tion will not be granted against a mere libel. A distinction has been sought to be maintained between an injunction obtain legal redress therefor the annoyance of a multiplicity of suits would follow; also it is alleged that defendants are insolvent - both of which are among the prime reasons that appeal to a court of equity for its preventive relief." So in Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811 (Cir. Ct. Ohio, 1897), an injunction was granted against labor unions and members thereof, it appearing that they, for the purpose of compelling the adoption of a particular scale of wages, were guilty of acts of intimidation and violence, assembling near the entrance to the complainant's mill, preventing its employees from going to their work, assaulting and wounding them. Other instances of the granting of injunctions against threats or intimidation by striking employees are: N. Y., Lake Erie & W. R. R. Co. v. Wenger, 17 Weekly L. Bull. 306 (Cuyahoga Co., Ohio, Com. Pl., 1887; there being also present the element of trespassing upon the plaintiff's premises); Perkins v. Rogg, 28 Id. 32 (Cinn. Super. Ct. 1892); Lake Erie & Western Ry. Co. v. Bailey, 61 Fed. Rep. 494 (Cir. Ct. Ind., 1893); Bruschke v. Furniture Makers' Union, 18 Chicago Legal News, 306 (Super. Ct. Cook Co., 1886 ?). In Arthur v. Oakes, 24 U. S. App. 239, 244; s. C., 63 Fed. Rep. 310, 312 (7th Cir., 1894; for facts, see § 14), the decision was based on the general "power of a court of equity, having custody by receivers of the railroad and other property of a corporation, to enjoin combinations, conspiracies or acts upon the part of the receivers' employees and their associates in labor organizations, which, if not restrained, would do irreparable mischief to such property, and prevent the receivers from discharging the duties imposed by law upon the corporation." So, acts producing fear of violence upon the minds of employees of a railroad in the hands of a receiver, were held an unlawful interference with the management of the road and a contempt of court, in Re Wabash R. Co., 24 Fed. Rep. 217 (Cir. Ct. Mo., 1885); United States v. Kane, 23 Fed. Rep. 748 (Cir. Ct. Colo., 1885). In Re Debs, 158 U. S. 564, 598; s. C., 15 Supm. Ct. Rep. 900 (1895), affirming 64 Fed. Rep. 724, 765 (Cir. Ct. Ill., 1894) (see § 8, p. 35, above), the injunction was sustained on the ground of the right of the government to enjoin interference with interstate commerce. In Arthur v. Oakes, above; Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811 (Cir. Ct. Ohio, 1897), above; Vegelahn v. Guntner, 167 Mass. 92; s. c., 44 N. E. Rep. 1077 (1896), was applied the rule that an injunction may be granted against an act that is also punishable as a crime. So in Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212; s. C., 32 S. W. Rep. 1106 (1895); Davis v. Zimmerman, 91 Hun, 489; s. c., 36 N. Y. Suppl. 303 (1895), both cases of acts of striking employees. In against the use of words producing a fear of injury, and an injunction against mere libelous words. But we submit Perkins v. Rogg, 28 Weekly L. Bull. 32 (Cinn. Super. Ct., 1892), an injunction was granted against a part only of the defendants. 1 In Springhead Spinning Co. v. Riley, 6 L. R. Eq. Cas. 551 (1868), an injunction was granted to restrain officers of a trade union from printing or publishing placards or advertisements for the purpose of intimidating workmen from entering the service of the plaintiff. So held under a statute, though the acts were declared to be unlawful at common law. So in Sherry v. Perkins, 147 Mass. 212; S. C., 17 N. E. Rep. 307 (1888), against displaying banners with devices, as a means of threats and intimidation, to prevent persons from entering into or continuing in the employment of the plaintiffs. In Coeur D'Alene Consolidated & Mining Co. v. Miners' Union, 51 Fed. Rep. 260, 267 (Cir. Ct. Idaho, 1892), it is said: "A clear distinction will be observed between the two classes of cases above noted. In the one, when the acts complained of consist of such misrepresentations of a business that they tend to its injury, and damage to its