bricks and stones to others the unions take the stand that the contractors will have to get some one else to lay them. The effect of this in the case at bar appears to be that the contractors are forced against their will to give the work of pointing to the masons and bricklayers. But the fact that the contractors are forced to do what they do not want to do is not decisive of the legality of the labor union's acts. That is true wherever a strike is successful. The contractors doubtless would have liked it better if there had been no competition between the bricklayers' and masons' unions on the one hand and the individual pointers on the other hand. But there is competition. There being competition, they prefer the course they have taken. They prefer to give all the work to the unions rather than get nonunion men to lay bricks and stone to be pointed by the plaintiffs.

It

Further, the effect of complying with the labor unions' demands apparently will be the destruction of the plaintiff's business. But the fact that the business of a plaintiff is destroyed by the acts of the defendants done in pursuance of their right of competition is not decisive of the illegality of the acts. was well said by Hammond, J., in Martell v. White (185 Mass., 255, 260) in regard to the right of a citizen to pursue his business without interference by a combination to destroy it: " Speaking generally, however, competition in business is permitted, although frequently disastrous to those engaged in it. It is always selfish, often sharp, and sometimes deadly."

The application of the right of the defendant unions, who are composed of bricklayers and stonemasons, to compete with the individual plaintiffs, who can do nothing but pointing (as we have said) is in the case at bar disastrous to the pointers and hard on the contractors. But this is not the first case where the exercise of the right of competition ends in such a result. The case at bar is an instance where the evils which are or may be incident to competition bear very harshly on those interested, but in spite of such evils competition is necessary to the welfare of the community.

To the same effect is Allis-Chalmers Co. v. Iron Molders' Union (C. C.) (150 Fed. Rep., 155), per Sanborn, J.

The consensus of judicial view, as expressed in these cases and others which might be cited, is that workingmen may lawfully combine to further their material interests without limit or constraint, and may for that purpose adopt any means or methods which are lawful. It is the enjoyment and exercise of that right and none other that this bill forbids the courts to interfere with.

The second clause:

Or from attending at or near a house or place where any person resides or works, or carries on business, or happens to be for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or to abstain from working.

This language is taken from the British trades dispute act of 1906, the second section of which is as follows:

It shall be lawful for one or more persons acting on their own behalf or on behalf of an individual, corporation, or firm in contemplation or furtherance of a trade dispute to attend at or near a house or place where a person resides or works or carries on business or happens to be if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from work.

This, it has been said, "might well be termed a codification of the law relating to peaceful picketing as laid down by a majority of the American courts." (Martin's Law of Labor Unions, sec. 173.) Upon the general subject the same author says:

There are some decisions which hold that all picketing is unlawful, and it has been said that from the very nature of things peaceful picketing is of rare occurrence and "very much of an illusion," yet the view taken by the majority of decisions and which is best supported by reason is that picketing, if not conducted in such numbers as will of itself amount to intimidation, and when

confined to the seeking of information such as the number and names and places of residence of those at work or seeking work on the premises against which the strike is in operation, and to the use of peaceful argument and entreaty for the purpose of procuring such workmen to support the strike by quitting work or by not accepting work, is not unlawful, and will furnish no ground for injunction or an action at law for damages. That the

views set forth in this section are correct does not admit of doubt. Indeed, it may readily be seen that the right almost universally conceded to striking workmen to use peaceable argument and persuasion to induce other workmen to aid them in their strike might, and very probably would be, most seriously hampered if the right of picketing were denied. "The right to persuade new men to quit or decline employment is of little worth unless the strikers may ascertain who are the men that their late employer has persuaded. or is attempting to persuade to accept employment." While it is true that in the guise of picketing strikers may obstruct and annoy the new men, and by insult and menacing attitude intimidate them as effectually as by physical assault, yet it can always be determined from the evidence whether the efforts of the pickets are limited to getting into communication with the new men for the purpose of presenting arguments and appeals to their free judgment. (Martin's Modern Law of Labor Unions, sec. 169, pp. 233, 234, and 235.)

