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entire trade or that they actually controlled any part of it or that the prices fixed by them were unfair. There might be, it was declared, many perfectly legitimate reasons for such an agreement aside from any intent to monopolize. The decision that such an agreement was unlawful would make unlawful almost every combination by which trade and commerce seek to extend their influence and enlarge their profits." It is noteworthy, however, that the Dueber Company afterwards brought suit against the Howard Company for conspiracy in the New York courts and the charge was upheld.1

The opinion in Bohn v. Hollis has been directly opposed in several precisely similar cases. Thus, in Jackson v. Stanfield, the supreme court of Indiana decided that a combination of retail lumber dealers to refuse to patronize wholesale dealers who should sell directly to contractors or consumers, a case identical with that in Minnesota, was unlawful. The court specifically stated that it considered the decision in Bohn v. Hollis to be in conflict with approved authority. "The great weight of authority supports the doctrine that where the policy pursued against a trade or business is of a menacing character, calculated to destroy or injure the business of the person so engaged, either by threats or intimidation, it becomes unlawful, and the person inflicting the wrong is amenable to the injured party in a civil action for damages therefor. It is not a mere passive, let-alone policy, a withdrawal of all business relations, intercourse, and fellowship that creates the liability, but the threats and intimidation shown in the complaint."

Another case of the trade boycott, practically similar in its nature to the two last cited, was that of Olive v. Van Patten, in which the court of civil appeals in Texas decided that this form of trade combination and boycott gave a ground for civil action. It was held that the actual injury to the plaintiff, having been done with a malicious motive and involving an interference with his lawful rights, was basis for a claim for damages. The opinion in this case followed closely that in Delz v. Winfree, also decided in Texas, where the circumstances were closely similar.

9. Legislation as to boycotts.-There are many States which have statutory provisions prohibiting intimidation, force, or threats for the purpose of preventing any person from entering or continuing in any employment. These statutes may, in some instances, be interpreted as referring to acts designed to prevent employers from continuing their business, although their primary purpose is to prevent interference with employees. The statutes of a few of these States (New Hampshire, Rhode Island, North Dakota, South Dakota, Oklahoma, Georgia, and Alabama) are somewhat more general, and prohibit interference with any person in the conduct of a lawful business, trade, or employment. While this language also is perhaps primarily intended to apply to interference with employees, it can very readily be applied to interference with employers. Part of the States just named, however, limit the definition of interference with business and employment by the words "by any use of force, threats, or intimidation," or similar language, and it would remain for the courts to decide whether the injury to a man's business by a peaceful boycott would be brought under these provisions. Aside from these statutes relating to acts of individuals, the special laws regarding combinations and conspiracies sometimes contain provisions especially applicable to boycotts. Thus, in New York, Minnesota, Mississippi, and North Dakota combinations "to prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, or intimidation," are unlawful conspiracies. In Illinois a combination for the purpose of depriving the owner or possessor of property of its lawful use and management is criminal by statute. North Dakota, South Dakota, Montana, and Oklahoma declare combinations to commit any act injurious to trade or commerce unlawful, a provision which might be made apply to boycotts. If, however, any of these provisions defining unlawful combinations should be held by the courts inapplicable to peaceful boycotts, the statutes of the States referred to, as well as those of some other States which expressly repeal the common law of criminal conspiracy, would apparently make combinations to boycott lawful.

A few States have distinct provisions declaring the boycott unlawful, independently of the definitions under the law of conspiracy already referred to. These

124 N. Y. Supplement, 647.

236 N. E. Rep., 345, 352.

325 S. W. Rep., 428.

416 S. W. Rep., 111.

See also cases taking the same stand, Van Horn v. Van Horn, 56 N. J. Law, 318; People v. Petheram (Michigan), 31 N. W. Rep., 188.

See regarding statutes on intimidation, page 578. The statutes on boycotting are more fully described in Reports of Industrial Commission, Vol. V, pp. 69-71, 131, 135.

States are Maine, Illinois, Kansas, Wisconsin, and Colorado. Such statutes, while differing in detail, agree in declaring unlawful combinations and conspiracies with the criminal intent to injure the person, character, business, or property of another. Illinois specifically refers to the ordinary methods of boycotting, such as the distribution of circulars, posting or printing of notices, etc.

CHAPTER VIII.

RAILWAY STRIKES AND BOYCOTTS.

During the past decade there have been numerous important decisions by the Federal courts regarding strikes and other labor difficulties upon interstate railroads. The greater number of these cases centered around the great Chicago strike of 1894, but both before and since that time other labor difficulties have been made the subject of decision by the United States courts. The special conditions under which these strikes and disputes have arisen, and the provisions of law applicable to them under the statutes of the United States, serve to distinguish certain principles underlying the court decisions in these cases which are not usually found in connection with the decisions as to other classes of labor disputes. After analyzing these principles we may consider the specific acts as to which adjudication has been made.

