him or that under the law he will have to do so, he gives us no evidence to support. If there was or should be an increase of demand for his products, there might have been or may be an increase of profits. However, these are circum- stances that cannot be measured, and we prefer to consider with more exactness the overtime provision. There is a certain verbal plausibility in the contention that it was intended to permit 13 hours' work if there be 151 hours' pay, but the plausibility disappears upon reflection. The provision for overtime is permissive, in the same sense that any penalty may be said to be permissive. Its purpose is to deter by its burden and its adequacy for this was a matter of legislative judgment under the particular circumstances. It may not achieve its end, but its insufficiency can- not change its character from penalty to permission. Besides, it is to be borne in mind that the legislature was dealing with a matter in which many elements were to be considered. It might not have been possible, it might not have been wise, to make a rigid prohibi- tion. We can easily realize that the legislature deemed it sufficient for its policy to give to the law an adaptation to occasions different from special cases of emergency for which it provided, occasions not of such imperative necessity, and yet which should have some ac- commodation — abuses prevented by the requirement of higher wages. Or even a broader contention might be made that the legis- lature considered it a proper policy to meet the conditions long existent by a tentative restraint of conduct rather than by an abso- lute restraint, and achieve its purpose through the interest of those affected rather than by the positive fiat of the law. We cannot know all of the conditions that impelled the law or its particular form. The Supreme Court, nearer to them, describes the law as follows: "It is clear that the intent of the law is to make 10 hours a regular day's labor in the occupations to which reference is made. Apparently the provisions for permitting labor for the over- time on express conditions were made in order to facilitate the en- forcement of the law, and in the nature of a mild penalty for employ- ing one not more than three hours overtime. It might be regarded as more difficult to detect violations of the law by an employment for a shorter time than for a longer time. This penalty also goes to the employee in case the employer avails himself of the overtime clause." But we need not cast about for reasons for the legislative judgment. We are not required to be sure of the precise reasons for its exercise 836 KEGULATORY LABOR LEGISLATION [CHAP. XVII or be convinced of the wisdom of its exercise. Rast v. Van Deman & Lewis Co., 240 U. S. 342, 365. It is enough for our decision if the legislation under review was passed in the exercise of an admitted power of government; and that it is not as complete as it might be, not as rigid in its prohibitions as it might be, gives perhaps evasion too much play, is lighter in its penalties than it might be, is no im- peachment of its legality. This may be a blemish, giving opportunity for criticisrh and difference in characterization, but the constitutional validity of legislation cannot be determined by the degree of exact- ness of its provisions or remedies. New policies are usually tenta- tive in their beginnings, advance in firmness as they advance in acceptance. They do not at a particular moment of time spring full-perfect in extent or means from the legislative brain. Time may be necessary to fashion them to precedent customs and conditions and as they justify themselves or otherwise they pass from militancy to triumph or from question to repeal. But passing general considerations and coming back to our im- mediate concern, which is the validity of the particular exertion of power in the Oregon law, our judgment of it is that it does not tran- scend constitutional limits. This case is submitted by plaintiff in error upon the contention that the law is a wage law not an hours of service law, and he rests his case on that contention. To that contention we address our decision and do not discuss or consider the broader contentions of counsel for the State that would justify the law even as a regulation of wages. There is a contention made that the law, even regarded as regulat- ing hours of service, is not either necessary or useful "for preserva- tion of the health of employfe in mills, factories and manufacturing establishments." The record contains no facts to support the con- tention, and against it is the judgment of the legislature and the Supreme Covirt, which said: "In view of the well-known fact that the custom in our industries does not sanction a longer service than 10 hours per day, it cannot be held, as a matter of law, that the legis- lative requirement is unreasonable or arbitrary as to hours of labor. Statistics show that the average daily working time among work- ingmen in different countries is, in Australia, 8 hours; in Great Britain, 9; in the United States, 9f ; in Denmark, 9i; in Norway, 10; Sweden, France, and Switzerland, 10|; Germany, lOJ; Bel- gium, Italy, and Austria, 11; and in Russia, 12 hours." The next contention of plaintiff in error is that the law discriminates against mills, factories and manufacturing estabhshments in that it requires that a manufacturer, without reason other than the fiat of the legislature, shall pay for a commodity, meaning labor, one and one-half times the market value thereof while other people pur- chasing labor in like manner in the open market are not subjected to the same burden. But the basis of the contention is that which SECT. V] MINIMUM WAGE LAWS 837 we have already disposed of, that is, that the law regulates wages, not hours of service. Regarding it as the latter, there is a basis for the classification. Further discussion we deem unnecessary. Judgment affirmed} The Chief Justice, Me. Justice Van Devantee and Me. Justice McReynolds, dissent. Me. Justice Beandeis took no part in the consideration and decision of the case. Section 5. Minimum Wage Laws ^ STETTLER v. O'HARA Supeeme Couet of Oeegon. 1914 69 Ore. 519 This is a suit by Frank C. Stettler against Edwin V. O'Hara, Bertha Moores and Amedee M. Smith, constituting the Industrial Welfare Commission of the State of Oregon, to vacate and annul an order of the commission, and enjoin its enforcement. The facts are as follows: On February 17, 1913, the legislative assembly passed an act entitled "To protect the lives and health and morals of women and minor workers, and to establish an Industrial Welfare Commission and define its powers and duties, and to provide for the fixing of minimum wages and maximum hours and standard conditions of labor for such workers, and to provide penalties for violation of this act." ... The first section provides: "It shall be unlawful to employ women or minors in any occupa- tion within the State of Oregon for unreasonably long hours; and it shall be unlawful to employ women or minors in any occupation within the State of Oregon under such surroundings or conditions — ■ sanitary or otherwise — as may be detrimental to their health or morals; and it shall be unlawful to employ women in any occupation within the State of Oregon for wages which are inadequate to supply the necessary cost of living and to maintain them in health; and it ' Compare Amalgamated Assn. of Street and Electric Railway Employees of America ;;. The Joplin & Pittsburg Hy. Co., Kansas Court of Industrial Relations, Docket No. 3653, infra, p. 933; Barrier Branch of the Amalgamated Miners' Assn. V. Broken Hill Proprietary Co., 10 Com. Arb. Rep. (Australia) 155, infra, p. 898. 2 Upon Minimum Wage Laws in the United States, see Lindley D. Clark, Mini- mum-Wage Laws of the United States, U. S. Bureau of Labor Statistics, Bulletin No. 285 (July, 1921). See also the references in note 1, p. 800, supra. 838 KEGULATORY LABOR LEGISLATION [CHAP. XVII shall be unlawful to employ minors in any occupation within the State of Oregon for unreasonably low wages." Then follows the creation of the commission under the name of "Industrial Welfare Commission," to be appointed by the Governor, and provisions defining its duties. Sec. 4 provides: "Said commission is hereby authorized and empowered to as- certain and declare, in the manner hereinafter provided, the follow- ing things: (a) Standards of hours of employment for women or for minors and what are unreasonably long hours for women or for minors in any occupation within the State of Oregon; (b) standards of conditions of labor for women or for minors in any occupation within the State of Oregon and what surroundings or conditions — sanitary or otherwise — are detrimental to the health or morals of women or of minors in any such occupation; (c) standards of mini- mum wages for women in any occupation within the State of Oregon and what wages are inadequate to supply the necessary cost of liv- ing to any such women workers and to maintain them in good health; and (d) standards of minimum wages for minors in any occupation within the State of Oregon and what wages are unreasonably low for any such minor workers." Section 8 provides, among other things, that the "conmiission may call and convene a conference for the purpose and with the powers of considering and inquiring into and reporting on the subject investi- gated by said commission and submitted by it to such conference. Such conference shall be composed of not more than three represen- tatives of the employers in said occupation and of an equal number of the representatives of the employees in said occupation and of not more than three disinterested persons representing the public and of one or more commissioners," and the duties of such conference, which shall report the result of its investigations with recommenda- tions to the commission. Section 9 provides that, upon the receipt of the report from the con- ference, and the approval of its recommendations, the commission may make and render such order as may be proper or necessary to adopt such recommendations, and to carry the same into effect, and require all employers in the occupation affected thereby to observe and comply with such recommendations and said order. The act contains other provisions giving the commission and conference power and authority to investigate the matters being considered. . . . The defendants were duly appointed by the Governor as such com- mission. It thereafter called a conference as provided, which re- ported to the commission, making certain recommendations, which were approved, and based upon such recommendations it made the following order : "The Industrial Welfare Commission of the State of Oregon hereby orders that no person, firm, corporation, or association owning or SECT. V] MINIMUM WAGE LAWS 839 operating any manufacturing establishment in the City of Portland, Oregon, shall employ any woman in said establishment for more than nine hours a day, or fifty hours a week; or fix, allow, or permit for any woman employee in said establishment a noon lunch period of less than forty-five minutes in length; or employ any experienced adult woman worker, paid by time rates of payment, in said estab- lishment at a weekly wage of less than $8.64, any lesser amount being hereby declared inadequate to supply the necessary cost of living to such woman factory workers, and to maintain them in health." The amended complaint sets out all these matters in greater de- tail, to which the defendants demurred on various grounds, the first of which raises the questions here discussed, namely: That "it does not state fticts showing that the act and order complained of is an unreasonable exercise of the police power of the state." The demurrer was sustained, and the plaintiff elected to stand on the amended complaint. Judgment was rendered dismissing the suit, and the plaintiff appeals. Mr. JtrsTicE Eakin delivered the opinion of the court. The purpose of this suit is to have determined judicially whether either the Fourteenth Amendment of the Federal Constitution or Article I, Sec. 20, of the Oregon Constitution is an inhibition against • the regulation by the legislature of the hours of labor during which women may be employed in any mechanical or manufacturing estab- lishment, mercantile occupation, or other employment requiring continuous physical labor, or against the establishment of a mini- mum wage to be paid therefor. ... It is conceded by all students of the subject, and they are many and their writings extensive, that woman's physical structure and her position in the economy of the race renders her incapable of competing with man either in strength or in endurance. . . . In many of the states as well as in foreign countries special study and investigation have been given to this question as to the effect of long hours of labor and inadequate wages upon the health, morals and welfare of