Holmes, C. J. When a question has been decided by the court, I think it proper, as a general rule, that a dissenting judge, however strong his convictions may be, should thereafter accept the law from the majority and leave the remedy to the Legislature, if that body sees fit to interfere. If the decision in the present case simply had relied upon Vegelahn v. Guntner, 167 Mass. 92, I should have hesitated to say anything, although I might have stated that my personal opinion had not been weakened by the substantial agreement with my views to be found in the judgments of the majority of the House of Lords in Allen v. Flood, [1898] A. C. 1. But much to my satisfaction, if I may say so, the court has seen fit to adopt the mode of approaching the question which I believe to be the correct one, and to open an issue which otherwise I might have thought closed. The difference between my brethren and me now seems to be a difference of degree, and the line of reasoning followed makes it proper for me to explain where the difference lies.
I agree that the conduct of the defendants is actionable unless justified. May v. Wood, 172 Mass. 11, 14, and cases cited. I agree that the presence or absence of justification may depend upon the object of their conduct, that is, upon the motive with which they acted. Vegelahn v. Guntner, 167 Mass. 92, 105, 106. I agree, for instance, that if a boycott or a strike is intended to override the jurisdiction of the courts by the action of a private association, it may be illegal. Weston v. Barnicoat, 175 Mass. 454. On the other hand, I infer that a majority of my brethren would admit that a boycott or strike intended to raise wages directly might be lawful, if it did not embrace in its scheme or intent violence, breach of contract, or other conduct unlawful on grounds independent of the mere fact that the action of the defendants was combined. A sensible workingman would not contend that the courts should sanction a combination for the purpose of inflicting or threatening violence or the infraction of admitted rights. To come directly to the point, the issue is narrowed to the question whether, assuming that some purposes would be a justification, the purpose in this case of the threatened boycotts and strikes was such as to justify the threats. That purpose was not directly concerned with wages. It was one degree more remote. The immediate object and motive was to strengthen the defendants’ society as a preliminary and means to enable it to make a better fight on questions of wages or other matters of clashing interests. I differ from my brethren in thinking that the threats were as lawful for this preliminary purpose as for the final one to which strengthening the union was a means. I think that unity of organization is necessary to make the contest of labor effectual, and that societies of laborers lawfully may employ in their preparation the means which they might use in the final contest.
Although this is not the place for extended economic discussion, and although the law may not always reach ultimate economic conceptions, I think it well to add that I cherish no illusions as to the meaning and effect of strikes. While I think the strike a lawful instrument in the universal struggle of life, I think it pure phantasy to suppose that there is a body of capital of which labor as a whole secures a larger share by that means. The annual product, subject to an infinitesimal deduction for the luxuries of the few, is directed to consumption by the multitude, and is consumed by the multitude always. Organization and strikes may get a larger share for the members of an organization, but, if they do, they get it at the expense of the less organized and less powerful portion of the laboring mass. They do not create something out of nothing. It is only by divesting our minds of questions of ownership and other machinery of distribution, and by looking solely at the question of consumption,—asking ourselves what is the annual product, who consumes it, and what changes would or could we make,—that we can keep in the world of realities. But, subject to the qualifications which I have expressed, I think it lawful for a body of workmen to try by combination to get more than they now are getting, although they do it at the expense of their fellows, and to that end to strengthen their union by the boycott and the strike.[613]
Tort for alleged conspiracy to injure plaintiffs business. In the Superior Court, Bishop, J., ordered a verdict for defendants, and plaintiff excepted.
Hammond, J. The evidence warranted the finding of the following facts, many of which were not in dispute. The plaintiff was engaged in a profitable business in quarrying granite and selling the same to granite workers in Quincy and vicinity. About January, 1899, his customers left him, and his business was ruined through the action of the defendants and their associates.