proprietor, the offense is simply a libel; and in this country the courts have, with great unanimity, held that they will not interfere by injunction, but that the injured party must rely upon his remedy at law. On the contrary, when the attempt to injure consists of acts or words which will operate to intimidate and prevent the customers of a party from dealing with or labor ers from working for him, the courts have, with nearly equal unanimity, interposed by injunction." See further, as illustrating this distinction, Sherry v. Perkins, above; Emack v. Kane, 34 Fed. Rep. 46 (Cir. Ct. Ill., 1888); Casey v. Cincinnati Typographical Union, 45 Fed. Rep. 135 (Cir. Ct. Ohio, 1891. Here the authorities are quite carefully considered). See also Vegelahn v. Guntner, 167 Mass. 92; s. c., 44 N. E. Rep. 1077 (1896); Shoemaker v. South Bend Co., 135 Ind. 471; s. C., 35 N. E. Rep. 280 (1893); Francis v. Flinn, 118 U. S. 385; s. c., 6 Supm. Ct. Rep. 1148 (1886); Arthur v. Oakes, 24 U. S. App. 239, 256; s. c., 63 Fed. Rep. 310, 320 (7th Cir., 1894). For instances of statements held to be mere libels and not furnishing ground for injunctions as against injuries to business, see Mayer v. Journeymen Stonecutters' Assoc., 47 N. J. Eq. 519; s. c., 20 Atl. Rep. 492 (1890). In Richter v. Journeymen Tailors' Union, 24 Weekly L. Bull. 189 (Franklin Co., Ohio, Com. Pl., 1890), a case of the circulation and posting, by members of a labor union, of circulars and posters claimed to contain statements injurious to the plaintiff's business, Sherry v. Perkins, above, was distinguished on the ground that there, in addition to the display of the banner, there was the element of intimidation of the plaintiff's employees. Springhead Spinning Co. v. Riley, 6 L. R. Eq. Cas. 551 It is easy that the distinction is scarcely a substantial one. to see how the rule that an injunction will not be granted against a mere libel, originated under conditions in which a libel was commonly the act of a single individual. But if the doctrine becomes established that an injunction is an available remedy against the use of words producing a fear of injury, it is difficult to see on principle why it should not be an available remedy against such use of words as constitutes a libel, when frequently repeated by large numbers of persons over a considerable extent of territory.1 (1868) (see p. 82, above), is said, in Mayer v. Journeymen Stonecutters' Assoc., 47 N. J. Eq. 519; s. c., 20 Atl. Rep. 492 (1890), to have been overruled in Prudential Assurance Co. v. Knott, 10 L. R. Ch. App. 142 (1875). 1 Thus, in Gilbert v. Mickle, 4 Sandf. Ch. (N. Y.) 357 (1846), the jurisdiction to enjoin the continuous display of a placard containing offensive words was recognized, even on the supposition that the placard was a libel. See also 2 High on Injunctions (3d ed.), § 1015; 1 Jaggard on Torts, p. 353. The illogical character of the distinc tion is fully demonstrated in an article by W. D. Lewis on "Injunctions to Restrain Libels, and Courts of Criminal Equity,” in 31 Am. Law Reg. & Rev. 782 (1892). It seems to be the common practice in England to grant injunctions against libels. Thus, in Trollope v. London Building Trades Federation, 72 LT. R. 342 (1895), a case of a trade libel. But as to whether this practice is not based on legislation, see above article (p. 792) and Kidd v. Horry, 28 Fed. Rep. 773 (Cir. Ct. Pa., 1886); De Wick v. Dobson, 18 N. Y. App. Div. 399; s. c., 46 N. Y. Suppl. 390 (1897). PART II. COMBINATIONS PRODUCING PUBLIC INJURY. The wrongs hith § 17. The doctrine of public policy. erto considered have been wrongs that the law regards as committed merely against an individual. But we pass now to a consideration of wrongs that the law regards as far more extensive in their operation, namely, as committed not merely against an individual, but against a large number of individuals, constituting that vague combination known as "the public," that is to say, the inhabitants of a given town, city, State or country, as the case may be, or even of a region not limited by mere political boundaries. The needs and capacities of different