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,[609] that is, give warning of your

intention to do in that event, and thus allow the other person the

chance of avoiding the consequences. So as to “compulsion,” it depends

on how you “compel.” Commonwealth _v._ Hunt, 4 Met. 111, 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 display 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 words as there used meant threats of personal violence,

and intimidation by causing fear of it.

I have seen the suggestion made that the conflict between employers and

employed is not competition. But I venture to assume that none of my

brethren would rely on that suggestion. If the policy on which our law

is founded is too narrowly expressed in the term free competition, we

may substitute free struggle for life. Certainly the policy is not

limited to struggles between persons of the same class competing for the

same end. It applies to all conflicts 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 persons 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 presented and accepted by many

courts, I think it plainly untrue, both on authority and on

principle.[610] Commonwealth _v._ Hunt, 4 Met. 111; Randall _v._

Hazelton, 12 Allen, 412, 414. There was combination of the most flagrant

and dominant kind in Bowen _v._ Matheson and in the Mogul Steamship

Company’s case, and combination was essential 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 going on so fast, means an ever

increasing might and scope of combination. It seems to me futile to set

our faces against this tendency. Whether beneficial on the whole, as I

think it, or detrimental, it is inevitable, unless the fundamental

axioms of society, and even the fundamental conditions of life, are to

be changed.

One of the eternal conflicts out of which life is made up is that

between the effort of every man to get the most he can for his services,

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 necessary 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 Company

case. But Temperton _v._ Russell is not a binding authority here, and

therefore I do not think it necessary to discuss 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 argument, 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 intelligent economists and legislators

have given up that notion to-day. I feel pretty confident that they

equally will 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 dissociated 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.

Indeed, the question seems to me to have been decided as long ago as

1842 by the good sense of Chief Justice Shaw, in Commonwealth _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 only one, between the

interlocutory and the final decree. See Regina _v._ Shepherd, 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.[611]

PLANT _v._ WOODS

SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER 5, 1900.

_Reported in 176 Massachusetts Reports, 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 headquarters 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 employment or continuing in their employment.

Hearing before Dewey, J., who entered the following decree:

“The cause came on to be heard, and was argued by counsel; and

thereupon, on consideration thereof, it is ordered adjudged and decreed

that the defendant association, the defendants, and each and every of

them, their committees, agents, and servants, be restrained and strictly

enjoined from interfering and from combining, conspiring, or attempting

to interfere, with the employment of members of the plaintiffs’ said

association, by representing or causing to be represented in express or

implied terms to any employer of said members of plaintiffs’

association, or to any person or persons or corporation who might become

employers of any of the plaintiffs, that such employers will suffer or

are likely to suffer some loss or trouble in their business for

employing or continuing to employ said members of plaintiffs’ said

association; or by representing, directly or indirectly, for the purpose

of interfering with the employment of members of the plaintiffs’ said

association, to any who have contracts or may have contracts for

services to be performed by employers of members of plaintiffs’ said

association that such persons will or are likely to suffer some loss or

trouble in their business for allowing such employers of members of

plaintiffs’ said association (and because they are such employers) to

obtain or perform such contracts; or by intimidating or attempting to

intimidate, by threats, direct or indirect, express or implied, of loss

or trouble in business, or otherwise, any person or persons or

corporation who now are employing or may hereafter employ or desire to

employ any of the members of the plaintiffs’ said association; or by

attempting by any scheme or conspiracy, among themselves or with others,

to annoy, hinder, or interfere with, or prevent any person or persons or

corporation from employing or continuing to employ a member or members

of plaintiffs’ said association; or by causing, or attempting to cause,

any person to discriminate against any employer of members of

plaintiffs’ said association (because he is such employer) in giving or

allowing the performance of contracts to or by such employer; and from

any and all acts, or the use of any methods, which by putting or

attempting to put any person or persons or corporation in fear of loss

or trouble, will tend to hinder, impede, or obstruct members, or any

member, of the plaintiffs’ said association from securing employment or

continuing in employment. And that the plaintiffs recover their costs,

taxed as in an action of law.”

The case was reported, at the request of both parties, for the

determination of this court. The facts appear in the opinion.

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 organization having its

headquarters in Lafayette in the State of Indiana, while the defendant

union is affiliated with a similar organization having its headquarters

in Baltimore in the State of Maryland. The plaintiff union was composed

of workmen who in 1897 withdrew from the defendant union.

There does not appear to be anything illegal 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 provision for levying

a boycott upon a complaint made by any union.

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 September of

that year, the members of the defendant union declared “all painters not

affiliated with the Baltimore headquarters to be non-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 discipline 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, peaceably if possible but by threat and

intimidation if necessary. Accordingly, 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 whatever 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 operations 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 in his employ to sign

application for reinstatement in the defendant 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 defendants, 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 application

blanks for reinstatement; 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 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 all other

shops they made such representations as would lead the proprietors

thereof to expect trouble in their business.

We have, therefore, a case where the defendants have conspired to compel

the members of the plaintiff union to join the defendant union, and to

carry out their purpose have resolved upon such coercion and

intimidation as naturally may be caused by threats of loss of property

by strikes and boycotts, to induce the employers either to get the

plaintiffs to ask for reinstatement in the defendant union, or, that

failing, then to discharge them. It matters not that this request to

discharge has not been expressly made. There can be no doubt, upon the

findings of the master and the facts stated in his report, that the

compulsory discharge of the plaintiffs in case of non-compliance with

the demands of the defendant union is one of the prominent features of

the plan agreed upon.

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 will

cease to work. That is only the preliminary skirmish. It means that

those who have ceased to work will, by strong, persistent, and organized

persuasion and social pressure of every description, do all they can to

prevent the employer from procuring workmen to take their places. It

means much more. It means that, if these peaceful measures fail, the

employer may reasonably expect that unlawful 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 annoying conduct, 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

himself.

However mild the language or suave the manner in which the threat to

strike is made under such circumstances as are disclosed in this case,

the employer knows that he is in danger of passing through such an

ordeal as that above described, and those who make the threat know that

as well as he does. Even if the intent of the strikers, so far as

respects their own conduct and influence, be to discountenance all

actual or threatened injury to person or property or business, except

that which is the direct necessary result of the interruption of the

work, and even if their connection with the injurious and violent

conduct of the turbulent among them or of their sympathizers be not such

as to make them liable criminally or even answerable civilly in damages

to those who suffer, still with full knowledge of what is to be expected

they give the signal, and in so doing must be held to avail themselves

of the degree of fear and dread which the knowledge of such consequences

will cause in the mind of those—whether their employer or fellow

workmen—against whom the strike is directed; and the measure of coercion

and intimidation imposed upon those against whom the strike is

threatened or directed is not fully realized until all those probable

consequences are considered.

Such is the nature 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.

It is to be observed that this is not a case between the employer and

employed, or, to use a hackneyed expression, between capital and labor,

but between laborers all of the same craft, and each having the same

right as any one of the others to pursue his calling. In this, as in

every other case of equal rights, the right of each individual is to be

exercised with due regard to the similar right of all others, and the

right of one be said to end where that of another begins.

The right involved is the right to dispose of one’s labor with full

freedom. This is a legal right, and it is entitled to legal protection.

Sir William Erle in his book on Trade Unions, page 12, has stated this

in the following language, which has been several times quoted with

approval by judges in England: “Every person has a right under the law,

as between him and his fellow subjects, to full freedom in disposing of

his own labor or his own capital according to his own will. It follows

that every other person is subject to the correlative duty arising

therefrom, and is prohibited from any obstruction to the fullest

exercise of this right which can be made compatible with the exercise of

similar rights by others. Every act causing an obstruction to another in

the exercise of the right comprised within this description—done, not in

the exercise of the actor’s own right, but for the purpose of

obstruction—would if damage should be caused thereby to the party

obstructed, be a violation of this prohibition.”

The same rule is stated with care and discrimination 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, skill, and

credit. He has no right to be protected against competition; but he has

a right to be free from malicious and wanton interference, disturbance,

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,

without 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 damage to

the plaintiffs, and did actually cause such damage; and they 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 will 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 employees, 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 head-note in Allen _v._ Flood, as reported 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 meaning 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 meaning 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 circumstances is therefore lawful under every

conceivable set of circumstances, the proposition does not commend

itself to us as either logically 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 (Greenleaf _v._

Francis, 18 Pick. 117), or makes a written lease of his land for the

purpose of terminating a tenancy at will (Groustra _v._ Bourges, 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 justifiable cause; and

this justification may be found sometimes in the circumstances under

which it is done irrespective of motive, sometimes in the motive alone,

and sometimes in the circumstances and motive combined.

