the union. Two measures of relief were proposed: First, that steps be taken to re-estab method of employment obtained at the Glendale mine, a property consisting of about 1,200 acres of coal land adjoining the Hitch-lish the joint interstate conferences; and, man property on the south, and operated by a company having the same stockholders and the same management as the Hitchman; the office of the Glendale mine being at the Hitchman Coal & Coke Company's office. Another mine in the Panhandle, known as the Richland, a few miles north of the Hitchman, likewise was run "non-union." In fact, all coal mines in the Panhandle and elsewhere in West Virginia, except in a small district known as the Kanawha field, were run "non-union," while the entire industry in Ohio, Indiana, and Illinois was operated on the "closed-shop" basis, so that no man could hold a job about the mines unless he was a member of the United Mine Workers of America. Pennsylvania occupied a middle ground, only a part of it being under the jurisdiction of the union. Other states need not be particularly mentioned. The unorganized condition of the mines in the Panhandle and some other districts was recognized as a serious interference with the purposes of the union in the Central Competitive Field, particularly as it tended to keep the cost of production low, and, through competition with coal produced in the organized field, rendered it more difficult for the operators there to maintain prices high enough to induce them to grant certain concessions demanded by the union. This was the subject of earnest and protracted dis cussion in the annual international convention of the U. M. W. A. held at Indianapolis, Indiana, in the month of January, 1907, at which all of the answering defendants were present as delegates and participated in the proceedings. The discussion was based upon statements contained in the annual reports of John Mitchell, as president of the union (joined as a defendant in the bill but not served with process), and of defendant Lewis as vice president, respecting the causes and consequences of the strike of 1906, and the policy to be adopted by the union for the future. In these reports it was made to appear that the strike had been caused immediately by the failure of the joint convention of operators and miners representing the central and southwestern competitive fields, held in the early part of the year 1906, to come to an agreement for a renewal of the mining scale; that the strike was widespread, involving not less than 400,000 mine workers, was terminated by "district settlements," with variant results in different parts of the territory involved, and had not been followed by a renewal of the former relations between the operators and miners in the Central Competitive Field. Another result of the strike was a large decrease in the membership of second, the organization of the hitherto unorganized fields, including the Panhandle district of West Virginia, under closed-shop agreements, with all men about the mines included in the membership of the United Mine Workers of America. In the course of the* discussion the purpose of organizing West Virginia in the interest of the unionized mine workers in the Central Competitive Field, and the probability that it could be organized only by means of strikes, were repeatedly declared and were disputed by nobody. All who spoke advocated strikes, differing only as to whether these should be nation-wide or sectional. Defendant Lewis, in his report, recommended an abandonment of the policy of sectional settlements which had been pursued in the This recommendation, interprevious year. preted as a criticism of the policy pursued under the leadership of President Mitchell in the settlement of the 1906 strike, was the subject of long and earnest debate, in the course of which Lewis said: "When we organize West Virginia, when we organize the unorganized sections of Pennsylvania, we will organize them by a strike movement." And again, towards the close of the debate: "No one has made the statement that we can organize West Virginia without a strike." Defendant Green took part, favoring the view of Mr. Lewis that strikes should be treated nationally instead of sectionally. In the course of his remarks he said: This "I say to you, gentlemen, one reason why I opposed the policy that was pursued last year was because over in Ohio we were peculiarly situated. We had West Virginia on the south and Pennsylvania on the east, and after four months of a strike in Eastern Ohio we had reached the danger line. We felt keenly the suspension our miners in Ohio chafed under the competition from West Virginia, and during the object lesson they had. They saw West Virginia coal go by, train-load after train-load passing their doors, when they were on strike. coal supplied the markets that they should have had. There is no disguising the fact, something must be done to remedy this condition. Year after year Ohio has had to go home and strike in some portion of the district to enforce. the interstate agreement that was signed up here. overwhelming sentiment in Ohio was that a set* I confess here and now that the tlement by sections would not correct the conditions we complained of. Now, something must be done; it is absolutely necessary to protect unorganized fields east of us." us against the competition that comes from the Mr. Mitchell opposed the view of defendant Lewis, reiterating an opinion, repeatedly expressed before, that West