DECISIONS OF COURTS AFFECTING LABOR.

[This subject, begun in Bulletin No. 2, has been continued in successive issues. All material parts of the decisions are reproduced in the words of the courts, indicated when short by quotation marks, and when long by being printed solid. In order to save space, matter needed simply by way of explanation is given in the words of the editorial reviser.]

DECISIONS UNDER STATUTORY LAW.

COMBINATIONS-MALICIOUS INJURY TO BUSINESS-CONSTITUTIONALITY OF STATUTE-Aikens v. Wisconsin, United States Supreme Court, 25 Supreme Court Reporter, page 3.-This case was twice before the supreme court of Wisconsin, and was twice argued before the United States Supreme Court, the decision of which upheld the conclusions of the State court in its interpretation of the statute of Wisconsin (sec. 4466a) which imposes imprisonment or fine on "any two or more persons who shall combine *** for the purpose of willfully or maliciously injuring another in his reputation, trade, business, or profession, by any means whatever," etc. The case, therefore, while not involving labor, is here presented as affording an authoritative discussion of the principles of the Wisconsin statute on combinations.

It appears that the Journal Company was a corporation publishing a newspaper in the city of Milwaukee, and that it had given notice of an increase of about 25 per cent in its charges for advertising. Thereupon the managers of other newspapers in the city met and agreed that if anyone should pay the increased rate to the Journal Company he should not be permitted to advertise in their papers except at a corresponding increase; but if he should refuse to pay the rate charged by the Journal he might advertise in the other papers at the rate previously charged, which agreement was carried out greatly to the damage of the business of the Journal Company, and informations were brought against the combining managers resulting in convictions.

The contention of the defendants was that the statute in question was in conflict with the fourteenth amendment, and was therefore unconstitutional. The Supreme Court, Justice White dissenting, upheld the statute and affirmed the judgment of the court below. From the remarks of Justice Holmes, who announced the opinion of the court, the following is reproduced:

The statute, it will be observed, punishes combining for the purpose of willfully or maliciously injuring another in his business. If it should

be construed literally, the word "willfully" would embrace all injuries intended to follow from the parties' acts, although they were intended only as the necessary means to ulterior gain for the parties themselves. Taken in that way the word would hit making a new partnership, if it was intended thereby to hurt someone's else business by competition. We shall not consider whether that branch of the statute, so construed, could be sustained, and express no opinion about it. The supreme court of Wisconsin has intimated that a narrower interpretation will be adopted, and in the present case we have to deal only with the other branch, depending on the word "maliciously," as we shall explain in a moment. The last-quoted word we must take as intended to add something to the word "willfully," and we can do so only by taking it in its true sense. We interpret "maliciously injuring" to import doing a harm malevolently, for the sake of the harm as an end in itself, and not merely as a means to some further end legitimately desired. Otherwise the phrase would be tautologous, since a willful injury is malicious in the sense familiar to declarations and indictments, where, indeed, the word means no more than foreseen, or even less than that. A death is caused of malice aforethought if, under the circumstances, known to the actor, the probability of its ensuing from the act done is great and manifest according to common experience.

The informations alleged a combination for the purpose of willfully and maliciously injuring others, and therefore brought the case within the latter branch of the statute, if there are two, and if "or" in the act is not taken to mean "and." A purely malevolent act may be done even in trade competition.

We come, then, to the question whether there is any constitutional objection to so much of the act as applies to this case. It has been thought by other courts as well as the supreme court of Wisconsin that such a combination, followed by damage, would be actionable even at common law. It has been considered that, prima facie, the intentional infliction of temporal damages is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape. If this is the correct mode of approach, it is obvious that justifications may vary in extent, according to the principle of policy upon which they are founded, and that while some for instance, at common law, those affecting the use of land-are absolute, others may depend upon the end for which the act is done. [Cases cited.] It is no sufficient answer to this line of thought that motives are not actionable, and that the standards of the law are external. That is true in determining what a man is bound to foresee, but not necessarily in determining the extent to which he can justify harm which he has foreseen.