The third clause:

Or from ceasing to patronize or to employ any party to such dispute; or from recommending, advising, or persuading others by peaceful means so to do. The best opinion to be gathered from the conflicting opinions on this matter have been well summarized in the most recent textbook on the subject as follows:

It is lawful for members of a union, acting by agreement among themselves, to cease to patronize a person against whom the concert of action is directed when they regard it for their interest to do so. This is the so-called "primary boycott," and in furtherance thereof it is lawful to circulate notices among the members of the union to cease patronizing one with whom they have a trade dispute and to announce their intention to carry their agreement into effect. For instance, if an employer of labor refuses to employ union men the union has a right to say that its members will not patronize him. A combination between persons merely to regulate their own conduct and affairs is allowable, and a lawful combination though others may be indirectly affected thereby. And the fact that the execution of the agreement may tend to diminish the profits of the party against whom such act is aimed does not render the participants liable to a prosecution for a criminal conspiracy or to a suit for injunction. Even though he sustain financial loss, he will be without remedy, either in a court of law or a court of equity. So long as the primary object of the combination is to advance its own interests and not to inflict harm on the person against whom it is directed, it is not possible to see how any claim of illegality could be sustained. (Martin's Modern Law of Labor Unions, pp. 107, 108, and 109.)

It is not unlawful for members of a union or their sympathizers to use, in aid of a justifiable strike, peaceable argument and persuasion to induce customers of the person against whom the strike is in operation to withhold their patronage from him, although their purpose in so doing is to injure the busi ness of their former employer and constrain him to yield to their demands, and the same rule applies where the employer has locked out his employees. These acts may be consummated by direct communication or through the medium of the press, and it is only when the combination becomes a conspiracy to injure, by threats and coercion, the property rights of another that the power of the courts can be invoked. The vital distinction between combinations of this character and boycotts is that here no coercion is present, while, as was heretofore shown, coercion is a necessary element of a boycott. In applying the principles stated it has been held that the issuance of circulars by members of a labor union notifying persons engaged in the trade of controversies existing between such members and their employer and requesting such persons not to deal with the employer is not unlawful and will not be enjoined where no intimidation or violence is used. (Martin's Modern Law of Labor Unions, pp. 109 and 110.)

Said Mr. Justice Van Orsdel in his concurring opinion in Court of Appeals of the District of Columbia (the American Federation of

Labor et al., appellants, v. the Buck's Stove & Range Co., No. 1916, Decided Mar. 11, 1909):

Applying the same principle, I conceive it to be the privilege of one man, or a number of men, to individually conclude not to patronize a certain person or corporation. It is also the right of these men to agree together, and to advise others, not to extend such patronage. That advice may be given by direct communication or through the medium of the press, so long as it is neither in the nature of coercion or a threat.

As long as the actions of this combination of individuals are lawful, to this point it is not clear how they can become unlawful because of their subsequent acts directed against the same person or corporation. To this point there is no conspiracy-no boycott. The word "boycott" is here used as referring to what is usually understood as "the secondary boycott," and when used in this opinion it is intended to be applied exclusively in that sense. It is, therefore, only when the combination becomes a conspiracy to injure by threats and coercion the property rights of another that the power of the courts can be invoked. This point must be passed before the unlawful and unwarranted acts which the courts will punish and restrain are committed.

The definition of a boycott given by Judge Taft in Toledo Co. v. Penna. Co. (54 Fed., 730) is as follows: "As usually understood, a boycott is a combination of many to cause a loss to one person by coercing others against their will to withdraw from him their beneficial business intercourse through threats that. unless those others do so, the many will cause similar loss to them." In Gray v. Building Trades Council (91 Minn., 171) the word "boycott" is defined as follows: "A boycott may be defined to be a combination of several persons to cause a loss to a third person by causing others against their will to withdraw from him their beneficial business intercourse through threats that unless a compliance with their demands be made the persons forming the combination will cause loss or injury to him, or an organization formed to exclude a person from business relations with others by persuasion, intimidation, and other acts which tend to violence, and thereby cause him through fear of resulting injury to submit to dictation in the management of his affairs. Such acts constitute a conspiracy and may be restrained by injunction." In Brace Brothers v. Evans (3 R. & Corp. L. J., 561) it is said: "The word itself implies a threat. In popular acceptation it is an organized effort to exclude a person from business relations with others by persuasion, intimidation, and other acts which tend to violence, and they coerce him, through fear of resulting injury, to submit to dictation in the management of his affairs."

