printing press or presses from complain- Thereupon two of the three manufacturant, [479] or engaged in hauling, ers who had assented to union conditions carting, delivering, installing, hand- notified the union that they should be ling, using, operating, or repairing obliged to terminate their agreements any such press or presses for any with it unless their competitor, the Duplex customer of complainant. Other threat- Company, also entered into the agreement ened conduct by defendants or the with the union, which, in giving more associations they represent, or the mem- favorable terms to labor, imposed correbers of such associations, in furtherance spondingly greater burdens upon the emof the secondary boycott, should be in- ployer. Because the Duplex Company recluded in the injunction according to the fused to enter into such an agreement, and proofs. in order to induce it to do so, the Machinists' Union declared a strike at its factory, and in aid of that strike instructed its re-members and the members of affiliated unions not to work on the installation of presses which plaintiff had delivered in New York. Defendants insist that by the common law of New York, where the acts complained of were done, and where this suit was brought, and also by § 20 of the Clayton Act (38 Stat. at L. 730, 738, chap. 323, Comp. Stat. §§ 8835a, 1243d, 9 Fed. Stat. Anno. 2d ed. p. 730, 6 Fed. Stat. Anno. 2d ed. p. 141), the facts constitute a justification for this interference with plaintiff's business. Complainant is entitled to its costs in this court and in both courts below. Decree reversed, and the cause manded to the District Court for further proceedings in conformity with this opinion. Mr. Justice Brandeis, dissenting, with whom Mr. Justice Holmes and Mr. Justice Clarke concur: The Duplex Company, a manufacturer of newspaper printing presses, seeks to enjoin officials of the machinists' and affiliated unions from interfering with its business by inducing their members not to work for plaintiff or its customers in connection with the setting up of presses made by it. Unlike Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 62 L. ed. 260, L.R.A.1918C, 497, 38 Sup. Ct. Rep. 65, Ann. Cas. 1918B, 461, there is here no charge that defendants are inducing employees to break their contracts. Nor is it now urged that defendants threaten acts of violence. But plaintiff insists that the acts complained of violate both the common law of New York and the Sherman Act, and that, accordingly, it is entitled to relief by injunction under the state law and under § 16 of the Clayton Act, October 15, 1914, chap. 323, 38 Stat. at L. 730, 737, Comp. Stat. §§ 8835a, 88350, 9 Fed. Stat. Anno. 2d ed. pp. 730, 745. First. As to the rights at common law: Defendants' justification is that of selfinterest. They have supported the strike at the employer's factory by a strike elsewhere against its product. They have injured the plaintiff, not maliciously, but in self-defense. They contend that the Duplex Company's refusal to deal with the machinists' union and to observe its standards threatened the interest not only of such union members as were its factory employees, but even more of all members of the several affiliated unions employed by plaintiff's competitors, and [481] by others whose more advanced standards the plaintiff was, in reality, attacking; and that none of the defendants and no person whom they The defendants admit interference with are endeavoring to induce to refrain plaintiff's business, but justify on the fol- from working in connection with the lowing ground: There are in the United setting up of presses made by plaintiff States only four manufacturers of such is an outsider, an interloper. In other presses, and they are in active competi- words, that the contest between the comtion. Between 1909 and 1913 the Machin-pany and the machinists' union involves ists' Union induced three of [480] them to recognize and deal with the union, to grant the eight-hour day, to establish a minimum wage scale, and to comply with other union requirements. The fourth, the Duplex Company, refused to recognize the union; insisted upon conducting its fae. tory on the open-shop principle; refused to introduce the eight-hour day, and operated, for the most part, ten hours a day; refused to establish a minimum wage scale; and disregarded other union standards. vitally the interest of every person whose co-operation is sought. May not all with a common interest join in refusing to expend their labor upon articles whose very production constitutes an attack upon their standard of living and the institution which they are convinced supports it? Applying common-law principles the answer should, in my opinion, be: Yes, if, as