employ a journeyman not a member of their society. Supposing the object of the association to be laudable and lawful, or at least not unlawful, are these means criminal? The case supposes that these persons are not bound by contract, but free to work for whom they please, or not to work, if they so prefer. In this state of things, we cannot perceive, that it is criminal for men to agree together to exercise their own acknowledged rights, in such a manner as best to subserve their own interests. One way to test this is, to consider the effect of such an agreement, where the object of the association is acknowledged on all hands to be a laudable one. Suppose a class of workmen, impressed with the manifold evils of intemperance, should agree with each other not to work in a shop in which ardent spirit was furnished, or not to work in a shop with any one who used it, or not to work for an employer, who should, after notice, employ a journey man who habitually used it. The consequences might be the same. A workman, who should still persist in the use of ardent spirit, would find it more difficult to get employment; a master employing such an one might, at times, experience inconvenience in his work, in losing the services of a skilful but intemperate workman. Still it seems to us, that as the object would be lawful, and the means not unlawful, such an agreement could not be pronounced a criminal conspiracy. .

We think, therefore, that associations may be entered into, the object of which is to adopt measures that may have a tendency to impoverish another, that is, to diminish his gains and profits, and yet so far from being criminal or unlawful, the object may be highly meritorious and public spirited. 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 or honorable and lawful means, it is, to say the least, innocent; if by falsehood or force, it may be stamped with the character of conspiracy. .

It appears by the bill of exceptions, that it was contended on the part of the defendants, that this indictment did not set forth any agreement to do a criminal act, or to do any lawful act by criminal means, and that the agreement therein set forth did not constitute a conspiracy indictable by the law of this State, and that the court was requested so to instruct the jury. This the court declined doing, but instructed the jury that the indictment did describe a confederacy among the defendants to do an unlawful act, and to effect the same by unlawful means-that the society, organized and associated for the purposes described in the indictment, was an unlawful conspiracy

against the laws of this State, and that if the jury believed, from the evidence, that the defendants or any of them had engaged in such confederacy, they were bound to find such of them guilty.

In this opinion of the learned judge, this court, for the reasons stated, cannot concur. Whatever illegal purpose can be found in the constitution of the Bootmakers' Society, it not being clearly set forth in the indictment, cannot be relied upon to support this conviction. So if any facts were disclosed at the trial, which, if properly averred, would have given a different character to the indictment, they do not appear in the bill of exceptions, nor could they, after verdict, aid the indictment. But looking solely at the indictment, disregarding the qualifying epithets, recitals and immaterial allegations, and confining ourselves to facts so averred as to be capable of being traversed and put in issue, we cannot perceive that it charges a criminal conspiracy punishable by law. The exceptions must, therefore, be sustained, and the judgment arrested.

QUESTIONS

1. What is the common law doctrine of conspiracy?

2. Explain how a labor union might be alleged to be illegal at common law. 3. How has the early common law attitude toward labor unions in England been altered by statute?

4. Is People v. Fisher the law in New York at present?

5. Point out the exact difference in the courts' reasoning in the two cases quoted. Which case conforms the more closely to present ideas in economics?

6. In Commonwealth v. Hunt certain criteria are set up by which the legality of a labor union might be judged. Summarize these criteria.

7. What limitations may be placed on a labor union's activities by the court's decision in the Massachusetts case?

8. Specifically what may a labor union do without being judged an illegal conspiracy?

9. Has the conspiracy doctrine been applied to labor unions by the courts of your state?

2. RESTRAINT OF TRADE

UNITED STATES v. WORKINGMEN'S AMALGAMATED

COUNCIL

Circuit Court, E. D., Louisiana. 1893. 54 Fed. 994.

BILLINGS, DISTRICT JUDGE. This cause is submitted upon an application for an injunction on the bill of complaint, answer, and numerous affidavits and exhibits. The bill of complaint in this case was

filed by the United States under the act of congress entitled "An act to protect trade and commerce against unlawful restraint and monopolies," (26 St. at Large, p. 209). The substance of the bill is that there is a gigantic and widespread combination of the members of a multitude of separate organizations for the purpose of restraining the commerce among the several states and with foreign countries. It avers that a disagreement between the warehousemen and their employes and the principal draymen and their subordinates had been adopted by all the organizations named in the bill, until, by this vast combination of men and of organizations, it was threatened that, unless there was an acquiescence in the demands of the subordinate workmen and draymen, all the men in all of the defendant organizations would leave work, and would allow no work in any department of business; that violence was threatened and used in support of this demand; and that this demand included the interstate and foreign commerce which flows through the city of New Orleans. The bill further states that the proceedings on the part of the defendants had taken such a vast and ramified proportion that, in consequence of the threats of the defendants, the whole business of the city of New Orleans was paralyzed, and the transit of goods and merchandise which was being conveyed through it from state to state, and to and from foreign countries, was totally interrupted.