Virginia and the other unorganized fields, “would not be thoroughly organized except as the result of a successful strike," but declaring that "they will not be organized at all, strike or no strike, unless we are able to support the men in those fields from the first day they lay down their tools. Now, I believe it is possible, indeed I believe it is probable, that in the not distant future we will be able to inaugurate a movement in West Virginia and the other unorganized fields that will involve them in a strike, and then we will expect you to furnish the sinews of war, as you have done in the past, to keep these men in idleness." that the mine was to be run non-union and they were not to become members of the union. About the same time, a Mr. McKinley, who was operating the Richland mine non-union, was interviewed by the union leaders, notified of the resolution adopted by the subdistrict convention, and, having asked that his mine be let alone, was met with the threat that they would secure the support of his men,, and that if he did not recognize the union they would shut down his mine. In one of the interviews that ensued he was told that The discussion continued during three days, and at the end of it the report of a committee which expressed disagreement with Vice President Lewis' opposition to sectional set-it was their purpose to organize the Glendale, tlements and recommended "a continuation in the future of the same wise, conservative business-like policies" that had been pursued by President Mitchell, was adopted by a viva Voce vote. The plain effect of this action was to approve a policy which, as applied to the concrete case, meant that in order to relieve the Hitchman, the Richland, and some other mines; that at the Glendale they had twentyfour men who had joined the organization, "and that they had sixty men who had signed up or had agreed to join the organization shut the mine down as soon as they got a at Hitchman, and that they were going to few more men." With respect to their progIlli-ress at his own mine he was kept in the dark until about the middle of October, 1907, when, through the activities of the organizer Hughes, they succeeded in shutting it down, and it remained closed until a restraining order was allowed by the court, immediately after which it resumed non-union. the union miners of Ohio, Indiana, and nois from the competition of the cheaper product of the non-union mines of West Virginia, the West Virginia mines should be "organized" by means of strikes local to West Virginia, the strike benefits to be paid by assessments upon the union miners in the other states mentioned, while they remained at work. This convention was followed by an annual convention of subdistrict 5 of district 6, held in the month of March, 1907, at which defendants Watkins and Rankin were present as president and secretary of the subdistrict. Defendant Lewis, as national vice president, occupied the chair during several of the sessions. Defendant Zelenka was present as a delegate, and also Thomas Hughes, who, while named as a defendant in the present suit, was not served with process. Watkins and Rankin in their reports recommended the complete unionization of the mines in the Panhandle counties, with particular reference to the Hitchman, the Glendale, the Richland, and two others; and as a result it was resolved "that the subdistrict officers, to gether with the district officers, be authorized to take up the work of organizing every mine in the subdistrict as quickly as it can be done." Evidently in pursuance of this resolution, defendants Green, Zelenka, and Watkins, about July 1, 1907, called at plaintiff's office and laid before its general manager, Mr. Koch, a proposition for the unionization of the mine. He declined to consider it, but at their request laid it before plaintiff's board of directors, who rejected the proposition, and the manager informed Green of this. In one of the interviews Koch informed these defendants of the terms of plaintiff's working agreement with its employés to the effect The evidence renders it clear that Hughes was sent into the Panhandle to organize all the mines there, in accordance with the resolution of the subdistrict convention. The bill made a statement of his activities, and alleged that he was acting as an organizer for the union. Defendants' final answers made a complete denial, but in this are contradicted by admissions made in the earlier answers and by other and undisputed evidence. The only defendant who testified upon the subject declared that Hughes was employed by district No. 6 as an organizer, but denied that he had power or authority to shut down the Hitchman mine. He arrived at that mine some time in September, 1907, and remained there or in that vicinity until the latter part of October, conducting a campaign of organization at the Hitchman and at the neighboring Glen dale and Richland mines. The evidence shows that he had distinct and timely notice that membership in the union was inconsistent with the terms of employment at all three mines, and a violation of the express provisions of the agreement. at the Hitchman and Glendale. • Having unsuccessfully applied to Koch and McKinley for their co-operation, Hughes proceeded to interview as many of the men as he could reach and to hold public meetings in the interest of the union. There is clear and uncontradicted evidence that he did not confine himself to mere persuasion, but resorted to deception and abuse. In