to his employes, whose right to labor as long as they please is alleged to be thereby violated. The argument would certainly come with better grace and greater cogency from the latter class."

See 169 U. S., p. 397.

Endeavoring to Obtain a Contract. While the complainant's bill is permeated with charges of violations of contracts and the like, yet all the evidence shows that instead of the defendants and those for whom they were acting doing any act to break a contract, they were using their best efforts to have one made. It is but natural that railroad employes should unite for the purpose of obtaining a specific contract with their employer, and in the event a railroad company refused to deal with them for such a purpose, to withdraw from its service.

Changed Conditions.

Scarcely fifty years ago nearly every family manufactured a large portion of the things needed. The wool was sheared from the sheep and was put through the various processes by the family until garments were made from it. The garments, of course, were crude, and there are perhaps few if any who would now wear

them. Most male individuals could work at several trades, such as carpentering, blacksmithing, shoemaking, and the like. About all could drive a stage coach, which was the common mode of conveyance and transportation. The crude work done by those people would not now be at all acceptable. An individual no better skilled than they were could not now find employment in any of the trades. At present all men are forced to become specialists in some branch of labor. So exacting, absorbing and engrossing is the work of engine and train men, that they must devote all of their time to their work in order to be successful and give satisfaction. For instance, very few engineers have the ability to go into the machine shop and there do the work of a machinist. Likewise, very few machinists are able to run a locomotive. The telegraph operator generally knows nothing about the engine, and the engineman is not able to manipulate the telegraph instrument so as to receive and send messages. Now, if the engine and trainmen give up all their time to promoting the interests of the company and thus cut themselves off from the chance to become

qualified in some other industrial pursuit, why is it not proper and necessary for them to obtain a contract governing their relations with their employer con

cerning wages, terms of employment, promotions, and the like, the same as any prudent business man would do under similar circumstances? And because these employes are endeavoring to do only those things that the present conditions of society force them to do, the complainant calls it a conspiracy. Complainant does all of its business through agents and representatives, and therefore is hardly in a position to object to others doing that which it does and claims the right to do. While its employes are seeking an increase of wages, its representatives, no doubt, are planning to avoid paying the amount. But in neither of these acts is there any element of conspiracy, because a conspiracy in law imports a combination between two or more persons to accomplish an object criminal or unlawful in itself, or to resort to a criminal or unlawful means to the accomplishment of an object not unlawful nor criminal in itself.

See 6 Am. & Eng. Encyc. of Law, 2d ed., p. 838.

Not Unlawful to Agree to Raise Wages Nor Engage in a Strike for

that Purpose.

employes to associate, consult and con"In this country it is not unlawful for fer together with a view to maintain or increase their wages by lawful and peaceable means, any more than it is unlawful for the receivers to consult and confer

together for the purpose of reducing their wages. A corporation is organized capital; it is capital consisting of money and property. Organized labor is organized capital; its capital consisting of brains and muscle. What it is lawful for one to is lawful for the stockholders and ofdo it is lawful for the other to do. If it ficers of a corporation to associate together for the purpose of reducing wages of its employes, or devising other means for making their investments more proflabor to associate, consult and confer toitable, it is equally lawful for organized gether with the view to maintain or increase wages."

Judge Caldwell in Ames v. Union Pac. Ry. Co., 62 Fed. Rep. at p. 14. "The receivers were the first to break the contract between the court and its

employers, but if the converse had been the case, the court could not have directed or enjoined the men to continue in its service. Specific performance of a contract to render personal service can not be enforced by injunction, by pains and penalties for a breach of such a con

tract.

**

*

"The court is asked to apply to the employes in its service the principles of the English statutes which by the imposition of heavy pains and penalties forced employes to work at fixed wages and made it an offense to seek to increase

them or quit the service of their employer. The period of compulsory personal service, save as a punishment for crime, has passed in this country. The only redress the law affords is a civil action for damages."

Id.