This principle is of very general application in criminal law, and also

is illustrated in many branches of the civil law, as in cases of libel

and of procuring a wife to leave her husband. Tasker _v._ Stanley, 153

Mass. 148, and cases therein cited. Indeed the principle is a prominent

feature underlying the whole doctrine of privilege, malice, and intent.

See on this an instructive article in 8 Harvard Law Review, 1, where the

subject is considered at some length.

It is manifest that not much progress is made by such general statements

as those quoted above from Allen _v._ Flood, whatever may be their

meaning.

Still standing for solution is the question, Under what circumstances,

including the motive of the actor, is the act complained of lawful, and

to what extent?

In cases somewhat akin to the one at bar this court has had occasion to

consider the question how far acts, manifestly coercive and intimidating

in their nature, which cause damage and injury to the business or

property of another, and are done with intent to cause such injury and

partly in reliance 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 together

into a society for the purpose of competing with other persons 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 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.” 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 somewhat

coercive in their nature 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; Macauley _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 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 obligation 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 circumstances 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

substance, to force the plaintiff to give his work to the defendants,

and 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, _ubi supra_. The purpose

of these defendants was to force the plaintiffs 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, although 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 likely to force a man against his will to grant the thing demanded,

and actually has that effect, is sufficient in cases like this. As

stated by Lord Bramwell in Regina _v._ Druitt, 10 Cox C. C. 592, 600,

“No right of property, or capital, ... was so sacred, or so carefully

guarded by the law of this land, as that of personal liberty.... That

liberty was not liberty of the body only. It was also a liberty 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.”

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 will 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 the

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.

The language used by this court in Carew _v._ Rutherford, 106 Mass. 1,

15, may be repeated here with emphasis, as applicable to this case: “The

acts alleged and proved in this case are peculiarly offensive to the

free principles which prevail in this country; and if such practices

could enjoy impunity, they would tend to establish a tyranny of

irresponsible persons over labor and mechanical business which would be

extremely injurious to both.” See, in addition to the authorities above

cited, Commonwealth _v._ Hunt, 4 Met. 111; Sherry _v._ Perkins, 147

Mass. 212, 214; Vegelahn _v._ Guntner, 167 Mass. 92, 97; St. 1894, c.

508, § 2;[612] State _v._ Donaldson, 3 Vroom, 151; State _v._ Stewart,

59 Vt. 273; State _v._ Glidden, 55 Conn. 46; State _v._ Dyer, 67 Vt.

690; Lucke _v._ Clothing Cutters & Trimmers’ Assembly, 77 Md. 396.

As the plaintiffs have been injured by these acts, and there is reason

to believe that the defendants contemplate further proceedings 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,

_ubi supra_.

Some phases of the labor question have recently been discussed in the

very elaborately considered case of Allen _v._ Flood, _ubi supra_.

Whether or not the decision made therein is inconsistent with the

propositions upon which we base our decision in this case, we are not

disposed, in view of the circumstances under which that decision was

made, to follow it. We prefer the view expressed by the dissenting

judges, which view, it may be remarked, was entertained not only by

three of the nine lords who sat in the case, but also by the great

majority of the common law judges who had occasion officially to express

an opinion.

There must be, therefore, a decree for the plaintiffs. We think,

however, that the clause, “or by causing or attempting to cause, any

person to discriminate against any employer of members of plaintiffs’

said association (because he is such employer) in giving or allowing the

performance of contracts to or by such employer,” is too broad and

indefinite, inasmuch as it might seem to include mere lawful persuasion

and other similar and peaceful acts; and for that reason, and also

because so far as respects unlawful acts it seems to cover only such

acts as are prohibited by other parts of the decree, we think it should

be omitted.

Inasmuch as the association of the defendants is not a corporation, an

injunction cannot be issued against it as such, but only against its

members, their agents and servants.

As thus modified, in the opinion of the majority of the court, the

decree should stand.

_Decree 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, however strong his

convictions may be, should thereafter accept the 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 majority 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 line of reasoning followed

makes it proper for me to explain where the difference lies.

I agree that the conduct of the defendants is actionable unless

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 contract, 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 point, 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 and 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 effectual, and

that societies of laborers lawfully may employ in their preparation the

means which they might use in the final contest.

Although this is not the place for extended economic discussion, and

although the law may not always reach ultimate economic conceptions, I

think it well to add that I cherish no illusions as to the meaning and

effect of strikes. While I think the strike a lawful instrument in the

universal struggle of life, I think it pure phantasy to suppose that

there is a body of capital of which labor as a whole secures a larger

share by that means. The annual product, subject to an infinitesimal

deduction for the luxuries of the few, is directed to consumption by the

multitude, and is consumed by the multitude always. Organization and

strikes may get a larger share for the members of an organization, but,

if they do, they get it at the expense of the less organized and less

powerful portion of the laboring mass. They do not create something out

of nothing. It is only by divesting our minds of questions of ownership

and other machinery of distribution, and by looking solely at the

question of consumption,—asking ourselves what is the annual product,

who consumes it, and what changes would or could we make,—that we can

keep in the world of realities. But, subject to the qualifications which

I have expressed, I think it lawful for a body of workmen to try by

combination to get more than they now are getting, although they do it

at the expense of their fellows, and to that end to strengthen their

union by the boycott and the strike.[613]

MARTELL _v._ WHITE

SUPREME JUDICIAL COURT, MASSACHUSETTS, MARCH 1, 1904.

_Reported in 185 Massachusetts Reports, 255._

Tort for alleged conspiracy to injure plaintiffs business. In the

Superior Court, Bishop, J., ordered a verdict for defendants, and

plaintiff excepted.

HAMMOND, J. The evidence warranted the finding of the following facts,

many of which were not in dispute. The plaintiff was engaged in a

profitable business in quarrying granite and selling the same to granite

workers in Quincy and vicinity. About January, 1899, his customers left

him, and his business was ruined through the action of the defendants

and their associates.

The defendants were all members of a voluntary association known as the

Granite Manufacturers’ Association of Quincy, Mass., and some of them

were on the executive committee. The association was composed of “such

individuals, firms, or corporations as are, or are about to become

manufacturers, quarriers, or polishers of granite.” There was no

constitution, and, while there were by-laws, still, except as

hereinafter stated, there was in them no statement of the objects for

which the association was formed. The by-laws provided among other

things for the admission, suspension and expulsion of members, the

election of officers, including an executive committee, and defined the

respective powers and duties of the officers. One of the by-laws read as

follows: “For the purpose of defraying in part the expense of the

maintenance of this organization, any member thereof having business

transactions with any party or concern in Quincy or its vicinity, not

members hereof, and in any way relating to the cutting, quarrying,

polishing, buying or selling of granite (hand polishers excepted), shall

for each of said transactions contribute at least $1 and not more than

$500. The amount to be fixed by the association upon its determining the

amount and nature of said transaction.”

Acting under the by-laws, the association investigated charges which

were made against several of its members that they had purchased granite

from a party “not a member” of the association. The charges were proved,

and under the section above quoted it was voted that the offending

parties “should respectively contribute to the funds of the association”

the sums named in the votes. These sums ranged from $10 to $100. Only

the contribution of $100 has been paid, but it is a fair inference that

the proceedings to collect the others have been delayed only by reason

of this suit. The party “not a member” was the present plaintiff, and

the members of the association knew it. Most of the customers of the

plaintiff were members of the association, and after these proceedings

they declined to deal with him. This action on their part was due to the

course of the association in compelling them to contribute as above

stated, and to their fear that a similar vote for contribution would be

passed should they continue to trade with the plaintiff.