It will be observed that the above definitions are in direct conflict with the earlier English decisions and indicate a distinct departure by our courts. This undoubtedly is in recognition of the right of a number of individuals to combine for the purpose of improving their condition. The rule of the Englsh common law, from which we have so far departed, is expressed in Bowen v. Hall (6 Q. B. Div., 333) as follows: "If the persuasion be used for the indirect purpose or injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act, which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues from it."

From this clear distinction it will be observed that there is no boycott until the members of the organization have passed the point of refusing to patronize the person or corporation themselves and have entered the field where, by coercion or threats, they prevent others from dealing with such persons or corporation. I fully agree with this distinction.

So long, then, as the American Federation of Labor and those acting under its advice refused to patronize complainant, the combination had not arisen to the dignity of an unlawful conspiracy or a boycott.

In Hopkins v. Oxley Stave Co. (83 Fed. R., 912), Judge Caldwell, in a dissenting opinion, said:

While laborers, by the application to them of the doctrine we are considering, are reduced to individual action, it is not so with the forces arrayed against them. A corporation is an association of individuals for combined action; trusts are corporations combined together for the very purpose of collective action and boycotting; and capital, which is the product of labor, is in itself a powerful collective force. Indeed, according to this supposed rule, every

corporation and trust in the country is an unlawful combination, for while its business may be of a kind that its individual members, each acting for himself, might lawfully conduct, the moment they enter into a combination to do that same thing by their combined effort, the combination becomes an unlawful conspiracy. But the rule is never so applied.

Corporations and trusts and other combinations of individuals and aggregations of capital extend themselves right and left through the entire community, boycotting and inflicting irreparable damage upon and crushing out all small dealers and producers, stifling competition, establishing monopolies, reducing the wages of the laborer, raising the price of food on every man's table, and of the clothes on his back and of the house that shelters him, and inflicting on the wage earners the pains and penalties of the lockout and the black list, and denying to them the right of association and combined action by refusing employment to those who are members of labor organizations; and all these things are justified as a legitimate result of the evolution of industries resulting from new social and economic conditions, and of the right of every man to carry on his business as he sees fit, and of lawful competition. On the other hand, when laborers combine to maintain or raise their wages or otherwise to better their condition or to protect themselves from oppression or to attempt to overcome competition with their labor or the products of their labor in order that they may continue to have employment and live, their action, however open, peaceful, and orderly, is branded as a "conspiracy." What is "competition" when done by capital is "conspiracy" when done by laborers. No amount of verbal dexterity can conceal or justify this glaring discrimination. If the vast aggregation and collective action of capital is not accompanied by a corresponding organization and collective action of labor, capital will speedily become proprietor of the wage earners as well as the recipient of the profits of their labor. This result can only be averted by some sort of organization that will secure the collective action of wage earners. This is demanded, not in the interest of wage earners alone, but by the highest considerations of public policy.

In Vegelahn v. Gunter (167 Mass., 92) Justice Holmes, now of the Supreme Court of the United States, delivering the opinion, said:

It is plain from the slightest consideration of practical affairs, or the most superficial reading of industrial history, that free competition means combination, and that the organization of the world, now going on so fast, means an ever-increasing might and scope of combination. It seems to me futile to set our faces against this tendency. Whether beneficial on the whole, as I think it is, or detrimental, it is inevitable, unless the fundamental axioms of society and even the fundamental conditions of life are to be changed. One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is potent and powerful. Combination on the other is a fair and equal way. * If it be true that the work

ingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to getting the greatest possible return, it must be true that when combined they have the same liberty that combined capital has, to support their interest by argument, persuasion, and the bestowal or refusal of those advantages which they otherwise lawfully control.