The defendants were all members of a voluntary association known as the Granite Manufacturers’ Association of Quincy, Mass., and some of them were on the executive committee. The association was composed of “such individuals, firms, or corporations as are, or are about to become manufacturers, quarriers, or polishers of granite.” There was no constitution, and, while there were by-laws, still, except as hereinafter stated, there was in them no statement of the objects for which the association was formed. The by-laws provided among other things for the admission, suspension and expulsion of members, the election of officers, including an executive committee, and defined the respective powers and duties of the officers. One of the by-laws read as follows: “For the purpose of defraying in part the expense of the maintenance of this organization, any member thereof having business transactions with any party or concern in Quincy or its vicinity, not members hereof, and in any way relating to the cutting, quarrying, polishing, buying or selling of granite (hand polishers excepted), shall for each of said transactions contribute at least $1 and not more than $500. The amount to be fixed by the association upon its determining the amount and nature of said transaction.”
Acting under the by-laws, the association investigated charges which were made against several of its members that they had purchased granite from a party “not a member” of the association. The charges were proved, and under the section above quoted it was voted that the offending parties “should respectively contribute to the funds of the association” the sums named in the votes. These sums ranged from $10 to $100. Only the contribution of $100 has been paid, but it is a fair inference that the proceedings to collect the others have been delayed only by reason of this suit. The party “not a member” was the present plaintiff, and the members of the association knew it. Most of the customers of the plaintiff were members of the association, and after these proceedings they declined to deal with him. This action on their part was due to the course of the association in compelling them to contribute as above stated, and to their fear that a similar vote for contribution would be passed should they continue to trade with the plaintiff.
The jury might properly have found also that the euphemistic expression “shall contribute to the funds of the association” contained an idea which could be more tersely and accurately expressed by the phrase “shall pay a fine,” or, in other words, that the plain intent of the section was to provide for the imposition upon those who came within its provisions of a penalty in the nature of a substantial fine. The bill of exceptions recites that “there was no evidence of threats or intimidation practiced upon the plaintiff himself, and the acts complained of were confined to the action of the society upon its own members.” We understand this statement to mean simply that the acts of the association concerned only such of the plaintiff’s customers as were members, and that no pressure was brought to bear upon the plaintiff except such as fairly resulted from action upon his customers. While it is true that the by-law was not directed expressly against the plaintiff by name, still he belonged to the class whose business it was intended to affect, and the proceedings actually taken were based upon transactions with him alone, and in that way were directed against his business alone. It was the intention of the defendants to withdraw his customers from him, if possible, by the imposition of fines upon them, with the knowledge that the result would be a great loss to the plaintiff. The defendants must be presumed to have intended the natural result of their acts.
Here, then, is a clear and deliberate interference with the business of a person with the intention of causing damage to him and ending in that result. The defendants combined and conspired together to ruin the plaintiff in his business, and they accomplished their purpose. In all this have they kept within lawful bounds? It is elemental that the unlawfulness of a conspiracy may be found either in the end sought or the means to be used. If either is unlawful within the meaning of the term as applied to the subject, then the conspiracy is unlawful. It becomes necessary, therefore, to examine into the nature of the conspiracy in this case, both as to the object sought and the means used.
The case presents one phase of a general subject which gravely concerns the interests of the business world and indeed those of all organized society, and which in recent years has demanded and received great consideration in the courts and elsewhere. Much remains to be done to clear the atmosphere, but some things at least appear to have been settled, and certainly at this stage of the judicial inquiry it cannot be necessary to enter upon a course of reasoning or to cite authorities in support of the proposition that while a person must submit to competition he has the right to be protected from malicious interference with his business. The rule is well stated in Walker v. Cronin, 107 Mass. 555, 564, in the following language: “Every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right by contract or otherwise is interfered with. But if it come from the merely wanton or malicious acts of others, without the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing.”