A. GENERAL PRINCIPLES LAID DOWN BY COURTS.

1. Interference with interstate commerce generally. The most deeply underlying thought of the Federal courts in cases involving labor disputes on interstate commerce railroads is, apparently, that the protection of interstate commerce is the peculiar care of the Federal Government, and that obstruction of that commerce is an offense punishable as a crime and also subject to restraint by injunction. Reference is frequently made to the immense importance of uninterrupted traffic over interstate transportation lines to the welfare of all classes of citizens. It is pointed out that active interference with such commerce results in the most serious public injury and may threaten the very lives of large numbers of citizens. Although most of the decisions seek to bring interference with interstate commerce either under the precise terms of the interstate commerce act or of the antitrust act of 1890, or to treat it as obstructions of the mails, there are several instances in which the courts appear to consider such interference as illegal independent of any specific statute, although usually even in such cases the statutes are also cited as strengthening the position taken.

Thus referring to the strikes growing out of the Pullman dispute in 1894 Judge Taft of the United States circuit court of the southern district of Ohio1 said:

"But the illegal character of this combination, with Debs at its head and Phelan as an associate does not depend alone on the general law of boycotts. The gigantic character of the conspiracy of the American Railway Union staggers the imagination. The railroads have become as necessary to life and health and comfort of the people of this country as are the arteries of the human body, and yet Debs and Phelan and their associates proposed, by inciting the employees of all the railways in the country to suddenly quit their service without any dissatisfaction with the terms of their own employment, to paralyze utterly all the traffic by which the people live, and in this way to compel Pullman, for whose acts neither the public nor the railway companies are in the slightest degree responsible, and over whose acts they can lawfully exercise no control, to pay more wages to his employees. The merits of the controversy between Pullman and his employees have no bearing whatever on the legality of the combination effected through the American Railway Union. The purpose, shortly stated, was to starve the railroad companies and the public into compelling Pullman to do something which they had no lawful right to compel him to do. Certainly the starvation of a nation can not be a lawful purpose of a combination, and it is utterly immaterial whether the purpose is effected by means usually lawful or otherwise."

The court in this case, however, referred also to the antitrust act of 1890, and concluded by holding Phelan guilty of contempt of court in inciting a strike among the employees of the receiver of the Cincinnati, New Orleans and Texas

1 In re Phelan, 62 Fed. Rep., 803, 821.

Pacific Railway Company. The element of boycott and the absence of the direct motive on the part of the strikers to benefit their own condition were especially considered by the court in reaching this decision.

In our study of the legality of strikes we have always referred to the Northern Pacific Railway strike of 1894, and the cases growing out of it. It will be remembered that Judge Jenkins, in the case of Farmers' Loan and Trust Company v. Northern Pacific Railroad Company,' issued an injunction prohibiting the employees of that company from quitting employment with a purpose of crippling its property or hindering its operation, and also from combining and conspiring to quit for those purposes. When upholding this order, the judge referred to the paralyzing effect of the stoppage of the commerce of the vast railroad. Many portions of States would have been shut off in the midst of winter from necessary supply of clothing, food, and fuel, the mails of the United States would have been stopped, and the general business of seven States, and the commerce of the whole country passing over this railway would have been suspended for an indefinite time."

The case of the Toledo, Ann Arbor and North Michigan Railway Company v. The Pennsylvania and other railroads, which was decided in the circuit court of Ohio in 1893, was quite analogous in some ways to the Phelan case. While the court especially dwelt on the thought that the refusal of engineers on the Lake Shore Railroad to haul cars coming from the Ann Arbor road was a violation of the interstate commerce act, which prohibits discrimination against traffic brought from other railroads, stress was also laid on the idea of the serious effect of concerted cessation of work upon a great line of interstate commerce. "The suspension of work on the line of such a vast railroad, by the arbitrary action of the body of its engineers and firemen, would paralyze the business of the entire country, entailing losses, and bringing disaster to thousands of unoffending citizens. All these evil results would follow to the public because of the arbitrary action of a few hundred men, who, without any grievance of their own, without any dispute with their own employer as to wages or hours of service, as appears from the evidence in this case, quit their employment to aid men, it may be, on some road of minor importance, who have a difference with their employer. * * It is not necessary, for the purposes of this case, to undertake to define with greater certainty the exact relief which such cases may properly invoke."