woman, with a view to remedy the evil results as far as possible. TJiere seems to be a very strong and growing senti- ment throughout the land, and a demand, that something must be done by law to counteract the evil effects of these conditions. . . . It may now be considered as established that a statute which limits the hours of labor of certain occupations or for certain classes of persons for the protection of the health and welfare of society is within the pohce power of the state: Commonwealth v. Riley, 210 Mass. 387; . . . State v. Somerville, 67 Wash. 638. . . . We can accept as settled law statutes having for their purpose and tending to that end provision for a maximum hours law of labor for employees upon public works, a maximum hours law for 840 REGULATORY LABOR LEGISLATION [CHAP. XVII women and children employed in mechanical, mercantile or manu^ facturing establishments, a maximum hours law for laborers in mines or smelters, a law fixing minimum wages for employees upon public works. The latter is held in Malette v. Spokane, 77 Wash. 205 (137 Pac. 500), even where the expense is borne by private individuals, so that the only question for decision here is as to the power of the legislature to fix the minimum wage in such a case. ... If the statute tends reasonably to accomplish the purposes intended by the legislature, it should be upheld by the court. Mr. Justice Harlan, in Jacobson v. Massachusetts, 197 U. S. 11 . . . quoting from Vie- meister v. White, 179 N. Y. 235 . . . states: "A common belief, like common knowledge, does not require evidence to establish its existence, but may be ^ acted upon without proof by the legislature and the courts. . . . The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not con- clusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legis- lation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a republican form of govern- ment." ... In speaking of the Oregon ten-hour law, Mr. Chief Justice Bean, in the case of State v. MuUer, 48 Or. 252 ... says: "Such legislation must be taken as expressing the belief of the legislature, and through it of the people, that the labor of females in such establishments in excess of ten hours in any one day is detri- mental to health, and injuriously affects the public welfare. The only question for the court is whether such a regulation or limitation has any real or substantial relation to the object sought to be accom- plished, or whether it is ' so utterly unreasonable and extravagant ' as to amount to a mere arbitrary interference with the right to con- tract. On this question we are not without authority." These are some of the grounds upon which maximum ten-hour laws are sustained, and we have cited them here as applying with equal force to sustain the women's minimxmi wage law, and as bring- ing it within the pohce power of the legislature. The state should be as zealous of the morals of its citizens as of their health. . . . "Common behef " and "common knowledge" are sufficient to make it palpable and beyond doubt that the employment of female labor as it has been conducted is highly detrunental to pubhc morals, and SECT. V] MINIMUM WAGE LAWS 841 has a strong tendency to corrupt them. Elizabeth Beardsley Butler, in her "Women of the Trades," says: "Yet the fact remains that, for the vast bulk of salesgirls, the wages paid are not sufficient for self-support, and, where girls do not have families to fall back on, some go undernourished, some sell themselves. And the store employment which offers them this two- horned dilemma is replete with opportunities which in gradual, easy, attractive ways beckon to the second choice; a situation which a few employers not only seem to tolerate, but to encourage." The legislature of the State of Massachusetts appointed a com- mission known as the Commission on Minimum Wage Boards to investigate conditions. In the report of that commission in January, 1912, it is said: "Women in general are working because of dire necessity, and in most cases the combined income of the family is not more than adequate to meet the family's cost of living. In these cases it is not optional with the woman to decline low-paid employment. Every dollar added to the. family income is needed to lighten the burden which the rest are carrying. . . . Wherever the wages of such a woman are less than the cost of living and the reasonable provision for maintaining the worker in health, the industry employing her is in receipt of the working energy of a human being at less than its cost, and to that extent is parasitic. The balance must be made up in some way. It is generally paid by the industry employing the father. It is sometimes paid in part by future inefficiency of the worker herself, and by her children, and perhaps in part ultimately by charity and the state'. ... If an industry is permanently de- pendent for its existence on underpaid labor, its value to the com- monwealth is questionable." Many more citations might be made from the same authorities, and from such students of the question as Miss Caroline Gleason, of Portland, Oregon, Louise B. More, of New York, Irene Osgood, of Milwaukee, and Robert C. Chapin, of Beloit College. With this common belief, of which Mr. Justice Harlan says "we take judicial notice," the court cannot say, beyond all question, that the act is a plain, palpable invasion of rights secured by the fundamental law, and has no real or substantial relation to the protection of public health, the public morals or public welfare. Every argument put forward to sustain the maximum hours law, or upon which it was established, applies equally in favor of the constitutionality of the minimmn wage law as also within the police power of the state and as a regulation tending to guard the public morals and the public health. ... We think we should be bound by the judgment of the legislature that there is a necessity for this act, that it is within the police power of the state to provide for the protection of the health, morals and 842 BEGULATORY LABOR LEGISLATION [CHAP. XVII welfare of women and children, and. that the law should be upheld as constitutional. The decree of the Circuit Court is affirmed. Affirmed.^ Section 6. Miscellaneous Laws for the Protection of Industrially Weaker Classes ^ Field, J. (dissenting) in SLAUGHTER-HOUSE CASES 16 Wall. 36, 109 (1873) This equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avoca- tions are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. . . . This is the fundamental idea upon which our institutions rest, and unless adhered to in the legislation of the country our Government will be a republic only in name.' ' This decision was affirmed without opinion by the United States Supreme Court. Stettler v. O'Hara, 243 U. S. 629. Accord: State v. Crowe, 130 Ark. 272; Holcombe v. Creamer, 231 Mass. 99; WiUiams v. Evans, 139 Minn. 32; Simpson v. O'Hara, 70 Ore. 261; Poye v. State, 89 Tex. Crim. Rep. 182; Larsen v. Rice, 100 Wash. 642. See also, Wilson v. New, 243 U. S. 332, infra, p. 863. For an able discussion of the principles underlying the problem of determining a minimum wage for women, see W. Jethro Brown, J., in The Printing Trades Case, 2 South Australian Industrial Rep. (1918-19) 31, 33-55, infra, p. 905. Compare The Australian Boot Trade Employees' Fed. v. Whybrow & Co., 4 Com. Arb. Rep. (Australia) 1, infra, p. 883. '^ As to the general subject see Robert G. Paterson, Wage-payment Legislation in the United States, U. S. Bureau of Labor Statistics, Bulletin No. 229 (Dec. 1917). ' "The leading authority for decisions depending upon the laissezfaire theory was long drawn from the Slaughterhouse Cases, and curiously enough from the minority opinion. . . . The same sort of argument 11 years later found its way into a concurring opinion given by three justices (Butchers' Union v. Crescent City Live Stock Landing & Slaughterhouse Co., Ill U. S. 746-766, May 5, 1884), and thereafter came to be frequently relied on by State courts. The influence of such reasoning is shown in the decision in the New York Sweat- shop Case. The law in question had been introduced in the legislature for unor- ganized cigar makers, chiefly foreign born. The legislative committee to which it was referred was relied upon to kill it, but after making an investigation it found the conditions of manufacture so bad that it pushed the measure to adop- tion. In passing on the constitutionality of the measure the New York court of appeals declared that imder the law a man ' . . . may desire the advantage of cheap production in consequence of his cheap rent and family help and of this he is deprived. ... It (the law) arbitrarily deprives him of his property and of some portion of his personal liberty. ... In its exercise (of the police power) the legislature must respect the great fundamental rights guaranteed by the Constitution. ... It has never been said . . . that (its) preparation and SECT. VI] PROTECTIVE LEGISLATION 843 COPPAGE V. KANSAS Supreme Court of the United States. 1915 236C7. Made in the Superior Court by O'Connell, J. 2 Accord: Carroll v. What Cheer Stables Co., 38 R. I. 421; Clover, Clayton & Co. Ltd. V. Hughes, [1910] A. C. 242. . 978 workmen's compensation laws [chap, xx for the Commission to determine whether the deceased was specially- affected by the severity of the heat by reason of his employment." In the case at bar the Commission did not find that the deceased came to his death through exposure, by reason of his employment, to heat more excessive than that to which others were subjected, or through any special hazard of his employment. Therefore, it did not make a finding of fact which, under the authorities, was neces- sary to justify an award. The award should be reversed and claim remitted to the Indus- trial Commission for such further action as may be advised. All concurred. Award reversed and matter remitted to the State Industrial Com- mission.^ MORGAN V. OWNERS OF STEAMSHIP ZENAIDA Court of Appeal. 1909 25 T. L. R. 446 This was an appeal from an award of his Honour Judge Gye, sitting at the Southampton County Court as an arbitrator under the Work- men's Compensation Act, 1906. The applicant was engaged as an ordinary seaman on board the steamship Zenaida. On April 14, 1908, while the ship was lying at a port off the Mexican coast, he was ordered to go over the side to paint the vessel. The heat was excessive, and he was seized with sunstroke. As the result of the sunstroke he was still incapacitated, and there was evidence that his health was probably permanently impaired. In these circumstances the learned County Court Judge was of opinion that he was suffer- ing from an accident which arose out of and in the course of his employment, and made an award in his favour. The employers appealed. , Mr. Dickens, K. C, and Mr. E. F. Lever argued that there was no accident arising out of the course of the employment. The man's illness arose from a purely natural cause — the heat of the sun. It was in no way caused by the circumstances of his employment. Mr. Norman Craig, for the workman, was not called on to argue. The Court dismissed the appeal. The Master of the Rolls said that the appeal was quite hope- less. The case was governed by the decision of the House of Lords in Ismay, Imrie, and Co. v. Williamson, [1908] A. C. 437, and also by the decision in Andrew v. Failswo'rth Industrial Society, [1904] 2 K. B. 32. The Lords Justices agreed. » See the provisions of the New York Workmen's Compensation Law quoted in note 2, p. 963, supra. Compare Alpert v. Powers, 223 N. Y. 97. SECT. V] OCCUPATIONAL INJURY 979 Section 5. Occupational Injury BRINTONS, LIMITED v. TURVEY House of Lords. 1905 [1905] A. C. 230 The respondent's husband, while employed with other workmen in sorting wool in the appellants' factory, was infected with anthrax on the 2nd of March, 1903, and died thereof on the 7th. In an ar- bitration held at Kidderminster, after hearing medical evidence, the county court judge awarded compensation to the respondent, saying: "I find as a fact that the anthrax, which was the immediate cause of death, was caused by the accidental alighting of a bacillus from the infected wool on a part of the deceased's person which afforded a harbour in which it could multiply and grow and so cause a malignant disease and consequent death. I can see no distinction in principle between the accidental entry of a spark from an anvil or the accidental squirting of scalding water or some poisonous liquid into the eye. The only difference is that in those cases the foreign substance would be so large as to be visible, in this case the foreign substance is microscopic. I think it immaterial whether there was in fact any external pimple or abrasion, becaiise if there was, it was a fortuitous accident that the bacillus alighted on that particular spot. But I find in fact that there was no such abrasion or pimple. My judgment is based on the fact that there was in this case a fortuitous intrusion of a foreign substance into the eye which by its presence there caused death." This decision was affirmed by the Court of Appeal (Collins, M. R., Mathew and Cozens-Hardy, L.JJ.) upon the authority of Fenton v. Thorley, [1903] A. C. 443. 