The jury might properly have found also that the euphemistic expression

“shall contribute to the funds of the association” contained an idea

which could be more tersely and accurately expressed by the phrase

“shall pay a fine,” or, in other words, that the plain intent of the

section was to provide for the imposition upon those who came within its

provisions of a penalty in the nature of a substantial fine. The bill of

exceptions recites that “there was no evidence of threats or

intimidation practiced upon the plaintiff himself, and the acts

complained of were confined to the action of the society upon its own

members.” We understand this statement to mean simply that the acts of

the association concerned only such of the plaintiff’s customers as were

members, and that no pressure was brought to bear upon the plaintiff

except such as fairly resulted from action upon his customers. While it

is true that the by-law was not directed expressly against the plaintiff

by name, still he belonged to the class whose business it was intended

to affect, and the proceedings actually taken were based upon

transactions with him alone, and in that way were directed against his

business alone. It was the intention of the defendants to withdraw his

customers from him, if possible, by the imposition of fines upon them,

with the knowledge that the result would be a great loss to the

plaintiff. The defendants must be presumed to have intended the natural

result of their acts.

Here, then, is a clear and deliberate interference with the business of

a person with the intention of causing damage to him and ending in that

result. The defendants combined and conspired together to ruin the

plaintiff in his business, and they accomplished their purpose. In all

this have they kept within lawful bounds? It is elemental that the

unlawfulness of a conspiracy may be found either in the end sought or

the means to be used. If either is unlawful within the meaning of the

term as applied to the subject, then the conspiracy is unlawful. It

becomes necessary, therefore, to examine into the nature of the

conspiracy in this case, both as to the object sought and the means

used.

The case presents one phase of a general subject which gravely concerns

the interests of the business world and indeed those of all organized

society, and which in recent years has demanded and received great

consideration in the courts and elsewhere. Much remains to be done to

clear the atmosphere, but some things at least appear to have been

settled, and certainly at this stage of the judicial inquiry it cannot

be necessary to enter upon a course of reasoning or to cite authorities

in support of the proposition that while a person must submit to

competition he has the right to be protected from malicious interference

with his business. The rule is well stated in Walker _v._ Cronin, 107

Mass. 555, 564, in the following language: “Every one has a right to

enjoy the fruits and advantages of his own enterprise, industry, skill

and credit. He has no right to be protected against competition; but he

has a right to be free from malicious and wanton interference,

disturbance 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, without the justification of competition or the service of

any interest or lawful purpose, it then stands upon a different

footing.”

In a case like this, where the injury is intentionally inflicted, the

crucial question is whether there is justifiable cause for the act. If

the injury be inflicted without just cause or excuse, then it is

actionable. Bowen, L. J., in Mogul Steamship Co. _v._ McGregor, 23 Q. B.

D. 598, 613; Plant _v._ Woods, 176 Mass. 492. The justification must be

as broad as the act and must cover not only the motive and the purpose,

or in other words the object sought, but also the means used.

The defendants contend that both as to object and means they are

justified by the law applicable to business competition. In considering

this defence it is to be remembered, as was said by Bowen, L. J., in

Mogul Steamship Co. _v._ McGregor, L. R. 23 Q. B. D. 598, 611, that

there is presented “an apparent conflict or antimony between two rights

that are equally regarded by the law—the right of the plaintiff to be

protected in the legitimate exercise of his trade and the right of the

defendants to carry on their business as seems best to them, provided

they commit no wrong to others.” Here, as in most cases where there is a

conflict between two important principles, either of which is sound and

to be sustained within proper bounds, but each of which must finally

yield to some extent to the other, it frequently is not possible by a

general formula to mark out the dividing line with reference to every

conceivable case, and it is not wise to attempt it. The best and only

practicable course is to consider the cases as they arise, and, bearing

in mind the grounds upon which the soundness of each principle is

supposed to rest, by a process of elimination and comparison to

establish points through which at least the line must run and beyond

which the party charged with trespass shall not be allowed to go.

While the purpose to injure the plaintiff appears clearly enough, the

object or motive is left somewhat obscure upon the evidence. The

association had no written constitution, and the by-laws do not

expressly set forth its objects. It is true that from the by-laws it

appears that none but persons engaged in the granite business can be

members, and that a member transacting any business of this kind with a

person not a member is liable to a fine; from which it may be inferred

that it is the idea of the members that for the protection of their

business it would be well to confine it to transactions among

themselves, and that one at least of the objects of the association is

to advance the interests of the members in that way. The oral testimony

tends to show that one object of the association is to see that

agreements made between its members and their employees and between this

association and similar associations in the same line of business be

kept and “lived up to.” Whether this failure to set out fully in writing

the objects is due to any reluctance to have them clearly appear or to

some other cause, is of course not material to this case. The result,

however, is that its objects do not so clearly appear as might be

desired; but in view of the conclusion to which we have come as to the

means used, it is not necessary to inquire more closely as to the

objects. It may be assumed that one of the objects was to enable the

members to compete more successfully with others in the same business,

and that the acts of which the plaintiff complains were done for the

ultimate protection and advancement of their own business interests,

with no intention or desire to injure the plaintiff except so far as

such injury was the necessary result of measures taken for their own

interests. If that was true, then so far as respects the end sought the

conspiracy does not seem to have been illegal.

The next question is whether there is anything unlawful or wrongful in

the means used as applied to the acts in question. Nothing need be said

in support of the general right to compete. To what extent combination

may be allowed in competition is a matter about which there is as yet

much conflict, but it is possible that in a more advanced stage of the

discussion the day may come when it will be more clearly seen and will

more distinctly appear in the adjudication of the courts than as yet has

been the case; that the proposition that what one man lawfully can do

any number of men acting together by combined agreement lawfully may do,

is to be received with newly disclosed qualifications arising out of the

changed conditions of civilized life and of the increased facility and

power of organized combination, and that the difference between the

power of individuals acting each according to his own preference and

that of an organized and extensive combination may be so great in its

effect upon public and private interests as to cease to be simply one of

degree and to reach the dignity of a difference in kind. Indeed, in the

language of Bowen, L. J., in the Mogul Steamship case, _ubi supra_, page

616: “Of the general proposition that certain kinds of conduct not

criminal in one individual may become criminal if done by combination

among several, there can be no doubt. The distinction is based on sound

reason, for a combination may make oppressive or dangerous that which if

it proceeded only from a single person would be otherwise, and the very

fact of the combination may show that the object is simply to do harm,

and not to exercise one’s own just rights.” See also opinion of

Stirling, L. J., in Giblan _v._ National Amalgamated Laborers’ Union,

[1903] 2 K. B. 600, 621. Speaking generally, however, competition in

business is permitted, although frequently disastrous to those engaged

in it. It is always selfish, often sharp, and sometimes deadly.

Conspicuous illustrations of the destructive extent to which it may be

carried are to be found in the Mogul Steamship case above cited, and in

Bowen _v._ Matheson, 14 Allen, 499. The fact therefore that the

plaintiff was vanquished is not enough, provided that the contest was

carried on within the rules allowable in such warfare.

It is a right, however, which is to be exercised with reference to the

existence of a similar right on the part of others. The trader has not a

free lance. He may fight, but as a soldier, not as a guerilla. The right

of competition rests upon the doctrine that the interests of the great

public are best subserved by permitting the general and natural laws of

business to have their full and free operation, and that this end is

best attained when the trader is allowed in his business to make free

use of these laws. He may praise his wares, may offer more advantageous

terms than his rival, may sell at less than cost, or, in the words of

Bowen, L. J., in the Mogul Steamship case, _ubi supra_, may adopt “the

expedient of sowing one year a crop of apparently unfruitful prices in

order by driving competition away to realize a fuller harvest of profit

in the future.” In these and many other obvious ways he may secure the

customers of his rival, and build up his own business to the destruction

of that of others, and so long as he keeps within the operation of the

laws of trade his justification is complete.

But from the very nature of the case it is manifest that the right of

competition furnishes no justification for an act done by the use of

means which in their nature are in violation of the principle upon which

it rests. The weapons used by the trader who relies upon this right for

justification must be those furnished by the laws of trade, or at least

must not be inconsistent with their free operation. No man can justify

an interference with another man’s business through fraud or

misrepresentation, nor by intimidation, obstruction or molestation. In

the case before us the members of the association were to be held to the

policy of refusing to trade with the plaintiff by the imposition of

heavy fines, or in other words they were coerced by actual or threatened

injury to their property. It is true that one may leave the association

if he desires, but if he stays in it he is subjected to the coercive

effect of a fine to be determined and enforced by the majority. This

method of procedure is arbitrary and artificial, and is based in no

respect upon the grounds upon which competition in business is

permitted, but on the contrary it creates a motive for business action

inconsistent with that freedom of choice out of which springs the

benefit of competition to the public, and has no natural or logical

relation to the grounds upon which the right to compete is based. Such a

method of influencing a person may be coercive and illegal. Carew _v._

Rutherford, 106 Mass. 1.

