is to coerce employers into paying certain rates of wages or yielding to terms dictated, are actionable conspiracies.1

§ 375. All parties to a conspiracy to cheat or defraud a third party are liable for all damages sustained as result of the operation of the conspiracy. But, as already stated, the damage is the element which gives the right of civil action. In the absence of damage no action can be maintained.3

§ 376. Parties liable.- All parties to a conspiracy are jointly and severally liable for damages occasioned by the wrongful combination; and one who comes into the conspiracy after its organization becomes liable for all that has been previously done by the parties thereto; and acts done by any one of the conspirators in furtherance of the common object become the acts of all."

5

Northern Pac. R. Co. (1894) (C. C.), 60 Fed. R. 803; Old Dominion S. S. Co. v. McKenna (1887) (C. C.), 30 Fed. R. 48; Sherry v. Perkins (1888), 147 Mass. 212, 17 N. E. R. 307; Mapstrick v. Ramge (1879), 9 Neb. 390, 2 N. W. R. 739; Perkins v. Rogg (1892) (Super. Ct. Cin.), 28 Wkly. Law Bul. 32.

1 Old Dominion S. S. Co. v. McKenna (1887), 30 Fed. R. 48; Casey v. Cincinnati Typographical Union No. 3 (1891), 45 Fed. R. 135; Toledo, A. A. & N. M. Ry. Co. v. Penna. Co. (1893), 54 Fed. R. 730; Jackson v. Stanfield (1894), 137 Ind. 592, 36 N. E. R. 345, 23 L. R. A. 588. And see generally in this connection Bohn Mfg. Co. v. Hollis (1893), 54 Minn. 223, 55 N. W. R. 1119, 40 Am. St. R. 319; Ryan v. Burger & Hower Brewing Co. (1891), 59 Hun, 625, 13 N. Y. Supp. 660; Parker v. Bricklayers' Union No. 1 (1889), 21 Wkly. Law Bul. 223; Lucke v. Clothing Cutters' & Trimmers' Assembly (1893), 77 Md. 396, 26 Atl. R. 505, 39 Am. St. R. 421; Curran v. Galen (1892), 22 N. Y. Supp. 826; Mattison v. Lake Shore & M. S. Ry. Co. (1895) (Com. Pl.), 3 Ohio Dec. 526, 2 Ohio N. P. 276.

2 Watts v. British & American Mortg. Co. (1894), 60 Fed. R. 485; Leavitt v. Gushee (1855), 5 Cal. 152; Gardner v. Preston (1805), 2 Day, 205, 2 Am. Dec. 91; Work v. McCoy (1893), 87 Iowa, 217, 54 N. W. R. 140: Page v. Parker (1861), 43 N. H. 363, 80 Am. Dec. 172; Percival v. Harres (1891), 142 Pa. St. 369, 21 Atl. R. 876; Bean v. Bean (1815), 12 Mass. 20; Adams v. Paige (1829), 24 Mass. (7 Pick.) 542; Brackett v. Griswold (1888), 14 N. Y. St. R. 449; Lee v. Taylor (1890), 56 Hun, 610, 11 N. Y. Supp. 131.

3 See "Rights and Remedies," infra. 4 Cheney v. Powell (1891), 88 Ga. 629, 15 S. E. R. 750; Jones v. Baker (1827), 7 Cow. 445; Buffalo Lubricating Oil Co. v. Standard Oil Co. (1887), 106 N. Y. 669, 12 N. E. R. 825; Cramer v. Hernstadt (1874), 41 Tex. 614; Page v. Parker (1861), 43 N. H. 363, 80 Am. Dec. 172.

5 Hinchman v. Richie (1849), Brightly,143; Freeman v. Stine (1877), 34 Leg. Int. 96.

6 Page v. Parker (1861),43 N. H. 363, 80 Am. Dec. 172; Warshauer v. Webb (1887), 9 N. Y. St. R. 529; Hinchman v. Richie (1849), Brightly, 143.

PART IV.

COMBINATIONS OF LABOR-LEGAL AND ILLEGAL.

CH. 10. COMBINATIONS OF CAPITAL AND LABOR BEFORE THE LAW.

11. COMBINATIONS OF LABOR IN ENGLAND.

12. COMBINATIONS OF LABOR IN THE UNITED STATES.

13. ILLEGAL COMBINATIONS OF LABOR

CHAPTER 10.

COMBINATIONS OF CAPITAL AND LABOR BEFORE THE LAW.

§ 377. Illegal combinations of labor and capital.