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In this last, as in practically all of the cases which we have considered, there are found some special circumstances, such as the element of boycott, the presence or alleged presence of intimidation and actual physical obstruction to commerce, or interference with the mails. It is consequently difficult to know how far such expressions as those above quoted are merely used to strengthen the position taken by the courts in condemnation of acts having these special characteristics. It is perhaps doubtful whether in the absence of any of these aggravating circumstances the courts would consider mere interference with interstate commerce by refusal to work or by quitting employment as illegal. The point of such expressions as those quoted seems to be chiefly to show that certain acts of strikers in connection with interstate commerce have a more serious effect than similar acts in other occupations, although even in such other occupations they would be usually held illegal.

2. Interference in violation of antitrust act of 1890.-The first section of the antitrust act of 1890 is as follows: "Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court." A further provision of this same act authorizes the issue of injunction by the Federal courts to restrain and prevent such contracts or combinations.

This act has been several times invoked by the courts against combinations of workingmen employed in connection with railroads, and it was perhaps the main reliance in the issue of injunctions and the punishment of strikers in connection with the railway strikes of 1894. Several admit that the primary purpose of the act of 1894 was to prevent combinations of capital, but they go further and declare that in the mind of Congress there was probably some thought of applying it also to combinations of workingmen, and that in any case, in the absence of any pro254 Fed. Rep., 746, 753.

1 60 Feb. Rep., 803, 813.

I C-VOL XVII-01-38

vision to the contrary, the courts are entitled to make a broad interpretation and to apply the law to any combination interfering with interstate commerce. The argument in defense of this extension of the application of the antitrust act is most fully stated by the United States circuit court in the Debs case:'

"It is perhaps apparent that the original measure, as proposed in the Senate. was directed wholly against trusts, and not at organizations of labor in any form.' But it also appears that before the bill left the Senate its title had been changed, and material additions made to the text; and it is worthy of note that a proviso to the effect that the act should not be construed to apply to any arrangements, agreements, or combinations made between laborers was not adopted.

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But it is more significant that, upon the introduction of the bill into the House, the chairman of the Judiciary Committee, as reported in the Congressional Record (vol. 21, pt. 5, p. 4089), made the following statement:

Now, just what contracts, what combinations in the form of trusts, or what conspiracies will be in restraint of trade or commerce, mentioned in the bill, will not be known until the courts have construed and interpreted this provision.

It is therefore the privilege and duty of the court, uncontrolled by considerations drawn from other sources, to find the meaning of the statute in the terms of its provisions, interpreted by the settled rules of construction."

In another case a judge of a Federal court speaks as if the intention of Congress to apply this act to combinations of workingmen was very distinct:

The growth of railways in this country, and the combinations of laborers employed on those roads for the purpose of enforcing, by strikes or otherwise, what they conceived to be their just rights, had led to a condition of things that, in the judgment of Congress, made it imperative that the courts of the United States * * * should be clothed with the power of laying their strong hands on these men. * With that view of national duty, on July 2, 1890. Congress enacted a law that enlarged the jurisdiction of the Federal courts, and authorized them to apply the restraining power of the law" for the purpose of checking lawless interference with the mails and with railroad business.

The inability of the court in the Debs case to show from the debates in Congress anything more than an unwillingness specifically to exempt labor organizations from the application of the antitrust law makes it very doubtful whether such a strong statement as that just quoted regarding the intention of Congress is in accordance with the facts. Nevertheless, in several other cases the courts have specifically applied the act of 1890 to labor organizations,3

It should be noticed, further, that the statutory law of conspiracy is frequently invoked by the Federal courts in connection with their expressions as to the illegality of interference with interstate commerce. The element of combination under the common law, as we have seen, is treated as giving a different character to acts from that which they would possess as acts of individuals. The common-law principle is stated in the following provision of the Revised Statutes of the United States (sec. 5440): "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than $1,000 and not more than $10,000, and to imprisonment not more than two years."

In several of the charges made by Federal judges to the grand juries and petit juries in railroad cases, they undertake to analyze the elements of the offense of conspiracy. We have already above quoted several of these utterances in our study of the law of conspiracy, pp. 551, 553.*

3. Obstruction of mails.-Another principle underlying the decisions of the Federal courts with reference to strikes on railways is that of the illegality of obstructing the mails. In several of the decisions this matter is referred to, although practically always in conjunction with interference with interstate commerce. The United States statute, with reference to obstructing the mails, provides: Any person who shall knowingly and willfully obstruct or retard the passage of the mails, or any carriage, horse, driver, or carrier carrying the same, shall, for every such offense, be punished by a fine of not more than $100." Other provi

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1 In re Debs, 64 Fed. Rep., 724, 747.