his public speeches he employed abusive language respecting Mr. Pickett, William Daugherty, and Jim Jarrett.1 He prophesied, in such a vires, but with an actual threat of closing way that ignorant, foreign-born miners, such down plaintiff's mine, made by Hughes while as he was addressing, naturally might believe acting as agent of an organized body of men him to be speaking with knowledge, that the who indubitably were united in a purpose to wages paid by the Hitchman would be re- close it unless plaintiff would conform to duced unless the mine was unionized. The their wishes with respect to its manageevidence as to the methods he employed in ment, and who lacked the power to carry out personally interviewing the miners, while that purpose only because they had not as meager, is significant. miner, testified: Myers, a Hitchman "He told me that he was a good friend of Mr. Koch, and that Mr. Koch had nothing against having the place organized again. He said he was a friend of his, and I made the remark that I would ask Mr. Koch and see if it was so; and he said no, that was of no use because he was telling me the truth." He did not confine his attentions to men who already were in plaintiff's employ, but in addition dissuaded men who had accepted employment from going to work. yet persuaded a sufficient number of the Hitchman miners to join with them, and hence employed Hughes as an "organizer" and sent him to the mine with the very object* of securing the support of the necessary number of miners. They succeeded with respect to one of the mines threatened (the Richland), and preparations of like character were in progress at the Hitchman and the Glendale at the time the restraining order was made in this cause. [6] If there be any practical distinction between organizing the miners and organizing the mine, it has no application to this case. Unionizing the miners is but a step in the process of unionizing the mine, followed by the latter almost as a matter of course. Plaintiff is as much entitled to prevent the first step as the second, so far as its own employés are concerned, and to be protected against irreparable injury resulting from either. Besides, the evidence shows, without any dispute, that defendants contemplated no halfway measures, but were bent on organizing the mine, the "consent" of plaintiff to be procured through such a control of its employés as would render any further independent operation of the mine out of the question. This is evident from the discussions and res A highly significant thing, giving character to Hughes' entire course of conduct, is that while his solicitation of the men was more or less public, as necessarily it had to be, he was careful to keep secret the number and the names of those who agreed to join the union. Myers, being asked to allow his name to be entered on a book that Hughes carried, tried to see the names already entered, "but he would not show anything; he told me he had it, and I asked him how many names was on it, and he said he had about enough to 'crack off.'" To Stewart, another Hitchman miner, he said "he was forming a kind of secret order among the men; he said he had a few men-he did not state the number of them-and he said each man was supposed to give him so much dues to keep it going, | olutions of the international and subdistrict and then he said after he got the majority he would organize the place." Pickett, the mine superintendent, had learned of only five men at the Glendale who were inclined to join Hughes' movement; but when these were asked to remain outside of the mine for a talk, fifteen other men waited with them, and upon being reminded that while the company would not try to prevent them from becoming members of the union, they could not be members and at the same time work for the Glendale Company, they all accepted this as equivalent to a notice of discharge. And, as has been stated, the owner of the Richland, while repeatedly threatened with unionization, was kept in the dark as to the progress made by the organizer amongst his employés until the mine was actually shut down. [5] The question whether Hughes had "power or authority" to shut down the Hitchman mine is beside the mark. We are not here concerned with any question of ultra conventions, from what was said by defend- by their "organizer" were such as have been for discussion. * [7] The facts we have recited are either admitted or else proved by clear and undisputed evidence and indubitable inferences 1 Mr. Pickett was superintendent of the Hitchman and Glendale mines, and it was with him therefrom. The proceedings of the internathat the miners made their agreements to refrain tional and subdistrict conventions were shown from membership in the union; Daugherty and by the introduction of official verbatim reJarrett were miners at the Hitchman, and had been, respectively, president and financial secretary ports, properly authenticated. It is objected of the local union at the time of the 1906 strike, that these proceedings, especially in so far when the local deserted the U. M. W. A. as they include the declarations and con What are the legal consequences of the facts that have been detailed? duct of others than the answering defendants, are not admissible because the existence of a criminal or unlawful conspiracy [9, 10] That the plaintiff was acting within is not made to appear by evidence aliunde. its lawful rights in employing its men only The objection is untenable. In order that upon