378. Combinations of capital condemned, combinations of labor upheld.

379. Increase of wages means increase in cost and price.

380. Combinations of either capital or labor may be conspiracies. 381. Raising of either wages or prices not an unlawful object. 382-384. Bond of sympathy between combinations of labor and combina tions of capital.

§ 377. Illegal combinations of labor and capital.— It will be convenient to consider combinations of labor and combinations of capital separately, but the law should and must finally be the same for both. At the present time the law is not the same. Neither legislatures nor courts treat combinations of capital and combinations of labor upon a plane of equality. This will become apparent as the cases are reviewed and the statutes summarized. The attitude of both legislatures and courts has changed greatly with the lapse of time. For some years there has been an increasing leniency toward combinations of labor, and of late an increasing severity toward combinations of capital. At no time have both stood upon a footing of equality. Politics, prejudice and sentiment have had and still have their effects. At the present moment the tendency is to view with suspicion all combinations of capital and at the same time look with favor upon all combinations of labor. The legislature which passes a law against combina

tions of capital so sweeping in its terms as to overshoot the mark and embarrass the courts, also endeavors in a clumsy way to make legal combinations of labor and protect them from interference by the courts.

§ 378. Combinations of capital condemned, combinations of labor upheld. As a matter of fact, at the present moment the law is that combinations of labor to raise wages are legal; while in many states combinations of capital to raise prices are not legal. For instance, the court of appeals of New York said: "In the general consideration of the subject, it must be premised that the organization or the co-operation of workingmen is not against any public policy. Indeed, it must be regarded as having the sanction of the law when it is for such legitimate purposes as that of obtaining an advance in the rate of wages or compensation, or of maintaining such rate. It is proper and praiseworthy, and perhaps falls within that general view of human society which perceives an underlying law that men should unite to achieve that which each by himself cannot achieve, or can achieve less readily."

Here is first the specific approval of the very sound economic proposition "that men should unite to achieve that which each by himself cannot achieve, or can achieve less readily;" second, the legal proposition that such a combination formed for the express purpose of raising wages is not only lawful but praiseworthy. Language to the same effect, and even stronger, in favor of the combinations of labor to raise wages is to be found in many of the cases hereinafter cited.

Compare the foregoing with the following propositions regarding combinations of capital formed for identically the same purpose, namely, to get better prices for what capital has to sell:

A combination organized for the purpose of controlling the price and regulating the production of a commodity of general use, such as candles, is contrary to public policy.2

In a case involving the validity of an association of wire-cloth manufacturers, the supreme court of New York said: "The people have a right to the necessaries and conveniences of life. at a price determined by the relation of supply and demand,

1 Curran v. Galen et al. (1897), 152 N. Y. 33, 46 N. E. R. 297.

2 Emery et al. v. Ohio Candle Co., 47 Ohio St. 320.

and the law forbids any agreement or combination whereby that price is removed beyond the salutary influence of competition. . Free competition is the life of business, and all combinations for the purpose of raising or controlling the prices of merchandise are monopolies, and intolerable, and ought to receive the condemnation of all courts."1

Extracts to the same effect will be found hereinafter and might be multiplied indefinitely.

§ 379. Increase of wages means increase in cost and price. Surely the first of necessities is labor; it enters into every product, and an increase of wages means an increase of cost and generally an increase of price.

All the employees engaged in the manufacture of candles or wire cloth may combine for the sole purpose of raising the price of labor, and the combination may, within lawful bounds, bring such pressure to bear upon the makers of candles or wire cloth as to accomplish its object. But the employers cannot combine to raise prices; cannot combine to meet the artificial conditions created by the combination of employees. The "underlying law that men should unite to achieve that which each by himself cannot achieve" seems to be a very one-sided law in its practical application-it favors labor and not capital.

The distinction is entirely arbitrary, and is a matter of politics and not a matter of either economy or logic. Many of the decisions about to be reviewed show that combinations of labor may be as oppressive and tyrannical as combinations of capital, or, on the other hand, both may be beneficial.

$380. Combinations of either capital or labor may be conspiracies. A combination, whether of laborers or capitalists, may or may not be a conspiracy-it is a confederating together for certain purposes; whether it is legal or illegal depends upon its purposes and not upon its personnel. If the object of the combination is to do that which is unlawful, oppressive or immoral, it is an illegal combination no matter who compose it; if the object is to do that which is not unlawful, not oppres sive, not immoral, either as a means or an end, then the combination is not illegal no matter who compose it.

1 De Witt W. C. Co. v. N. J. W. C. Co., 14 N. Y. Supp. 277; Richardson v. Buhl, 77 Mich. 632, 43 N. W. R. 1102.