However these things may be, we have said enough to show that there is no anomaly in a statute, at least which punishes a combination such as is charged here. It has been held that even the free use of land by a single owner for purely malevolent purposes may be restrained constitutionally, although the only immediate injury is to a neighboring landowner. Whether this decision was right or not, when it comes to the freedom of the individual, malicious mischief is a familiar and proper subject for legislative repression. (Com. v. Walden, 3 Cush. 558.) Still more are combinations for the purpose of inflicting it. It would be impossible to hold that the liberty to combine to inflict such mischief, even upon such intangibles as busi

ness or reputation, was among the rights which the 14th amendment was intended to preserve. The statute was assumed to be constitutional in Arthur v. Oakes, 25 L. R. A. 414, 24 U. S. App. 239, 63 Fed. 310, 325, 326.

But if all these general considerations be admitted, it is urged, nevertheless, that the means intended to be used by this particular combination were simply the abstinence from making contracts; that a man's right so to abstain can not be infringed on the ground of motives; and further, that it carries with it the right to communicate that intent to abstain to others, and to abstain in common with them. It is said that if the statute extends to such a case it must be unconstitutional. The fallacy of this argument lies in the assumption that the statute stands no better than if directed against the pure nonfeasance of singly omitting to contract. The statute is directed against a series of acts, and acts of several,-the acts of combining, with intent to do other acts. "The very plot is an act in itself." (Mulcahy v. Queen, L. R. 3 H. L. 306, 317.) But an act which, in itself, is merely a voluntary muscular contraction, derives all its character from the consequences which will follow it under the circumstances in which it was done. When the acts consist of making a combination calculated to cause temporal damage, the power to punish such acts, when done maliciously, can not be denied because they are to be followed and worked out by conduct which might have been lawful if not preceded by the acts. No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law.

It was urged farther that to make a right depend upon motives is to make it depend upon the whim of a jury, and to deny the right. But it must be assumed that the constitutional tribunal does its duty, and finds facts only because they are proved. The power of the legislature to make the fact of malice material we think sufficiently appears from what we already have said.

Finally, it is argued that the supreme court of Wisconsin would hold that the statute extends to acts of which the motives were mixed, and which were done partly from disinterested malevolence and partly from a hope of gain. If so, it is said, the statute would be open to all the objections at which we have hinted in dealing with the word "willfully." The supreme court did use some language which looked that way, but we consider it to have decided that the statute would be confined to combinations with intent to do wrongful harm. (110 Wis. 193, 260, 62 L. R. A. 700, 85 N. W. 1046.) Thus limited, on whatever ground, the statute would punish only combinations of a kind for which no justification could be offered and those which were taken out of the justification by the motive with which they were made. We see no sufficient reason to believe that the court will go farther, or construe the act in such a way as to raise questions which we need not go into here. Therefore it is unnecessary to consider whether, on a more literal construction, the portion dealing with malicious intent could be separated from that which deals with the purpose of merely willful injury, and saved, even if the latter were held to go too far. Probably the two phrases will be read together and the statute made unquestionable as a whole.

CONSPIRACY-CONTRACTS TO EMPLOY NONE BUT MEMBERS OF UNIONS-STRIKES UNLAWFUL MEANS-EVIDENCE-State v. Stockford et al., Supreme Court of Errors of Connecticut, 58 Atlantic Reporter, page 769. In the superior court of New Haven County, Orrin J. Stockford and others were convicted of criminal conspiracy. An appeal was taken on the ground of the improper admission of evidence, with the result that the judgment of the lower court was affirmed.

The charges were that the defendants, who were the officers and agents of certain labor unions composed of teamsters and drivers, were guilty of conspiring together and with their associates to cause all the employees of various trucking companies and liverymen to leave their service; also to so picket the places of business of these companies as to prevent the employment of other workmen; and to cut off the patronage and destroy the business of these companies and persons by the use of such threats and intimidation as would debar the public and all over whom the defendants had influence from becoming or continuing as patrons. The object of this strike and boycott was to procure the signing of an agreement drawn up by the unions to the effect that none but members of the union teamsters and drivers should be employed, and fixing the rates of wages, hours of labor, and holidays to be observed.