Nor is the nature of the coercion changed by the fact that the persons

fined were members of the association. The words of Munson, J., in

Boutwell _v._ Marr, 71 Vt. 1, 9, are applicable here: “The law cannot be

compelled by any initial agreement of an associate member to treat him

as one having no choice but that of the majority, nor as a willing

participant in whatever action may be taken. The voluntary acceptance of

by-laws providing for the imposition of coercive fines does not make

them legal and collectible, and the standing threat of their imposition

may properly be classed with the ordinary threats of suits upon

groundless claims. The fact that the relations and processes deemed

essential to a recovery are brought within the membership and

proceedings of an organized body cannot change the result. The law sees

in the membership of an association of this character both the authors

of its coercive system and the victim of its unlawful pressure. If this

were not so, men could deprive their fellows of established rights, and

evade the duty of compensation, simply by working through an

association.”

In view of the considerations upon which the right of competition is

based, we are of opinion that as against the plaintiff the defendants

have failed to show that the coercion or intimidation of the plaintiff’s

customers by means of a fine is justified by the law of competition. The

ground of the justification is not broad enough to cover the acts of

interference in their entirety, and the interference being injurious and

unjustifiable is unlawful.

We do not mean to be understood as saying that a fine is of itself

necessarily or even generally an illegal implement. In many cases it is

so slight as not to be coercive in its nature; in many it serves a

useful purpose to call the attention of a member of an organization to

the fact of the infraction of some innocent regulation; and in many it

serves as an extra incentive to the performance of some absolute duty or

the assertion of some absolute right. But where, as in the case before

us, the fine is so large as to amount to moral intimidation or coercion,

and is used as a means to enforce a right not absolute in its nature but

conditional, and is inconsistent with those conditions upon which the

right rests, then the coercion becomes unjustifiable and taints with

illegality the act.

The defendants strongly rely upon Bowen _v._ Matheson, 14 Allen, 499;

Mogul Steamship Co. _v._ McGregor, [1892] A. C. 25; Bohn Mfg. Co. _v._

Hollis, 54 Minn. 223; Macauley Bros. _v._ Tierney, 19 R. I. 255, and

Cote _v._ Murphy, 159 Penn. St. 420. In none of these cases was there

any coercion by means of fines upon those who traded with the plaintiff.

Inducements were held out, but they were such as are naturally incident

to competition, for instance, more advantageous terms in the way of

discounts, increased trade, and otherwise. In the Minnesota case there

was among the rules of the association a clause requiring the plaintiff

to pay 10 per cent, but the propriety or the legality of that provision

was not involved. In Bowen _v._ Matheson, it is true that the by-laws

provided for a fine, but the declaration did not charge that any

coercion by means of a fine had been used. A demurrer to the declaration

was sustained upon the ground that there was no sufficient allegation of

an illegal act. The only allegation which need be noticed here was that

the defendants “did prevent men from shipping with” the plaintiff, and

as to this the court said: “This might be done in many ways which are

legal and proper, and as no illegal methods are stated the allegation is

bad.” This comes far short of sustaining the defendants in their course

of coercion by means of fines. As to the other cases cited by the

defendant it may be said that, while bearing upon the general subject of

which the present case presents one phase, they are not inconsistent

with the conclusion to which we have come. Among the authorities bearing

upon the general subject and having some relation to the questions

involved in this case, see, in addition to those hereinbefore cited,

Slaughter-House Cases, 16 Wall. 116; United States _v._ Addystone, 175

U. S. 211; Doremus _v._ Hennessy, 176 Ill. 608; Inter-Ocean Pub. Co.

_v._ Associated Press, 184 Ill. 438; State _v._ Stewart, 59 Vt. 273;

Olive _v._ Van Patten, 7 Tex. Civ. App. 630; Barr _v._ Essex Trades

Council, 53 N. J. Eq. 101; Jackson _v._ Stanfield, 137 Ind. 592; Bailey

_v._ Master Plumbers, 103 Tenn. 99; Brown _v._ Jacobs Pharmacy Co., 115

Ga. 429; Mogul Steamship Co. _v._ McGregor, 15 Q. B. D. 476; s. c. 21 Q.

B. D. 544; S. C. 23 Q. B. D. 598; S. C. [1892] A. C. 25.

For the reasons above stated a majority of the court are of opinion that

the case should have been submitted to the jury.

_Exceptions sustained._[614]

PICKETT _v._ WALSH

SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 16, 1906.

_Reported in 192 Massachusetts Reports, 572._

The plaintiffs were brick and stone “pointers.” The defendants were

officers and members of bricklayers’ unions and stonemasons’

unions.[615]

One ground of complaint was that the defendants prevented the

employment of the plaintiffs as “pointers” by notifying contractors

that they would not lay the bricks or do the mason work on any

building unless they were also employed to do the pointing of the

brick and stone masonry. “The defendants in effect say we want the

work of pointing the brick and stone laid by us, and you must give us

all or none of the work.”[616] The court held that this conduct,

although disastrous to the plaintiffs and damaging to the building

contractors, was justifiable. “... 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.”[617]

The other ground of action in Pickett _v._ Walsh was quite distinct

from the foregoing. The firm of L. P. Soule & Son Company were the

general contractors for the erection of the Ford building; 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 buildings were being erected for other owners, on which the

Soule Company were the general contractors, and as to which no

complaint existed in reference to the pointing. The bricklaying and

masonry on these other buildings were being done by members of the

defendants’ union. The defendant officials induced all the bricklayers

and masons to quit working for the Soule Company on these other

buildings, 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 Company but [by] the owners of the

building.” The evident purpose was to thus induce the Soule Company to

exert pressure on the owners of the Ford building to discontinue the

employment of the pointers (Pickett _et 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.

LORING, J.[618]

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, 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 & Son Company 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 & Son Company 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 union’s) favor. Such a strike is not a

justifiable 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 limited to strikes on persons with

whom the organization has a trade dispute; or to put it in another

way, we are of the opinion that a strike on A, with whom the striker

has 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.[619]

BARR _v._ THE ESSEX TRADES COUNCIL

COURT OF CHANCERY, NEW JERSEY, OCTOBER TERM, 1894.

_Reported in 53 New Jersey Equity Reports, 101._

On order to show cause why injunction should not issue.[620]

The original complainant was the sole proprietor and publisher of a

daily morning newspaper called the “Newark Times.”

The defendants are eighteen bodies known as “labor unions,” embracing

many trades in the city of Newark, affiliated in a society or

representative body known as “Essex Trades Council.”

The Essex Trades Council is a voluntary association, composed of

delegates chosen thereto by each of the eighteen defendant unions.

Meetings are held weekly. Every organization represented in the council

is required to make a monthly report of union purchases, and failing to

do so for two consecutive months, its products are not to be considered

as “fair.”

A circular, issued by the Council in 1893, addressed to the public,

states:—

“The Essex Trades Council has for some time past been concentrating the

trade of its members and those whom these could influence, upon the

goods made and recommended by organized fair labor, and the stores and

places where these goods are sold. The regular system of purchase

reports from individual consumers, transmitted through their

organization, places the council in a position to announce that it is

already turning thousands of dollars of trade every week away from those

indifferent to the welfare of the worker, and into the pockets of

labor’s proven friends. That these friends may receive greater support

by being made more readily known to organized working men and their many

sympathizers among lovers of justice, together forming the great bulk of

the consuming public, the Essex Trades Council will shortly issue a

series of cards for free display in all business establishments

especially deserving the patronage of organized fair consumers, their

families, associates and friends.”

The plan of operation, as developed by the papers and exhibits filed in

the cause, is that each individual member of the different unions is

required at stated periods to fill out a blank slip furnished for that

purpose, stating the amount expended by him in purchase, the character

of the articles bought, and the names of the tradesmen with whom he has

dealt. These cards, when filled in, are returned by the members to their

own union, and by the union reported to the council. A failure by a

union to so report for two consecutive months, places its products under

the ban of organized labor as represented in the council. These reports

place the trades council in possession of data as to the amount of

purchases by the members of the unions, and the tradesmen with whom

their dealing is carried on, from which its officers are enabled to

estimate, with some degree of accuracy, the volume of purchases by the

members of the several organizations within a stated period of time.