In a case like this, where the injury is intentionally inflicted, the crucial question is whether there is justifiable cause for the act. If the injury be inflicted without just cause or excuse, then it is actionable. Bowen, L. J., in Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 613; Plant v. Woods, 176 Mass. 492. The justification must be as broad as the act and must cover not only the motive and the purpose, or in other words the object sought, but also the means used.
The defendants contend that both as to object and means they are justified by the law applicable to business competition. In considering this defence it is to be remembered, as was said by Bowen, L. J., in Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. D. 598, 611, that there is presented “an apparent conflict or antimony between two rights that are equally regarded by the law—the right of the plaintiff to be protected in the legitimate exercise of his trade and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others.” Here, as in most cases where there is a conflict between two important principles, either of which is sound and to be sustained within proper bounds, but each of which must finally yield to some extent to the other, it frequently is not possible by a general formula to mark out the dividing line with reference to every conceivable case, and it is not wise to attempt it. The best and only practicable course is to consider the cases as they arise, and, bearing in mind the grounds upon which the soundness of each principle is supposed to rest, by a process of elimination and comparison to establish points through which at least the line must run and beyond which the party charged with trespass shall not be allowed to go.
While the purpose to injure the plaintiff appears clearly enough, the object or motive is left somewhat obscure upon the evidence. The association had no written constitution, and the by-laws do not expressly set forth its objects. It is true that from the by-laws it appears that none but persons engaged in the granite business can be members, and that a member transacting any business of this kind with a person not a member is liable to a fine; from which it may be inferred that it is the idea of the members that for the protection of their business it would be well to confine it to transactions among themselves, and that one at least of the objects of the association is to advance the interests of the members in that way. The oral testimony tends to show that one object of the association is to see that agreements made between its members and their employees and between this association and similar associations in the same line of business be kept and “lived up to.” Whether this failure to set out fully in writing the objects is due to any reluctance to have them clearly appear or to some other cause, is of course not material to this case. The result, however, is that its objects do not so clearly appear as might be desired; but in view of the conclusion to which we have come as to the means used, it is not necessary to inquire more closely as to the objects. It may be assumed that one of the objects was to enable the members to compete more successfully with others in the same business, and that the acts of which the plaintiff complains were done for the ultimate protection and advancement of their own business interests, with no intention or desire to injure the plaintiff except so far as such injury was the necessary result of measures taken for their own interests. If that was true, then so far as respects the end sought the conspiracy does not seem to have been illegal.
The next question is whether there is anything unlawful or wrongful in the means used as applied to the acts in question. Nothing need be said in support of the general right to compete. To what extent combination may be allowed in competition is a matter about which there is as yet much conflict, but it is possible that in a more advanced stage of the discussion the day may come when it will be more clearly seen and will more distinctly appear in the adjudication of the courts than as yet has been the case; that the proposition that what one man lawfully can do any number of men acting together by combined agreement lawfully may do, is to be received with newly disclosed qualifications arising out of the changed conditions of civilized life and of the increased facility and power of organized combination, and that the difference between the power of individuals acting each according to his own preference and that of an organized and extensive combination may be so great in its effect upon public and private interests as to cease to be simply one of degree and to reach the dignity of a difference in kind. Indeed, in the language of Bowen, L. J., in the Mogul Steamship case, ubi supra, page 616: “Of the general proposition that certain kinds of conduct not criminal in one individual may become criminal if done by combination among several, there can be no doubt. The distinction is based on sound reason, for a combination may make oppressive or dangerous that which if it proceeded only from a single person would be otherwise, and the very fact of the combination may show that the object is simply to do harm, and not to exercise one’s own just rights.” See also opinion of Stirling, L. J., in Giblan v. National Amalgamated Laborers’ Union, [1903] 2 K. B. 600, 621. Speaking generally, however, competition in business is permitted, although frequently disastrous to those engaged in it. It is always selfish, often sharp, and sometimes deadly. Conspicuous illustrations of the destructive extent to which it may be carried are to be found in the Mogul Steamship case above cited, and in Bowen v. Matheson, 14 Allen, 499. The fact therefore that the plaintiff was vanquished is not enough, provided that the contest was carried on within the rules allowable in such warfare.