Inasmuch as the appeal was based on the nature of the evidence, a summary of the same, as given by Judge Hall of the supreme court, is here reproduced:

The State having offered evidence that the defendants and other members of the unions had, after the commencement of the strike, endeavored, by threats, to prevent customers from further patronizing said team owners and liverymen, one Norton, an employee of the Peck & Bishop Company, and familiar with its business, and one Donnelly, secretary of the Smedley Company, were permitted to testify as to the number of customers lost by said companies, respectively, after the strike, against the objection of the defendants that it did not appear how said customers were lost. Alfred Coolman, a teamster of the Peck & Bishop Company, testified that he ceased work the first week of the strike, and then resumed work; that afterwards he saw twenty-five or thirty teamsters wearing the union button, some of whom insulted and threatened him; that on one occasion a crowd of twenty or more teamsters hooted and yelled at him as he was driving a team of the Peck & Bishop Company, and three of them, who wore the union button, stopped him, and talked of "pulling him off the wagon and smashing him," and told him that they would get even with him; that on another occasion while the witness was driving a wagon for said company one Taylor, a teamster, who, it had been shown, belonged to the union, and had worked for the Peck & Bishop Company, and had at least on one other occasion interfered with the teams of the company, said to the witness, "If I had you out of the wagon here, I would break your bloody head, and I will do it yet;" that one night while the witness was acting as a watchman for the Peck & Bishop Company, about a week after said remark of Taylor, some one

shot at him, and that "he felt the wind of it," and one of the bullets struck a wire on a bale of hay against which the witness was leaning. This testimony was received against the objection of the defendants that the shooting had not been connected with any union man.

William Talmadge, one of the defendants, having testified on behalf of the defendants that he was president of Local 340, and assisted in preparing the form of said agreement; that he was the business agent of the union, and presided at its meetings; and that the men were instructed not to interfere with or annoy any one-was asked on crossexamination, after he had testified that he was present at the meeting when the strike was ordered, if he did not understand that the purpose of calling out the men from those concerns and individuals who had refused to sign the agreement, was to cripple them in their business. The witness answered: "I knew that if they did not sign that agreement the men would be called out. That was the object of calling the men out, naturally." This evidence was admitted against the defendants' objection that it was immaterial and improper and called for the witness' construction of an act of the union. The same witness was asked whether it was not the purpose, as he understood it, that his branch of the union should be in absolute control of all the teamsters employed in New Haven. He answered that he could not state they controlled them all. The defendants' general objection to this question and answer was overruled.

Peter Flynn, one of the defendants, having testified in behalf of the defendants that he was secretary of Local 340, that he appointed pickets, and instructed them as to their duties, and that they should use no violence, and that they were so instructed at the meetings of the union, but that instances of violence had come to the knowledge of himself and other officers of the union, and having testified on crossexamination that as secretary he had employed counsel to defend men who had been arrested for using violence, was asked on cross-examination who paid such counsel. The witness answered, "The union." Defendants' objection to said question and answer were overruled by the court.

The defendant Cornelius testified upon direct examination as to instructions given to union men to use no violence, and on crossexamination that he had no knowledge of any one interfering with one Joseph Kinney by insulting or abusive language or otherwise, excepting as he had read of it; and that he did not so interfere with him and insult him. He was thereupon asked by the state's attorney if he was not the person convicted in the court of common pleas of having on the 17th of May, 1903, committed a breach of the peace in New Haven streets upon said Kinney. In connection with this inquiry the State offered the record of such conviction, the defendants having before objected to the question whether the witness had been convicted of using violence during the strike, upon the ground that the record was the best evidence. The court admitted said inquiry against the defendants' objection.

After this statement Judge Hall said:

The agreements which the defendants sought to have signed con1 provisions which are contrary to the criminal law of this State, the only purpose of the combination was to procure these

s to be entered

To order to advance the legitimate inter