The next step is an agreement in writing purporting to be made between

the Essex Trades Council and a tradesman, by which the latter, “in

return for the patronage of united fair consumers,” promises and agrees

to buy as consumer, engage as employer, keep as dealer, as exclusively

as he can, such labor and goods as may be announced as fair by a

particular union and endorsed by the council of consumers of the Essex

Trades Council.

Cards are then issued to the tradesmen, under the seal of the trades

council, addressed “to all fair consumers,” each certifying that the

person to whom it is issued “is a fair consuming dealer,” and is

entitled to their fraternal support until a specified date. Coupons are

annexed for certification by particular industries. These cards are of

such size, color and appearance that, if publicly displayed in stores or

places of business, they will attract attention.

There was issued, under date of March 31, 1894, “by the Essex Trades

Council and auxiliary circle bodies,” a small pamphlet of convenient

size to be carried in the pocket, which is entitled “The Fair List of

Newark, N. J.,” and to be “for the information of people who buy service

or product and who have enterprise enough to seek to place their money

where it will do them most good.” It contains names and addresses of

tradesmen and persons in business, including lawyers, interspersed with

items of information and advice.

* * * * *

The plaintiff Barr determined to employ “plate matter” in making up part

of his daily paper. (This consists of reading matter edited, set up and

stereotyped in New York.) All plaintiff’s employees were members of the

local typographical union. This union had declared against the use of

plate matter in the city of Newark, which fact was known to Mr. Barr.

Through his foreman, he sought to have this resolution of the union

relaxed in favor of his paper, but on its refusal so to do adhered to

his determination, and, by letter dated March 13, 1894, informed his

foreman that he would use plate matter on and after March 17th, saying

further, that, not desiring to lose any of the men in his department,

the union scale of wages would be maintained, and that he would gladly

retain the services of such as might be willing to stay. Some of the

employees determined to remain, others, however, left in consequence of

his disregard of the union’s determination, and the union withdrew its

endorsement of the newspaper. The union thereupon, through its

delegates, informed the Essex Trades Council of this fact and requested

its assistance. In response, the council appointed a committee in

reference to the controversy, and, on March 30, 1894, issued a circular

addressed to the public, which, after giving its version of the dispute,

concludes with this appeal:—

“Friends, one and all, leave this council-boycotting ‘Newark Times’

alone. Cease buying it! Cease handling it! Cease advertising in it! Keep

the money of fair men moving only among fair men. Boycott the boycotter

of organized fair labor.”

This circular was distributed in the city of Newark.

In April, 1894, the trades council issued a small four-page sheet

entitled “The Union Buyer. Official bulletin of united fair custom of

Newark and vicinity. Issued by the Essex Trades Council.” It is

impressed at the heading with the union label. It purports to be volume

I, number 1, issued at Newark, N. J., April, 1894. Its first

announcement is as follows:—

“Our mission—To support the supporters and boycott the boycotters of

organized fair labor. To promote the public welfare by the diffusion of

common cents, urging all to carry these in trade only to those who will

return them to the people in the shape of living wages.”

The whole paper is devoted to the controversy between the unions and the

“Newark Times,” no other object being considered. It refers throughout

to that paper either by reversing the letters of the name “Times” as

“Semit,” or by turning the type bottom side up. The first article after

the declaration of its mission is a statement from Typographical Union

No. 103, under the heading of “‘The Times’ Trouble.” The only grievance

stated against the “Times” grows out of the use of plate matter, and

ends with “workingmen and advertisers, remember that plate matter means

forty-five cents a day, and understand why the ‘Newark Times’ is an

unfair office.” Then follow five columns of “Notes and Comments.” These

are all directed to the controversy, and are in vigorous and

denunciatory language, and conclude as follows:—

“In conclusion, the council desires to state that the issue between it

and the ‘Semit’ is now wide open. It is a fight between the ‘Semit’ and

its supporters and the council and its supporters. We give the great

public absolute freedom in the choice of its side, but not a single cent

of our money will be knowingly let pass to any one who buys the ‘Semit,’

keeps the ‘Semit,’ advertises in the ‘Semit,’ or in any other way leads

us to believe that a portion of our honestly-earned money may find its

way into the pockets to furnish support to the unfair management of the

‘Semit’ or any of those who have so foully betrayed the cause of

organized fair labor.”

At the foot of this document is placed, in large type, the request,

“When through reading, please pass to your neighbor.”

This paper was circulated in Newark. There were other publications, but

the defendants deny any responsibility for them, and there is no

evidence to connect them with their issue or circulation.

Various labor unions represented in the trades council then passed a

prepared set of resolutions, which were printed and distributed in

Newark. One of these requested all enterprising business houses to

abstain from advertising in the “Times” until the trouble had been

adjusted, stating that hundreds of their friends had refused to buy and

read the “Times,” and that its circulation had become considerably

reduced because of its alleged unfair stand. Another asked such

advertisers as had made contracts with the “Times” for definite periods,

to consider whether it would not be far more advantageous for them in

the end to take out their advertisements, leave their space entirely

blank and pay the few cents their contracts called for, than to

jeopardize thousands of dollars of trade that fair labor would be

“compelled to withhold so long as such advertisements appeared, and for

an indefinite period thereafter,” adding that “those who now continue to

advertise in the ‘Times’ merely succeed in making themselves conspicuous

as persons to carefully and studiously keep away from.”

These resolutions found their way into the hands of the advertisers in

the “Times.”

The various trades unions, affiliated in the council, represent, as is

claimed by them, a purchasing power amounting to over $400,000 in each

and every week. Owing to the issue and distribution of the aforesaid

circular and resolutions, the individual members of the union, and their

friends and sympathizers, withheld their patronage from the “Newark

Times.” The circulation of the paper was thereby considerably reduced.

The issue and distribution of said circular and resolutions caused

certain persons, who had theretofore advertised in the “Times,” to cease

advertising in that paper.

GREEN, V. C.

* * * * *

[After stating the testimony of Mr. Beckmeyer, secretary of the Essex

Trades Council, as to the signification of the word “boycott,” as used

in the circular and publications.]

From which it is to be gathered that the use of the word “boycott” in

the publications, as applied to the “Times,” would be regarded by the

members of the various unions to mean only that they should refrain from

trading or dealing with the complainant, and with those who oppose the

organizations in their actions and doings with reference to the

complainant.

I do not see that this changes the character of the injury, but even if

it does, so far as the members of the organizations are concerned, the

difficulty is that these communications were addressed to the public and

indiscriminately circulated. They were not intended only for members of

the order by whom a technical signification would be given to the word

“boycott,” but to the general public who would read them and give the

word its accepted meaning.

[After quoting various definitions of “boycott”] Mr. Justice Taft, in

Toledo Co. _v._ Penn. Co., 54 Fed. Rep. 746, says: “As usually

understood a boycott is 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 those

others do so, the many will cause similar loss to them.”

But the defendants insist, and counsel vigorously urge, that this

particular boycott is not open to such adverse criticism, because “there

was no violence, intimidation, coercion or threats used, and that

everything was done in a peaceful and orderly manner.” How far is this

claim borne out by the facts? It is true, there was no public

disturbance, no physical injury, no direct threats of personal violence

or of actual attack on or destruction of tangible property as a means of

intimidation or coercion. Force and violence, however, while they may

enter largely into the question in a criminal prosecution, are not

necessary factors in the right to a civil remedy. But even in criminal

law, I do not understand that intimidation, even when a statutory

ingredient of crime, necessarily presupposes personal injury or the fear

thereof. The clear weight of authority undoubtedly is that a man may be

intimidated into doing, or refraining from doing, by fear of loss of

business, property or reputation, as well as by dread 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.

There can be no reasonable dispute that the whole proceeding or boycott

in this controversy is to force Mr. Barr, by fear of loss of business,

to conduct that business, not according to his own judgment, but in

accordance with the determination of the typographical union, and, so

far as he is concerned, it is an attempt to intimidate and coerce.

Next as to the members of the various labor unions. According to Mr.