In discussing the rights and duties of employes upon a railroad in the hands of a receiver, Judge Taft said:

"Herein is found the difference between an act of the employes of the complainant company in combining to withhold the benefits of their labor from it, and the acts of the employes of the defendant companies in combining to withhold their labor from them; that is, the difference between the strike and the 'boycott.' The one combination, so far as its character is shown in the evidence, is lawful, because it is for the lawful purpose of selling the labor of those engaged in it for the highest price obtainable and on the best terms."

See Toledo, etc., Ry. Co. v. Pennsylvania Ry. Co., 54 Fed. Rep at p. 738. The case of United States v. Elliott is one that was instituted by the United States District Attorney to enjoin persons who were actually interfering with the movements of mail trains and traffic generally upon all the roads centering in St. Louis. The questions of wages or conditions of employment were not involved. In the opinion rendered, Judge Phillips said:

"In the recent case in Chicago in which P. M. Arthur was the intervenor in Arthur v. Oakes (63 Fed. Rep. 310), Mr. Justice Harlan, in reviewing the restraining order issued by Judge Jenkins, has very effectually met this objection (granting injunction to prevent criminal acts) and presented the law respecting unlawful conspiracies with a force and clearness to forever set this question at rest. It can not be out of place here to say that no public decision has perhaps been so much misunderstood or ignorantly or intentionally misrepresented and perverted as that of (Judge Jackson) the distinguished jurist. The opinion recognizes the right of the employes and labor organizations in the absence of contracts binding the employe to a given term of service, whenever they become dissatisfied with their employment or wages, to quit the service of the employer, either separately or collectively, and they have a right by a preagreement or preconcert of action to unite together for taking peaceable and lawful means to secure an increase of wages; to withdraw separately or in a body from the service of the employer, when dissatisfied. It is not competent for courts to interpose to restrain the right of volition, which is among the natural and inalienable rights of every citizen to work for whom he pleases; where he can get employment, and quit whenever he is dissatisfied therewith."

United States v. Elliott, 64 Fed. Rep., p. 32.

"When the employes of a railroad company that is in the hands of a receiver appointed by the court are dissatisfied with the wages paid by the receiver, they may abandon the employment, and by persuasion or agreement induce other employes to do the same."

Among the other observations in this case the court observed:

"Of course, employes must not use threats or violence nor overawe the employes remaining in the service."

Justice Brewer in United States v. Kane et al., 23 Fed. Rep. 748.

In the above case, Justice Brewer used the following illustration:

*

*

* ** *

"Supposing Mr. Wheeler had two men employed and he says to one of them: 'I will get along without your service, and I will do with the service of the other,' and one leaves. Supposing the one that leaves goes to the one that has not left and says to him: 'Now look here; leave with me,' giving whatever reason he sees fit, whatever reason he can adduce, and the other one says: 'Well, I will leave,' and he leaves, because his co-laborer has persuaded him to leave has urged him to leave; that is all right. Mr. Wheeler has nothing to say; he may think the reason that the one that is leaving has given to the one that he would like to have stayed is frivolous, not such as ought to induce him to leave, but that is those gentle men's business. would like to have stay is inclined to If the one whom he go because his friend has urged him, has. persuaded him, has induced him to leave. Mr. Wheeler can not say anything. Tha'. is the right of both these men-the one to make suggestions, give reasons, and the other to listen to them, and act upor them."

"It would be an invasion of one's nat ural liberty to compel him to work for or remain in the personal service of au other. One who is placed under such re straint is in a condition of involuntary servitude--a condition which the supreme law of the land declares shall not exis": in the United States, or any place sub ject to their jurisdiction."