terms of continuing non-membership in the declarations and conduct of third parties the United Mine Workers of America is not may be admissible in such a case, it is neces- open to question. Plaintiff's repeated costly sary to show by independent evidence that experiences of strikes and other interferences there was a combination between them and while attempting to "run union" were a sufdefendants, but it is not necessary to show ficient explanation of its resolve to run "nonby independent evidence that the combina- union," if any were needed. But neither extion was criminal or otherwise unlawful. | planation nor justification is needed. WhatThe element of illegality may be shown by ever may be the advantages of "collective the declarations themselves. The rule of | bargaining," it is not bargaining at all, in evidence is commonly applied in criminal any just sense, unless it is voluntary on both cases, but is of general operation; indeed, it sides. The same liberty which enables men, originated in the law of partnership. It de to form unions, and through the union to pends upon the principle that when any num- enter into*agreements with employers willing ber of persons associate themselves together to agree, entitles other men to remain indein the prosecution of a common plan or en- pendent of the union and other employers terprise, lawful or unlawful, from the very to agree with them to employ no man who act of association there arises a kind of part- owes any allegiance or obligation to the unnership, each member being constituted the ion. In the latter case, as in the former, the agent of all, so that the act or declaration of parties are entitled to be protected by the one, in furtherance of the common object, law in the enjoyment of the benefits of any is the act of all, and is admissible as pri- lawful agreement they may make. This mary and original evidence against them. court repeatedly has held that the employer Pleasants v. Fant, 22 Wall. 116, 119, 22 L is as free to make non-membership in a Ed. 780; Connecticut Mutual Life Ins. Co. union a condition of employment, as the v. Hillmon, 188 U. S. 208, 218, 23 Sup. Ct. working man is free to join the union, and 294, 47 L. Ed. 446; Story, Part. §§ 107, 108; that this is a part of the constitutional 1 Greenleaf, Ev. §§ 112, 113 (184 b, 184 c); rights of personal liberty and private proper2 Starkie, Ev. (2d Ed.) 25, 26; King v. Hard- ty, not to be taken away even by legislawick, 11 East, 578, 585, 589; Sandilands v. tion, unless through some proper exercise of Marsh, 2 Barn. & Ald. 673, 679; Wood v. the paramount police power. Adair v. UnitBraddick, 1 Taunt. 104, 105; Van Reimsdyk v. Kane (Story, J.), 1 Gall. 630, 635, 28 Fed. ed States, 208 U. S. 161, 174, 28 Sup. Ct. 277, Cas. 1067, 1069; Aldrich v. Warren, 16 Me. 52 L. Ed. 436, 13 Ann. Cas. 764; Coppage v. 465,*468; Pierce v. Wood, 23 N. H. 519, 531; Kansas, 236 U. S. 1, 14, 35 Sup. Ct. 240, 59 Page v. Parker, 40 N. H. 47, 62; State v. L. Ed. 441, L. R. A. 1915C, 960. In the presThibeau, 30 Vt. 100, 105; Jenne v. Joslyn, ent case, needless to say, there is no act of 41 Vt. 478, 484; Locke v. Stearns, 1 Metc. legislation to which defendants may resort for justification. (Mass.) 560, 563, 35 Am. Dec. 382; Lowe v. Dalrymple, 117 Pa. 564, 568, 12 Atl. 567; Main v. Aukam, 4 App. D. C. 51, 56. [8] Upon a kindred principle, the declarations and conduct of an agent, within the scope and in the course of his agency, are admissible as original evidence against the principal, just as his own declarations or conduct would be admissible. Barreda v. Silsbee, 21 How. 146, 164, 165, 16 L. Ed. 86; Vicksburg & Meridian R. R. v. O'Brien, 119 U. S. 99, 104, 7 Sup. Ct. 118, 30 L. Ed. 299; La Abra Silver Mining Co. v. United States, 175 U. S. 423, 498, 20 Sup. Ct. 168, 44 L. Ed. 223. And since the evidence of Hughes' agency is clear and undisputed-that as the representative of a voluntary association of which the answering defendants were active members, and in the execution of a purpose to which they all had given consent, and in which some of them were actively co-operating, he was engaged in an effort to organize the coal mines of the Panhandle districtit is equally clear that his declarations and conduct while so doing are evidential against the defendants. [11] Plaintiff, having in the exercise of its undoubted rights established a working agreement between it and its employés, with the free assent of the latter, is entitled to be protected in the enjoyment of the resulting status, as in any other legal right. That the employment was "at will," and terminable by either party at any time, is of no consequence. In Truax v. Raich, 239 U. S. 33, 3S, 36 Sup. Ct. 7, 9 (60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283), this court ruled upon the precise question as follows: "It is said that the bill does not show an employment for a term, and that under an employment at will the complainant could be discharged at any time, for any reason or for no reason, the motive of the employer being immaterial. The conclusion, however, that is sought to be drawn is too broad. The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employé has manifest interest in the freedom of the employer to exercise his judga ment without illegal interference or compulsion. and, by the weight of authority, the unjustified interference of third persons is actionable although the employment is at will" (citing many cases). In short, plaintiff was and is entitled