Beckmeyer, all the organizations represented in the trades council and

the individual members thereof, in strict conformity with the purpose

and object for which the said council was organized, withheld their

patronage from the said newspaper on the mere announcement by the

typographical union to the trades council that that union had withdrawn

its endorsement from the “Times.” Why? It is said that it was only the

exercise by each person of his right to spend his money as his own will

dictated. The fallacy of this is apparent. It loses sight of the

combination, the whole strength of which lies in the fact that each

individual has surrendered his own discretion and will to the direction

of the accredited representative of all the organizations. He no longer

uses his own judgment, but, by entering into the combination, agrees to

be bound by its decree. As is said in Templeton _v._ Russell, _supra_,

“those men had bound themselves to obey, and they knew they had done so,

and that if they did not obey they would be fined, or expelled from the

union to which they belonged.” It is common knowledge, if indeed it does

not amply so appear by the papers in this case, that a member of a labor

organization who does not submit to the edict of his union asserts his

independence of judgment and action at the risk, if not the absolute

sacrifice, of all association with his fellow-members. They will not

eat, drink, live or work in his company. Branded by the peculiarly

offensive epithets adopted, he must exist ostracized, socially and

industrially, so far as his former associates are concerned. Freedom of

will under such circumstances cannot be expected.

Next as to the advertising public. Tradesmen advertise in newspapers for

the sole purpose of drawing customers to their stores. An authoritative

announcement, not from one, but from many sources, that the body of

organized labor in the city or county representing a purchasing power of

$400,000 a week would cease to deal with those whose advertisements

appeared in the newspaper, would have a much more deterrent effect than

any threat of violence. To say that this is only advice, or an

intimation, to the advertiser for his guidance if he sees fit to accept

it, is trifling with the language. Advice, behind which lurks the threat

of the withdrawal of such a volume of business, could have no other

effect than to intimidate and coerce, as it did in fact make several

change their judgment, which had previously led them to advertise in the

paper. The claim that this boycott was attempted to be enforced without

intimidation or coercion will not bear the light of examination.

A legal excuse for the action of the defendants is next sought in the

claim that the Essex Trades Council is a business institution, and that

what it has done has been in prosecution of such business, seeking, I

suppose, to bring the case within the rule of Mogul Steamship Co. _v._

McGregor, 15 Q. B. Div. 476; 23 Q. B. Div. 598. That case proceeded on

the doctrine of a lawful competition in business, both parties being

engaged in carrying on the same character of business, and the acts

complained of having been adopted for the advancement of the defendant’s

own trade, viz., carrying goods on a steamship line, although thereby

damage to the other party necessarily ensued.

I see no similarity in the business of these parties. That of the

complainant is the publisher of a newspaper. Members of the

typographical union, and stereotypers’ and pressmen’s union, are skilled

workmen, whose services might be employed in such business, but they are

not carrying on any enterprise in competition with that of the

complainant. So far as the other unions are concerned, the most, if not

all of them, have no connection with such trade.

Neither does the claim of the Essex Trades Council, that it is a

business institution, stand on any firmer ground. The only element of

business which it is engaged in would appear from the facts to be the

furnishing to tradesmen of printed cards, certifying that they are

proper persons for the members of trades unions to deal with, suitable

to be displayed in conspicuous places in such tradesmen’s places of

business. This was supplemented by the issue, under date of March 31,

1894, of the small pocket pamphlet entitled “The Fair List of Newark, N.

J.,” containing the names and addresses of tradesmen and persons in

business in Newark, with items of information and advice. Why this is

called a business does not appear. It is not stated that any

compensation is either required or received by the trades council from

the tradespeople for granting or continuing those endorsements, but

whether this is so or not, it is in no sense a competing business with

the publication of a daily newspaper, and therefore does not come within

the principle of the case referred to.

The order to show cause, as far as relates to [eight specified

organizations], they having all disclaimed any participation in the acts

complained of, must be discharged, with costs. The said order to show

cause, so far as relates to the other defendants, must be made absolute,

with costs, and an injunction may issue against them, restraining them

from distributing or circulating any circulars, printed resolutions,

bulletins, or other publications containing appeals or threats against

the “Newark Times,” or the complainants, its publishers, with the design

and tending to interfere with their business in publishing said paper,

and from making any threats or using any intimidation to the dealers or

advertisers in such newspaper tending to cause them to withdraw their

business from such newspaper.[621]

PIERCE _v._ THE STABLEMEN’S UNION LOCAL NO. 8760

SUPREME COURT, CALIFORNIA, JULY 6, 1909.

_Reported in 156 California Reports, 70._

HENSHAW, J. The plaintiff went into equity seeking an injunction 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 representatives 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 plaintiffs 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 business; 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 business with plaintiffs, said Stablemen’s

Union would cause them respectively to be boycotted in their business.”

Menacing terms and threatening language were made use of by the agents,

representatives, and pickets of the union toward the employees of the

plaintiffs, 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 will never get out

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 with, or harassing, or annoying, or

obstructing plaintiff in the conduct 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 connection 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 inducing, 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 front of said plaintiffs’

place of business any picket, or pickets, for the purpose of injuring,

obstructing, 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. Certain

objections to the complaint are presented upon demurrer, and these may

be briefly disposed of. The complaint is sufficient to invoke the

interposition of a court of equity. It is in this respect similar to the

complaint considered in Goldberg-Bowen Co. _v._ Stablemen’s Union, 149

Cal. 429. The complaint alleges specific acts calling for preventive

relief, and is not confined to mere generalities, as was the case in

Davitt _v._ American Bakers’ Union, 124 Cal. 99. The fact that certain

of the acts charged amount to crimes or threatened crimes, does not

offer reason why equity will refuse to restrain them. While equity will

not attempt to restrain the commission of a crime as such, the fact that

an act threatening irreparable injury to property rights, is of itself

criminal, does not deprive a court of equity of its right and power to

enjoin its commission. (_In re_ Debs, 158 U. S. 564; Sherry _v._

Perkins, 144 Mass. 212; Vegelahn _v._ Guntner, 167 Mass. 92.) In like

manner, while equity will not enjoin against a trespass as such, yet

when the acts committed and threatened are in the nature of a continuing

trespass, working irreparable injury, they will be enjoined. (Boston R.

R. _v._ Sullivan, 177 Mass. 230; Lembeck _v._ Nye, 47 Ohio, 336.)

Appellants’ principal contentions upon the appeal, however, are the

following: First, that, as the controversy between these parties arises

from and over a trade dispute, the court is powerless to grant any

injunction under the language of “An act to limit the meaning of the

word ‘conspiracy’ and also the use of restraining orders and injunctions

as applied to disputes between employers and employees in the State of

California, approved March 20, 1903” (Pen. Code, page 581); second, that

the boycott is a legal weapon in a trade dispute and, therefore, an

injunction should not issue to restrain its use or threatened use;

third, that “picketing” as an adjunct to the boycott is itself legal and

may not be forbidden.

1. As to the first of these contentions, this court had occasion in

Goldberg, etc., Co. _v._ Stablemen’s Union, 149 Cal. 429, to consider

the statute above referred to and relied upon by appellants, and

declared that if the construction there contended for (and here

contended for) was the proper construction, this provision of the court

was void. Not only would it be void as violative of one’s constitutional

right to acquire, possess, enjoy, and protect property, but as well

would it be obnoxious to the constitution in creating arbitrarily and

without reason a class above and beyond the law which is applicable to

all other individuals and classes. It would legalize a combination in

restraint of trade or commerce, entered into by a trades union, which

would be illegal if entered into by any other persons or associations.

It would exempt trades unions from the operation of the general laws of

the land, under circumstances where the same laws would operate against

all other individuals, combinations, or associations. It is thus not

only special legislation, obnoxious to the constitution (Art. IV, sec.

25, subds. 3 and 33), but it still further violates the constitution in

attempting to grant privileges and immunities to certain citizens or

classes of citizens which, upon the same terms, have not been granted to

all citizens (Art. I, sec. 21).