matter of fact, those who so co-operate have a common interest. The change in the law by which strikes once illegal and even criminal are now Cas. 275; Alfred W. Booth & Bro. v. Burgess, 72 N. J. Eq. 181, 65 Atl. 226. But other courts, with better appreciation of the facts of industry, recognized the unity of interest throughout the union, and that, in refusing to work on materials which threatened it, the union was only refusing to aid in destroying itself. Bossert v. Dhuy, 221 N. Y. 342, 117 N. E. 582, Ann. Cas. 1918D, 661; Cohn & R. Electric Co. v. Bricklayers, M. & P. Local Union, 92 Conn. 161, 6 A.L.R. 887, 101 Atl. 659; Gill Engraving Co. v. Doerr, 214 Fed. 111; State v. Van Pelt, 136 N. C. 633, 68 L.R.A.760, 49 S. E. 177, 1 Ann. Cas. 495; George J. Grant Constr. Co. v. St. Paul Bldg. Trades Council, 136 Minn. 167, 161 N. W. 520, 1055; Pierce v. Stablemen's Union, 156 Cal. 70, 76, 103 Pac. 324. recognized as lawful was effected in 214 Pa. 348, 12 L.R.A. (N.S.) 642, 112 America largely without the intervention Am. St. Rep. 757, 63 Atl. 585, 6 Ann. of legislation. This reversal of a common-law rule was not due to the rejection by the courts of one principle and the adoption in its stead of another, but to a better realization of the facts of industrial life. It is conceded that, although the strike of the workmen in plaintiff's factory injured its business, the strike was not an actionable wrong, because the obvious self-interest of the strikers constituted a justification. See Pickett v. Walsh, 192 Mass. 572, 6 L.R.A. (N.S.) 1067, 116 Am. St. Rep. 272, 78 N. E. 753, 7 Ann. Cas. 638. Formerly courts held that self-interest could not be so served. 2 Commons, History of Labor in United States, chap. 5. But even after strikes to raise wages or reduce hours were held to be legal, because of the self-interest, some courts held that there was not sufficient causal relationship between a strike to unionize a shop and the self-interest of the strikers to justify injuries inflicted. Plant v. Woods, 176 Mass. 492, 51 L.R.A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011; Lucke v. Clothing Cutters' & T. Assembly, 77 Md. 396, 19 L.R.A. 408, 39 Am. St. Rep. 421, 26 Atl. 505; Erdman V. Mitchell, 207 Pa. 79, 63 L.R.A. 534, 99 Am. St. Rep. 783, 56 Atl. 327. [482] But other courts, repeating the same legal formula, found that there was justification, because they viewed the facts differently. National Protective Asso. v. Cumming, 170 N. Y. 315, 58 L.R.A. 135, 88 Am. St. Rep. 648, 63 N. E. 369; Kemp v. Division No. 241, 255 Ill. 213, 99 N. E. 389, Ann. Cas. 1913D, 347; Roddy v. United Mine Workers, 41 Okla. 621, L.R.A.1915D, 789, 139 Pac. 126. When centralization in the control of business brought its corresponding centralization in the organization of workingmen, new facts had to be appraised. A single employer might, as in this case, threaten the standing of the whole organization and the standards of all its members; and when he did so the union, in order to protect itself, would naturally refuse to work on his materials wherever found. When such a situation was first presented to the courts, judges concluded that the intervention of the purchaser of the materials established an insulation through which the direct relationship of the employer and the workingmen did not penetrate; and the strike against the material was considered a strike against the purchaser by unaffected third parties. Burnham v. Dowd, 217 Mass. 351, 51 L.R.A.(N.S.) 778, 104 N. E. 841; Purvis v. Local No. 500, U. B. C. J. So, in the case at bar, deciding a question of fact upon the evidence introduced and matters of common knowledge, I should say, as the two lower courts apparently have said, that the defendants and those from whom they [483] sought co-operation have а common interest which the plaintiff threatened. This view is in harmony with the views of the court of appeals of New York. For in New York, although boycotts like that in Loewe v. Lawlor, 208 U. S. 274, 52 L. ed. 488, 28 Sup. Ct. Rep. 301, 13 Ann. Cas. 815, are illegal because they are conducted not against a product, but against those who deal in it, and are carried out by a combination of persons not united by common interest, but only by sympathy (Auburn Draying Co. v. Wardell, 227 N. Y. 1, 6 A.L.R. 901, 124 N. E. 97), it is lawful for all members of a union, by whomever employed, to refuse to handle materials whose production weakens the union (Bossert v. Dhuy, 221 N. Y. 3412, 117 N. E. 582, Ann. Cas. 1918D, 661; P. Reardon v. Caton, 189 App. Div. 501, 178 N. Y. Supp. 713; compare Paine Lumber Co. v. Neal, 244 U. S. 459, 471, 61 L. ed. 1256, 1264, 37 Sup. Ct. Rep. 718). "The voluntary adoption of a rule not to work upon nonunion-made material, and