pear, a strike is even under these conditions not necessarily legal, C. Ill., 1894). This decision (i. e., in 158 U. S. 564) has only an indirect bearing upon the subject of labor combinations. The relief granted was simply against interference with interstate commerce (see § 8) and it was expressly stated that the object of the bill was not "to restrain the defendants from abandoning whatever employment they were engaged in"; that "the right of any laborer or any number of laborers to quit work was not challenged." See, as to effect of Federal anti-trust act, § 191. This overrules what was said in Waterhouse v. Comer, 55 Fed. 149, 157; 19 L. R. A. 403, 407 (C. C. Ga., 1893), that in view of the Interstate Commerce Act and U. S. R. S., § 5440, "a strike or 'boycott,' as it is popularly called, if it was ever effective, can be so no longer." See also Farmers' Loan & Trust Co. v. Northern Pacific R. R. Co., 60 Fed. 803, 823; 25 L. R. A. 414, 429 (C. C. Wis., 1894), the notion expressed wherein (60 Fed. 819; 25 L. R. A. 426), that compulsion and force are essential elements of the definition of a strike, deserves severe condemnation. See modification of this decision in Arthur v. Oakes, supra (63 Fed. 327; 11 C. C. A. 226; 25 L. R. A. 432), holding that an order in broad terms restraining strikes by employees of a railroad operated by receivers should be limited to "those designed to physically cripple the trust property, or to actually obstruct the receivers in the operation of the road, or to interfere with their employees who do not wish to quit, or to prevent by intimidation or other wrongful modes, or by any device, the employment of others to take the places of those quitting, and not such as were the result of the exercise by employees, in peaceable ways, of rights clearly belonging to them, and were not designed to embarrass or injure others, or to interfere with the actual possession and management of the property by the receivers." By N. J. G. S. (1895), p. 2344 "it shall not be unlawful for any two or more persons to unite, combine or bind themselves by oath, covenant, agreement, alliance or otherwise to persuade, advise or encourage by peaceable means any person or persons to enter into any combination for or against leaving or entering into the employment of any person, persons or corporation." To similar effect, Colo. R. S. (1908), § 3924; see also Mont. Rev. Codes (1907), § 8289. The purpose of the New Jersey provision, supra, was said in Cumberland Glass Manuf. Co. v. Glass Bottle Blowers' Assoc., 59 N. J. Eq. 49; 46 Atl. 208 (1899), to have been "undoubtedly to legalize strikes." By Pa. 2 P. & L. Dig., p. 2917, "it shall be lawful for employees, acting either as individuals or collectively, or as the members of any club, assembly, association, or organization, to refuse to work or labor for any person, persons, corporation or corporations, whenever in his, her or their opinion, the wages paid are insufficient, or his, her or their treatment is offensive or unjust, or whenever the continued labor or work by him, her or them would be contrary to the constitution, rules, regulations, by-laws, resolution or resolutions of any club, assembly, association, organization 31 that is, according to the prevailing view.3 In England, however, in accord with the alleged doctrine just considered, that a mere combination to obtain an increase of wages is illegal as a criminal conspiracy, there has at times been judicially declared the supposed doctrine that a mere strike is illegal,32 though, perhaps, without a very clear idea of the distinction between strikes that are, and those that are not, associated with acts of violence or acts producing fear of violence. § 58. Sympathetic strike.—In the view that we have taken, a strike is not made illegal by the circumstance of it being what or meeting of which he, she or they may be a member, or may have attended" without creating a criminal liability for conspiracy. But this does not legalize using force or threats to hinder others from working. For previous provisions to similar effect, see p. 2913. As to effect of such statutes, see Commonwealth v. Sheriff, 15 Phila. 393 (1881). See also Cote v. Murphy, 159 Pa. St. 420; 28 Atl. 190; 23 L. R. A. 135; 39 Am. St. Rep. 686 (1894; see as to whether such statutes are unconstitutional as class legislation); Flaccus v. Smith, 199 Pa. St. 128; 48 Atl. 894; 54 L. R. A. 640; 85 Am. St. Rep. 779 (1901). That they do not deprive of a merely civil remedy, see Erdman v. Mitchell, 207 Pa. St. 79, 91; 56 Atl. 327, 331; 63 L. R. A. 534, 539; 99 Am. St. Rep. 783 (1903; suit in equity). For provisions similar in scope, see §§ 13, 53. See, on the general subject, articles in 40 Am. Law Rev. 42 (1906) by J. W. Bryan; 42 Id. 200 (1908) by C. R. Darling; Id. 706 (1908) by A. M. Brown; 43 Am. Law Reg. N. S. 73 (1904) by C. R. Darling; 44 Id. 465 (1905) by W. D. Lewis. 