2. In considering the second proposition, whether or not a court of

equity may enjoin a boycott, the meaning of the word is of primary

importance. It is defined in 4 Am. & Eng. Enc. of Law, 2d ed., page 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 inducing 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 willingness to accept this

definition, substituting the word “confederacy” or “combination” for

“conspiracy.” But the definition, even as so amended, it will be noted

is not complete. The “means commonly used” are specified, but other

means may be and frequently are employed. A boycott may adopt illegal

means and 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 accomplish, within the law,

a legal result. The crux of the question and the strain in every case

turns, then, upon the means employed. We think that to-day no court

would question the right of an organized union of employes, by concerted

action, to cease their employment (no contractual obligation 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 accomplish 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, 36 Cal. Dec. 445. The right of

united labor to strike, in furtherance of their 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, the discharge of one employee, the engagement of another—any one

of the multifarious ends which in good faith may be believed 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 employed

it means not only the concerted right to the 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 demand 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.

Without presenting the authorities, which are multitudinous, suffice it

to state the other view in language of the President of the United

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 workmen 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, page 204.) Notwithstanding 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., _supra_. 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 all

other persons to do the same, and in the 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; Lindsay _v._ Montana Federation of Labor,

(Mont.) 18 L. R. A. (N. S.) 707, where the highest courts of those

states formulate and adopt like 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 illegality, and puts the conduct of the boycotters

under the ban of the law. So also does the definition 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. So far in

this discussion we have dealt exclusively with the respective rights of

the employer and of the employee. There are other parties, however,

whose rights are entitled to equal consideration, and whose rights

always become involved and imperilled when picketing is adopted as a

coercive measure in aid of a boycott.

If the strikers have the right, as above indicated, to withdraw

patronage themselves and by fair publication, written and oral

persuasion to induce others to join in their cause, and finally by

threat of like boycott to coerce others into so doing, their rights go

no further than this. It is the equal right of the employer to insist

before the law that his business shall be subject at the hands of the

strikers to no other detriment than that which follows as a consequence

of the legal acts of the strikers so above set forth. It is not to be

forgotten that when the employees have struck, they occupy no

contractual relationship whatsoever to their former employer, and have

no right to coerce him or attempt to coerce him by the employment of any

other means than those which are equally open to any other individual or

association of individuals. No sanctity attaches to a trades union which

puts it above the law, or which confers upon it rights not enjoyed by

any other individual or association. The two classes of persons to whom

we have adverted and whose rights necessarily become involved where a

picket or patrol is established, are, first, the rights of those

employed or seeking employment in the place of the striking laborers,

and, second, the rights of the general public. It is the absolute,

unqualified right of every employee, as well as of every other person,

to go about his legal business unmolested and unobstructed and free from

intimidation, force, or duress. The right of a labor association to

strike is no higher than the right of a non-union workman to take

employment in place of the strikers. Under the assurance and shield of

the Constitution and of the laws, the non-union laborer may go to and

from his labor and remain at his place of labor in absolute security

from unlawful molestations, and wherever the laws fail to accord such

protection, in so far is their execution to be blamed. 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 toil. (_Ex parte_ Jentzsch, 112 Cal.

468.) Any act of boycotting, therefore, which tends to impair this

constitutional right freely to labor, by means passing beyond moral

suasion, and playing by intimidation upon the physical fears, is

unlawful.

The inconvenience which the public may suffer by reason of a boycott

lawfully conducted is in no sense a legal injury. But the public’s

rights are invaded the moment the means employed are such as are

calculated to and naturally do incite to crowds, riots, and disturbances

of the peace.

A picket, in its very nature, tends to accomplish, and is designed to

accomplish, these very things. It tends to and is designed, by physical

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. Crowds naturally collect; disturbances of the peace are always

imminent and of frequent occurrence. Many peaceful citizens, men and

women, are always deterred by physical trepidation from entering places

of business so under a boycott patrol. It is idle to split hairs upon so

plain a proposition, and to say that the picket may consist of nothing

more than a single individual peacefully endeavoring by persuasion to

prevent customers from entering the boycotted place. The plain facts are

always at variance with such refinements of reason. Says Chief Justice

Shaw in Commonwealth _v._ Hunt, 4 Met. 111: “The law is not to be

hoodwinked by colorable pretences; it looks at truth and reality through

whatever disguise it may assume.” If it be said that neither threats nor

intimidations are used, no man can fail to see that there may be

threats, and there may be intimidations, and there may be molesting, and

there may be obstructing, without there being any express words used by

which a man should show violent threats toward another, or any express

intimidation. We think it plain that the very end to be attained by

picketing, however artful may be the means to accomplish 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 public. 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 illegal instrument. (Vegelahn

_v._ Guntner, _supra_, Crump _v._ Commonwealth, 84 Va. 927; Union

Pacific _v._ Ruef, 120 Fed. Rep. 124; 18 Ency. of Law, 2d ed., page 85.)

In conclusion, then, and applying these principles to the injunction

here under consideration, it appears that, while the injunction was

properly granted, it was broader in its terms than the law warrants. 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 boycott or threat of boycott,” since, as

has been said, the secondary boycott is likewise a legal weapon. In all

other respects, however, the injunction was proper.

The trial court is directed to modify its injunction in the particulars

here specified, and in all other respects the judgment will stand

affirmed.

We concur: LORIGAN, J.; BEATTY, C. J.; MELVIN, J.

SHAW, J. I agree with all that is said by Justice Henshaw in his

opinion, except the part relating to the so-called “secondary boycott”

and the attempt to draw a distinction between the compulsion of third

persons caused by picketing, and the compulsion of third persons

produced by a boycott. My views concerning the “secondary boycott” are

expressed in my dissenting opinion in Parkinson _v._ Building Trades

Council, (Cal.) 98 Pac. 1040. The means employed for the coercion or

intimidation of a third person in a “secondary boycott” are unlawful

whenever they are such as are calculated to, and actually do, destroy

his free will and cause him to act contrary to his own volition in his

own business, to the detriment of the person toward whom the main

boycott or strike is directed; in other words, whenever the means used

constitute duress, menace, or undue influence. Whether this coercion or

compulsion comes from fear of physical violence, as in the case of

picketing, or from fear of financial loss, as in the secondary boycott,

or from fear of any other infliction, is, in my opinion, immaterial, so

long as the fear is sufficiently potent to control the action of those

upon whom it is cast. I can see no logical or just reason for the

distinction thus sought to be made. There is no such distinction in

cases where contracts or wills are declared void, because procured by

duress, menace, or undue influence. There should be none where actual

injury is produced or threatened through such means acting upon third

persons. Nor do I believe any well-considered case authorizes any such

distinction. The opinions in the case of National Protective Association

_v._ Cummings, 170 N. Y. 315, are devoted to a discussion of the right

to strike and the limitations of that right and not to a discussion of

the “secondary boycott.” A close analysis of the cases on the subject

will, as I believe, show that this court stands alone on this point.

For these reasons I do not agree to that part of the judgment directing

a modification of the injunction. I believe that it should stand in the

form as given by the court below.

ANGELLOTTI, J., and SLOSS, J.

We concur in the judgment. The modification of the judgment is in line

with the views announced in the Parkinson case. So far as “picketing” is

concerned, while we are not prepared to hold that there may not be acts

coming within that term as it is accepted and understood in labor

disputes, that are entirely lawful and should not be enjoined, we

believe that as to such “picketing” as is described in both findings and

judgment in this case, the views expressed in the opinion of the court

are correct.[622]

INDEX

ABANDONMENT,

of action, if voluntary, equivalent to termination in defendant’s

favor, 629.

of action, by way of compromise, not equivalent to termination in

defendant’s favor, 629.

ABSTRACTER OF TITLE,

liability to third party injured by mistake or omission, 262 n.

ABUSE OF PROCESS,

malicious, 653.

ACCIDENT,

without negligence, excuses trespass to person, 29, 30, 35, 40.

excuses trespass to personalty, 42.

through negligence, no excuse for a trespass, 29, 30, 35.

ACTION (see MALICIOUS INSTITUTION OF CIVIL ACTION).

ADVERTISING,

blind, interference with, 838.

ADVICE,

of counsel, probable cause for prosecution of plaintiff, 634.

ADVOCATE,

statements by, when privileged, 697, 709.