to, say, in addition: First, that there was no the good will of its employés, precisely as a middle ground open to plaintiff; no option merchant is entitled to the good will of his to have an "open shop" employing union men customers although they are under no ob- and non-union men indifferently; it was ligation to continue to deal with him. The the union that insisted upon closed-shop value of the relation lies in the reasonable agreements, requiring even carpenters emprobability that by properly treating its ployed about a mine to be members of the employés, and paying them fair wages, and union, and making the employment of any avoiding reasonable grounds of complaint, non-union man a ground for a strike; and it will be able to retain them in its employ, secondly, plaintiff was in the reasonable and to fill vacancies occurring from time to exercise of its rights in excluding all union time by the employment of other men on the men from its employ, having learned, from same terms. The pecuniary value of such a previous experience, that unless this were reasonable probabilities is incalculably great, done union organizers might gain access to and is recognized by the law in a variety its mine in the guise of laborers. of relations. See Brennan v. United Hatters (cited with approval in Truax v. Raich, supra), 73 N. J. Law, 729, 749, 65 Atl. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698; Brown v. Honiss, 74 N. J. Law, 501, 514, 68 Atl. 150 et seq.; Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 767, 53 Atl. 230; Walker v. Cronin, 107 Mass. 555, 565-566; Moran v. Dunphy, 177 Mass. 485, 59 N. E. 125, 52 L. R. A. 115, 83 Am. St. Rep. 289, and cases there cited; L. D. Willcutt & Sons Co. v. Driscoll, 200 Mass. 110, 117, 85 N. E. 897, 23 L. R. A. (N. S.) 1236, etc. The right of action for persuading an employé to leave his employer is universally recognized-nowhere more clearly than in West Virginia-and it rests upon fundamental principles of general application, not upon the English statute of laborers. Thacker Coal Co. v. Burke, 59 W. Va. 253, 255, 53 S. E. 161, 5 L. R. A. (N. S.) 1091, 8 Ann. Cas. 885, 886; Walker v. Cronin, 107 Mass. 555, 567; Angle v. Chicago, St. Paul, etc., Railway, 151 U. S. 1, 13, 14 Sup. Ct. 240, 38 L. Ed. 55; Noice Adm'x v. Brown, 39 N. J. Law, 569, 572. We return to the matters set up by way of justification or excuse for defendants' interference with the situation existing at plaintiff's mine. [12] The case involves no question of the rights of employés. Defendants have no agency for plaintiff's employés, nor do they assert any disagreement or grievance in their behalf. In fact, there is none; but, if there were, defendants could not, without agency, set up any rights that employés might have. The right of the latter to strike would not give to defendants the right to instigate a strike. The difference is fundamental. It is suggested as a ground of criticism that plaintiff endeavored to secure a closed non-union mine through individual agreements with its employés, as if this furnished some sort of excuse for the employment of coercive measures to secure a closed union shop through a collective agreement with the union. It is a sufficient answer, in law, to repeat that plaintiff had a legal and constitutional right to exclude union men from its employ. But it may be worth while to [13] Defendants set up, by way of justification or excuse, the right of workingmen to form unions, and to enlarge their membership by inviting other workingmen to join. The right is freely conceded, provided the objects of the union be proper and legitimate, which we assume to be true, in a general sense, with respect to the union here in question. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 439, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. The cardinal error of defendants' position lies in the assumption that the right is so absolute that it may be exercised under any circumstances and without any qualification; whereas in truth, like other rights that exist in civilized society, it must always be exercised with reasonable regard for the conflicting rights of others. Brennan v. United Hatters, 73 N. J. Law, 729, 749, 65 Atl. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, Ann. Cas. 698. The familiar maxim, "Sic utere tuo ut alienum non lædas”—literally translated, "So use your own property as not to injure that of another person," but by more proper interpretation, "so as not to injure the rights of another" (Broom's Leg. Max. [8th Ed.] 289)-applies to conflicting rights of every description. For example, where two or more persons are entitled to use the same road or passage, each one in using it is under a duty to exercise care not to interfere with its use by the others, or to damage them while they are using it. And a most familiar application is the action for enticing an employé, in which it never was a justification that defendant wished to retain for himself the services of the employé. 1 Black. Com. 429; 3 Id. 142. Now, assuming defendants were exercising, through Hughes, the right to invite men to join their union, still they had plain notice that plaintiff's mine was run "non-union," that none of the men had a right to remain at work there after joining the union, and that the observance of this agreement was of great importance and value both to plaintiff and to its men who had voluntarily made the agreement and desired to continue working under it. Yet defendants, far from ex. |