1905. April 14. Earl of Halsbury L. C. My Lords, I am not able to deny the cogency of the reasoning of my noble and learned friend Lord Robertson when he contests that this House is con- cluded by its decision in Fenton v. Thorley, [1903] A. C. 443. I do not think the point which now stands for decision was either argued or upon the facts open for decision. Nevertheless I am of opinion that the judgment now under appeal is right. . . . Probably it is true to say that in the strictest sense and dealing with the region of physical nature there is no such thing as an acci- dent. The smallest particle of dust swept by a storm is where it is by the operation of physical causes, which if you knew beforehand you could predict with absolute certainty that it would alight where it did. But when the Act now under construction enacted that if in any employment to which the Act applied personal injury "by accident" arising out of and in the course of his employment is caused 980 workmen's compensation laws [chap. XX to a workman his employers shall pay compensation, I think it meant that, apart from negligence of any sort — either employers or employed — the industry itself should be taxed with an obliga- tion to indemnify the sufferer for what was "an accident" causing damage. I do not stop to discuss the provisions which disentitle a sufferer, because they are not relevant to the question now under debate. I so far agree with my noble and learned friend that I think, in popular phraseology from which we are to seek our guidance, it excludes, and was intended to exclude, idiopathic disease; but when some affection of our physical frame is in any way induced by an accident, we must be on our guard that we are not misled by medical phrases to alter the proper application of the phrase "acci- dent causing injury," because the injury inflicted by accident sets up a condition of things which medical men describe as disease. Suppose in this case a tack or some poisoned substance had cut the skin and set up tetanus. Tetanus is a disease; but would any- body contend that there was not an accident causing damage? An injury to the head has been known to set up septic pneumonia, and many years ago I remember, when that incident had in fact occurred, it was sought to excuse the person who infhcted the blow on the head from the consequences of his crime because his victim had died of pneumonia and not, as it was contended, of the blow on the head. It does not appear to me that by calling the consequences of an accidental injury a disease one alters the nature or the con- sequential results of the injury that has been inflicted. Many illustrations of what I am insisting on might be given. A workman in the course of his employment spills some corrosive acid on his hands; the injury caused thereby sets up erysipelas — a definite disease; some trifling injury by a needle sets up tetanus. Are these not within the Act because the immediate injury is not perceptible until it shews itself in some morbid change in the struc- ture of the human body, and which when shewn we call a disease? I cannot think so. I am, therefore, of opinion that the county court judge was quite right, and I move your Lordships accordingly. LoED Macnaghten. My Lords, on the facts found by the learned county court judge I am of opinion that the decision of the Court of Appeal was right. It is plain, I think, that the mischief which befell the workman in the present case was due to accident, or rather, I should say, to a chapter of accidents. It was an accident that the noxious thing that settled on the man's face happened to be present in the materials which he was engaged in sorting. It was an accident that this noxious thing escaped the down draught or suck of the fan which the Board of Trade, as we were told, requires to be in use while work is going on in such a fac- tory as that where the man was employed. , It was an accident that SECT. V] OCCUPATIONAL INJURY 981 the thing struck the man on a dehcate and tender spot in the corner of his eye. It must have been through some accident that the poison found entrance into the man's system, for the judge finds that there was no abrasion about the eye, while the medical evidence seems to be that without some abrasion infection is hardly possible. The result was anthrax, and the end came very speedily. Speaking for myself, I cannot doubt that the man's death was attributable to personal injury by accident arising out of, and in the course of, his employment. The accidental character of the in- jury is not, I think, removed or displaced by the fact that, like many other accidental injuries, it set up a well-known disease, which was immediately the cause of death, and would no doubt be certified as such in the usual death certificate. . . . I agree that the appeal must be dismissed with costs.^ . . . Order of the Court of Appeal affirmed and appeal dismissed with costs. JOHNSON'S CASE Supreme Judicial Court of Massachusetts. 1914 217 Mass. 388 Appeal to the Superior Court under St. 1911, c. 751, Part III, sec. 11, as amended by St. 1912, c. 571, sec. 14, from a decision of the Industrial Accident Board. The case was heard by Crosby, J., who, upon the findings of the Industrial Accident Board, which are stated in the opinion, made a decree that the injury arose out of and in the course of the employ- ment of the employee after July 1, 1912, and that the insurer should pay to such employee a weekly compensation of $5.50 from March 27, 1913, to continue during his incapacity for work, but not to ex- ceed a period longer than five hundred weeks from the date of the injury. The insurer appealed. Crosby, J. This case arises under the workmen's compensation act, St. 1911, c. 751, as amended by St. 1912, c. 571. The Industrial Accident Board has found that the employee, since March 13, 1913, has been totally incapacitated from labor because of his physical condition, due to the results of lead poison- ing or plumbism, and that this is an injury which arose out of and in the course of his employment. The employee was seventy-two years of age, and was employed as a lead grinder continuously for a period of more than twenty years before the date given above, March 13, 1913. The board further found that he had suffered from lead poisoning fourteen years before, but apparently had recovered and ' Lord Lindley rendered a concurring, and Lord Robertson a dissenting, opinion. — Ed. 982 workmen's compensation laws [chap, xx had had no recurrence of the disease until he became ill and was totally incapacitated from work on or about March 13, 1913. It further appears from the report of the board that he had been "for twenty years absorbing lead poisoning during his occupation, which had been stored up in his system, and which absorption con- tinued for eight months after the act went into effect, when, elimina- tion failing, the poison stored up manifested itself in the personal injury and the incapacity which resulted therefrom." The decision of the board upon all questions of fact being final if there is any evidence to support them, the question is whether the evidence authorizes the findings. Pigeon's Case, 216 Mass. 51. The main inquiries raised by the appeal are: (1) Has the em- ployee suffered a personal injury within the meaning of the act.? (2) If so, what was the date of the injury.? (3) If the date of the injury was subsequent to July 1, 1912, did it arise out of and in the course of his employment.? 1. Under the act, "personal injury" is not limited to injuries caused by external violence, physical force, or as the result of ac- cident in the sense in which that word is commonly used and under- stood, but under the statute is to be given a much broader and more liberal meaning, and includes any bodily injury. In this respect the English workmen's compensation act differs from ours, because that act applies only to "personal injury by accident"; yet since the pas- sage of that act its scope has been much enlarged by including cer- tain industrial diseases; Third Schedule, St. 6 Edw. VII, c. 58; al- though under the English act it has been held in many cases that the words "personal injury by accident" are not limited to injuries caused by violence, but include disease incurred by accident. Aside from the decisions under the English act which provides for compensation for "personal injuries by accident," it is clear that "personal injury" under our act includes any injury or disease which arises out of and in the course of the employment, which causes in- capacity for work and thereby impairs the ability of the employee for earning wages. The case of H. P. Hood & Sons v. Maryland Casualty Co., 206 Mass. 223, is decisive of the case at bar. In that case it was held that for a person to become infected with glanders was to suffer a bodily injury by accident. This question recently has been considered fully in Hurle's Case, 217 Mass. 223, which decided that an employee having suffered an injury which resulted in total blindness caused by absorbing poison in the course of his employment, which incapacitated him from labor, had suffered a "personal injury" within the meaning of the act. See also Brintons, Ltd. v. Turvey, [1905] A. C. 230. 2. In view of the finding of the board that Johnson had suffered from lead poisoning fourteen years before and had had no recur- rence of the disease until he became incapacitated for work on or about March 13, 1913, and the further finding that there had been SECT. V] OCCUPATIONAL INJURY 983 "an absorption of lead poisoning since July 1, 1912, and that the date when the accumulated effects of this poisoning manifested it- seK, and Johnson became sick and unable to work, was the date of the injury," we are of opinion that the board were warranted in finding that the injury was received when he became sick and unable to perform labor. Until then he had received no "personal injury," although doubtless the previous absorption of lead into his system since July 1, 1912, finally produced the conditions which terminated in the injury. Sheeran v. F. & J. Clayton & Co., Ltd., 3 B. W. C. C. 583. Yates v. South Kirby, Featherstone, & Hemsworth Collieries, Ltd., 3 B. W. C. C. 418. Ismay, Imrie & Co. v. Williamson, 1 B. W. C. C. 232. Brintons, Ltd. v. Turvey, [1905] A. C. 230. Martin V. Manchester Corp., 5 B. W. C. C. 259. Alloa Coal Co., Ltd. v. Drylie, 6 B. W. C. C. 398. 3. As the physical incapacity of the employee for work has been found by the board to have been caused by the gradual absorption of poison into his system subsequent to July 1, 1912, resulting in personal injury on or about March 13, 1913, there seems to be no reasonable conclusion other than that such injury arose out of and in the course of his employment. Hurle's Case, 217 Mass. 223, and cases cited. Decree affirmed.^ INDUSTRIAL COMMISSION OF OHIO v. BROWN Supreme Coubt of Ohio. 1915 92 Ohio St. 309 Nichols, C. J. The particular question involved in the instant case is whether the words "personal injuries sustained in the course of employment" as used in the workmen's compensation law, ap- proved June 15, 1911 (102 0. L., 524), include lead poisoning con- tracted in course of employment. The defendant in error was employed in August, 1913, by The Eagle White Lead Co. of Cincinnati, such company being at the time a voluntary contributor to the state insurance fund. While thus employed Brown contracted lead poisoning of so serious a nature that he became sick and disabled from work. He made ap- phcation for compensation to the state liability board of awards, and its successor, the industrial commission of Ohio, disallowed his claim. In January, 1914, Brown filed in the court of common pleas of Hamilton county his appeal from the decision of such industrial ' Accord: In re Hurle, 217 Mass. 223 (blindness induced by the inhaling of poisonous gases at a kiln or furnace. Recovery allowed). Compare In re Magge- let, 228 Mass. 57 (neurosis caused by a bad posture of a cigar maker while at work. No recovery allowed because no necessary connection shown between the bad posture and the cigar making). Similar to the last case is Pimental's Case, 127 N. E. (Mass.) 424. 