Arthur v. Oakes, 63 Fed. Rep. 310. "These employes having taken, first. service with the company, and afterward with the receivers, under a general con tract of employment, which did not limi“: the exercise of the right to quit the serv ice, their peaceable co-operation as the result of friendly argument, persuasion or conference among themselves in assert ing the right of each and all to refuse to further service under a schedule o reduced wages, would not have been i legal or criminal, although they may hav acted in the firm belief and expectation that simultaneous quitting without no tice would temporarily inconvenience th receivers and the public, if in good faith and peaceably they exercise the right o quitting the service, intending thereby only to better their condition, by secur ing such wages as they deemed just, but. not to injure or interfere with the fre

action of others, and they can not be legally charged with any loss to the trust property resulting from their cessation of work in consequence of the refusal of the receivers to accede to terms upon which they were willing to remain in the service. Such loss under the circumstances stated is incidental to the situation and could not be attributed to the employes exercising their lawful rights in orderly ways, or to the receivers when, in good faith and in fidelity to the trust they declared a reduction of wages and thereby caused dissatisfaction among the em. ployes and their withdrawal from the service."

From opinion of Justice Harlan in Arthur v. Oakes, 63 Fed. Rep. 311. Hill's Annotated Law, Sec. 1893, which makes it a misdemeanor for one by force, threats or intimidation to prevent an employe from continuing or performing his work, does not make it unlawful for a trade union by resolution or order of its executive committee to require its members under pain of suspension or expulsion from the union to quit a person's employ because of his violation of a law ful rule of the union. (It was also held in this case that a union ordering a strike and using its influence to divert business from complainant did not entitle him to injunctive relief. Long Shore Printing & Publishing Co. v. Howell, 38 Pac. R. 547.)

"If it be true that workmen may com bine with the view, among other things, to getting as much as they can for their labor, just as capital may combine with a view of getting the greatest possible return, it must be true that when combined they have the same liberty that combined capital has, to support their in terests by arguments, persuasion and the bestowal or refusal of those advantages which they otherwise lawfully control." Justice Holmes in Vegelahn v. Gunter, 44 N. E. Rep. 1081.

In the following cases the right of workingmen to combine and engage in a strike has been sustained:

"Neither a workingmen's association conducting and financially supporting a strike by its members, nor the president of such association who organizes and directs such strike, confers with its leaders, disburses the financial aid to its strikers and promises it to others striking, will be enjoined at a suit of the employer to restrain interference with engaged employes; neither having authorized, encouraged, known of, nor tacitly approved any acts of violence."

Cumberland Glass Mfg. Co. v. Glass Bottle Blowers' Assoc., etc., 46 Atl. Rep. 208.

"Where a labor union refuses to permit its members to work with fellow-servants who are members of a rival organization and notifies the employer of that fact and that a strike will be ordered unless

such servants are discharged, with the intent to secure only the employment of approved workmen or to secure the exclusive employment of its members on their own terms, and the employes objected to are discharged, neither they nor the organization of which they are members have a right of action against the union, provided that no force is employed or unlawful act is committed."

National Protective Association of Steamfitters & Helpers v. Cumming, 170 N. Y. 315; 63 N. E. Rep. 369. "It is not conspiracy for workmen to combine together, and by mutual agreement to refuse employment unless there has been brought about a satisfactory adjustment between the employers and themselves on the points in issue." See Commonwealth v. Martin, 7 Pa. Dist. Rep. 219; 9 Kult. 69.

"It is not criminal conspiracy to agree or cause another's discharge by quitting work for a common employer, unless fraud, force or other illegal means are employed."

People v. Davis, 57 A. L. J. 170.

received or having other grievances, may "Workmen dissatisfied with the wages strike individually or as a union, without rendering themselves amenable to the law. and in furtherance of such purpose may speak and publish their reasons and grievances, and by argument, entreaty and that their cause is just." other legitimate means, persuade others

Cook v. Dolan, 6 Pa. Dist Reps. 523; Moyer V. Journeymen's Stonecutter

Assn., 47 N. J. Eq. 519; 2. Atl. Rep. 492.

"Where there is no sufficient evidence of violence, force, intimidation or Coercion, and the facts simply show that the parties complained of are persuading workmen still employed to quit their employment, and others about to accept employment not to do so, and that persuasion consisted of argumentation, personal appeals and inducements by way of payment of traveling expenses to other localities, an injunction will not be granted."