ANIMALS,

trespass on land by cattle, 404, 406.

trespass on land by dog, 406 n., 445.

trespass on land by chickens, 406 n.

liability of owner for trespass by cattle driven on highway, 406, 409

n.

statutes as to trespassing animals, 409, 410 n.

common law as to trespassing, how far applicable in U. S., 410, 414

n.

liability where cattle turned on another’s unenclosed lands, 414 n.

liability of owner of unenclosed lands for injury to trespassing

cattle, 409, 415.

whether a right of pasturage on unenclosed lands, 415, 419 n.

liability for injuries by wild, 419, 421, 422.

liability for injuries by vicious domestic, 421, 421 n.

classification of animals with respect to liability for injuries by,

423, 427 n.

liability for injuries by bees, 425 n.

what are wild, 424, 425.

injury through fright at sight of wild animal, 427.

interference with wild, bars recovery for injury, 430.

contributory negligence of person injured by, 432 n.

injury by domestic, scienter necessary, 433, 434 n.

injury to trespasser by domestic, 434 n.

vicious dog killed by trespassing dog, 434 n.

what constitutes scienter, 434 n.

liability for injury by vicious, where neither scienter nor

negligence, 434, 436 n.

what is dangerous propensity, 437.

injury by horse running at large on highway, 438, 440.

injury to person by trespassing, 441, 448, 451 n.

injury to person by trespassing hen, 450.

injury to person by trespassing animal, normally harmless, 450.

escape of wild or vicious, through _vis major_, 471.

escape of wild or vicious, through act of third person, 436 n.

injury by vicious, when excited by third person, 436 n.

ARREST (see MALICIOUS INSTITUTION OF CIVIL ACTION),

what is, 19, 20, 21.

ARTICLES OF PEACE,

malicious exhibition of, 626.

ASSAULT,

what is, 1, 2, 4, 6, 7, 10.

what is not, 2, 3, 11.

complete without contact, 1.

aiming unloaded gun, 7, 9 n.

firing revolver in plaintiff’s presence, but not at him, 7 n.

act of preparation for, 2 n.

intention of defendant, 7, 10 n.

present ability to injure, 7, 9 n.

aggravation of, 11.

insulting words, looks, and gestures, no, 11, 11 n., 12 n.

ASSUMPTION OF RISK,

by trespasser, 157, 160.

by licensee, 177, 179.

by servant, 201.

by interference with wild animal, 430.

of another’s negligence, 345, 351 n.

ATTACHMENT,

action lies for maliciously causing, 629 n., 646.

ATTORNEY (see COUNSEL).

AUTOMOBILES,

operation of, by unlicensed person, 402 n.

unlicensed, status of in highway, 398, 400 n., 402 n.

BAILEE,

standard of care, 82 n.

BANKRUPTCY,

malicious institution of proceedings in, 644.

imputation of, to a business man, 690.

BATTERY,

what is, 12, 16.

what is not, 12, 13.

hostile touching, 12 n.

touching _contra bonos mores_, 12 n.

unauthorized surgical operation, 12 n.

defendant must be actor to make, 13.

touching plaintiff to attract his attention, when a, 13.

by striking a horse when driven, 15.

whether indictment for, will support action of malicious prosecution,

624.

injury to clothes on plaintiff’s person, 16 n.

cutting rope connecting plaintiff with his slave, 16 n.

injury in course of “friendly scuffle,” 18 n.

BEES,

liability of owner of, for injuries, 425 n.

BLASTING,

injuries by, 40 n.

BOYCOTT (see COMPETITION, MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING

CONDUCT OF ANOTHER),

secondary, 998, 1004.

for the purpose of strengthening union, 978, 987.

for the purpose of gaining control of labor market, 989 n.

for the purpose of forcing third person to bring pressure on

employer, 997.

BREACH OF STATUTORY DUTY (see PUBLIC WRONG),

how far ground of private action, 510, 512 n., 513, 515, 516.

to repair street or sidewalk, 513 n.

toward third person, 516, 520 n.

liability to trespasser or licensee in case of, 520 n.

BUSINESS,

slander of one in his (see DEFAMATION).

CANDIDATE,

discussion of qualifications of, 755.

CARRIER,

may be sued either upon contract or tort, 125, 126 n.

CLERGYMAN,

imputation of misconduct to, 689 n.

not liable for public refusal of communion, 757.

COMBINATION,

whether members of, liable for acts which would be lawful if done by

a single individual, 910, 976, 977 n.

COMMENT,

fair, on public matters, not actionable, 726, 769.

aspersion of motives not fair, 766, 775.

false charge of specific acts not fair, 775 n., 785 n., 792.

fair, distinguished from privileged occasion, 760, 779, 795 n.

violent attacks and insulting words not, 786 n.

COMMERCIAL AGENCY,

statements by, when privileged, 739 n.

COMPETITION,

conflict between employers and employed is, 976.

mere rivalry is fair, 936.

puffing is fair, 826.

combination to smash rates is fair, 906.

reducing prices, 913.

sending our rival’s business card in injurious manner, not fair, 831.

bad motive, 913, 918, 923, 939.

inducing servant at will to leave master, whether fair, 873 n.

inducing servant to leave at expiration of term, 872 n.

influencing third person by fraud, not fair, 827, 828 n., 907 (but

see 858).

misleading use of one’s own name, 829 n.

influencing third persons by force or threats of physical injury, not

fair, 864, 935, 937, 907.

boycotting by threats of pecuniary damage, not fair, 952, 978, 989,

996, 998, 1004.

inducing third person to break contract, not fair, 907, 908.

CONSENT (see LEAVE AND LICENSE).

CONSPIRACY (see COMBINATION),

to defraud creditors, 846.

to suborn witnesses, 710.

to alter provisions of will, 852.

CONTRACT,

causing breach of, a tort, 874, 884, 887, 908.

CONTRIBUTORY NEGLIGENCE (see PUBLIC WRONG),

an affirmative defence, 264 n.

must be negatived by plaintiff, 264, 264 n.

a bar to recovery, 263, 266 n., 274.

must be a proximate cause of the injury, 265, 294, 296 n.

doctrine of comparative negligence, 267, 269, 269 n.

apportionment of loss, 269, 273 n.

doctrine of last clear chance, 275, 278, 279, 281, 282, 283, 288,

295, 296, 299, 301, 302, 308, 317, 320, 321, 322, 324, 337.

of child, 327, 328, 329.

humanitarian doctrine, 330.

no bar in case of wilful or intentional injury, 334, 337.

exposure of property to danger from negligence of another, 345, 351

n.

of carrier not imputable to passenger, 352, 368 n.

of driver of vehicle, when imputed, 359, 360 n., 361, 364.

of participant in joint enterprise, 362.

of agent or servant imputed, 362 n.

of husband whether imputed to wife, 362 n.

as between fellow servants, 362 n.

of bailee whether bars bailor, 362 n.

of parent or custodian of child whether imputed to child, 366, 370

n., 370.

of beneficiary under Lord Campbell’s Act whether bar to recovery,

371, 374, 374 n., 377 n.

in case of injury by animals, 432 n.

COUNSEL,

statements by, when privileged, 697, 709 n.

advice of, probable cause for prosecution, 634.

CREDITORS,

conspiracy in fraud of (see CONSPIRACY).

CRITICISM (see COMMENT).

DAMAGE,

whether action for deceit without, 525, 529, 595.

measure of, in action for deceit, 604, 605, 606 n.

caused by repetition of slander by third person too remote, 809.

slander actionable by reason of special, 807, 808, 809, 811.

loss of society of friends and consequent illness not special, 808.

loss of hospitality is special, 810.

loss of performance of gratuitous promise is special, 811.

loss of performance of promise to marry is special, 884 n.

loss of performance of contract where performance reasonably assured

is special, 887 n.

malicious but not defamatory words, whether actionable, if special,

812.

no action for slander of title without special, 816.

special, what is, 819 n., 847 n., 856, 859 n., 884 n.

special, not necessary where one passes off his product as another’s,

829 n.

special, not necessary in action for malicious injury to business,

854.

DANGEROUS USE OF LAND,

for reservoir, 452, 482 n.

“non natural use,” 463, 463 n.

what is, 463 n., 466 n.

tank of petroleum, 466 n., 482 n.

stored nitroglycerin, 466 n.

hydraulic mains, 467 n.

customary or statutory authority to make, 467 n.

no liability for, in case of _vis major_, 468.

no liability in case of interference by third person, 475.

steam boiler, 477.

explosives, 482 n., 498, 502.

doctrine of, considered, 477, 482.

water pipes in building whether, 492.

gas in pipes, 493 n.

allowing land to go to weeds not, 493.

maintaining fire, 496.

fires set by locomotives, 497 n.

DAUGHTER,

no action for marrying one’s, 869 n.