its enforcement, differs only in degree from such voluntary rule and its enforcement in a particular case. also differs entirely from a general boycott of a particular dealer or manufacturer, with a malicious intent and purpose to destroy the good will or business of such dealer or manufacturer." Bossert v. Dhuy, supra, p. 355. In my opinion, Such a determination 363 therefore, plaintiff had no cause of action | workingmen and employer as industrial by the common law of New York. Second. As to the Anti-trust Laws of the United States: Section 20 of the Clayton Act declares: "Nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States." combatants. Aside from the use of the injunction, the chief source of dissatisfaction with the existing law lay in the doctrine of malicious combination, and, in many parts of the country, in the judicial declarations of the illegality at common law of picketing and persuading others to leave work. The grounds for objection to the latter are obvious. The objection to the doctrine of malicious com The acts which are thus referred to are, whether performed singly or in concert: "Terminating any relation of employ-binations requires some explanation. ment, or ceasing to perform any [485] By virtue of that doctrine, damwork or labor, or recommending, age resulting from conduct such as advising, or persuading others by peaceful striking or withholding patronage or means so to do; or . attending at persuading others to do either, which, any place where any such person or per- without more, might be damnum abssons may lawfully be, for the purpose of que injuria because the result of trade peacefully obtaining or communicating in- competition, became actionable when formation, or peacefully persuad-done for a purpose which a judge ing [484] any person to work or to considered socially or economically harmabstain from working; or ceas- ful, and therefore branded as malicious ing to patronize or to employ any and unlawful.2 It was objected that, due party to such dispute, or largely to environment, the social and ommending, advising, or persuading economic ideas of judges, which thus beothers by peaceful and lawful means came translated into law, were prejudicial so to do; or . paying or giv- to a position of equality between workinging to, or withholding from, any person man and employer; that, due to this deengaged in such dispute, any strike bene-pendence upon the individual opinion of fits or other moneys or things of value; or judges, great confusion existed as to what peaceably assembling in a lawful purposes were lawful and what unlawmanner, and for lawful purposes; or ful: 3 and that, in any event, Congress, not doing any act or thing which the judges, was the body which should might lawfully be done in the absence of declare what public policy in regard to such dispute by any party thereto." the industrial struggle demands. rec This statute was the fruit of unceasing agitation, which extended over more than twenty years, and was designed to equalize before the law the position of 1 See "Malice and Unlawful Interference," Ernst Freund, 11 Harvard L. Rev. 449, 461; "Rights of Traders and Laborers," Edw. F. McClennen, 16 Harvard L. Rev. 237, 244; "Crucial Issues in Labor Litigation," Jeremiah Smith, 20 Harvard L. Rev. 429, 451; Commons & A. Principles of Labor Legislation, pp. 95-116; Hoxie, Trade Unionism in United States, p. 231; Groat, Attitude of American Courts towards Labor Cases, pp. 76, 77, 221, 246; Bryan, Development of English Law of Conspiracy, pp. 147 et seq. Report of the Industrial Commission, 1901, vol. xvii. p. exiv. pp. 515, 556; Report of Royal Commission on Trade Disputes and Trade Combinations, 1906, p. 12; Report of Commission on Industrial Relations, 1915, pp. 135, 377. For attempts to reach this doctrine by legislation, see also 52d Congress, H. R. 6640, § 1; 56th Congress, H. R. 11,667, §7; 57th Congress, S. 649, § 7. | By 1914 the ideas of the advocates of legislation had fairly crystallized upon the manner in which the inequality and uncertainty of the law should be removed. It otherwise to advance the interests of labor, not to the material loss inflicted upon the employer concerned, but to the harm supposed to result from their activities to the public at large." And since the judge or jury believe the conduct socially bad, and since it is admittedly done intentionally, not inadvertently, they declare that the actors are animated by malice which negatives the justification of "fair competition," e. g., Lord Bowen in Mogul S. S. Co. v. McGregor [1892] A. C. 25: "Intentionally to do that which is calculated to damage. and does damage another in his property or trade is actionable if done without just cause or excuse, and .. is what the law calls a malicious injury." 