§ 49. Malicious intent.-In the view already taken malice or malicious intent, that is, malice in fact, as distinguished from malice in law, should, as in case of a trade competitor and of an employer, be entirely ignored as a test of the legality of an injury by an employee, 10 though there is observable a tendency to apply such test, as will be seen in considering the cases of strikes, and of boycotts by employees. $50. Criminal liability for injury done in pursuance of combination.-A conspiracy being, as already seen, merely "a combination of two or more persons by some concerted action, to accomplish some criminal or lawful purpose or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means," it follows that an injury done by an employee produces no criminal liability merely because of being done in pursuance of a combination to do such act, that is, of course, in the absence of employment of criminal or unlawful means. This is now the accepted doctrine, though not always formerly. Its application will be seen more fully in considering the cases of strikes and of boycotts by employees. § 51. Civil liability for injury done in pursuance of combination.—As with malice or malicious intent, so, in the view already taken, the element of combination should be entirely ignored as a test of civil liability for an act of an employee, thus, in case of a strike or boycott. As will be seen, however, in specially considering such cases, there is observable a tendency to apply such test. § 52. Labor (or trade) unions.-On principle, it is not apparent why the legality of combinations among employees as such, should be subjected to any different test from that applied to combinations among employers as such, or among tradesmen as such. Combinations among those having a common interest are numerous and cover an infinite variety of purposes; witness, churches, clubs, lodges and other organizations for religious, social and business purposes. "The right of laborers to organize 10 See Pickett V. Walsh, 192 Mass. 572, 587; 78 N. E. 753, 759; 6 L. R. A. N. S. 1067, 1080; 116 Am. St. Rep. 272 (1906). " 11 unions" is said to be "an exercise of the common law right of every citizen to pursue his calling, whether of labor or business, as he in his judgment thinks fit," such right being, however, limited "by the existence of the same right in all other citizens. As a rule, the legality of such combinations, when unincorporated, is conceded on common-law principles,12 and at present much encouragement is furnished by statutes for their formation as corporations. 13 A trade union has been defined as "a combination of workmen of the same trade or of several allied trades for the purpose of securing, by united action, the most favorable conditions as regards wages, hours of labor, etc., for its members." 14 But however legal à labor (or trade) union may be as to its mere organization and existence, it is obviously subject 11 Pickett v. Walsh, 192 Mass. 572, 580; 78 N. E. 753, 757; 6 L. R. A. N. S. 1067, 1077; 116 Am. St. Rep. 272 (1906). See U. S. v. Moore, 129 Fed. 630 (C. C. Ala., 1904). 12 See Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 526; 77 N. W. 13, 24; 42 L. R. A. 407, 418; 74 Am. St. Rep. 421 (1898); Allis-Chalmers Co. v. Iron Molders' Union, 150 Ind. 155, 171 (C. C. Wis., 1906). As to agreements between labor unions and employers, see Fell v. Berry, 124 App. D. 336; 108 N. Y. Suppl. 669 (1908); Barnes v. Berry, 157 Fed. 883 (C. C. Ohio, 1908). 13 Thus special provision therefor is made by act of Congress of June 29, 1886 (24 Stat. L. 86); see act of June 1, 1898 (30 Stat. L. 424). See Arthur v. Oakes, 63 Fed. 310, 324; 11 C. C. A. 209, 223; 25 L. R. A. 414, 431 (7th C., 1894). So by La. R. S. (Wolff's Ed., 1904), p. 223; Md. Pub. Gen. Laws (1904), art. 23, § 41; see Lucke v. Clothing Cutters', etc., Assembly, 77 Md. 396; 26 Atl. 505; 19 L. R. A. 408; 39 Am. St. Rep. 421 (1893); by Mich. Comp. Laws (1897), pp. 2343, et seq.; N. J. G. S. (1895), p. 167; Pa. 2 P. & L. Dig., p. 2915 (see p. 2913); see Flaccus v. Smith, 199 Pa. St. 128; 48 Atl. 894; 54 L. R. A. 640; 85 Am. St. Rep. 779 (1901); by Tex. L. 1899, c. 153. See Colo. R. S. (1908), § 3924; Mass. R. L. (1902), C. 125, §§ 13-16. And doubtless in other instances, even when not expressly provided for, the incorporation of a labor union is authorized by the provisions of a general statute. As to English Trade Union Act of 1871, see Chamberlain's Wharf v. Smith, 2 Ch. (1900) 605. As to granting relief to such corporation on account of injury to individual members, see Master Horseshoers' Assoc. v. Quinlivan, 83 App. D. 459; 82 N. Y. Suppl. 