31 Thus in Reynolds v. Davis, 198 Mass. 294; 84 N. E. 457; 17 L. R. A. N. S. 162 (1908), the legality of a strike was declared to depend upon "the purpose for which the employees strike." In L. D. Willcut & Sons Co. v. Driscoll, 200 Mass. 110, 114; 85 N. E. 897, 899 (1908), while the strike was held proper to enforce a demand "for higher wages and a shorter day," it was regarded as unnecessary to determine whether it was also proper to enforce "demands that all foremen shall be members of the unions, and that the business agent of the unions shall be allowed to visit any building under construction" (the employer being engaged in such construction). 32 Hornby v. Close, 2 Q. B. 153 (1867). But since the enactment in 1875 of the "Conspiracy and Protection of Property Act" (see § 53), strikes have been regarded as legal in England. See Gibson v. Lawson, 2 Q. B. D. (1891) 557; Temperton v. Russell, 1 Q. B. (1893) 715; Lyons v. Wilkins, 1 Ch. (1896) 811, 829; article in 17 Harv. Law Rev. 510 (1903-4) by A. V. Dicey. But see also, article in 19 Law Quart. Rev. 37, 182 (1903) by D. R. Chalmers Hunt. has sometimes been termed a sympathetic strike,33 the only difference between this and an ordinary strike being that, in case of the former, the object is not necessarily to influence the action of the employer of the striking employees, but that of some other employer with some purpose of whose employees the striking employees are in sympathy; as, for instance, where strikes are inaugurated on a number of lines of railroad for the purpose of influencing the proprietors of only one of these lines to grant an increase of wages § 59. Strike whether illegal because of malicious intent.— 33 See, however, § 60. Compare, as to "solidarity of interest," § 46. For prohibition against railroad employee "furthering the object of or lending aid to" a strike on another railroad, see Del. R. S. (1893), p. 928; N. J. L. 1903, c. 257, § 62; Pa. 2 P. & L. Dig., p. 3955. In Pickett v. Walsh, 192 Mass. 572, 587; 78 N. E. 753, 760; 6 L. R. A. N. S. 1067, 1080; 116 Am. St. Rep. 272 (1898), although persons engaged in the trade of brick and stone pointing were denied relief against a strike by bricklayers and stone masons for the purpose of themselves obtaining such work of pointing (see § 60), they were allowed relief against a strike by bricklayers and masons employed by an employer with whom they (such bricklayers and masons) had no dispute, the purpose of the latter strike being to force the employer to force the other employer to yield to the demand of his employees. The court said: "Organized labor's right of coercion and compulsion is limited to strikes against persons with whom the organization has a trade dispute, or to put it in another way, we are of opinion that a strike against A, with whom the strikers have no trade dispute, to compel A to force B to yield to the strikers' demands, is an unjustifiable interference with the right of A to pursue his calling as he thinks best." See discussion of Pickett v. Walsh, with other decisions in article in 42 Am. Law Rev. 706 (1908) by A. M. Brown. In Reynolds v. Davis, 198 Mass. 294; 84 N. E. 457; 17 L. R. A. N. S. 162 (1898), where relief was allowed to employers against a strike "against the open shop" (see § 54), there were declared illegal (though it seems unnecessarily; see opinion of Knowlton, J.), rules of a labor union said to provide for decision of "grievances between an individual member of a union and his employer, which are not common to the union members as a class," and for enforcement of such decision by a strike on the part of all. It was said: "Such a strike would be a strike in the nature of a sympathetic strike, that is to say, it is a strike not to forward the common interests of the strikers, but to forward the interests of an individual employee in respect to a griev ance between him and his employer where no contract of employment exists." See discussion of Reynolds v. Davis, with other decisions in It has already been observed that, though a strike is usually for the purpose of obtaining an increase of wages, this is not necessarily the case. Obviously the motives inducing a mere quitting of employment may be various. There may be physical infirmity producing incapacity, the prospect of higher wages or more congenial surroundings in another place or line of employment, and so on. In such cases there is not necessarily involved any intent to inflict injury upon another person, save as an intent may be inferred to produce injury to the employer, by the inconvenience produced by the withdrawal of an employee or a number of employees. And in such cases there is ordinarily involved no question of the legality of the quitting. But a combination to quit employment very often involves a definite intent to inflict injury. In the view already taken, however, mere malice or malicious intent, that is, malice in fact, as distinguished from malice in law, should be entirely ignored as a test of the legality of a strike, though, as will presently be seen, there is observable a tendency to apply such test.34 What ap 42 Am. Law Rev. 706 (1908) by A. M. Brown. See, on the general subject, articles in 20 Harv. Law Rev. 253, 345, 428 (1907) by Jeremiah Smith; 42 Am. Law Rev. 200 (1908) by C. R. Darling. 