he will pay, is an act of wrong and oppression; and any and every combination for such a purpose is an unlawful conspiracy. The law will protect the victim, and punish the movers of any such combination. In law, the offence is the combination for the purpose, and no overt act is necessary to constitute it: State v. Wilson, 30 Conn. 507; State v. Donaldson, supra; Walker v. Cronin, 107 Mass. 564; Carew v. Rutherford, 106 Mass. 10, 15; Master Stevedores' Association v. Walsh, 2 Daly, 12; Walsby v. Auley, 3 L. T., N. s.,666; Regina v. Duffield, 5 Cox, C. C. 432; Parker v. Griswold, 17 Conn. 302; Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551, Gilbert v. Mickle, 4 Sand. Ch. 357.

A wanton, unprovoked interference by a combination of many with the business of another, for the purpose of constraining that other to discharge faithful and long-tried servants, or to employ whom he does not wish or will to employ (an interference intended to produce, and likely to produce, annoyance and loss to that business) will be restrained and punished by the criminal law as oppressive to the individual, injurious to the prosperity of the community, and subversive of the peace and good order of society.

The recent case of State v. Glidden, already referred to, decided by the Supreme Court of Connecticut, is both in principle and features identical with the case under review. The Carrington Publishing Company had in their employ a number of printers known as "non-union men," or "rats." The Typographical Union, the Knights of Labor, the Trades' Council, the Cigar-makers' Union, and other affiliated secret organizations, waited upon the company and demanded that their office be made a "union office" within twenty-four hours. Upon the refusal of the company to make their office a "union office," a boycott was instituted against them, which, though not openly published as in this case, was fully proved. The court in its opinion said: "If the defendants have the right which they claim, then all business enterprises are alike subject to their dictation. No one is safe in engaging in business, for no one knows whether his business affairs are to be directed by intelligence or ignorance, — whether law and justice will protect the business, or brute force, regardless of law, will control it; for it must be remembered that the exercise of the power, if conceded, will by no means be confined to the matter of employing help. Upon the same principle, and for the same reasons, the right to determine what business others shall engage in, when and where it shall be carried on, etc., will be demanded, and must be conceded. The principle, if it once obtains a foothold, is aggressive, and is not easily checked. It thrives on what it feeds on, and is insatiate in its demands. More requires more. If a large body of irresponsible men demand and receive power outside of law, over and above law, it is not to be expected that they will be satisfied with a moderate and reasonable use of it. All history proves that abuses and excesses are inevitable. The exercise of irresponsible power by men, like the taste of human blood by tigers, creates

Confidence is the corner-stone

an unappeasable appetite for more. of all business, confidence that the government, through its courts, will be able to protect their rights; but if their rights [of business men] are such only as a secret, irresponsible organization is willing to give, where is that confidence which is essential to the prosperity of the country?... The end would be anarchy, pure and simple, and the subversion, not only of all business, but also of law and the government itself. They [defendants] had a right to request the Carrington Publishing Company to discharge its workmen and employ themselves, and to use all proper argument in support of their request, but they had no right to say, 'You shall do this, or we will ruin your business.' Much less had they a right to ruin its business. The fact that it is designed as a means to an end, and that end in itself considered is a lawful one, does not divest the transaction of its criminality."

The defendant lays great stress upon the case of Commonwealth v. Hunt, 4 Met. 111, as authority to sustain the legality of boycotting; but there is an obvious distinction between that case and that of this defendant. That was a club or combination of journeymen boot-makers simply to better their own condition, and it had no aim or means of aggression upon the business or rights of others; they simply had regulations for themselves, and did not combine or operate for a result mischievous, meddlesome, and oppressive towards others. But, even in that case, the court, after supposing the case of a combination for the ultimate and laudable object of reducing, by mere competition, the price of bread to themselves and their neighbors, said: "The legality of such an association will, therefore, depend upon the means to be used for its accomplishment. If it is to be carried into effect by fair and honorable means, it is, to say the least, innocent; if by falsehood or force, it may be stamped with the character of conspiracy." Force may be operated either physically or mechanically; or it may be coercion by fear, threat, or intimation of loss, injury, obloquy, or suffering.

