with. They claimed that they had the right to agree not to deal with such a man and that therefore this law was unconstitutional.

This is the case of the Grenada Lumber Co. v. The State of Mississippi, 217 U. S., 439, and I am reading a few words from the opinion of Justice Lurton:

That any one of the persons engaged in the retail lumber business might have made a fixed rule of conduct not to buy his stock from a producer or wholesaler who should sell to consumers in competition with himself is plain. No law which would infringe his freedom of contract in that particular would stand. But when the plaintiffs in error combine and agree that no one of them will trade with any producer or wholesaler who shall sell to a consumer within the trade range of any of them, quite another case is presented. An act harmless when done by one man may become a public wrong when done by many, acting in concert, for it then takes on the form of a conspiracy, and may be prohibited or punished, if the result be hurtful to the public, or to the individual against whom the concerted action is directed, citing the case of Callan e. Wilson, 127 U. S., 555 and the opinion of Mr. Justice Harlan, which I shall hope to refer to later.

That Grenada Co. case was followed and approved by the Supreme Court of the United States in the Eastern States Retail Lumber Dealers' Association v. United States, 234 U. S, 600. Judge Day announced the opinion in this case, as I recall it. It was the same kind of a question exactly. He said:

In other words, the circulation of such information

That is to say, where the retailers circulated among themselves the information that a wholesaler had sold to a consumer over their heads

In other words, the circulation of such information among the hundreds of retailers as to the alleged delinquency of a wholesaler with one of their number had and was intended to have the natural effect of causing such retailers to withhold their patronage from the concern listed.

The Sherman Act has been so frequently and recently before this court as to require no extended discussion now.

The other decision which I read held that under the common law the conspiracy was unlawful and this decision holds it to be unlawful not only under the common law but also a direct interference with the antitrust act.

But it is said that in order to show a combination or conspiracy within the Sherman Act, some agreement must be shown under which the concerted action is taken. It is elementary, however, that conspiracies are seldom capable of proof by direct testimony and may be inferred from the things actually done; and when, in this case, by concerted action the names of wholesalers who were reported as having made sales to consumers were periodically reported to the other members of the associations, the conspiracy to accomplish that which was the natural consequence of such action may be readily inferred.

The circulation of these reports not only tends to directly restrain the freedom of commerce by preventing the listed dealers from entering into competition with retailers, as was held by the district court, but it directly tends to prevent other retailers who have no personal grievance against him, and with whom he might trade, from so doing, they being deterred solely because of the influence of the report circulated among the members of the associations. In other words, the trade of the wholesaler with strangers was directly affected not because of any supposed wrong which he had done to them but because of the grievance of a member of one of the Associations, who had reported a wrong to himself, which grievance, when brought to the attention of others, it was hoped would deter them from dealing with the offending party. This practice takes the case out of those normal and usual agreements in aid of trade and commerce which may be found not to be within the act and puts it within the prohibited class of undue and unreasonable restraints, such as was the particular subject of condemnation in Loewe v. Lawlor.

Loewe v. Lawlor is the famous Danbury Hatters case.

A retail dealer has the unquestioned right to stop dealing with a wholesaler for reasons sufficient to himself and may do so because he thinks such dealer is acting unfairly in trying to undermine his trade. "But," as was said by Mr. Justice Lurton, speaking for the court in Grenada Lumber Co. v. Mississippi (217 U. S., 433), “when

the plaintiffs in error combine and agree that no one of them will trade with any producer or wholesaler who shall sell to a consumer within the trade range of any of them, quite another case is presented. An act harmless when done by one may become a public wrong when done by many acting in concert, for it then takes on the form of a conspiracy and may be prohibited or punished, if the result be hurtful to the public or to the individual against whom the concerted action is directed.

When the retailer goes beyond his personal right and, conspiring and combining with others of like purpose, seeks to obstruct the free course of interstate trade and commerce and to unduly suppress competition by placing obnoxious wholesale dealers under the coercive influence of a condemnatory report circulated among others, actual or possible customers of the offenders, he exceeds his lawful right, and such action brings him and those acting with him within the condemnation of the act of Congress, and the district court was right in so holding.

In the case of Stephens v. The Ohio State Telephone Co., an opinion was rendered by Judge Killetts, of the United States Court in Ohio, in which he took occasion to say:

The challenge to the court is to define "peaceful picketing" within the limits of this section.

That is, the Clayton Act.

This does not seem to be an occasion for an attempt at an academic formula which, in any detail, would meet all exigencies possible in labor controversies, if one could be drawn up. Each case presents its own peculiar questions. An act may be lawful and peaceful, or just the opposite, according to its setting. It is easier, and far more practicable, therefore, to deal in prohibitions than in affirmations.

Broad generalizations, however, are easily framed, because, if we just keep in mind the prevalence in the statute of the qualifying idea of "peaceful" and "lawful" action, we can not be misled. The best we have seen is one lately appearing in a newspaper devoted to labor interests. It is: "What constitutes peaceful picketing may be answered by any fair-minded man if this question is asked: 'Would this be lawful if no strike existed?'"