984 woekmen's compensation laws [chap, xx commission, in conformity with the provisions of the law. Trial was had, resulting in a verdict and judgment in favor of Brown, and this judgment was affirmed by the court of appeals of the same county. Reversal of the judgments is now sought by the state. The question is one of paramount public importance, not only to the industrial classes but to the state as well. The state has been administering this great trust for nearly four years, and during all that period the construction given the statute under consideration by the administrative body has been such as to preclude recovery for occupational disease, or any disease for that matter, incxured in the course of employment. For while the disease under considera- tion was clearly occupational, yet if the claim of Brown to participate in the fund be sustained, it would at once open wide the doors to all claimants who have suffered from disease of any sort which they may have incurred while employed. The premium rates assessed and collected by the administering board during this period of time have been fixed on a basis of death and injuries by accident solely, to the entire exclusion of injury through disease. It is quite patent that any other construction would necessitate an immediate and striking horizontal elevation of aU premium rates and would in all probability prove a serious menace to the law itself. . . . This court, with much show of logic and also authority, could construe this phrase as did the courts below. It is no difficult mat- ter to bring within the purview of the words "personal injuries sus- tained in the course of employment" occupational diseases incurred in course of employment. It can be further conceded that had the legislature, in enacting either the original or the present law, desired to make plain its intention to exclude occupational disease from participation in the fund, the exclusion could readily have been made by adding to the words "personal injuries" the qualifying phrase "by accident." As against all this the court feels impelled to follow both the executive and legislative construction of the word "injury" as em- ployed in this act and to limit recovery of compensation to such as may have suffered injury otherwise than through disease, thereby giving to the legislative and executive construction the added force of judicial construction. The court arrives at the clear legislative construction of the term by a review of the history of the law in the seventy-ninth and eightieth general assemblies, in connection with the constitutional amendment on the subject of workmen's compensation. . . . The subject of compensation for occupational disease occupies a distinct field of its own. It is so recognized not only in our constitu- tion but by all humanitarians who have given the matter thoughtful attention. It is a vast subject, worthy of the most careful attention SECT. V] OCCUPATIONAL INJURY 985 by the lawmaking body, and it was evidently the intention of both the seventy-ninth and eightieth general assemblies that Ohio should eventually enter into the larger field, as is evidenced by the resolution on the subject of occupational diseases, enacted by both assemblies that legislated on the workmen's compensation subject. The victims of modern industrialism springing from disease in- cident thereto are only less numerous than those arising from pure accident, and no sound pohcy can be suggested that should protect the one class and ignore the other, especially when the compensation system becomes firmly established. Until this is done the court will continue to construe the law as it was obviously intended by the legislature that it should be construed. . . . The judgment of the court of appeals will be accordingly reversed, and the cause will be remanded to the court of common pleas with instructions to sustain the demurrer of the state to the petition on appeal of the claimant Brown. Judgment reversed} NAUD V. KING SEWING MACHINE CO. Supreme Court of New York. 1916 95 Misc. 676 Wheeler, J. The complaint sets forth a cause of action for alleged negligence under the Employers' Liability Act of this state. It alleges in substance that the defendant negligently failed to furnish and provide the plaintiff while in its employ "with reasonably safe implements, appliances, ventilators, fans, blowers or other devices . . . for the carrying away of poisonous and dangerous gases and fumes; in permitting and allowing poisonous gases and fumes to accumulate and remain in and about the place in which this plain- tiff was required to work, . . . and through the carelessness and negligence of defendant" in other ways failing and neglecting to perform certain alleged duties for the proper and reasonable safety of the plaintiff, whereby it is alleged the plaintiff inhaled certain poisonous gases and fumes, which occasioned permanent injuries to his lungs and other portions of his body. It is not necessary to go into further details as to the allegations of the complaint. In its answer, the defendant makes certain denials of the allega- tions of the complaint, and alleges that the alleged injuries received » Accord: Miller v. Amer. Steel & Wire Co., 90 Conn. 349 (lead poisoning; no recovery allowed; but see dissenting opinion); Adams v. Acme White Lead & Color Works, .182 Mich. 157 (lead poisoning; no recovery allowed, although the Michigan statute contains the same phraseology in the body of the Act as the Massachusetts statute) ; Liondale Bleach, Dye & Paint Works v. Riker, 85 N. J. L. 426 (eczema from work in a bleachery; no recovery allowed); compare Richard- son V. Greenberg, 188 App. Div. (N. Y.) 248. 986 workmen's compensation laws [chap, xx by the plaintiff were due to the risks incident to his employment and known to him and that such risks were assumed by the plaintiff. Then follows the following allegation/to wit: "Fifth. For a further and separate defense herein the defendant alleges, upon information and belief, that the same plaintiff hereto- fore and on or about the 2nd day of February, 1916, in accordance with the provisions of the Workmen's Compensation Law of the State of New York, presented to defendant the alleged claim referred to in the complaint for compensation according to the benefits de- scribed in said Workmen's Compensation Law for said alleged injury claimed to have been sustained by him in the course of his said em- plojnnent with the defendant, and that thereafter said State Work- men's Compensation Commission, and on or about the 29th day of March, 1916, after a hearing duly had thereon, adjudged that the alleged accident claimed to have been sustained by the said plaintiff did not constitute an accident and adjudged that plaintiff's said alleged claim be disallowed; and that by said judgment this action became and was forever barred and foreclosed." To this clause or portion of the defendant's answer the plaintiff demurs on the ground that the said defense is insufficient in law. It was conceded in the argument of this demurrer that the employ- ment in which the plaintiff was engaged at the time he received the alleged injuries was one of the hazardous employments covered by the provisions of the Workmen's Compensation Law. If the plaintiff's injuries were in fact occasioned owing to the negligence of the defendant in the particulars specified in his com- plaint, it is difficult to see why the plaintiff should not have been given compensation under the provisions of the Workmen's Com- pensation Law. After specifying what are to be deemed hazardous employments sec. 10 of the act provides that: "Every employer subject to the provisions of this chapter shall pay or provide as required by this chapter compensation according to the schedules of this article for the disability or death of his em- ployee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury," except in cases of injuries resulting from intoxication or those wilfully and intentionally in- fficted. We fail to see therefore, if the allegations of the complaint are true, that the plaintiff's injuries were the result of the defendant's negUgence, why the plaintiff was not fairly entitled to compensation for his injuries under the provisions of the Compensation Act, as a "disability ... resulting from an accidental injury, . . . arising out of and in the course of his employment." Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514; Matter of Winfield v. N. Y. SECT. V] OCCUPATIONAL INJURY 987 C. & H. R. R. R. Co., 216 id. 284; Connors v. Semet-Solvay Co., 94 Misc. Rep. 406. An "accidental injury" as used in this statute is clearly distinguish- able from an injury in the nature of a vocational disease, sustained in the course of an employment, where from the inherent nature of the work disease is likely to be contracted. "Accidental" has been defined as "happening by chance, or unexpectedly taking place, not according to the usual course of events : casual; fortuitous." North America Life & Accident Ins. Co. v. Burroughs, 69 Penn. 43 ; 8 Am. Rep. 212. In insurance policies providing for an indemnity, "accidental" cause is defined as "an event happening without human agency, or, if happening through human agency, an event which under the cir- cumstances is unusual, and not expected to the person to whom it happens." Within these recognized definitions of the word "accidental," if the injuries sustained by the plaintiff were occasioned in the manner alleged in the complaint, they were clearly "accidental" within the meaning of the Workmen's Compensation Law; and the plaintiff would have been entitled to compensation as provided in that act. When therefore the compensation commission found and deter- mined, after a hearing, that the plaintiff's injuries were not the result of an "accident" it found by necessary implication, that such in- juries were not due to the defendant's negligence, or occasioned as alleged in the complaint. The importance and legal significance of this adjudication by the compensation commission arises out of the fact that by the provisions of sec. 20 of the Compensation Law the commission is required to determine the claim made before it for compensation, after notice to the interested parties, and an opportunity to present evidence and be represented by counsel. The act then declares that "The decision of the commission shall be final as to all questions of fact, and, except as 'provided in section twenty-three as to all questions of law." Therefore it is that the holding of the commission that the plain- tiff's injuries were not due to "accident" makes that question res adjudicata as to the plaintiff and the defendant in this action, and precludes a further inquiry into the questions of fact in this action. The adjudication of the compensation commission was therefore properly set up in the answer of the defendant, as bar against the plaintiff in an effort to establish in this action that his injuries were occasioned by the negligence of the defendant, which our interpreta- tion of the act would constitute an "accidental injury." If the compensation conunission was in error on the decision of the application made to it, the plaintiff's remedy was to appeal from its decision to the Appellate Division of this court, as provided in sec. 23 of the Compensation Law. 988 workmen's compensation laws [chap, xx I am therefore of the opinion that the demurrer of the plaintiff to the fifth clause of the defendant's answer should be overruled, with costs of this demurrer. Demurrer overruled, with costs.^ McCAULEY v.. IMPERIAL WOOLEN CO. Supreme Coukt of Pennsylvania. 