The evidence in this case shows that while Baughman Brothers were engaged in their lawful business as stationers and printers, the plaintiff in error and the other members of the Richmond Typographical Union, No. 90, conspired to compel Baughman Brothers to make their office a "union office," and to compel them not to employ any printer who did not belong to the said union; that upon the refusal of Baughman Brothers to make their office (or business) a "union office," the plaintiff in error and others composing the said Richmond Typographical Union, No. 90, conspired and determined to boycott the said firm of Baughman Brothers, as they had threatened to do, and sent circulars to a great many of the customers of the said firm informing them that they had," with the aid of the Knights of Labor and all the trades organizations in this city [Richmond], boycotted the establishment of Messrs. Baughman Brothers," and formally notifying the said customers that the names of all persons who should persist in trading, patronizing, or dealing

66

with Baughman Brothers, after being notified of the boycott, would be published weekly in the Labor Herald as a black-list," who, in their turn, would be boycotted until they agreed to withdraw their patronage from Baughman Brothers; and, accordingly, the employees of Baughman Brothers were mercilessly hounded by publication after publication, for months, in the Labor Herald (which was the boasted engine of the boycotting conspirators), whereby it was attempted to excite public feeling against them, and prevent them from obtaining even board and shelter; and the names of the customers and patrons of the said firm were published in the said sheet under the standing head of black-list."

The length of this opinion will preclude the mention of even a tithe of these incendiary publications week after week for months; but not only Baughman Brothers and their employees and their customers, but the hotels, boarding-houses, public schools, railroads, and steamboats conducting the business travel and transportation of the city were listed and published under the obloquy and denunciation of the "black-list." One or two specimens will suffice: "Boycott Baughman Brothers and all who patronize them." "Watch out for Baughman Brothers'' rats,' and find out where they board. It is dangerous for honest men to board in the same house with these creatures. They are so mean that the air becomes contaminated in which they breathe." "Boycott Baughman Brothers every day in the week." "Boycott Baughman Brothers, because they are enemies of honest labor." "Boycott Baughman Brothers' customers wherever you find them." "The Lynchburg boys will begin to play their hand on Messrs. Baughman's boycotted goods in a short time. The battle will not be fought in Richmond only, but in all Virginia and North Carolina will be raised the cry, 'Away with the goods of this tyrannical firm.'" "Let our friends remember it is the patronage of the Chesapeake and Ohio, Richmond, Fredericksburg, and Potomac, Richmond and Danville, and Richmond and Alleghany railroads that is keeping Baughman Brothers up." "We are sorry to see the Exchange Hotel on the black-list. There will be two thousand strangers in this city in October, none of whom will patronize a hotel or boarding-house whose name appears on that list." "The boycott on Baughman Brothers is working so good that a man cannot buy a single bristol-board from the rat' firm without having his name put upon the black-list." "The old rat' establishment is about to cave in. Let it fall with a crash that will be a warning to all enemies of labor in the future."

It was proved that the conspirators declared their set purpose and persistent effort to "crush" Baughman Brothers; that the minions of the boycott committee dogged the firm in all their transactions, followed their delivery wagon, secured the names of their patrons, and used every means short of actual physical force to compel them to cease dealing with Baughman Brothers, thereby causing them to lose from one hundred and fifty to two hundred customers, and ten thousand

dollars of net profit. The acts alleged and proved in this case are unlawful, and incompatible with the prosperity, peace, and civilization of the country; and if they can be perpetrated with impunity by combinations of irresponsible cabals or cliques, there will be the end of government, and of society itself. Freedom, individual and associated, is the boon and the boasted policy and peculium of our country; but it is liberty regulated by law; and the motto of the law is Sic utere tuo ut alienum non lædas.

The plaintiff in error was properly convicted; and the judgment of the hustings court complained of is affirmed.

MORRIS RUN COAL COMPANY v. BARCLAY COAL

COMPANY.

SUPREME COURT OF PENNSYLVANIA.