...

The defendants urge that the corporations of the various labor associations made defendants are in their origin and purposes innocent and lawful. I believe this to be true. But associations of men, like individuals, no matter how worthy their general character may be, when charged with unlawful combinations, and when the charge is fully established, cannot escape liability on the ground of their commendable general character. In determining the question of sufficiency of proof of an accusation of unlawful intent, worth in the accused is to be weighed; but when the proof of the charge is sufficient, -overwhelmingly sufficient, the original purpose of an association has ceased to be available as a ground of defense.

The defendants urge that the combination to secure or compel the employment of none but union men is not in the restraint of commerce. To determine whether the proposition urged as a defense can apply to this case, the case must first be stated as it is made out by the established facts. The case is this: The combination setting out

to secure and compel the employment of none but union men in a given business, as a means to effect this compulsion, finally enforced a discontinuance of labor in all kinds of business, including the business of transportation of goods and merchandise which were in transit through the city of New Orleans, from state to state, and to and from foreign countries. When the case is thus stated, and it must be so stated to embody the facts here proven,—I do not think there can be any question but that the combination of the defendants was in restraint of commerce.

The question simply is, do these facts establish a case within the statute? It seems to me this question is tantamount to the question, could there be a case under the statute? It is conceded that the labor organizations were at the outset lawful. But, when lawful forces are put into unlawful channels,-i. e. when lawful associations adopt and further unlawful purposes and do unlawful acts, the associations themselves become unlawful. The evil, as well as the unlawfulness, of the act of the defendants, consists in this: that, until certain demands of theirs were complied with, they endeavored to prevent, and did prevent, everybody from moving the commerce of the country. What is meant by "restraint of trade" is well defined by Chief Justice Savage in People v. Fisher, 14 Wend. 18. He says:

"The mechanic is not obliged by law to labor for any particular price. He may say that he will not make coarse boots for less than one dollar per pair; but he has no right to say that no other mechanic shall make them for less. Should the journeymen bakers refuse to work unless for enormous wages, which the master bakers could not afford to pay, and should they compel all journeymen in the city to stop work, the whole population must be without bread; so of journeymen tailors or mechanics of any description. Such combinations would be productive of derangement and confusion, which certainly must be injurious to trade."

It is the successful effort of the combination of the defendants to intimidate and overawe others who were at work in conducting or carrying on the commerce of the country, in which the court finds their error and their violation of the statute. One of the intended results of their combined action was the forced stagnation of all the commerce which flowed through New Orleans. This intent and combined action are none the less unlawful because they included in their scope the paralysis of all other business within the city as well.

For these reasons I think the injunction should issue.

[Attention is especially directed to section V C, infra, where labor unions' liability under the anti-trust laws is considered.]

1. What is restraint of trade?

QUESTIONS

2. What general labor union methods may be termed in restraint of trade? 3. Members of labor unions composed of longshoremen agree that they will refuse to handle any merchandise transported by firms that do not recognize the unions. Because of that agreement the P Company, a firm operating on "open shop" principles, is not able to have its freight loaded on a steamer. Is the P Company entitled to any relief?

4. A state anti-trust law declares illegal any agreement between two or more persons which precludes free and unrestricted competition in the sale of any article or commodity by pooling, selling at a fixed price or affecting the price in any other way. A labor union has an agreement with a contractor which contains the terms and conditions of employment and provides that the contractor shall hire only members of the union. Is such an agreement illegal under the act?

5. Members of a labor union agree among themselves that they will not work for any contractor who does not comply with their terms. Is such an agreement in restraint of trade?

6. A labor union serves notice on all employers in a certain city that its members will not be permitted to work for employers who hire non-union men. It is alleged that such action of the union is a violation of anti-trust statutes. Decide.

7. Are there any differences between the way the courts apply the restraint of trade doctrine to business corporations and to labor unions?

3. STATUTORY RECOGNITION

A

[The fact that most statutory recognition of the organization, purposes, and methods of labor unions has been a matter of state rather than of federal legislation prevents a comprehensive survey of such legislation in this section. The variety of the extent and form of state statutes on the subject is great. Many of them1 are similar to the federal law of 1886 (quoted in B, below) in permitting the incorporation of labor unions and in defining their powers. The Pennsylvania statutes appearing in C define the powers and obligations of the unions

1 See, for examples: Mass., General Laws, 1921, Chap. 180, §§ 15-18; Mich., Compiled Laws, 1915, Chap. 188; Cahill's Consolidated Laws of New York, 1923, Chap. 4, §§ 7-11.