288 (1903). 14 Century Dictionary. Certain statutory provisions (see 2 P. & L. Dig., p. 2913) held not to justify inducing employees to violate their agreement with their employer not to restrictions with reference to the employment of particular methods, thus for the purpose of increasing or retaining membership or enforcing regulations of the union. "The social principle which justifies such organizations is departed from when they are so extended in their operation as either to intend or to accomplish injury to others." 15 "The law allowing them to combine to belong to a labor union. Flaccus v. Smith, supra. As to propriety of compelling by injunction or otherwise, continuance of association or membership in labor union, see O'Brien v. Musical Protective Union, 64 N. J. Eq. 525; 54 Atl. 150 (1903). As to when contract of employment is entered into with reference to rules of such union, see Burnetta v. Marceline Coal Co., 180 Mo. 241; 79 S. W. 136 (1904). As to rule providing for allowance of "strike pay," see Howden v. Yorkshire Miners' Assoc., 1 K. B. (1903) 308. In most of the States statutory provision is made for the protection of labels, marks, etc., adopted by labor unions for the purpose of designating the products of the labor of the members thereof. For collation of such statutes, see Paul on Trade-marks, pp. 649 et seq. As to the effect of such labels independently of statute, see Id., § 85. Such statutes were held constitutional in State v. Bishop, 128 Mo. 373; 31 S. W. 9; 29 L. R. A. 200; 49 Am. St. Rep. 569 (1895); Schmalz v. Woolley, 57 N. J. Eq. 303; 41 Atl. 939; 43 L. R. A. 86; 73 Am. St. Rep. 637 (1898); Perkins v. Heert, 158 N. Y. 306; 53 N. E. 18; 43 L. R. A. 858; 70 Am. St. Rep. 483 (1899); Commonwealth v. Morton, 23 Pa. Co. 386 (1899); subsequent decision in 16 Pa. Super. 423 (1901); Common wealth v. Meads, 29 Pa. Super. 321 (1905). As to constitutionality of provision for fixing amount of penalty, see Cigar Makers' Union v. Goldberg, 72 N. J. Law, 214; 61 Atl. 457; 70 L. R. A. 156; 111 Am. St. Rep. 662 (1905). See also, as to such statutes, Lawlor v. Merritt, 79 Conn. 399; 65 Atl. 295 (1906); previous decision in 78 Conn. 630; 63 Atl. 639 (1906); Comer v. State, 103 Ga. 69; 29 S. E. 501 (1897); Lynch v. John Single Paper Co., 115 App. D. 911; 101 N. Y. Suppl. 824 (1906). See also, article in 42 Am. Law Rev. 511 (1908) by W. A. Martin. As to registration of insignia of such unions, see Mass. L. 1904, c. 335. "Public policy 15 Curran v. Galen, 152 N. Y. 33; 46 N. E. 297; 37 L. R. A. 802; 57 Am. St. Rep. 496 (1897). Here the court also said: and the interests of society favor the utmost freedom in the citizen to pursue his lawful trade or calling, and if the purpose of an organization or combination of workingmen be to hamper or to restrict that freedom, and, through contracts or arrangements with employers, to coerce other workingmen to become members of the organization, and to come under its rules and conditions, under the penalty of the loss of their position and of deprivation of employment, then that purpose seems clearly unlawful and mili for the purpose of obtaining a lawful benefit to themselves, gives no sanction to combinations which have for their immediate purpose the hurt of another." 16 We exclude here from consideration, as only tending to confuse our present discussion, an ele tates against the spirit of our government and the nature of our institutions." 16 Queen v. Rowlands, 17 Q. B. 671, 686 (1851). This language was approved in Curran v. Galen, supra. In accordance with the view we have already advanced, we consider this statement open to criticism as making the "purpose" or intent the test of liability, instead of whether the act was the natural incident or outgrowth of the relation in which the party stood. The force of this criticism will be more apparent upon a consideration of the facts involved in Curran v. Galen. See discussion thereof, § 72. In Longshore Printing Co. v. Howell, 26 Oreg. 527, 540; 38 Pac. 547, 551; 28 L. R. A. 464, 472; 46 Am. St. Rep. 640 (1894), were thus stated the limitations upon the activities of such organizations: "These associations must depend for their membership upon the free and untrammeled choice of each individual member. No resort can be had to compulsory methods of any kind, either to increase, keep up or retain such membership. Nor is it permissible for