It is a right, however, which is to be exercised with reference to the existence of a similar right on the part of others. The trader has not a free lance. He may fight, but as a soldier, not as a guerilla. The right of competition rests upon the doctrine that the interests of the great public are best subserved by permitting the general and natural laws of business to have their full and free operation, and that this end is best attained when the trader is allowed in his business to make free use of these laws. He may praise his wares, may offer more advantageous terms than his rival, may sell at less than cost, or, in the words of Bowen, L. J., in the Mogul Steamship case, ubi supra, may adopt “the expedient of sowing one year a crop of apparently unfruitful prices in order by driving competition away to realize a fuller harvest of profit in the future.” In these and many other obvious ways he may secure the customers of his rival, and build up his own business to the destruction of that of others, and so long as he keeps within the operation of the laws of trade his justification is complete.
But from the very nature of the case it is manifest that the right of competition furnishes no justification for an act done by the use of means which in their nature are in violation of the principle upon which it rests. The weapons used by the trader who relies upon this right for justification must be those furnished by the laws of trade, or at least must not be inconsistent with their free operation. No man can justify an interference with another man’s business through fraud or misrepresentation, nor by intimidation, obstruction or molestation. In the case before us the members of the association were to be held to the policy of refusing to trade with the plaintiff by the imposition of heavy fines, or in other words they were coerced by actual or threatened injury to their property. It is true that one may leave the association if he desires, but if he stays in it he is subjected to the coercive effect of a fine to be determined and enforced by the majority. This method of procedure is arbitrary and artificial, and is based in no respect upon the grounds upon which competition in business is permitted, but on the contrary it creates a motive for business action inconsistent with that freedom of choice out of which springs the benefit of competition to the public, and has no natural or logical relation to the grounds upon which the right to compete is based. Such a method of influencing a person may be coercive and illegal. Carew v. Rutherford, 106 Mass. 1.
Nor is the nature of the coercion changed by the fact that the persons fined were members of the association. The words of Munson, J., in Boutwell v. Marr, 71 Vt. 1, 9, are applicable here: “The law cannot be compelled by any initial agreement of an associate member to treat him as one having no choice but that of the majority, nor as a willing participant in whatever action may be taken. The voluntary acceptance of by-laws providing for the imposition of coercive fines does not make them legal and collectible, and the standing threat of their imposition may properly be classed with the ordinary threats of suits upon groundless claims. The fact that the relations and processes deemed essential to a recovery are brought within the membership and proceedings of an organized body cannot change the result. The law sees in the membership of an association of this character both the authors of its coercive system and the victim of its unlawful pressure. If this were not so, men could deprive their fellows of established rights, and evade the duty of compensation, simply by working through an association.”
In view of the considerations upon which the right of competition is based, we are of opinion that as against the plaintiff the defendants have failed to show that the coercion or intimidation of the plaintiff’s customers by means of a fine is justified by the law of competition. The ground of the justification is not broad enough to cover the acts of interference in their entirety, and the interference being injurious and unjustifiable is unlawful.
We do not mean to be understood as saying that a fine is of itself necessarily or even generally an illegal implement. In many cases it is so slight as not to be coercive in its nature; in many it serves a useful purpose to call the attention of a member of an organization to the fact of the infraction of some innocent regulation; and in many it serves as an extra incentive to the performance of some absolute duty or the assertion of some absolute right. But where, as in the case before us, the fine is so large as to amount to moral intimidation or coercion, and is used as a means to enforce a right not absolute in its nature but conditional, and is inconsistent with those conditions upon which the right rests, then the coercion becomes unjustifiable and taints with illegality the act.