1918 261 Pa. St. 312 Opinion by Mr. Justice Moschziskee, May 6, 1918: The plaintiff, widow of James McCauley, claimed compensation for the death of her husband; the referee found in favor of the claim- ant; the Workmen's Compensation Board reversed this finding; the case was removed to the Common Pleas of Philadelphia County, which reversed the board and affirmed the referee; the defendant employer entered the present appeal. . . . James McCauley was a "wool sorter" in the employ of defendant; the latter admitted he died "of external, and not internal, anthrax." Concededly, it is a matter of general knowledge that anthrax is primarily a disease of animals, such as sheep, which may be trans- mitted to men when handling infected animal materials, like wool; it is caused by the entrance into the human body of anthrax bacilli, and their rapid multiplication and development. The findings of the referee show a practical accord among the doctors, produced as experts, that, in the majority of cases, the inoculation which causes external anthrax occurs through a scratch or an abrasion of the skin; while internal anthrax is usually caused by inhaling the germ, or taking it in with food. The findings further show that, when James McCauley went to his work on the morning of April 4, 1916, he was perfectly well and had no abrasion or mark upon his neck, but when he left defendant's plant, in the afternoon of that day, there was a "little scratch," or abrasion, "about the size of a dime," just above the "Adam's ap- ple," which caused a swelling; and that this was the beginning of external anthrax, from which he died within three days. The findings Hkewise show professional medical experts testified that, in their opinion, "if deceased was a wool sorter [as he was] when he went to work on April 4, 1916, with no marks on his neck, > This decision of the Supreme Court was reversed in the Appellate Division, 178 App. Diy. 31, on the ground that "the answer setting up the determination of the Commission is insuflHcient in law upon the face thereof. It appears by the allegations of the answer that the Commission determined that the claim was not founded upon an accident and was disallowed. Such determination is not an adjudication that the claim is covered by the Workmen's Compensation Law, but quite the reverse." The decision of the Appellate Division was afifirmed by the New York Court of Appeals (Naud v. King Sewing Machme Co., 223 N. Y. 567). SECT. V] OCCUPATIONAL INJUKY 989 and sustained an abrasion about the size of a dime upon his neck, and the neck immediately began to swell, and external anthrax developed, this condition probably was brought about by the an- thrax germ entering through the abrasion." . . . Under the circumstances of this case, deceased apparently not having been where he was liable to become inoculated with ex- ternal anthrax, except at his work, and he, as he left defendant's mill, on the day in question, having shown symptoms of that disease by the mark upon and swelling of his neck, the inference may reason- ably be drawn, in view of the nature of the work on which he was engaged, that the inoculation occurred during the course of his em- ployment; or, as said by one of the doctors, in all probability "the .disease was caused by the anthrax germ entering through the skin by reason of a ' sticker ' from the wool which deceased handled dur- ing the day." . . . The referee was justified in concluding that McCauley died as the result of an injury by accident while acting in the course of his employment, and, hence, that claimant was en- titled to compensation. Sec. 1, of the Act of [June 2, 1915, P. L. 736], provides that the statute shall apply to "all accidents" occurring within this Common- wealth; this being limited by sec. 301 (P. L. 738) to cases where the employer and employee shall by agreement, "either express or im- plied," accept the provisions of the act. The section in question provides that, in such instances, "compensation for personal injury to, or for the death of, such employee, by an accident, in the course of his employment, shall be made." It then provides that "the terms ' injviry ' and ' personal injury ' . . . shall be construed to mean only violence to the physical structure of the body, and such disease or infection as naturally results therefrom," and, wherever death is mentioned, "it shall mean only death resulting from such violence and its resultant effects" ; further, that "the term 'injury by an accident in the course of his employment ' . . . shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him^and not directed against him as an employee or because of his employment, but shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer." It is plain from these provisions that the act before us contemplates injuries by accident only, and, therefore, does not cover what are termed "occupational diseases." It remains but to show that, in this case, the entry of the anthrax germ into the body of the deceased, and the disease or infection which naturally resulted therefrom, can be held properly to constitute an accident within the meaning of the act. In this connection, it is to be noted that there is nothing in the language quoted from sec. 301 which requires an injury to be caused through force externally applied, or, much less, by some tangible substance of material size. 990 workmen's compensation laws [chap. XX The words used are "violence to the physical structure of the body," not injury to the physical structure of the body by external violence. The violence in question may originate from lifting heavy weights, or from other provable cause (for instance, intense heat operating directly on the part of the body internally affected: see Lane v. Horn & Hardart Co., 261 Pa. 329), which effect a sudden change in the physical structure or tissues of the body, and still be within the compensation act. In short, if the incident which gives rise to the injurious results complained of can be classed properly as a "mis- hap," or "fortuitous" happening — an "untoward event, which is not expected or designed" — it is an accident within the meaning of the workmen's compensation law: stee House of Lords case of Fenton v. Thorley & Co., 19 T. L. R. 684, 685; Boardman v. Scott & Whitworth [1902 ] 1 K. B. 43, 46. When, however, death results " from germ infection, to bring a case of this character within the Act of 1915, supra, the disease in question must be a sudden develop- ment from some such abrupt violence to the physical structmre of the body as already indicated, and not the mere result of gradual development from long continued exposure to natural dangers in- cident to the employment of the deceased person, as in cases of oc- cupational diseases, the risks of which are voluntarily assimied. Here, the anthrax germ, a distinguishable entity, came into actual contact with the deceased, thus gaining an entrance into his body, and his neck began to swell and discolor; therefore the complaint from which McCauley died can be traced to a certain time when there was a sudden or violent change in the condition of the physical structure of his body, just as though a serpent, concealed in the material upon which he was working, had unexpectedly and sud- denly bitten him: see Hiers v. Hull & Co., 178 N. Y. (App. Div.) 350, 352. . . . The assignments of error are overruled, and the judgment of the court below is affirmed, with a procedendo.' ' Accord: Eldridge v. Endicott, Johnson & Co., 189 App. Div. (N. Y.) 53; Hiers v. John A. Hull & Co., 178 App. Div. (N. Y.) 350. APPENDIX APPENDIX MINIMUM OF SUBSISTENCE AND MINIMUM COMFORT BUDGET' From Report Made by the Bureau of Applied Economics, Washington, D. C, in November, 1919 for the Inter- church World Movement Steel Strike Commission^ Various students of the subject have endeavored to establish the amount of income necessary to support a family in health and decency. In doing so several budget levels of living have been analyzed. The two most clearly distinguished are: 1. The Minimum of Svhsistence Level. This level is based essen- tially on animal well being with little or no attention to the comforts or social demands of human beings. 2. The Minimum of Comfort Level. This represents a level some- what above that of mere animal subsistence and provides in some measure for comfortable clothing, insurance, a modest amount of recreation, etc. This level provides for health and decency but for 'very few comforts, and is probably much below the idea had in mind in the frequent but indefinite expression "The American Standard of Living." ^ For a compilation and comparison of various budgets and budgetary studies, see Standards of Living, Bulletin No. 7, Bureau of Applied Economics, Washing- ton, D. C. (Revised ed., 1920.) References wiU be found therein to leading budgetary studies. For an excellent study on methods of budget-making, see William F. Ogbum, Measurement of the Cost of Living and Wages, Annals of Am. Acad, of Pol. & Soc. Science, Jan., 1919. ' Published in the Commission's Report on the Steel Strike of 1919 (issued by the Interchurch World Movement) (New York, 1920), pp. 255-263. 994 APPENDIX All of the studies have taken as a basis a family of five — husband, wife and three children. This is done (1) because the average Ameri- can family is of this size and (2) because it is necessary that marriage should be practically universal and result in a minimum of three children if the race is to perpetuate itself. The results of the various studies are closely similar and indicate that the annual cost of maintaining a family of five at a minimimi of subsistence level at prices prevailing in the latter part of 1919 was approximately $1575. This would be equivalent in purchasing power to approximately $885 in 1914. The cost of maintaining the minimum of comfort level has not been so thoroughly studied. Professor Ogburn's estimate as of June, 1918, was $1760. With an increase of 15 per cent in living costs since that time the cost of this budget would now [November, 1919] be approximately $2000. This sum would be equivalent in pur- chasing power to approximately $1125 in 1914. Professor Ogburn's conclusions may be taken as a conservative minimimi, as it is much below the estimate recently put forth by the U. S. Bureau of Labor Statistics as to the cost of maintaining a goverrunent employee's family in Washington at a level of health and decency. This budget, at August, 1919, prices, cost $2262. All of the studies referred to dealt with larger Eastern cities, chiefly New York. The costs would, therefore, not be strictly applicable to all cities and towns of the country. The differences, however, except in a few exceptional cases, would not be very great. A more detailed analysis of these studies is made in the following paragraphs: 1. THE COST OF A MmiMUM OF SUBSISTENCE BUBGET Professor W. F. Ogburn, of Columbia University, and one of the best known authorities on cost of living, in a recently published article made a very careful analysis of all preceding studies of mini- mum of subsistence levels and also submits a carefully prepared budget of his own.^ Professor Ogburn's calculations are all based on prices prevailing in June, 1918. Prices between that time and the Autumn of 1919 have advanced about 15 per cent, and these changes, of course, would have to be taken into consideration in arriving at the cost of the budgets at the present time. In order, however, to make the reasoning entirely clear the details of the various studies are first simunarized from Professor Ogburn's article. ' Published in "Standards of Living," Bureau of Applied Economics, Wash- ington, 1919. APPENDIX 995 (a) Professor Ogburn's Budget I'ood $615 Clothing: Man 76 Woman 55 Child, 11 to 14 years 40 Child, 7 to 10 years 33 Child, 4 to 6 years 30 Rent 180 Fuel and light 62 Insurance 40 Organizations 12 Religion 7 Street-car fare 40 Paper, books, etc 9 Amusements, drinks, and tobacco 50 Sickness 60 Dentist, oculist, glasses, etc 3 Furnishings 35 Laundry 4 Cleaning supplies 15 Miscellaneous 20 Total $1,386 This budget is for a large eastern city and is the result of studies of 600 actual budgets of shipyard workers in the New York ship- building district. (b) Professor Chapin's Budget Brought Up to Date Another way of estimating a minimum budget for the American subsistence level in 1918 is to take minimum budgets of past years that have been accepted as standard and apply the increases from the date of the budget to the present time in the prices of the various items of the budget, thus bringing them up to date. This method assimaes no change in minimum standards. It is of course subject to possible inaccuracies in measuring the rising cost of living between specific dates for specific places. This inaccuracy is thought to be slight, however. For instance, one of the most famous and perhaps most generally accepted budget estimates is that of Professor Chapin, who made a study lasting several years of New York families, publishing his result in 1907.^ He said, "An income under $800 is not enough to permit the maintenance of a normal standard. An income of $900 ' See Robert C. Chapin, The Standard of Living among Workingmen's Fam- ilies in New York City (Charities Publication Committee, New York City). — Ed. 996 APPENDIX or over probably permits the maintenance of a normal standard at least as far as the physical man is concerned." If we take the in- crease in the cost of living from 1907 to June, 1918, to be 55 per cent, then Chapin's $900 becomes $1395. If we take the increase to be 60 per cent then Chapin's $900 becomes $1440. Probably the best estimates of increasing cost of living place the increase from January 1, 1915, to June 1, 1918, as 55 per cent.