We accept this as a very good test, and apply it to the concrete questions of fact arising in this case, as propounded in the several informations, with conclusions certain to come to every "fair-minded man." Suppose no strike were in progress

Would it be lawful for one or more men to use offensive, abusive, insulting, or threatening language to another or others; for one to call another a "rat," a "scab," a "thief," an "outcast," or by any other name commonly accepted as offensive, or degrading, or calculated to provoke the other to break the peace in resentment? Would it be lawful for one man or more to take station adjacent to the place of rest, lodging, or work of another, or others, and there, by gesture, language, or otherwise convey to the other insult or threat?

Would it be lawful for one or more men to force his or their talk upon the unwilling ear of another; to compel him to listen against his will?

Would it be lawful for one man or more to persistently follow another to and from his work, to his home or lodging, and about the city, forcing upon him unwillingly their presence, without occasion other than to unmistakably suggest to him their hostility unless he meets their views?

It is undeniable that the so-called right of peaceful persuasion may be lawfully exercised only upon those who are willing to listen to the persuasive arguments.

Again, every man has the right to the pursuit of his lawful business or employment undisturbed, and any act performed with intent to disturb the full and unrestrained exercise of his faculties and wishes in such employment is plainly unlawful.

Again, he has the right of privacy and freedom from molestation of private persons, hostile or otherwise, at his home, at his lodging, at his place of work; he has the right to walk the streets without annoyance from the unwelcome attentions of others so long as he is conducting himself in a lawful manner.

Again, the right of one to the privacy of his own features, to the end that he may not be photographed without his consent, is manifest. It has been sustained by the courts in actions for damages.

Again, the right of one man to work is as much entitled to respect as the right of another to cease work or to strike.

Again, the right of an employer to engage whomsoever he chooses is as strong as the right of an employee to refuse to work.

Again, the right of an employer to have access to and from his place of business, and his right to have the streets and public highways in front of his place of business kept clear of crowds, bystanders, and curiosity seekers, is as strong as the right to picket,

and no picketing which is conducted in a manner to attract and retain the presence of crowds can be said to be peaceful or within the law.

It is a safe and proper generalization that any action having in it the element of intimidation or coercion, or abuse, physical or verbal, or of invasion of rights of privacy when not performed under sanctions of law by those lawfully empowered to enforce the law, is unlawful; every act, of speech, of gesture, or of conduct, which "any fairminded man" may reasonably judge to be intended to convey insult, threat, or annoyance to another, or to work assault or abuse upon him, is unlawful.

Not a syllable of the Clayton Act, or of any other law, whether of legislation of Congress or of the common law, sanctions any of the incidents we have referred to. They are to be condemned as legally inexcusable-such must be the verdict of "any fair-minded man"-nothing can be said in justification.

These propositions are so elemental that, but for the confusion which exists in many minds that a labor controversy affects the commonest rules of life, it would seem a waste of time to state them. The existence of a strike does not make that lawful which would otherwise be unlawful.

These personal rights to which we have alluded are, in each instance, precisely those which the striker himself would insist upon were conditions reversed.

They are also so plain, and the answers to the questions involving them so certain, that one called upon to enforce the law, if he has but ordinary intelligence, will plainly fail to do his duty when in his presence a fellow citizen suffers an invasion of his rights of this character.

In the Hitchman Coal Co. against Mitchell, is a recent decision of the Supreme Court of the United States. The Hitchman Coal Co. had employed union labor in its West Virginia mine and had encountered three strikes at different periods. They reached the conclusion that they could not run their business with union labor in their mine and they deliberately determined that they would employ no union labor in that mine. They opened the mine and they announced that they would not employ union labor; that everyone who came to work in their mine had to agree before he came into the mine that he would not belong to a labor union and would not join one while he worked there. He was at perfect liberty to quit and join a union-labor organization if he wanted to, but he could not belong to a union and work in the mine. They required everybody who came to work to sign a contract that they would not belong to a labor union so long as they worked in the mine.

The United Mine Workers of America undertook to unionize that mine, and they, through a representative by the name of Hughes, approached a great number of those who had taken employment in the mine and who had signed contracts agreeing that they would not belong to a union, in an effort to persuade them to join the union and to continue at work in the mine until such time as he had secured such a sufficient percentage of employees to join the union as that he could close the mine down by a strike, unless the owners unionized the mine.

The coal company brought an action against the United Mine Workers of America-Mr. John Mitchell at that time was its president-the purpose of which was to enjoin and restrain that effort of Mr. Hughes.

Mr. Justice Pitney, in announcing the opinion for the Supreme Court of the United States, said amongst other things-it is to be observed, before analysing this opinion, that there was not a single instance in which any one of the miners who had signed the contract with the mine had agreed to work for any definite period of time; there was no time contract involved. The Supreme Court of the United States held that the relationship, the status of employer and employee being a part of the going business entity of the mine, that

a concerted action, a combination of two or more people to persuade those miners to break the agreement which they had made with the mine company that they would not continue to work if they became members of a labor union, was such an interference with their business status as that court of equity was bound to restrain it by injunction, and the broadest kind of an injunction was issued.