The logic of Justice Sherwood, of the Supreme Court of Missouri, in Marx & Haas Co. v. Watson (56 L. R. A., 951), appears unanswerable. He discussed the question from a constitutional standpoint, taking for his text the Missouri bill of rights, substantially the same as the first amendment to the Federal Constitution, saying (p. 956):

The evident idea of that section is penalty or punishment, and not prevention, because if prevention exists, then no opportunity can possibly arise for one becoming responsible by saying, writing, or publishing "whatever he will on any subject." The two ideas the one absolute freedom "to say, write, or publish whatever he will on any subject," coupled with responsibility therefor, and the other idea of preventing any such free speech, free writing, or free publication can not coexist.

The opinion continues, after citing authorities, Federal and State, as follows:

Section 14, supra, makes no distinction and authorizes no difference to be made by courts or legislatures between a proceeding set on foot to enjoin the publication of a libel and one to enjoin the publication of any other sort or nature, however injurious it may be, or to prohibit the use of free speech or free writing on any subject whatever, because wherever the authority of injunction begins there the right of free speech, free writing, or free publication ends. No halfway house stands on the highway between absolute prevention and absolute freedom.

The fourth clause:

Or from paying or giving to or withholding from any person engaged in such dispute any strike benefits or other moneys or things of value.

In at least two instances State courts (Reynolds v. Davis, 198 Mass., 294, and A. S. Barnes & Co. v. Chicago Typographical Union, 232 Ill., 424) have held that if the purpose of a strike was unlawful the officers and members of unions should be enjoined from giving financial aid in the form of strike benefits in furtherance thereof. But in the only case of the kind disposed of by a Federal court an entirely different conclusion was reached. In A. S. Barnes & Co. v. Berry (157 Fed. R., 883) it was held without exception or qualification that an employer against whom a strike was in operation could not have enjoined the officers of a union from giving its striking members strike benefits. The reason assigned was that

the strike benefit fund is created by moneys deposited by the men with the general officers for the support of themselves and families in times of strike, and the court has no more control of it than it would have over deposits made by them in the banks.

This decision is in harmony with two recent English decisionsDenabey, etc., Collieries v. Yorkshire Miners' Assn. (75 L. J. K. B., 384); Lyons v. Wilkins (67 L. J., ch. 383).

The fifth and sixth clauses:

Or from peaceably assembling at any place in a lawful manner and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto.

After all that can be asserted against the provisions of section 266c, or any provision of the bill elsewhere found has been said, we can truly say that it does not transcend or contravene the clear and conclusive statement of the law as stated in National Fireproofing Co. v. Mason Builders Assn. (169 Fed. Rep., 260). Delivering the opinion of the court in that case, Judge Noyes said (p. 265):

As a general rule it may be stated, that when the chief object of a combination is to injure or oppress third persons, it is a conspiracy; but that when such injury or oppression is merely incidental to the carrying out of a lawful purpose, it is not a conspiracy. Stated in another way: A combination, entered into for the real malicious purpose of injuring a third person in his business or property, may amount to a conspiracy and furnish a ground of action for damages sustained or call for an injunction, even though formed for the cstensible purpose of benefiting its members, and actually operating to some extent to their advantage. But a combination without such ulterior oppressive object entered into merely for the purpose of promoting by lawful means the common interests of its members, is not a conspiracy. A laborer, as well as a builder, trader, or manufacturer, has the right to conduct his affairs in any lawful manner, even though he may thereby injure others. So several laborers and builders may combine for mutual advantage, and so long as the motive is not malicious, the object not unlawful nor oppressive, and the means neither deceitful hor fraudulent, the result is not a conspiracy, although it may necessarily work injury to other persons. The damage to such persons may