3 See A. V. Dicey, "The Combination Laws as Illustrating the Relation between Law and Opinion in England During the Nineteenth Century," 17 Harvard L. Rev. 2 See James Wallace Bryan, The Develop-511, 532: "The very confusion of the ment of the English Law of Conspiracy:- present state of the law corresponds with "We find little difficulty in attributing and illustrates a confused state of opinion." the illegality of combinations to strike or was to [486] be done by expressly | tions of any law of the United States," legalizing certain acts regardless of and, hence, do not violate the Sherman the effects produced by them upon Act. other persons. As to them, Congress was to extract the element of injuria from the damages thereby inflicted, instead of leaving judges to determine, according to their own economic and social views, whether the damage inflicted on an employer in an industrial struggle was damnum absque injuria, because an incident of trade competition, or a legal injury, because, in their opinion, economically and socially objectionable. This idea was presented to the committees which reported the Clayton Act. The resulting law set out certain acts which had previously been held unlawful, whenever courts had disapproved of the ends for which they were performed; it then declared that, when these acts were committed in the course of an industrial dispute, they should not be held to violate any law of the United States. In other words, the Clayton Act substituted the opinion of Congress as to the propriety of the purpose for that of differing judges; and thereby it declared that the relations between employers of labor and workingmen were competitive relations, that organized competition was not harmful, and that it justified injuries necessarily inflicted in its course.5 Both the [487] majority and the minority report of the House Committee indicate that such was its purpose. If, therefore, the act applies to the case at bar, the acts here complained of cannot "be considered or held to be viola 4 It was said that this doctrine "com pletely unsettle (d) the law and set up the chancellor in the midst of the labor organization at the inception of a strike as an arbiter of their conduct as well as a controller of their fates." 62d Congress, 2d Sess. Hearings before a Subcommittee of the Senate Committee on the Judiciary, on H. R. 23,635, p. 429. | The Duplex Company contends that § 20 of the Clayton Act does not apply to the case at bar, because it is restricted to cases "between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving or growing out of a dispute concerning terms or conditions of employment;" whereas the case at bar arises between an employer in Michigan and workingmen in New York, not in its employ, and does not involve their conditions of employment. But Congress did not restrict the provision to emplovers and workingmen in their employ. [488] By including "employers and employees" and "persons employed and persons seeking employment," it showed that it was not aiming merely at a legal relationship between a specific employer and his employees. Furthermore, the plaintiff's contention proves too much. If the words are to receive a strict technical construction, the statute will have no application to disputes between employers of labor and workingmen, since the very acts to which it applies sever the continuity of the legal relationship. Iron Molders' Union v. Allis-Chalmers Co. 20 L.R.A. (N.S.) 315, 91 C. C. A. 631, 166 Fed 45, 52, 53; Louisville, E. & St. L. R. Co. v. Wilson, 138 U. S. 501, 505, 34 L. ed. 1023, 1025, 11 Sup. Ct. Rep. 405; cf. Rex v. Neilson, 44 N. S. 488, 491. The further contenpreservation of life, property, and the public peace. The first method has been tried and failed absolutely. The only method. therefore, seems to be the removal of all restrictions upon both parties, thus legaliz ing the strike, the lockout, the boycott, the black list, the bringing in of strikebreakers, and peaceful picketing." Report of the Committee on Industrial Relations, 1915, p. 136. Again, it was pointed out that the incorporation of this idea in the Sherman 6 The majority declared that the section Law had "done violence to the right to sets out "specific acts which the best opinstrike to cease work collectively ion of the courts holds to be within the and to the right to withhold patronage and right of parties involved upon one side or to agree to withhold patronage." Brief by the other of a trade dispute," which it has Samuel Gompers, Hearings before the House been necessary to affirm because of "the Committee on the Judiciary on Trust Legis- divergent views which the courts have exlation, 63d Congress. 