Johnson Harvester Co. v. Meinhardt et
al., 60 How. Pr. 68;

Rogers v. Everets et al., 17 N. Y.
Supp. 264.

capital and labor forcibly remind us how "The frequent controversies between fruitful the relation between employer and employe is of opportunities for the notwithstanding all the confusion that commission of acts injuring another. But has been produced by the introduction of doctrines allowing effect to 'intent' and 'combination,' we find no obstacle to the application of the same test as before. The doctrine applied now is that the existence of the relation to another, as employer or employe, justifies acts that are the natural incidents or outgrowth of such relation, whether or not done with the intent to injure the employer or employe."

Cook's Trade & Labor Combinations,
Sec. 6.

Other Cases in Which These Principles are Discussed.

"A large number of retail dealers formed a voluntary association, by which they mutually agreed that they would not deal with any manufacturer or wholesale dealer who should sell lumber directly to consumers, not dealers, at any point where any member of the association was carrying on a retail yard, and providing in their by-laws that whenever any wholesale dealer or manufacturer made any such sale, their secretary should notify all the members of the act. The plaintiff having made such a sale, the secretary threatened to send notice of the fact as provided in the by-laws to all the members of the association. Held, not actionable and no grounds for the injunction." Bohn Mfg. Co. v. Hollis et al., 55 N. W. Rep. 1119;

Clemette v. Watson, 43 N. E. Rep. 337.
Also see:

National Association of Steamfitters
and Helpers v. Cummings, 65 N. Y.
Supp. 946.

even

"A person with or without reason may refuse to trade with another. So may ten or fifty persons refuse. An individual may advise his neighbor or friend not to trade with another neighbor; he may command, when the command amounts only to earnest advice. It is not an unlawful interference with the trade of another to advise people not to deal with his competitor or to decline to do business with him, nor is it unlawful to combine to raise the rate of wages." Ulery v. Chicago Live Stock Exchange, 54 Ill. App. 233.

of a fund for the support of those who feel that the wages offered are below market price is one of the legitimate purposes of such an organization. They have a right to appoint officers who shall advise them as to the course to be taken by them in their relation with their employer. They may unite with other unions. The officers they appoint, or any other persons to whom they choose to listen, may advise them as to the proper course to be taken by them in regard to their employment, or if they choose to repose such authority in any one, may order them on pain of expulsion from their union, to peaceably leave the employment of their employer, because any of the terms of their employment are unsatisfactory."

Thomas v. Cincinnati N. O. & T. P.
Co., 67 Fed. Rep. p. 819.

To the same effect, see Judge Grosscup's charge to grand jury, 62 Fed. Rep. p. 831.

"An Act to Regulate Commerce."

Complainant encircles itself by the interstate commerce act, and in its fancied security will not give its employes the compensation they wish for their services, and contends that for them to strike, even though dissatisfied, would be a violation of that law. Congress certainly never intended the act should extend to the employes of a common carrier seeking higher wages. If it did, this abridgment of their rights would make the act, so far as it applies to them while in the pursuit of such a purpose, unconstitutional, null and void. It would violate Article XIII, Section 1, of the amendments to the Constitution of the United States. If it is sought by the act to prevent them from corresponding, arguing and using other lawful means to induce all to act concertedly together for any lawful purpose, then it would be unconstitutional and void as violating Article I of the amendments to the Constitution of the United States. In all of

eral courts, we have not been able to find one that intimates that the interstate commerce act abridges the rights of the employes of a common carrier with reference to the question of wages and conditions of employment. But, on the contrary, the doctrine is clearly enunciated that they may strike to enforce their

rights in respect to these things.

See Ames v. Union Pacific Ry. Co., 62
Fed. Rep. 7;

Arthur v. Oakes, 63 Fed. Rep. 310;
Thomas v. Cin. N. O. & T. P. Co., 62
Fed. Rep. 819.