2Justice Baker in U. S. v. Agler, 62 Fed. Rep., 824, 825.

3U. S. v. Cassidy (Cal.), 67 Fed. Rep., 698; in re Phelan (Ohio), 62 Fed. Rep., 803; U. S. v. Elliott, 62 Fed. Rep., 801.

See the charge of Judge Grosscup to grand jury, 62 Fed. Rep., 828; charge of Judge Ross, 62 Fed. Rep., 834; charge of Judge Morrow, 62 Fed. Rep., 840; in re Phelan, 62 Fed. Rep., 803; United States v. Cassidy, 67 Fed. Rep., 698.

6 Revised Statutes, sec. 3995,

sions of the law require railways to carry mails in accordance with their arrangements with the Government.

In his charge to the grand jury, in the United States district court in California, July 13, 1894, Judge Morrow referred to this statute, and declared that there could be no question that the passage of the mails on certain lines of railway had been obstructed, the question for the jury to decide being as to whether the strikers or the railroad company, or both, were responsible.

About the same time Judge Grosscup, in Chicago, gave a charge to the grand jury, in which he referred to the law of conspiracy, and declared that if the jury should find that a body of men had combined together for the purpose of hindering or obstructing the mails, whether temporarily or permanently by forcible methods, or by quitting employment and preventing others, by threats, intimidation, or violence, from taking their places, it would constitute a criminal conspiracy.?

4. Violation of interstate-commerce act of 1887.-In only one case have the specific provisions of the interstate-commerce act been invoked against strikers and combinations of workingmen. This was the case of the Toledo, Ann Arbor and North Michigan Railroad v. the Pennsylvania and other railroads, decided by Judges Taft and Ricks in the United States circuit court of the northern district of Ohio in 1893.3

A

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In this case the engineers on the Lake Shore and Michigan Southern and other railroads connecting with the Toledo and Ann Arbor Railroad refused to haul cars coming from that road on the ground that there was an authorized strike of the Brotherhood of Locomotive Engineers on the Ann Arbor line. The court referred to the provision of the interstate-commerce act which requires all common carriers to "afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivery of passengers and property to and from their several lines.' further section of the same act, imposing a penalty upon any officer, agent, person acting for or employed by such corporation" for omitting to do anything required by the act, was also cited. Judge Taft declared that the law could probably be fairly interpreted to apply directly to locomotive engineers refusing to handle interstate freight, since engineers are "persons employed by" a common carrier. If, however, he added, this section should be interpreted as referring only to managing officers and agents, the acts of the strikers would still be illegal. Anyone successfully aiding, abetting, or procuring an officer or agent to violate the law would be punishable as a principal. Persons combining and conspiring to procure the commitment of a crime by others are subject to the statutory law of conspiracy. The act of withholding labor which might under other circumstances be altogether legal becomes illegal if designed to induce or compel another to commit an unlawful act. The court in this case issued an injunction to restrain the defendant railroad companies and their agents and employees from refusing to haul these cars, and another injunction restraining P. M. Arthur, chief of the Brotherhood of Locomotive Engineers, from issuing an order requiring employees of the defendant companies to refuse to haul such cars. (See further discussion below.)

5. Contempt of receivers.—Still another ground for declaring certain acts of strikers and labor organizations in connection with interstate commerce to be illegal is found in the fact that certain common carriers are in the hands of receivers appointed by and responsible to the courts. Various acts have been punished on the ground that, being directed against the officers of the court, they constituted contempt of court. And the granting of injunctions has at times been specially defended for the protection of railroads in the hands of receivers.

The leading case where this principle is involved is that of Thomas v. Cincinnati, New Orleans and Texas Pacific Railway Company, in re Phelan, which grew out of the Pullman strike, and was decided by the United States circuit court of the southern district of Ohio July 13, 1894.4 Phelan was endeavoring to persuade the employees of the receivers of the above-named railroad to quit work and to prevent others from taking their places. The court, after declaring that the purpose of Phelan and of the combination with which he was connected was illegal on various grounds, held further that the acts of Phelan, as directed against receivers appointed by the court, were in contempt, and he was accordingly imprisoned for 6 months.

In the Northern Pacific Railway case, Judge Jenkins, in issuing an injunction to prohibit the employees of the company from abandoning service in such a way

162 Fed. Rep., 840, 844.

In re grand jury, 62 Fed. Rep., 828, 831, 354 Fed. Rep., 730, 746, 750.

462 Fed. Rep., 803.

5 Farmers' Loan and Trust Company v. Northern Pacific Railway Company, 60 Fed. Rep., 803.

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