The defendants strongly rely upon Bowen v. Matheson, 14 Allen, 499; Mogul Steamship Co. v. McGregor, [1892] A. C. 25; Bohn Mfg. Co. v. Hollis, 54 Minn. 223; Macauley Bros. v. Tierney, 19 R. I. 255, and Cote v. Murphy, 159 Penn. St. 420. In none of these cases was there any coercion by means of fines upon those who traded with the plaintiff. Inducements were held out, but they were such as are naturally incident to competition, for instance, more advantageous terms in the way of discounts, increased trade, and otherwise. In the Minnesota case there was among the rules of the association a clause requiring the plaintiff to pay 10 per cent, but the propriety or the legality of that provision was not involved. In Bowen v. Matheson, it is true that the by-laws provided for a fine, but the declaration did not charge that any coercion by means of a fine had been used. A demurrer to the declaration was sustained upon the ground that there was no sufficient allegation of an illegal act. The only allegation which need be noticed here was that the defendants “did prevent men from shipping with” the plaintiff, and as to this the court said: “This might be done in many ways which are legal and proper, and as no illegal methods are stated the allegation is bad.” This comes far short of sustaining the defendants in their course of coercion by means of fines. As to the other cases cited by the defendant it may be said that, while bearing upon the general subject of which the present case presents one phase, they are not inconsistent with the conclusion to which we have come. Among the authorities bearing upon the general subject and having some relation to the questions involved in this case, see, in addition to those hereinbefore cited, Slaughter-House Cases, 16 Wall. 116; United States v. Addystone, 175 U. S. 211; Doremus v. Hennessy, 176 Ill. 608; Inter-Ocean Pub. Co. v. Associated Press, 184 Ill. 438; State v. Stewart, 59 Vt. 273; Olive v. Van Patten, 7 Tex. Civ. App. 630; Barr v. Essex Trades Council, 53 N. J. Eq. 101; Jackson v. Stanfield, 137 Ind. 592; Bailey v. Master Plumbers, 103 Tenn. 99; Brown v. Jacobs Pharmacy Co., 115 Ga. 429; Mogul Steamship Co. v. McGregor, 15 Q. B. D. 476; s. c. 21 Q. B. D. 544; S. C. 23 Q. B. D. 598; S. C. [1892] A. C. 25.
For the reasons above stated a majority of the court are of opinion that the case should have been submitted to the jury.
The plaintiffs were brick and stone “pointers.” The defendants were officers and members of bricklayers’ unions and stonemasons’ unions.[615]
One ground of complaint was that the defendants prevented the employment of the plaintiffs as “pointers” by notifying contractors that they would not lay the bricks or do the mason work on any building unless they were also employed to do the pointing of the brick and stone masonry. “The defendants in effect say we want the work of pointing the brick and stone laid by us, and you must give us all or none of the work.”[616] The court held that this conduct, although disastrous to the plaintiffs and damaging to the building contractors, was justifiable. “... it was within the rights of these unions to compete for the work of doing the pointing, and, in the exercise of their right of competition, to refuse to lay bricks and set stone unless they were given the work of pointing them when laid.”[617]
The other ground of action in Pickett v. Walsh was quite distinct from the foregoing. The firm of L. P. Soule & Son Company were the general contractors for the erection of the Ford building; but they had nothing to do with the employment of “pointers.” The pointing of that building was being done under a contract between the owners of the building and Pickett, a pointer who was one of the plaintiffs. Other buildings were being erected for other owners, on which the Soule Company were the general contractors, and as to which no complaint existed in reference to the pointing. The bricklaying and masonry on these other buildings were being done by members of the defendants’ union. The defendant officials induced all the bricklayers and masons to quit working for the Soule Company on these other buildings, because that company “was doing work on another building [the Ford building] in which work was being done by pointers, employed not by the L. P. Soule & Son Company but [by] the owners of the building.” The evident purpose was to thus induce the Soule Company to exert pressure on the owners of the Ford building to discontinue the employment of the pointers (Pickett et als.). The court held that this conduct was not justifiable. The decision is not based on the ground that the defendants were intentionally inducing, or attempting to induce, a breach of contract; but on the broad ground that the forcing a neutral third person to exert a pressure on the plaintiff’s employer was not a lawful means of competition.