[Reported 68 Pa. 173.]

1871.

AGNEW, J. The effects produced on the public interests lead to the consideration of another feature of great weight in determining the illegality of the contract, to wit: the combination resorted to by these five companies. Singly each might have suspended deliveries and sales of coal to suit its own interests, and might have raised the price, even though this might have been detrimental to the public interest. There is a certain freedom which must be allowed to every one in the management of his own affairs. When competition is left free, individual error or folly will generally find a correction in the conduct of others. But here is a combination of all the companies operating in the Blossburg and Barclay mining regions, and controlling their entire productions. They have combined together to govern the supply and the price of coal in all the markets from the Hudson to the Mississippi rivers, and from Pennsylvania to the lakes. This combination has a power in its confederated form which no individual action can confer. The public interest must succumb to it, for it has left no competition free to correct its baleful influence. When the supply of coal is suspended, the demand for it becomes importunate, and prices must rise. Or if the supply goes forwards the price fixed by the confederates must accompany it. The domestic hearth, the furnaces of the iron-master, and the fires of the manufacturer, all feel the restraint, while many dependent hands are paralyzed, and hungry mouths are stinted. The influence of a lack of supply or a rise in the price of an article of such prime necessity, cannot be measured. It permeates the entire mass of community, and leaves few of its members untouched by its withering

1 Only an extract from the opinion is given.

SECT. III.] MORRIS RUN COAL CO. v. BARCLAY COAL CO.

889

blight. Such a combination is more than a contract, it is an offence. "I take it," said Gibson, J., "a combination is criminal whenever the act to be done has a necessary tendency to prejudice the public or to oppress individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purpose of the latter, whether of extortion or of mischief." Commonwealth v. Carlisle, Brightly's Rep. 40. In all such combinations where the purpose is injurious or unlawful, the gist of the offence is the conspiracy. Men can often do by the combination of many, what severally no one could accomplish, and even what when done by one would be innocent. It was held, in The Commonwealth v. Eberle, 3 S. & R. 9, that it was an indictable conspiracy for a portion of a German Lutheran congregation to combine and agree together to prevent another portion of the congregation, by force of arms, from using the English language in the worship of God among the congregation. So a confederacy to assist a female infant to escape from her father's control with a view to marry her against his will, is indictable as a conspiracy at common law, while it would have been no criminal offence if one alone had induced her to elope with and marry him. Mifflin v. Commonwealth, 5 W. & S. 461. One man or many may hiss an actor; but if they conspire to do it they may be punished. Per Gibson, C. J., Hood v. Palm, 8 Barr, 238; 2 Russel on Crimes, 556. And an action for a conspiracy to defame will be supported though the words be not actionable, if spoken by one. Hood v. Palm, supra. "Defamation by the outcry of numbers," says Gibson, C. J., "is as resistless as defamation by the written act of an individual." And says Coulter, J., "The concentrated energy of several combined wills, operating simultaneously and by concert upon one individual, is dangerous even to the cautious and circumspect, but when brought to bear upon the unwary and unsuspecting, it is fatal." Twitchell v. Commonwealth, 9 Barr, 211. There is a potency in numbers when combined, which the law cannot overlook, where injury is the consequence. the conspiracy be to commit a crime or an unlawful act, it is easy to determine its indictable character. It is more difficult when the act to be done or purpose to be accomplished is innocent in itself. Then the offence takes its hue from the motives, the means, or the consequences. If the motives of the confederates be to oppress, the means they use unlawful, or the consequences to others injurious, their confederation will become a conspiracy. Instances are given in The Commonwealth v. Carlisle, Bright. R. 40. Among those mentioned as criminal is a combination of employers to depress the wages of journeymen below what they would be, if there were no resort to artificial means; and a combination of the bakers of a town to hold up the article of bread, and by means of the scarcity thus produced to extort an exorbitant price for it. The latter instance is precisely parallel with the present case. It is the effect of the act upon the public which gives that case and this its evil aspect as the result of confederation; for any baker might choose to hold up his own bread, or coal operator his coal, rather than

If