associations of this kind to enforce the observance of their laws, rules and regulations through violence, threats or intimidation, or to employ any methods that would induce intimidation or deprive persons of perfect freedom of action. Such organizations may be preserved and their membership augmented by reason ing and fair arguments, and even by persuasion and entreaty, and an observance of their adopted constitutions and by-laws may be exacted through the same peaceful means, but beyond this it is not advisable, from a legal standpoint, to venture." See also U. S. v. Cassidy, 67 Fed. 698, 711 (D. C. Cal., 1895). The above language in Longshore Printing Co. v. Howell, was quoted from in L. D. Willcut & Sons Co. v. Driscoll, 200 Mass. 110, 121; 85 N. E. 897, 901 (1908), which see as to power to make by-laws and enforce obedience thereto; also as to when they interfere with the rights of third parties. See also, § 6. As to interference by union with employment of one not a member, see Levin v. Cosgrove, 67 Atl. 1070 (Supm. Ct. N. J., 1907). For application of term "scab," see Century Dictionary; Southern Ry. Co. v. Machinists' Local Union, 111 Fed. 49, 55 (C. C. Tenn., 1901); L. D. Willcut & Sons Co. v. Driscoll, supra. As to expulsion or suspension from membership, see Schneider v. Local Union No. 60, 116 La. 270; 40 So. 700; 5 L. R. A. N. S. 891; 114 Am. St. Rep. 549 (1906); Harris v. Detroit Typographical Union, 144 Mich. 422; 108 N. W. 362 (1906); Corregan v. Hay, 94 App. D. 71; 87 N. Y. Suppl. 956 (1904); Fritz v. Knaub, 124 App. D. 915; 108 N. Y. Suppl. 1133 (1908); affirming 57 Misc. 405; 103 N. Y. ment that has to but a slight extent figured in the controversy, namely, the tendency of such combinations to destroy competition. This we shall consider hereafter in connection with combinations to increase prices.17 Generally speaking, a labor union, like other voluntary associations, is not liable to be sued,18 though such liability has sometimes been created by statute. § 53. Combinations to increase wages.-As has been seen, Suppl. 1003 (1907); Cotton Jammers, etc., Assoc. v. Taylor, 23 Tex. Civ. App. 367; 56 S. W. 553 (1900). As to imposition of fine, see Fuerst ▼. Musical Mut. Protective Union, 95 N. Y. Suppl. 155 (N. Y. City Ct., Tr. T., 1905). For prohibition against discrimination by labor union because of membership in national guard, see N. Y. Penal Code, § 171c, a provision apparently occasioned by the transactions on which the decision in Potter v. Sheffer, 40 Misc. 46; 81 N. Y. Suppl. 164 (Supm. Ct., Sp. T., 1903), was based. As to when rules of labor union or similar association are illegal as in restraint of trade, see Parker v. Toronto Musical Protective Assoc., 32 Ont. 305 (1900); Cullen v. Elwin, 88 L. T. R. 686 (1903); appeal dismissed in 90 L. T. R. 840 (1904). 17 See § 126. That a labor union may be illegal as in restriction upon competition, that is, as here described, "a trust pure and simple,” see Froelich v. Musicians' Mutual Benefit Assoc., 93 Mo. App. 383, 391 (1902), where, because of such illegality, relief was denied against expulsion from membership. As to objection to legality of labor unions as "organized for the purpose of monopolizing to their members, the labor market in any particular trade," see Brennan v. United Hatters of North America, 73 N. J. Law, 729, 739; 65 Atl. 165, 169; 9 L. R. A. N. S. 254, 259; 118 Am. St. Rep. 727 (1906). In Lohse Patent Door Co. v. Fuelle, 114 S. W. 997, 1003 (Supm. Ct. Mo., 1908), where relief was allowed against a boycott instituted to procure the exclusive employment of members of unions (see § 62), they were said not to be "unlawful combinations made and entered into in restraint of trade." See articles in 19 Pol. Sci. Quart. 193 (1904) by Mabel Atkinson; 22 Id. 385, 611 (1907) by H. R. Seager. 18 American Steel & Wire Co. v. Wire Drawers', etc., Unions, 90 Fed. 598 (C. C. Ohio, 1898); Karges Furniture Co. v. Amalgamated Woodworkers Local Union, 165 Ind. 421; 75 N. E. 877; 2 L. R. A. N. S. 788 (1905); Plant v. Woods, 176 Mass. 492, 504; 57 N. E. 1011, 1015; 51 L. R. A. 339, 344; 79 Am. St. Rep. 330 (1900). The rule was applied to a suit in equity, in Pickett v. Walsh, 192 Mass. 572, 589; 78 N. E. 753, 760; 6 L. R. A. N. S. 1067, 1081; 116 Am. St. Rep. 272 (1906); Reynolds v. Davis, 198 Mass. 294; 84 N. E. 457; 17 L. R. A. N. S. 162 (1908). But in St. Paul Typothetæ v. St. Paul Bookbinders' Union, 94 Minn. 351; 102 N. W. 725 (1905), where the rule was applied in an action at law, it was seeming |