34 For instance, in Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. 803, 818 (C. C. Ohio, 1894), it was said: "All the employees had the right to quit their employment, but they had no right to combine to quit in order thereby to compel their employer to withdraw from a mutually profitable relation with a third person for the purpose of injuring that third person, when the relation thus sought to be broken had no effect whatever on the character or reward of their service." Such a tendency seems to have been strongly manifested in State V. Stockford, 77 Conn. 227; 58 Atl. 769; 107 Am. St. Rep. 28 (1904), where, under G. S. (1902), § 1296, making it a criminal offense to "threaten or use any means to intimidate any person to compel such person against his will, to do or abstain from doing any act which such person has a legal right to do or injure or threaten to injure his property with intent to intimidate him," was sustained a conviction for the employment of certain methods in attempting to induce an employer to execute an agreement with members of a labor union. One of such methods being to induce a strike by his employees, it was held properly charged that "if the real purpose of the strike was to ruin the employers' business by threats and intimidation, it was unlawful, and that a conspiracy for that purpose was a crime." It was also here said: "A strike may be pears to us to be essentially a sound doctrine was thus stated with reference to the proposition that "if the motive be unlawful or be not for the good of the organization or some of its members, but prompted wholly by malice and a desire to injure others, then an act which would be otherwise legal becomes unlawful"; "I do not assent to this proposition, although there is authority for it. It seems to me illogical and little short of absurd to say that the everyday acts of the business world, apparently within the domain of competition, may be either lawful or unlawful, according to the motive of the actor." 35 § 60. Strike whether illegal because of intent to procure discharge of employee.—As already indicated, the legality of an act of injury committed by an employee may be subjected to the test whether such act was the natural incident or outgrowth of the relation of employee. But it has also been observed that there is considerable diversity of opinion as to when an act is the natural incident or outgrowth of such relation, thus a strike or a boycott with intent to procure the discharge of an em lawful or it may be unlawful and criminal. Whether it is lawful or not depends upon its object and the manner in which it is conducted. A combination to cause a strike for the purpose of injuring and destroying the business and property of another or depriving another of his liberty or property without just cause is both unlawful and criminal. 35 National Protective Assoc. v. Cumming, 170 N. Y. 315, 326; 63 N. E. 369, 371; 58 L. R. A. 135, 140; 88 Am. St. Rep. 648 (1902), where, however, the decision did not necessarily rest on that ground. See Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 761; 53 Atl. 230, 231 (1902); Wabash R. Co. v. Hannahan, 121 Fed. 563, 571 (C. C. Mo., 1903). So the legality of a strike was sustained where the intent was to enforce a rule as to the number of apprentices to be employed by the employer. Longshore Printing Co. v. Howell, 26 Oreg. 527; 38 Pac. 547; 28 L. R. A. 464; 46 Am. St. Rep. 640 (1894). In Arthur v. Oakes, 63 Fed. 310, 319; 11 C. C. A. 209, 218; 25 L. R. A. 414, 426 (7th Cir., 1894), it was said: "The fact that employees of railroads may quit under circumstances that would show bad faith upon their part, or a reckless disregard of their contract or of the convenience and interests of both employer and the public, does not justify a departure from the general rule that equity will not compel the actual affirmative performance of merely personal services, or (which is the same thing) require employees, against their will, to remain in the personal service of their employer." |