2d Sess. vol. 2, p. 1808. pressed on the subject, and the difference 5 Compare the following: "There are, between courts in the application of recogapparently, only two lines of action pos- nized rules." The minority insisted that sible: First, to restrict the rights and the section prescribes "a set rule for bidpowers of employers to correspond in sub-ding, under any circumstances, the enjoining stance to the powers and rights now al- of certain acts which may or may not be lowed to trade unions, and, second, to actuated by a malicious motive, or for the remove all restrictions which now prevent purpose of working an unlawful injury, the freedom of action of both parties to etc." 63d Congress, 2d Session, House Reindustrial disputes, retaining only the ordi- port, 627, p. 30; id. Part 2, Appendix A, nary civil and criminal restraints for the p. 20. tion that this case is not one arising out to sell them, and shipped under an intraof a dispute concerning the conditions of state bill of lading that contained no referwork of one of the parties is, in my opin-ence to diversion or reshipment, is governed ion, founded upon a misconception of the facts. Because I have come to the conclusion that both the common law of a state and a statute of the United States declare the right of industrial combatants to push their struggle to the limits of the justification of self-interest, I do not wish to be understood as attaching any constitutional or moral sanction to that right. All rights are derived from the purposes of the society in which they exist; above all rights rises duty to the community. The conditions developed in industry may be such that those engaged in it cannot continue their struggle without danger to the community. But it is not for judges to determine whether such conditions exist, nor is it their function to set the limits of permissible contest, and to declare the duties which the new situation demands. This is the function of the legislature, which, while limiting individual and group rights of aggression and defense, may substitute processes of justice for the more primitive method of trial by combat. [489] A. L. BRACHT, Petitioner, V. solely by such bill of lading, subject to any [For other cases, see Carriers, II. c; Com merce, I. b; I. c, 2, in Digest Sup. Ct. 1918 Supp.] [No. 118.] Argued and submitted December 16, 1920. N WRIT of Certiorari to the Kansas City Court of Appeals of the State of Missouri to review a judgment which reversed a judgment of the Circuit Court of Jackson County, in that state, in favor of the shipper in an action against a carrier for damages to a shipment, occurring on a connecting line. Affirmed. See same case below, 200 Mo. App. SAN ANTONIO & ARANSAS PASS RAIL- 655, 209 S. W. 579. (See S. C. Reporter's ed. 489-491.) Connecting carriers reshipment. liability beyond own line Carmack Amendment diversion The liability of the initial carrier of goods consigned by a shipper to himself at a point within the state, where he intended Note. As to rights and liabilities of connecting carriers-see notes to Fox v. Boston & M. R. Co. 1 L.R.A. 703; Crossan v. New York & N. E. R. Co. 3 L.R.A. 766; Hill v. Denver & R. G. R. Co. 4 L.R.A. 376; International & G. N. R. Co. v. Tisdale, 4 L.R.A. 545; Richmond & D. R. Co. v. Payne, 6 L.R.A. 849;. Adams Exp. Co. v. Harris, 7 L.R.A. 214; Miller v. South Carolina R. Co. 9 L.R.A. 833; Browning v. Goodrich Transp. Co. 10 L.R.A. 415, and Roy v. Chesapeake & O. R. Co. 31 L.R.A.(N.S.) 1. The facts are stated in the opinion. Mr. I. N. Watson submitted the cause for petitioner. Messrs. Hal R. Lebrecht and L. A. Laughlin were on the brief: The shipment involved is only one through shipment. Baltimore & O. R. Co. v. Montgomery & Co. 109 Ga. App. 29, 90 S. E. 740; Trott v. Baltimore & O. R. Co. 192 Ill. App. 239; Ruddell v. Baltimore & O. R. Co. 175 Ill. App. 456; Railroad Commission v. Worthington, 225 U. S. 101, 56 L. ed. 1004, 32 Sup. Ct. Rep. 653; Railroad Commission v. Texas & P. R. Co. 229 U. S. 336, 57 L. ed. 1215, 33 Sup. Ct. Rep. 837; Gulf C. & S. F. R. Co. v. Texas, 204 U. S. 403, 51 L. ed. 540, 27 Sup. Ct. Rep. 360; Chicago, M. & St. P. R. Co. v. Iowa, 233 U. S. 334, 58 L. ed. 988, 34 Sup. Ct. Rep. 592; Atchison, T. & S. F. R. Co. v. Harold, 241 U. S. 371, 60 L. ed. 1050, 36 Sup. Ct. Rep. 665; United States v. Philadelphia As to liability of connecting carrier & R. R. Co. 232 Fed. 949; Settle v. Balfor loss beyond own line; construction fimore & O. S. W. R. Co. A.L.R. of Hepburn Act (Carmack Amend-162 C. C. A. 111, 249 Fed. 913; Keithley ment)-see note to Galveston, H. & S. v. Lusk, 195 Mo. App. 143, 189 S. W. 621; A. R. Co. v. Wallace, 56 L. ed. U. S. Updike Grain Co. v. Chicago, St. P. M. 516. & O. R. Co. 38 Inters. Com. Rep. 616; |