^ ' Professor Chapin says: "The number of schedules received from Greater New York was 642. ... Of these, 251 were rejected, so that there remained, accordingly reports from 391 families, each consisting of 4, 5 or 6 persons. The number of persons in the standard family being assumed as five, famiUes con- taining one more and one less than this number were included as being fairly comparable with families of five persons in mass grouping where excess and deficiency would tend to offset one another. . . . "It seems safe to conclude from all the data that we have been considering that an income under $800 is not enough to permit the maintenance of a normal stand- ard. A survey of the detail of expenditure for each item in the budget shows some manifest deficiency for almost every family in the 8600 and $700 groups." Relation of Income to Undek-feeding, Etc. families tjndekped, itndehclothed and overckowded. nitmber and percentages — bt income Income S400 to $599 S600 to $799 $800 to $899 $900 to $1099 $1100 and over Number of families 25 19 76 22 88 17 68 17 68 13 52 13 52 151 48 32 86 57 87 58 24 16 29 19 56 37 73 16 22 23 32 39 53 7 10 11 15 18 25 94 8 9 17 18 34 36 2 2 5 5 7 7 48 Underfed: Number Underclothed: Number 3 Per cent R Overcrowded: Number in Per cent 21 Underfed and underclothed: Number Per cent Underfed and overcrowded : Number Per cent Underclothed and overcrowded: Number Per cent [Table quoted from Professor Chapin. — Ed.] APPENDIX 997 (c) Minimum Budget of New York Factory Commission Brought up to Date ^ In 1915 the New York State Factory Investigation Commission set a minimum budget for 1914 in New York City at the figure $876. Applying increases in items of the budget by classes from January 1, 1915, to June 1, 1918, we get, as seen from the following table, a budget of $1356. Budget Increaee in Cost New York Factory New York Factory of Living to Budget Brought Commission 1914 June 1, 1918. Up to Date Per cent Food $325 65 $536 Rent 200 29 258 Fuel and light 20 44 28 Clothing 140 76 246 Sundries 191 51 288 $876 $1,356 Minimum Budget of the New York Factory Investigating Commission, 1915 Estimate of cost of living of normal family of five in New York City Food $325.00 Rent 200.00 Fuel and light 20.00 Clothing 140.00 Car fare 31.20 Insurance : Man 20.00 Family 15.60 Health 22.00 Furnishings 7.00 Education, newspaper 5.63 Recreation and amusement 50.00 Miscellaneous 40.00 Total • S876.43 ' For detailed tables showing carefully itemized costs of food, clothing, etc., see Frank H. Streightoff, Appendix VII of the Fourth E«port of Factorj- Investi- gating Commission, 1915, Albany, N. Y. (1915) pp. 1625-1656. Reprinted in Standards of Living (published by the Bureau of Applied Economics, Washing- ton, D. C, 1920), pp. 126-141. — Ed. 998 APPENDIX (d) Minimum Budget of New York Board of Estimate Brought Up to Date In February, 1915, the Bureau of Personal Service of the Board of Estimate and Apportionment of New York City made a minimum budget estimate for an unskilled laborer's family in New York City of $845. Applying increases in items of the budget by classes from January 1, 1915, to June 1, 1918, we get, as seen from the following table, a budget of $1317. Budget Increase in New York Board New York Board Cost of Living to of Estimate Budget of Estimate, 1915 June 1, 1918. Brought Up to Date Per cent Food $384 65 $634 Rent 168 29 217 Fuel and light 43 44 62 Clothing 104 76 183 Sundries 146 51 221 Total $845 $1,317 It is possible to criticize this budget as being too low in allow- ances for health, furniture, and education, and very low indeed in other sundries. Budget of New York Board of Estimate for 1915 Housing $168.00 Car fare 30.30 Food 383.81 Clothing 104.20 Fuel and Ught 42.75 Health 20.00 Insurance 22.88 Papers and other reading matter 5.00 Recreation 40.00 Furniture, utensUs, fixtures, moving expenses, etc 18.00 Church dues 5.00 Incidentals — soap, washing material, stamps, etc 5.00 Total $844.94 (e) Estimating the Budget prom Food Expenditure It is generally accepted that a man at moderate physical labor needs 3500 calories a day and Atwater has estimated the needs of the individual members of his family in per cents of his needs. Thus his wife consun;es 0.8 as much; a boy of 16 years of age, 0.9 as much; a girl 15 to 16, 0.8; a child from 6 to 9 years, 0.5; and so on. We thus express a family in terms of adult males. We say that a family APPENDIX 999 of five — man, wife, and three children — will equal 3.3 adult males when the children are at a certain age. The average food budget of 600 famihes of shipyard workers in the New York district collected by the Bureau of Labor Statistics was found to cost $607 for 3.6 equivalent adult males. This was submitted to calory analysis and yielded 3115 calories of energy for man per day, not including any waste. This means that $607 did not furnish enough food for the New York families. A food expert might have bought the necessary amount, but the families in actual practice did not. Dietaries should be well balanced also, but this analysis was not undertaken. So the important conclusion results that in the New York shipbuilding area $607 is not enough of an allowance for food. Professor Chapin's study shows that at the point where the families cease to be undernourished, food is 44 per cent of the total budget. Now, if the low figure of $615 is taken as the food allowance for a family of 3.3 or 3.4 equivalent adult males and estimated at 44 per cent of the budget, we get a minimiun budget of $1396. (f) Stjmmaby of Estimates on Minimum Budgets fob American Subsistence Level in 1918 From three angles, therefore, an estimate may be formed of a minimum budget : (1) from study of actual budgets, (2) from apply- ing increased costs of living to recognized standard budgets, (3) from estimates of adequate food allowance and its percentage of expend- itures. These estimates for New York district in 1918 are as follows : 1. Prof. Ogburn's detailed budget from family studies SI, 386 2. Chapin's budget brought to date 1,395 New York Factory Investigation Commissions' Budget brought to date 1,356 New York Board of Estimate Budget brought to date 1,317 3. From food aUowance 1,396 The Above Studies Brought Up to 1919 The above estimates were all made as of June, 1918, or, if made at an earlier date, were brought up only to that date in Professor Ogburn's analysis. Between June, 1918, and the present time (i. e., the latter part of 1919) figures compiled by the U. S. Bureau of Labor Statistics show an increase of about 15 per cent in general cost of living. Applying this percentage increase to the figures compiled by Professor Ogburn in the preceding table, the following results are obtained: 1000 APPENDIX Various Authoritative Estimates of the Annual Cost of Maintaining a Family at a Minimum of Subsistence Level, Brought up to August, 1919 June August 1918 1919 Ogbum's Budget $1,386 $1,594 Chapin's Budget 1,395 1,604 New York Factory Investigation Commission . 1,356 1,559 New York Board of Estimate Budget 1,317 1,515 Budget compiled from food allowance 1,396 1,605 Average of all five estimates $1,370 $1,575 Inasmuch as these various estimates are so closely similar, the average of the five ■ — namely $1575 — may be taken as the approxi- mate amount necessary to maintain a family of five at a minimum of subsistence level at prices prevailing in the latter part of 1919. 2. THE COST OF A MINIMUM OF COMFORT BUDGET (a) Peofessob Ogbubn's Budget Professor W. F. Ogburn [then in charge of the cost-of-living sec- tion of the National War Labor Board] prepared in 1918, for the consideration of the National War Labor Board and of Judge Samuel Alschuler, arbitrator in the Chicago Packing house industries, a budget for an average workingman's family of five which 'would include not only subsistence requirements but a minimum of com- fort and recreation. The cost of this budget was placed at $1760. This was at prices prevailing in June, 1918. Since that dat« the cost of living, as above noted, has increased 15 per cent. This would make the present cost of the budget $2024. By major items, this budget was distributed as follows: Cost June Cost August 1918 1919 Food $625.00 Clothing 313.50 Rent, fuel and light 295.00 Sundries 527.00 Total $1,760.50 $2,024.00 APPENDIX 1001 The detailed items of Professor Ogburn's budget are as follows : ' Minimum Comfort Budget for a Family of Five {Parents and Three Children) at Prices Prevailing in June, 1918 DETAILED ITEMS Food $625.00 Clothing: Man 92.50 Woman 87.00 Boy, 13 years 57.00 Girl, 8 to 10 years 37.50 Boy, 4 to 7 years 39.50 Rent 220.00 Fuel and light 75.00 Insurance and savings 150.00 Health 60.00 Furnishings 50.00 Education 20.00 Carfare 55.00 Organizations (church, labor and others) 24.00 Comforts (tobacco, candy, gifts, etc.) 43.00 Recreation 50.00 Miscellaneous (cleaning, stamps, barber, etc.) 75.00 Total $1,760.50 FOOD 600 pounds meatj fish and cheese $175.00 730 quarts of milk 96.00 80 dozen eggs 34.00 8 pounds beans 14.00 360 pounds flour 24.00 360 poimds commeal 26.00 200 pounds cereals 20.00 48 pounds macaroni 5.00 50 pounds rice 6.00 600 pounds potatoes 13.00 600 pounds vegetables 36.00 600 pounds fruits 30.00 120 pounds butter 60.00 75 pounds lard, oils and fats 25.00 250 pounds sugar 23.00 40 pounds coffee 12.00 12 pounds tea 6.00 Sundries 20.00 Total $625.00 ' The details of the budget are given as printed in Standards of Living (Re- vised ed. 1920), Bureau of Applied Economics, Washington, D.C., pp. 92-95. 1002 APPENDIX CLOTHING Man Overcoat $6.50 Sweater 2.50 Suit or uniform 25.00 Trousers 8.00 Shoes and repair 15.00 Overshoes 1.50 Underwear 6.50 Night garments 2.00 Hate 4.00 Shirts 6.50 Socks 4.50 Gloves 6.00 Ties, collars and handkerchiefs 2.00 Suspenders and garters 1.00 Incidentals 1.50 Total $92.50 Woman Top coat $8.00 Suits 12.50 Shoes and repair 12.00 Overshoes .75 Underwear 5.00 Nightgowns 3.00 Underskirt 2.50 Corsets 4.00 Kimona .50 Waists 5.00 House dresses 5.00 Street dress 7.50 Hats 9.00 Gloves 2.50 Stockings 2.00 Aprons 2.25 Umbrella 1.00 Incidentals (veils, pins, brushes, handkerchiefs, furs, slip- pers, etc.) 4.50 Total $87.00 APPENDIX 1003 Boy 13 and Over Top coat and sweater $7.50 Suit and trousers 17.00 Shoes and repair 16.00 Underwear 4.00 Night garments 1.50 Hats 3.50 Shirts 3.50 Stockings and socks 2.50 Ties, handerchiefs, etc 1.50 Total $57.00 Girl 8 to 10 Top coat and sweater $6.00 Rubbers 1.50 Shoes and repair 15.00 Underwaists and garters 1.50 Dresses (school and best) 6.00 Petticoats (or bloomers) 1.50 Underclothes .... Night garments .... Hats 2.00 Stockings 2.00 Ribbons and handerkchiefs 1.00 Umbrella 1.00 Total $37.50 Boy 4 to 7 Top coat and sweater $4.50 Shoes and repair 15.00 Rubbers 1.50 Suits (work, best, overalls) 9.00 Underwear .... Underwaists and garters 1.50 Night garments Hats and caps l.QO Waists and blouses 2.50 Mittens, ties, handkerchiefs 1.00 Stockings 3.00 Total $39,501 BENT, WATEH, FUEL AND LIGHT House, 5 or 6 rooms, with water $220.00 Coal, wood, gas and light 75.00 Total $295.00 1 The error of 50 cents in this total occurs in the original. 1004 APPENDIX SUNDRIES Insurance and savings S150.00 Organizations (labor and other) 15.00 • Education (newspapers, magazines and books) 20.00 Church : 9.00 Health (physicians, drugs, dentist) 60.00 Furnishings 50.00 Carfare 55.00 Cleaning and laundry 25.00 Tobacco 15.00 Gifts (Christmas, etc.) 8.00 Candy. 5.00 Drinks 15.00 Amusements and vacations, etc 50.00 Stamps, barber, stationery, etc 15.00 Exigencies and waste 35.00 Total »527.00 (b) U. S. BuHEAu OF Laboh Statistics' Budget for Government Employee's Family ^ The U. S. Bureau of Labor Statistics has just published, after very considerable investigation, a quantity and cost budget for a Government employee's family in Washington, D. C. The budget level aimed at is one of health and decency ■ — that is to say ■ — a level at which the family will have just enough to maintain itself in health and decency, but with none of the "trimmings" and very few of the comforts of life. This budget had in mind primarily the clerical employee, but except possibly in the matter of clothes there seems no reason why the level of a clerical worker should be more costly than that of a mechanic or laborer. On the other hand, Wash- ington prices were undoubtedly above the average for the country as a whole. This budget, at August, 1919, prices, cost $2262. The distribu- tion of its principal items is shown in the following table: ' Report prepared by the United States Bureau of Labor Statistics, under the title, "Tentative Quantity and Cost Budget Necessary to Maintain a Family of Five in Washington, D. C., at a Level of Health and Decency." The report is reprinted in part in Standards of Living (Rev. ed., 1920), pp. 26-31. — Ed. APPENDIX 1005 Summary of Budget COST OF QUANTITY BUDGET AT MAEKET PEICES I- Food $773.93 II. Clothing: Husband $121.16 Wife 166.46 Boy (11 years) 96.60 Girl (5 years) 82.50 Boy (2 years) 47.00 513.72 III. Housing, fuel and light 428.00 rV. Miscellaneous 546.82 Total budget at market prices $2,262.47 Possible saving upon market cost by a family of extreme thrift, of high intelligence, great industry in shopping, good fortune in purchasing at lowest prices, and in which the wife is able to do a maximum amount of home work. I. Food (7J per cent) $58.04 II. Clothing (10 per cent) 51.37 III. Housing 30.00 rV. Miscellaneous 97.50 Total economies 236.91 Total budget minus economies $2,025.56 Savings. — No provision is made in this budget for savings, other than the original cost of household furniture and equipment, which would average about $1000 in value. No definite estimate, of course, can be made as to the amount which a low-salaried Government employee should be expected to save. But an average saving of 12.5 per cent of yearly salary during an employee's single and early mar- ried life would seem to be the maximum which could be expected. Over a period of, say, 15 years