and if he had a right to agree as to his own rate of wages with his employer, he had also the right to agree as to his own rate of wages with his fellow-employee. If Pennock had that right, other workmen had the same right. Certainly the question, whether or not an agreement fixing the rate of wages is or is not unlawful, cannot depend on the mere fact of who is the other contracting party. If one may make an agreement with an employer to work at a specific rate, he may surely make the same agreement with a fellow-employee. But when any one "interferes" with that same right of other men, then he commits a wrong on those other men, for which the law gives a remedy by civil action; and in the case of a combination, or conspiracy, to so "interfere," the law gives a remedy by indictment.

The subject had a further review in one of the ablest opinions in the State of New York on this branch of the law, in The Master Stevedores' Association v. Walsh.(a) In that case, after a careful examination of the authorities, Mr. Justice Daly reviewed the Fisher case in the following terms: "The feature which distinguishes this case from the one under consideration is, that coercive measures were there resorted to to compel a compliance,. not only on the part of master shoemakers, but of journeymen not members of the association, with the regulations the combination had established. This was undertaking to interfere with the rights of others, and it has. frequently been held that combinations to prevent any journeyman from working below certain rates, or to prevent master workmen from employing one except at certain rates, are unlawful, and that the parties engaging in such combination may be indicted for a conspiracy."

In the case of People v. Fisher, therefore, although one of its sentences, taken separately, is to the effect that a mere "combination to raise wages" is indictable, yet the case was not such a combination as matter of fact, nor

(a) 2 Daly, 1, in the year 1867.

did the court so consider it. The court considered the case, as it was pleaded in the indictment, and proved by the evidence, as a combination to interfere unlawfully with the lawful rights of others. The entire opinion must be read in that light, and single detached phrases must be disregarded.

Thereafter came the statute of 1870(a) entitled "An act in relation to employers and persons employed, and to amend subdivision six of section eight, chapter one, part four of the Revised Statutes," which is as follows:

"Sec. 1. The provisions of subdivision six of section one, chap. ter one, title six, part four of the Revised Statutes, shall not be construed in any court of this State to restrict or prohibit the orderly and peaceable assembling or co-operation of persons employed in any profession, trade or handicraft, for the purpose of securing an advance in the rate of wages or compensation or for the maintenance of such rate."

Under this statute was decided the case of Johnston Harvester Co. v. Meinhardt, (b) which was an action to enjoin unlawful interference by strikers with the business of the plaintiff. The court denied the application for an injunction on the ground that there was no unlawful interference with the plaintiff's legal rights. In a very able opinion the statute of 1870 was considered, and the wellestablished distinction, between combinations which did, and did not, interfere with the legal rights of others, was fully recognized. The language of the opinion on that point is as follows:

"This statute does not, however, permit an association or trades union, so called, or any body of men in the aggregate, to do any act which each one of such persons in his individual capacity, and acting independently, had not a right to do before the act was passed. This act does not shield a person from liability for his action in intimidating or coercing a fellow-laborer so that he shall leave his employer's

(a) Laws 1870, chap. 19.

(b) 9 Abbott's New Cases, 395, A.D. 1880.

service. Such conduct is, in its nature, a trespass upon the rights of business of the employer. If he compels, by assault or violence, by threats, by acts of coercion, a fellow craftsman to leave the employ of another, he commits an offence against the rights of such person, which is hardly distinguishable from an act which should itself injure or destroy the product of that man's labor. It is a direct injury to property rights, and may be regarded as the sole proximate cause of such injury, for the laborer, in such cases, has not freedom of action, and cannot himself be deemed to take any voluntary part in the transaction."

The act of 1870, as so often happens, had really made no modification in the common law.

There the law rested in the State of New York until the year 1893, when a decision was made, which will be considered later. But until that later decision, it may be stated with accuracy, that any mere contract, which looked only to the raising or maintaining of the prices of the property of the contracting parties, or which looked to the regulation only of the action of the contracting parties, or to the prevention of competition between the contracting parties, and went no further, was neither criminal nor unlawful. In the State of New York, in that respect, we were governed by the English common law. It need not be said, that in the period between the enactment of our Revised Statutes and the year 1893 there were undoubtedly many such contracts. A considerable number of them came before the courts. Some of them, as will be hereafter noted, were not only held to be lawful, but they were specifically enforced in equity. No doubt, it is possible to find in the numerous New York cases obiter dicta, to the effect that such contracts were unlawful." But down to the case above alluded to, there was in the State of New York, so far as I am aware, no authority holding that doctrine. On this point, the courts of New York were thoroughly in accord with the English courts, and with the other courts of greatest weight in this country.

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In short, independently of statutes, and under the New

York Revised Statutes, and similar statutes in other States, mere contracts of combination, in private employments, whether between employers or employees, and whether they concerned labor or merchandise, had been emancipated from the unreasonable and impracticable fetters of antiquated mediæval legislation.

CHAPTER IV.

THE COURSE OF THE AMERICAN LAW AS TO PUBLIC

EMPLOYMENTS.

THE course of the American law as to public employments has been the same as that of the English law; that is, there has been a remarkable increase in the degree of state control exercised over such employments.

The reason of that fact is to be found in the great increase in the number of such employments, and in the closeness of their relations with the ordinary life of the community. In the early history of this country, as in that of England, such employments were comparatively few in number, and of comparatively slight importance. The state control exercised over them, though well established in law, was very slight, as matter of fact.

With the construction of railroads, followed by the invention of the telegraph, and the introduction of water companies, gas companies, lighting companies, and others of the same character, the necessity of state supervision and control over the use of the properties involved in such enterprises, though the properties were in law private properties, became very manifest.

The necessity of such control was recognized at an early period. In the case of railroads, inasmuch as their property was largely acquired by the exercise of the right of eminent domain, it was natural, that at the outset there should be regulations by statute as to the use of that property.

We find, therefore, a large number of statutes, in the different States, which regulate the use of railroad properties, and the performance of the duties of railroad companies to the public.