The United States Supreme Court
Decision.

If, however, there was any doubt as to whether or not the interstate commerce act affected employes who are seeking a contract with a railroad company relating to their employment, that question is fully disposed of in Hopkins v. United States, 171 U. S. 595.

"The contract condemned by the statute (anti-trust law) is one whose direct and immediate effect is a restraint upon that kind of trade or commerce which is interstate."

Hopkins v. United States, p. 592. "Many agreements such as this which relates only to facilities furnished commerce, or else to which it only in an indirect way applies, while possibly enhancing the cost of transporting the business, at the same time which we would not think as an agreement in re straint of interstate commerce."

Id.

In discussing this case the court says: "For example, cattle when transported

long distances by rail, require rest, food

and water. To give them these accommodations, it is necessary to take them from the car and put them in pens or other places for their safe reception." (By way of illustration the court propounds several questions which it answers in the negative.) "Would an agreement among the land owners along the line not to lease their land for less than a certain sum be a contract within the statute as being in restraint of interstate commerce? Would it be such a contract, even if the lands, or some of them, were necessary for use in furnishing the cattle with suitable accommodations? Would an agreement between the dealers in corn at some station along the line of the road not to sell it below a certain price be covered by the act, because the cattle must have corn for food? Or would an agreement among the men not to perform the services of watering the cattle for less than a certain compensation come within the restriction of the statute? Would an agreement among themselves by the locomotive engineers, firemen or trainmen engaged in the service of an interstate railroad not to work for less than a certain named compensation be illegal, because the cost of transporting interstate commerce would be thereby enhanced?

**

*

In our opinion all of these questions should be answered in the negative." Hopkins v. United States, 171 U. S. 593-4.

Employes in the Train Service Uniting.

From the affidavits on file it is made clear that the men in the engine and train service united together for the purpose of regulating the terms and conditions of their employment with the employer, for the reason that it conserves their mutual interests and promotes their individual safety. Statistics show that the employ

ment in railroading is more dangerous to the life and limb of the employe than is war to the soldier. A signal given which through incompetency would not be interpreted correctly, causes the maiming or killing of an individual, or perhaps of many individuals. Carelessness, inexperience or incompetency, or inattention to duty of one employe puts in jeopardy the life and limb of a large number of his co-employes, and hence it is a duty of each to see, so far as he can lawfully do it, that all of his co-employes are treated fairly and compensated sufficiently to make it an object for competent men to stay in the service.

"The highest and best service can not be expected from men who are compelled to live in a state of pinch and want. Intelligence, bodily vigor and contentment are wanting among men compelled to work for inadequate wages."

Judge Caldwell in Ames v. U. P. Ry. Co., 62 Fed. Rep. p. 16.

Besides the foregoing, the fact that em

ployes do not stand on equality with their employes is another reason why it is in the interest of public policy that they should be permitted to unite.

"The individual laborer is completely at the mercy of the employer, if he can not combine with his fellows to maintain a standard of wages and control terms of the labor contract in other matters. Even then is there no real equality of condiThe individual employer who is prohibittions between employe and the employer. ed from combining, has through his control of the materials of the productions and the immediate necessities of the workmen, the advantage over the members of labor organizations from which he selects his employes."

Tiedeman's State & Federal Control of

Persons and Property, Vol. 1, p. 424. Upon this subject Justice Brown has said:

"The legislators have also recognized the fact which the experience in many States have corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are to a certain extent conflicting. The former naturally desire to obtain as much labor as possible from their employes, while the latter are often induced by fear of discharge to conform to regulations which their judgment fairly exercised would pronounce detrimental to their health or strength. In other words, the proprietor lays down the rules and the laborers are practically constrained to obey them. In such a case, self-interest is often an unsafe guide.' * **

Holden v. Hardy, 169 U. S. p. 397. Employes who are forbidden to correspond with each other and with their representatives and agents upon lawful matters, and are prevented from receiving