this would result in a total accumula- tion of about $2000. Assimiing $1000 of this to be invested in house- hold equipment, there would be a net sum of $1000 available for investment in a home or in other direct income-producing form. In any case, it would represent an aimual income of approximately $50 per year. Recognizing the high prices prevailing in Washington, and recog- nizing also that the Goveriunent employee's family may have certain necessary expenses not falling upon the workingman's family, it would seem that the fact that this budget cost $2662 would tend to confirm the $2000 minimum comfort budget of Professor Ogburn as conservative for workingmen's families generally in the country as a whole. INDEX INDEX A Page Acts. See Statutes Adamson law 863 Admission of members into unin- corporated association 686 Agents of labor unions, liability of 608 Agreements, trade 644 "All persons generally" and "all persons whomsoever", injunc- tions against 748, 751, 757, 757» Alteration of by-laws 679, 683n American cases, early 99, 11 Iw Anti-picketing-injunction statute' 220 Apparel of servants 8, 9, 29 Arbitration, compulsory, see Austra- lian Court of Conciliation and Arbitration, Kansas Court of Industrial Relations, South Australian Industrial Court Arbitration of differences, legality of strike to compel 366 "Arising out of the employment," see Workmen's Compensa- tion Laws Association assets belonging to un- incorporated group, liability with respect to 577 Contract liability 577 At law 577 In equity 579, 582 Tort liabiHty 533, 588, 591, cf. 631 Unauthorized violence on the part of vinion members 237, 638 Statutes relieving trade-unions of tort habifity 586, 591 Association, right of 33 Australian Coiirt of Conciliation and Arbitration 881 The hving wage 881, 882, 883, 888, 890 Minimimi wage 883 Unprofitable business 888 The basic wage 890 Hours of work 898 Conditions of working 903 B Bannering 453, 460ra Basic wage, as fixed by Industrial Courts 890 See also Living Wage Black Hst 468 Constitutionality of anti-black- Usting statutes 476, 478ra Boycotts 394 Primary boycott 394 Page oecondary boycott 403 Commercial cases 403, 406, 408 Labor cases 413ff Attitude of federal courts 433re Boycott of materials 434 Legality of boycotts under the Sherman Anti-Trust Act 440 Non-coercive boycott 453 Legality of 467n The "Unfair List" 453 Tertiary boycott 467k Branding labourers 8 Breach of contract, inducing 154 Enticement of servants 154, 155, 176, 177, 181?i Lurrdcy v. Qye 157, 164n Strikes in breach of contract 169w, 171, 489 Justification 169, 173, 174 "Malice" 160, 163, 169re, 175, 179 Budgets of workingmen Appendix By-laws of unincorporated associa- tions Attitude of courts toward valid by-laws 672 Illegal by-laws 384, 673 n.2 Presumed knowledge of, by mem- bers 678 Alteration of 679, 683n Discipline of members unauthor- ized by 698, 701, 707n Canadian Industrial Disputes In- vestigation Act 875 Legality of strikes under 879 Cash payment of wages, legislation , regulating 857, 860 Ceasing to patronize, see Boycotts Chapin budget for workingmen's families Appendix Chaplains, parochial, not servants within Stat, of Labourers 28 Charter of local association, revoca- tion of, by national organi- zation 712 "Check-off" 509 Children and women, legislation regulating the emoloyment of 806, 809, 813, 813re Civil conspiracy 59 Some overt act other than con- spiring necessary 59, 61n As applied by English courts to labor cases 67« 1009 1010 INDEX Page Clayton Act 145, 213, 220, 440, 453n Closed shop Legality of strike to secure the 275 Cases holding such strikes legal 31 In Cases holding such strikes illegal 318n Legality of trade agreement to secure the 331 Clothing, cost of, in workingmen's budgets Appendix Coercive secondary boycott 403 Collective action, legality of ends pursued through, see Legality of Ends Pursued Collective agreements, see Trade Agreements Combination Act, 1800 18 Combination Act, 1824 20 Combination Act, 1825 21 Combination, legality of 33 Combinations in restraint of trade, see Restraint of Trade, Fed- eral Jurisdiction over Labor Disputes Combinations with reference to the Sherman Anti-Trust Act Business combinations 112, 118 Labor unions 121, 440, 553 Commodity, labor not a 145 Communistic society 568 Competition, trade 250, 252, 259, 275 Compulsory arbitration, see Aus- tralian Court of Concilia- tion and Arbitration, Kansas Court of Industrial Relations, South Australian Industrial Court Compulsory arbitration of railway disputes 863 Compulsory service and the Thir- teenth Amendment, see Thir- teenth Amendment Conclusiveness of findings of state commission in Workmen's Compensation Cases 954 Conditions of working, determina- tion of, by Industrial Courts 903, 936, 943 See also Hours of Work Conditions of working, legality of strike for improved 264 Conspiracy 37 Criminal, see Criminal Conspiracy Civil 59 Conspiracy, and Protection of Prop- erty Act, 1875 23 Conspiracy Statute (U. S.) 58 Conspiring to raise wages, journey- men confederating and 33, 34, 36re.2, 44, 99, 102, 104 Constitutionality of Arizona anti-pioketing-injunction statute 220 Page Anti-blacklist statutes 476 Statutes for protection of union label 484 Statutes for relieving trade unions of tort liability 586 Statutes for protection of indus- trially weaker classes 842ff Kansas Court of Industrial Re- lations Act 945 Workmen's Compensation Laws 954 Contempt proceedings for know- ingly assisting in the breach of an injunction issued against others 736, 737, 742 Contract, inducing breach of 154 Enticement of servants 154, 155, 176, 177, 181n Lumley v. Oye 157, 164?i Strikes in breach of contract 169ra, 171, 489 Justification 169, 173, 174 "Malice" 160, 163, 169?), 175, 179 Contracts of personal service, en- forcement of by specific performance 771 by criminal law 774 Contracts with trade unions 644 Cordwainers' cases 99, 102 Corporate rights, powers and Ua- bilities of unincorporated labor unions 517 Suits by and against unincorpor- ated labor unions 517 At law 517 Under statute ^22 In equity 524 Federal Equity Rule No. 38 627 English law 527 Under Sherman Act 533 Ownership of property 554 Realty _ 555?i Personalty " . 555n Liability with respect to associa- tion assets 577 Contract liability 577 At law 577 In equity 579, 582 Trade agreements 644 Tort liability 533, 588, 591, cf. 631 Unauthorized violence on the part of union members 237, 638 Statutes relieving trade unions of tort liability 586,591 Ultra vires doctrine as applied to unincorporated associations 596 Unauthorized use of trade union funds 599 Cost of subsistence of workingmen Appendix See also Living Wage Criminal conspiracy 37 Ordinance of conspirators 37 INDEX 1011 Page Does not consist in general acts of oppression 38 Overt acts other than conspiring „ . 39, 40, 55 Hawkins' statement 42 Effect of fraud 49, 52, 56n Federal conspiracy statute 58 Criminal Law Amendment Act, 1871 22 D "Danbury Hatters' Case" (Loewe f. Lawlor) ' 121 Dangerous occupations, legislation regulating employment in 819, 898 Diet and apparel of servants 8 Discharged employee, legality of strike to compel employer to re-employ a 378 Discipline of members of labor unions 690 Fines 690 Suspension of local charter 691 Expulsion 692, 708 Discipline unauthorized by by- laws 696 Discipline without notice or a chance to be heard 698, 701, 707TC Dues, liability of members of unin- corporated association for 678 E Earliest use of injunction to pro- tect emploj'-ers against strik- ing employees 718 Earliest important American case 724 Early American labor cases 99, 111m Employers' liability, see Work- men's Compensation Laws Employment in a business charged with a public interest 862 Railways and common carriers 862, 863 Adamson law 862 War industry 871 Employment, legality of strikes to secure increased opportunity of 268 Ends pursued through collective action, legality of, see Le- gality of Ends Pursued English picketing legislation 236 EngUsh statutes, see Statutes En^ossers 68, 69, 70 Enticement of servants 154, 155, 176, 177, 181re Equity Rule No. 38 (federal) 527 Ejjhaustion of remedies afforded by association, legal action be- fore 673, 683, 690, 691 Page Expulsion of members from trade unions 708 Basis of equitable relief 712ra Extortion 349, 350 Federal Equity Rule No. 38 527 Federal jurisdiction over labor dis- putes 112 Sherman Anti-Trust Act 112 Business combinations 112, 118 Labor unions and the Sherman Act 121, 440, 533 Violation of Interstate Com- merce Act 127 Obstructing the mail 135, 138 Clayton Act 145 Fines imposed upon union members 690 J'ines, legality of strikes to compel payment of Levied against employer 344 Levied against employees 354 Fixing of wages by justices 15, 29 Food, cost of, iu workingmen's budgets Appendix Forestallers 68, 69 Fourteenth Amendment, see Regu- latory Labor Legislation Fraud, in conspiracy cases 49, 52, 56re Fuel, cost of, in workingmen's budgets Appendix "Government by Injunction" 751, 761 Railway strike of 1894 751 Coal strike of 1919 757 Dangers of, and criticism of 759, 761 Government of unions, see Internal Government of Unions H Hawkins on conspiracy 42 Hours, legalits^ of strike for shorter 264 Hours of labor. Act of 5 Eliz. c. 4 (1562) 14 Hours of labor, legislation regulat- ing 826, 833 Hours of labor fixed by Industrial Courts 898, 932, 936 Higher wages, legality of strike for 264 Historical development of the in- junction remedy in labor cases 717 Earliest use of injunction to pro- tect employers against strik- ing employees 718 Earliest important American case 724 Illegal union by-laws 383 " In the course of the employment, " see Workmen's Compensation Laws 1012 INDEX Page Inducing breach of contract 154 Enticement of servants 154, 155, 176, 177, 181?i Lum.ley v. Qye 157, 164re Strikes in breach of contract 169re, 171, 489 Justification 169, 173, 174 "Malice" 160, 163, 169ra, 175, 179 Industrial Courts, see Australian Court of Conciliation and Arbitration, Kansas Court of Industrial Relations, South Australian Industrial Court Injunctions 717 Historical development of injunc- tion remedy 717 Earliest use of injunction to protect employers from strik- ing employees 718 Earliest important American case 724 Injunctions against unnamed par- ties . 734 Doctrine that injunctions can be issued against only parties to suit 734 Injunctions including party's agents, employees, etc. 736 Contempt for knowingly assist- ing in the breach of an injunc- tion 736, 737, 742 Suits against a few members as representative of a larger group 737, 748, 751, 757 Under Federal Equitv Rule 527, 737 Injunctions against "all per- sons generally," and against "all persons whomsoever" 748, 751, 757, 757ra "Government by Injunction" 751 Railway strike of 1894 751 Coal strike of 1919 757 Dangers of, and criticism of 759, 761 General limitations upon the issue of injunctions 762 Generality and vagueness of complaint 762, 765 Prohibitions must be clear and explicit 767, 768 Prohibitions must be limited to acts threatened 768, 769 Prohibitions must not be so broad as to include lawful acts 770 Constitutionality of statutes abolishing the injunctive remedy 220, 770n Clayton Act 145 Use in labor cases 231ff Insults 181 Page Internal government of unions 672 Regulation of internal affairs 672 Attitude of courts toward valid by-laws 672 Invalid by-laws 384, 673 n. 2 Application to national organi- zation for charter 673 Legal action before exhaustion of remedies afforded by as- sociation 673, 683, 690, 691 Liability of members for dues 678 Presumed knowledge of by- laws by members 678 Alteration of by-laws 679, 683w Admission of members 686 Discipline of members 690 Fines 690 Suspension of local charter 691 Expulsion 692 Discipline unauthorized bv by- laws " 696 Discipline without notice or a chance to be heard 698, 701, 707» Expulsion of members 708 Expulsion without reasonable cause or without a fair trial 708 Basis of equitable relief in eases of expulsion 712n Revocation of charter of local association 712 Interstate commerce, see Federal Jurisdiction over Labor Dis- putes Interstate Commerce Act, striking in violation of 127 Intimidation 181 Issue of injunctions, general limita- tions upon, see Limitations upon Issue of Injunctions Journeymen conspiring to raise their wages 33, 34, 36 n.2, 44, 99, 102, 104 Jury trial, and its relation to " gov- ernment by injunction" 761 Justices, empowered to fix wages 15, 29 Justification The strike 147 For inducing breach of contract 169, 173, 174 In trade disputes, generally 203, 250, 252 K Kansas Court of Industrial Rela- tions 918 Kansas Court of Industrial Re- lations Act 918 The living wage 923, 928 INDEX 1013 Page Unprofitable business 928 Hours of work 932, 936 Wages and general conditions of work 936, 943 Constitutionality of Kansas Court of Industrial Relations Act 945 Knowledge of by-laws of unincor- porated association presumed on the part of members 678 Label, union 479 Labor legislation, see Regulatory