individuals are so infinite in their variety that a wrong measured by the needs and capacities of a large number must, of necessity, be somewhat indeterminate in its character, to say nothing of the indefiniteness of the number affected. Hence, it is not surprising that so indeterminate a test of liability has at times encountered strong disapproval. Nevertheless it is a test that we must regard as, for the present at least, firmly established in our juris 1 Such disapproval is manifested in the frequent quotation of the remark of Burrough, J., in Richardson v. Mellish, 2 Bingham, 229, 252 (1824), that "public policy is a very unruly horse." See, for instance, Chappel v. Brockway, 21 Wend. (N. Y.) 157, 164 (1839). For criticisms of the doctrine, see remarks of Campbell, C. J., in Hilton v. Eckersley, 6 El. & Bl. 47, 64 (1855); also Kellogg v. Larkin, 3 Pinney (Wis.), 123, 136 (1851). In Bohn Manuf. Co. v. Hollis, 54 Minn. 223, 231; s. C., 55 N. W. Rep. 1119 (1893), it is said: "There is perhaps danger that, influenced by such terms of illusive meaning as 'monopolies,' 'trusts,' 'boycotts,' 'strikes,' and the like, they (the courts) may be led to transcend the limits of their jurisdiction, and, like the court of King's Bench, in Bagg's Case, 11 Coke, 93b, 98a (1615), assume that, on general principles, they have authority to correct or prudence.1 A wrong of this character is commonly known as an act against public policy. Any definition of such an act would seem to be of necessity unsatisfactory,2 and, without attempting to frame one, we content ourselves with the suggestion that an act illegal as against public pol reform everything which they may deem wrong, or, as Lord Ellsmere puts it, 'to manage the State."" 1 In Bishop v. Palmer, 146 Mass. 469; s. c., 16 N. E. Rep. 299 (1888), the invalidity of a contract in restraint of trade was said to rest on the same ground "as if such contracts were forbidden by positive statute." That the court will raise the question that a contract is illegal as against public policy, though it has not been raised by the parties, see Wright v. Cudahy, 168 Ill. 86; s. c., 48 N. E. Rep. 39 (1897). But an appellate court should not consider the objection, raised for the first time on appeal, unless such illegality appear from the pleadings, the face of the contract, or the confessed facts of the case. Carter-Crume Co. v. Peurrung, U.S. App. —; s. c., 86 Fed. Rep. 439 (6th Cir., 1898). The rule that the question whether an agreement is contrary to public policy, is one of law for the court has been applied to agreements in restriction upon competition. Thus, in Cummings v. Union Blue Stone Co., 15 N. Y. App. Div. 602; s. c., 44 N. Y. Suppl. 787 (1897; holding a request to go to the jury properly denied). So in Kellogg v. Larkin, 3 Pinney (Wis.), 123, 135 (1851), holding that, in an action on an agreement, judgment for the defendant on demurrer to the plea was not made proper by mere averments in the plea to the effect that the agreement tended to stifle competition, etc. The court say: "No averment could give to the agreement a character which it had not, and no admission could take from it the character which it had." To similar effect, Hoffman v. Brooks, 23 Am. Law Reg. (N. S.) 648 (Super. Ct. Cinn., 1884). But in South Florida R. R. Co. v. Rhodes, 25 Fla. 40, 46; s. c., 5 So. Rep. 633 (1889), the question whether an agreement was "bona fide and not entered into for the purpose of an oppressive monopoly " was held a mixed one of law and fact, and for the jury. See, as to pleading defense to contract valid on its face as alleged and proved by the plaintiff, Drake v. Siebold, 81 Hun (N. Y.), 178; s. c., 30 N. Y. Suppl. 697 (1894). 2 It was said by Kekewich, J., in Davies v. Davies, 36 L. R. Ch. D. 359, 364 (1887), that "public policy does not admit of definition." But in People ex rel. v. Chicago Gas Trust Co., 130 Ill. 268, 294; s. c., 22 N. E. Rep. 798 (1889), public policy is defined as that principle of the law which holds that no subject or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good." See also Greenhood on Public Policy, p. 2. 66 |