10. Why is the argument under the "equal protection" clause unsubstantial? II. It is argued that the statute is not a valid exercise of the police power, because it deals not with the public welfare but with private rights. Can you answer this? 12. Is there a Service Letter Law in your state? If so, have the courts passed upon its constitutionality? 3. ANTI-UNION CONTRACTS (a) Between Employers and Employees (1) AT COMMON LAW HITCHMAN COAL & COKE CO. v. MITCHELL [The plaintiff operated a coal mine in the Panhandle district in West Virginia. It was a "union" mine from April 1, 1903, to April 16, 1906, when a strike was called. Thereafter it was operated under an agreement with the employees that it should be run on a non-union basis, that employees should not become connected with the union while employed by the plaintiff, and that if they did join the union their employment should cease. In 1907, the defendants and others, acting in pursuance of a policy approved at the annual convention of the United Mine Workers, began a campaign to unionize the mines in the Panhandle district. The plaintiff sought an injunction restraining defendants from interfering with the relations existing between the plaintiff and its employees in order to compel the plaintiff to unionize the mine.] MR. JUSTICE PITNEY delivered the opinion of the court: . . . . That the plaintiff was acting within its lawful rights in employing its men only upon terms of continuing non-membership in the United Mine Workers of America is not open to question. Plaintiff's repeated costly experiences of strikes and other interferences while attempting to "run union" were a sufficient explanation of its resolve to run "nonunion" if any were needed. But neither explanation nor justification is needed. Whatever may be the advantages of "collective bargaining," it is not bargaining at all, in any just sense, unless it is voluntary on both sides. The same liberty which enables men to form unions, and through the union to enter into agreements with employers willing to agree, entitles other men to remain independent of the union, and other employers to agree with them to employ no man who owes any allegiance or obligation to the union. In the latter case, as in the former, the parties are entitled to be protected by the law in the enjoyment of the benefits of any lawful agreement they may make. This court repeatedly has held that the employer is as free to make nonmembership in a union a condition of employment, as the working man is free to join the union, and that this is a part of the constitutional rights of personal liberty and private property, not to be taken away even by legislation, unless through some proper exercise of the paramount police power. Adair v. United States, 208 U. S. 161; Coppage v. Kansas, 236 U. S. 1. In the present case, needless to say, there is no act of legislation to which defendants may resort for justification. Plaintiff, having in the exercise of its undoubted rights established a working agreement between it and its employees, 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, 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 employee has manifest interest in the freedom of the employer to exercise his judgment 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 the good will of its employees, precisely as a merchant is entitled to the good will of his customers although they are under no obligation to continue to deal with him. The value of the relation lies in the reasonable probability that, by properly treating its employees, and paying them fair wages, and avoiding reasonable grounds of complaint, it will be able to retain them in its employ and to fill vacancies occurring from time to time by the employment of other men on the same terms. The pecuniary value of such reasonable probabilities is incalculably great, and is recognized by the law in a variety of relations. [The citations are omitted.] The right of action for persuading an employee 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. [The citations are omitted.] We turn to the matters set up by way of justification or excuse for defendants' interference with the situation existing at plaintiff's mine. The case involves no question of the rights of employees. Defendants have no agency for plaintiff's employees 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 employees 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 nonunion mine through individual agreements with its employees, 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 say, in addition: first, that there was no middle ground open to plaintiff; no option to have an "open shop" employing union men and nonunion men indifferently; it was the Union that insisted upon closed-shop agreements, requiring even carpenters employed about a mine to be members of the Union, and making the employment of any nonunion man a ground for a strike; and secondly, plaintiff was in the reasonable exercise of its rights in excluding all union men from its employ, having learned, from a previous experience, that, unless this were done, union organizers might gain access to its mine in the guise of laborers. Defendants set up, by way of justification or excuse, the right of working men to form unions, and to enlarge their membership by inviting other working men 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. 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. . . 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 "nonunion," 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 exercising any care to refrain from unnecessarily injuring plaintiff, deliberately and advisedly selected that method of enlarging their membership which would inflict the greatest injury upon plaintiff and its loyal employees. Every Hitchman miner who joined Hughes's secret order and permitted his name to be entered upon Hughes's list was guilty of a breach of his contract of employment and acted a lie whenever thereafter he entered plaintiff's mine to work. Hughes not only connived at this, but must be deemed to have caused and procured it, for it was the main feature of defendants' plan, the sine qua non of their program. Evidently it was deemed to be necessary, in order to "organize the Panhandle by a strike movement," that at the Hitchman, for example, man after man should be persuaded to join the Union, and, having done so, to remain at work, keeping the employer in ignorance of their number and identity, until so many had joined that, by stopping work in a body, they could coerce the employer and the remaining miners to "organize the mine;" that is, to make an agreement that none but members of the Union should be employed; that terms of employment should be determined by negotiation not with the employees, but with union officers,-perhaps residents of other states and employees of competing mines, and that all questions in controversy between the mine operator and the miners should likewise be settled with outsiders. True, it is suggested that, under the existing contract, an employee was not called upon to leave plaintiff's employ until he actually joined the Union, and that the evidence shows only an attempt by Hughes to induce the men to agree to join, but no attempt to induce them to violate their contract by failing to withdraw from plaintiff's employment after actually joining. But, in a court of equity, which looks to the substance and essence of things and disregards matters of form and technical nicety, it is sufficient to say that to induce men to agree to join is but a mode of inducing them to join, and that when defend ants "had sixty men who had signed up or agreed to join the organization at Hitchman," and were "going to shut the mine down as soon as they got a few more men," the sixty were for practical purposes, and therefore, in the sight of equity, already members of the Union, and it needed no formal ritual or taking of an oath to constitute them such; their uniting with the Union in the plan to subvert the system of employment at the Hitchman mine, to which they had voluntarily agreed and upon which their employer and their fellow employees were relying, was sufficient. But the facts render it plain that what the defendants were endeavoring to do at the Hitchman mine and neighboring mines cannot be treated as a bona fide effort to enlarge the membership of the Union. There is no evidence to show, nor can it be inferred, that the defendants intended or desired to have the men at these mines join the Union, unless they could organize the mines. Without this, the new members would be added to the number of men competing for jobs in the organized districts, while nonunion men would take their places in the Panhandle mines. Except as a means to the end of compelling the owners of these mines to change their method of operation, the defendants were not seeking to enlarge the Union membership. In any aspect of the matter, it cannot be said that defendants were pursuing their object by lawful means. The question of their intentions of their bona fides cannot be ignored. It enters into the question of malice. As Bowen, L. J., justly said, in the Mogul S. S. Case, L. R. 23 Q. B. Div. 613: "Intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's property or trade, is actionable if done without just cause or excuse." And the intentional infliction of such damage upon another, without justification or excuse, is malicious in law. Bitterman v. Louisville & N. R. Co. 207 U. S. 205; Brennan v. United Hatters, 73 N. J. L. 729, and cases cited. Of course in a court of equity, when passing upon the right of injunction, damage threatened, irremediable by action at law, is equivalent to damage done. And we cannot deem the proffered excuse to be a "just cause or excuse," where it is based, as in this case, upon an assertion of conflicting rights that are sought to be attained by unfair methods, and for the very purpose of interfering with plaintiff's rights, of which defendants have full notice. Another fundamental error in defendants' position consists in the assumption that all measures that may be resorted to are lawful if they |