Labor Legislation Labourers Ordinance of 3 Statute of 5 Legality of combination 33 Legality of ends pursued through collective action 242 Effect of motive upon legalitv of acts 242 Trade competition 250 Justification 250 Strikes to secure higher wages, shorter hours, or improved working conditions 264 Strikes to secure increased op- portunity of employment 268 Strikes to force the discharge of non-union men and to union- ize shops 275 Cases holding such strikes legal .311n Cases holding such strikes il- legal 318?i EngUsh cases , 324?i Trade agreements for unioniza- tion of shops 331 Strikes to compel payment of fines levied against employer 344 Strikes to compel payment of fines levied against employee 354 Strikes to secure closed shop rules 366 Strikes to compel arbitration of differences 366 Strikes against employers guilty of a breach of good faith 377 Strikes to compel employer to re- employ a discharged em- ployee 378 Strikes to compel employer to continue an unprofitable de- partment of his business 380 Strike to compel employer to em- ploy more workers than he desires 381 Collective action to enforce illegal by-laws 385 Strikes for more than one purpose 388 Legality of means used by labor organizations 147 Page The strike 147 Inducing breach of contract 154 Violence. Intimidation 181 Peaceful persuasion 194 Picketing 200 Violence on the part of union members 237 Legislation relating to labor, see Regulatory Labor Legislation Liability of members of trade unions for authorized or unauthor- ized acts on the part of other union members 238, 240ra, 612, ff. Liability of members of unincor- porated associations for dues 678 Liability of officers and agents of labor unions 608 Liability of unincorporated associa- tions, see Corporate Rights, Powers and Liabilities of Un- incorporated Labor Unions Liability of union for violence on part of union members See also Chap. XI 237, 238n Liberty of contract 842, 856n Limitations upon issue of injunc- tions 762 Prohibitions must be clear and explicit 767, 768 limited to acts threatened 768, 769 not so broad as to include law- ful acts 770 Generality and vagueness of complaint 762, 765 List, "Unfair List" 453 Black List 468 Living wage, The 881, 882, 883, 888, 890, 923, 928 Appendix Lockouts 390 M 135, 138 248 Mail, obstructing the Malevolence See Motive, Malice "Malice" Inducing breach of contract 160, 163, 169n, 175, 179 Holmes, J., as to "malice " 203 Effect of wrongful motive upon legality of acts 242 Malevolence 242, 247, 248 Materials, boycott of 434 Means used by labor organizations, legality of, see Legality of Means Members, admission of, to unincor- porated associations 686 Members of labor unions, rights and liabilities of, in respect to third parties 608 1014 INDEX Page OfiBcers and agents 608 Individual members 612 Contract 612, 614, 617, 623, 625, 627 Tort 238, 240n, 631, 636, 638 Trade agreements 644 Minimum of comfort and subsist- ence, budgets for workingmen Appendix Minimum wage, determination of, by Industrial Courts 883, 890, 905 See also Living Wage Minimum wage laws 837, 842 m. 1,883, 905 Monopolies 68 English cases 68ff American cases 73ff Labor unions as monopolies 80, 83, 86, 97re Sherman Anti-Trust Act 112 Clayton Act 145 Trade agreements for unioniza- tion of shops 331 More workers than employer desires, legality of strike to compel employer to employ 381 Motive, effect of, upon legality of acts 242 N Non-coercive boycotts 453 Legality of 467ra Non-coercive persuasion 194, 463, 467n Non-union fields, attempts to union- ize 489, 504, 509 Non-union men, legality of strikes to compel the discharge of 275 Cases holding such strikes legal 311n Cases holding such strikes il- legal 318n Notice and a chance to be heard, discipline of labor union members without 698, 701, 707« O Oaths, secret, forbidden by law 36 Obstructing the mail 135, 138 Occupational injury 979 OfiBcers of labor unions, liability of 608 Ogbum budget for workingmen's families Appendix "Omnibus bill" 756n Opportunity of employment, legal- ity of strikes to secure in- creased 268 Oppression, conspiracy does not consist in general acts of 38 Ordinance of conspirators 37 Ordinance of labourers 3 Page Organization of non-union fields 489, 504, 509 Overt act other than conspiring, in conspiracy cases 39, 40, 55 Ownership of property by unincor- porated associations 554 Parties to suit, doctrine that injunc- tions can be issued against only those who are 734 Patronize, ceasing to, see Boycotts Peaceful persuasion 194, 21 In Peaceful picketing, see Picketing Permanent labor combinations, legality of in U. S. 99 Persuading another's customers to transfer patronage 453 Persuasion, peaceful 194, 211n Picketing 200 Cases holding picketing legal 2 1 In Cases holding picketing illegal 2 1 3ji Enghsh picketing legislation 236 Political purposes, expenditure of trade union funds for 599 English Trade Union Act of 1913 ,;25 Primary boycott 394 Legality of 398, 401, 402?i Prohibition of strikes in light of Thirteenth Amendment, see Thirteenth Amendment Property, ownership of , by unincor- porated associations 554 Protective legislation for an indus- trially weaker class 842, 861re Public interest, employment in a business charged with a 862 R Railway disputes, settlement of 138, 863, 870n Regrators 68, 69 Regulation of internal affairs of un- incorporated associations 672 Attitude of courts toward valid by-laws 672 Invalid by-laws 384, 673 n. 2 Application to national organiza- tion for charter 673 Legal action before exhaustion of remedies afforded by as- sociation 673, 683, 690, 691 Liability of members for dues 678 Presumed knowledge of by-laws by members 678 Alteration of by-laws 679, 683w Regulatory labor legislation 800 General principles. The Four- teenth Amendment 800 Police power 800, 803 Arbitrary discrimination 803 INDEX 1015 Page Employment of women and children 806, 809, 813, 813?i Employment in dangerous or un- healthful occupations 819, 898 Hours of labor in general 826, 833 Minimum wage laws 837, 842 n. i, 883, 905 Miscellaneous protective laws 842, 861n Liberty of contract 842, 856n Screening of coal 851 Cash payment of wages. Store orders 857, 860 Rent, cost of, in workingmen's bud- gets Appendix Representative of a larger group, suits against a few members as 737, 748, 751, 757 Under Federal Equity Rule 527, 737 Restraint of trade 68 Regrating, forestalling, engross- ing 68, 69, 70 Monopolistic combinations 73ff Labor unions regarded as per se in restraint of trade 80, 83, 97 n. 2 Labor unions regarded as not per se in restraint of trade 86 Differentiation between labor and commodities in general with respect to restraint of trade 97 A question of policy 98 Federal jurisdiction 112 Sherman Anti-Trust Act 112 Clayton Act 145 Trade agreements for unioniza- tion of shops 331 Revocation of local charter by na- tional organization 712 "Right of Association" 33 S Screening of coal, legislation regu- lating 851 Secondary boycott 403 See Boycotts Sherman Anti-Trust Act 112 See also Federal Jurisdiction over Labor Disputes Shorter hours, legality of strike for 264 South Australian Industrial Court 905 Rates of wage for women 905 Woman's hvirig wage 605 Standards of living of workingmen* Appendix See also Living Wage Statute of Lajjourers 5, 27, 28 Statutes English Statutes Ordinance of Conspirators (33 Edw. I) ,^^ 37 Ordinance of Labourers (23 Edw. Ill) 3 Page Statute of Labourers (25 Edw. Ill) 5 Act of 34 Edw. Ill 7 Act of 37 Edw. Ill 8 Act of 12 Ric. II 9 Act of 2 and 3 Edw. VI, c. 15 11 Act of 5 and 6 Edw. VI, c. 14 68 Act of 5 Eliz. c. 4 12 Act of 7 Geo. I, stat. 1, c. 13 17 Act of 12 Geo. Ill, c. 71 69 Combination jVct, 1800 (40 Geo. Ill, c. 106) 18 Combination Act, 1824 (5 Geo. IV, c. 95) 20 Combination Act, 1825 (6 Geo. IV, 0. 129) 21 Trade Union Act, 1871 (34 and 35 Vict. c. 31) 22 Crim. Law Amend. Act, 1871 (34 and 35 Vict. c. 32) 22 Conspiracy and Protection of Property Act, 1875 (38 and 39 Vict. c. 86) 23 Trade Disputes Act, 1906 (6 Edw. VII, c. 47) 24 Trade Union Act, 1913 (2 and 3 Geo. V, c. 30) 25 English picketing legislation 236 American Statutes Clayton Act (Oct. 15, 1914) 145 Conspiracy Statute (U. S. Crim. Code) 58 Court of Industrial Relations Act (Kansas) 918 Obstructing the mail 135 Sherman j!5iti-Trust Act 112 Canadian Statute Industrial Disputes Investiga- tion Act 875 Store money-orders, legislation regu- lating 857, 860 Strikes in breach of contract 169ra, 171, 489 Strikes, legality of 147 As affected by violence on part of union members 237, 2407i, 241 Strikes for higher wages 264 Strikes for shorter hours 264 Strikes for improved working con- ditions 264 Strikes to secure increased oppor- tunity of employment 268 Strikes to force the discharge of non-union men and to union- ize shops 275 Cases holding such strikes legal 311ra Cases holding such strikes il- legal 318w English cases 324n Strikes to compel payment of fines levied against employer 344 1016 INDEX Page Strikes to compel payment of fines levied against employee 364 Strikes to secure closed-shop rules 366 Strikes to compel arbitration of differences 366 Strikes to compel change in sys- tem of work 373 Strikes against employers guilty of a breach pf good faith 377 Strikes to compel employer to re- employ a discharged em- ployee 378 Strikes to compel employer to continue an unprofitable de- partment of his business 380 Strike to compel employer to employ more workers than he desires 381 Collective action to enforce illegal by-laws 385 Strikes for more than one purpose 388 Strikes, prohibition of, in the light of the Thu-teenth Amend- ment, see Thirteenth Amend- ment Suability of unincorporated unions, see Suits brought by and against Unincorporated La- bor Unions Suits brought by and against unin- corporated labor unions 517, 521n At law 517 Under statute 522 In equity 524 Federal Equity Rule No. 38 527 EngUsh law 527 Under Sherman Act 533 Sunstroke, recovery for, under Workmen's Compensation Laws 977, 978 Suspension of charter of local union by national organization 691 Sweeping injunctions against "all persons generally" and "all persons whomsoever" 748, 751, 757, 757n Tertiary boycotts 467ra Thirteenth Amendment 771 Compulsory service 771 Enforcement of contracts of personal service by specific performance 771 criminal law 774 Compulsory work law 777 Compulsory service by seamen 780 The strike 782 CompeH^g individuals to serve 782ff Page Restraining leaders from calling a strike 795 Threats 181, 189, 193n, 205 Trade, restraint of, see Restraint of Trade Trade agreements 644 For unionization of shops 331 Trade competition 250, 252, 259, 275 Trade Disputes Act, 1906 24 Trade Union Act, 1871 22 Trade Union Act, 1913 25 U "Ultra Vires" doctrine as applied to unincorporated associa- tions 596 Unauthorized use of trade union funds 599 Unauthorized acts of members, ha- bility of unincorporated as- sociation for, see Corporate Rights, Powers and Liabili- ties of Unincorporated Labor Unions Unauthorized use of trade union funds 599 Unauthorized violence on part of union members 237 "Unfair Lists" 463 Unhealthful occupations, legislation regulating employment in 819, 898 Unincorporated associations, see Corporate Rights, Powers and Liabilities of Unincor- porated Labor Unions] Union fines, strikes to coUect 344, 364 Union label 479 Constitutionality of statutes for protection of 484, 488n Union organizers in non-union fields 489, 504, 509 Unionization of non-union shops 489, 604, 509 Unionization of shops LegaUty of strikes for 275 Cases holding such strikes legal 31 In Cases holding such strikes il- legal 318n Legality of trade agreements for 331 United Mine Workers of America 489, 504, 509, 533, 757 United States jurisdiction, see Fed- eral Jurisdiction Unnamed parties, injunctions against, see Injunctions Unprofitable businesses and wages 888, 928, 933n INDEX 1017 Page Unprofitable department of busi- ness, legality of strike to compel employer to continue 380 Violence 181 Unauthorized violence on part of union members 237 W Wages, determination of, by In- dustrial Courts, see Living Wage, Minimum Wage Wages, legality of strike for higher 264 Wages of labourers, fixing of, by justices 15, 29 "We don't patronize" lists 462 Women and children, legislation regulating the employment of 806, 809, 813, 813ra Page Women's wages, determination of by Industrial Courts 905 See also Living Wage Working conditions, legality of strike for improved 264 Workingmen's budgets Appendix Workmen's Compensation Laws 954 Constitutionality of laws 954, 960 n. 2 Conclusiveness of findings of state commissions 960 "In the course of the employ- ment" 962 Injury after completion of actual service 962, 963 Injury while waiting for work 966, 967 "Arising out of the employment" 969 Causal connection necessary 969, 972 Injured person's own condition a contributing cause 972 Sunstroke 977, 978 Occupational injury 979 PRINTED AT THE HABVABD TJNIVEKSITY PRESS CAMBRIDGE, MASS., U.S.A. ^ ^ -%f %. ' ^•' «^ ,# '*, % * .:..V ^ *■