Mr. SPROUL. Were the employers within the law in making an agreement to keep certain men out of the mine? Did they not discriminate against a certain class of people; are they not in the same position, under the law, as the union that tried to unionize the mine? I am not an attorney, as you probably understand from the questions I have asked.

Mr. BLANTON. Permit me to interpose a question right there. Mr. SPROUL. I should like to get an answer to my question first. Mr. WRIGHT. Your question, as I take it, is, was it not wrong for the mine

Mr. SPROUL (interposing). Wrong and illegal.

Mr. WRIGHT. Wrong and illegal

Mr. SPROUL. And discriminating.

Mr. WRIGHT. When they said that they would not employ any member of a labor organization?

Mr. SPROUL. Yes, sir.

Mr. WRIGHT. I am very glad that you asked me that question, because the Supreme Court of the United States has decided that very question very pointedly, specifically, and directly, and there are many cases other than those in the Supreme Court where the same thing has been decided the same way.

Mr. BLANTON. Permit me to ask you a question?

Mr. WRIGHT. Yes, sir.

Mr. BLANTON. Would it be any more wrong than for Mr. Gompers to come to one's office and say, "You shall not employ anybody but union labor"? That was a thought that suggested itself to me.

Mr. WRIGHT. You remember there were three or four propositions that we started out with. One of them was that a man has a right to engage in any lawful business and to run it the way he pleases, so long as he does not violate any law. What does the mine company do when it says, "We will not employ members of a labor union"? No union member has a "right" to work for the mine if the mine don't want him; one who has never had any relation with the mine. Nobody has a right to come to the mine and say, "You have got to give me consideration." You do not have to do that, because everybody who runs a business has the right to choose for himself not only the individulas that he wants to work for him, but he has the right to exclude, without any reason being given for it, from the contemplation of employment by him not only any individual but any class of individuals which he sees fit to exclude from his employment, because in doing that he does not violate any right they have.

Mr. WHEELER. Further than that, there was also the contract between each individual and the company, not as an organization? Mr. WRIGHT. Yes, sir. In the Hitchman case the contract was not a time contract that the miner should work for a number of days or a number of months or a number of years or anything of that sort; the only contract was that they should not become members of a labor union while they continued to work in the mine; they were at perfect liberty to quit work whenever they wanted to and join the

union, but they agreed in this written contract that they would not belong to the union while working in the mine.

Mr. SPROUL. Do you not think that in this case the employers there were just as much to blame as the union for saying, "We will not work with any nonunion man," or, "We will not start to work in your mine unless you unionize the mine?"

Mr. WRIGHT. Neither of them was wrong; both were right on that proposition. In other words, the labor union has the right to say, "We will not work in any place where a nonunion man is employed." They have the right to say that undoubtedly, if they want to. That is the point. When they have severed all their relations with the company's business where they worked before, they have no right to engage in a common purpose of trying to coerce that man for whom they had worked before into running his business the way they want or into doing something that he does not want to do. That is the point. An employer is within his right when he says, "I will not employ members of a labor union," "I will not employ a man unless he is 5 feet high;" "I will not employ blonds;" or "I will not employ brunettes." He is within his right, just as the laboring man is within his right when he says-unless he has a time contract; of course, if he has a time contract to work a year he has no right to break it--that he will quit because they put in a nonunion man. If the relation of employer and employee exists involving nonunion men he has the right to say, "I will not stay here and work with a nonunion man;" and if they put a nonunion man in he has the right to quit; but he has no right to say to the employer, "You have got to run your business on a union basis, and after I get out of your employ I will combine with my friends in the labor unions; the purpose of our combination is not going to be to burn your building, it is not going to be to knock anybody in the head, it is not going to be to do any physical violence to anybody, we will not stand for that; but the purpose of our combination is going to be to 'peacefully' force you to change your business plan and to take union men into your establishment against your will." That they can not do; that is what is unlawful. To coerce is unlawful, and the combination to coerce is a criminal conspiracy under the law.

Just a moment. I stated a moment ago that the employer has the right to say, "No union man can work in my establishment, I will not hire them"; but if he goes outside of his own business and makes a combination with all the other employers around about that none of them will hire union labor, do you not see that there comes in again this element of combination, conspiracy? If employers make a combination that they will agree to carry out some purpose of interfering with the right of the individual union laboring man or of a labor organization to work, that kind of a combination becomes unlawful; because just the minute that two or more people entertain a common purpose to interfere with the rights of any other man, it does not make any difference who it is, whether he is an employer or an employee, a labor-union man or a nonlabor-union man, the moment that two or more get together and conceive a common purpose to coerce him, not by physical means, but by so-called peaceful means, to force him to do something that he does not want to do in his own business, that moment the combination becomes unlawful and criminal.