Loring, J.[618]
That strike has an element in it like that in a sympathetic strike, in a boycott, and in a blacklisting, namely: It is a refusal to work for A, with whom the strikers have no dispute, for the purpose of forcing A to force B to yield to the strikers’ demands. In the case at bar the strike on the L. P. Soule & Son Company was a strike on that contractor to force it to force the owner of the Ford building to give the work of pointing to the defendant unions. That passes beyond a case of competition where the owner of the Ford building is left to choose between the two competitors. Such a strike is in effect compelling the L. P. Soule & Son Company to join in a boycott on the owner of the Ford building. It is a combination by the union to obtain a decision in their favor by forcing third persons who have no interest in the dispute to force the employer to decide the dispute in their (the defendant union’s) favor. Such a strike is not a justifiable interference with the right of the plaintiffs to pursue their calling as they think best. In our opinion organized labor’s right of coercion and compulsion is limited to strikes on persons with whom the organization has a trade dispute; or to put it in another way, we are of the opinion that a strike on A, with whom the striker has no trade dispute, to compel A to force B to yield to the strikers’ demands, is an unjustifiable interference with the right of A to pursue his calling as he thinks best.[619]
On order to show cause why injunction should not issue.[620]
The original complainant was the sole proprietor and publisher of a daily morning newspaper called the “Newark Times.”
The defendants are eighteen bodies known as “labor unions,” embracing many trades in the city of Newark, affiliated in a society or representative body known as “Essex Trades Council.”
The Essex Trades Council is a voluntary association, composed of delegates chosen thereto by each of the eighteen defendant unions. Meetings are held weekly. Every organization represented in the council is required to make a monthly report of union purchases, and failing to do so for two consecutive months, its products are not to be considered as “fair.”
A circular, issued by the Council in 1893, addressed to the public, states:—
“The Essex Trades Council has for some time past been concentrating the trade of its members and those whom these could influence, upon the goods made and recommended by organized fair labor, and the stores and places where these goods are sold. The regular system of purchase reports from individual consumers, transmitted through their organization, places the council in a position to announce that it is already turning thousands of dollars of trade every week away from those indifferent to the welfare of the worker, and into the pockets of labor’s proven friends. That these friends may receive greater support by being made more readily known to organized working men and their many sympathizers among lovers of justice, together forming the great bulk of the consuming public, the Essex Trades Council will shortly issue a series of cards for free display in all business establishments especially deserving the patronage of organized fair consumers, their families, associates and friends.”
The plan of operation, as developed by the papers and exhibits filed in the cause, is that each individual member of the different unions is required at stated periods to fill out a blank slip furnished for that purpose, stating the amount expended by him in purchase, the character of the articles bought, and the names of the tradesmen with whom he has dealt. These cards, when filled in, are returned by the members to their own union, and by the union reported to the council. A failure by a union to so report for two consecutive months, places its products under the ban of organized labor as represented in the council. These reports place the trades council in possession of data as to the amount of purchases by the members of the unions, and the tradesmen with whom their dealing is carried on, from which its officers are enabled to estimate, with some degree of accuracy, the volume of purchases by the members of the several organizations within a stated period of time.
The next step is an agreement in writing purporting to be made between the Essex Trades Council and a tradesman, by which the latter, “in return for the patronage of united fair consumers,” promises and agrees to buy as consumer, engage as employer, keep as dealer, as exclusively as he can, such labor and goods as may be announced as fair by a particular union and endorsed by the council of consumers of the Essex Trades Council.
Cards are then issued to the tradesmen, under the seal of the trades council, addressed “to all fair consumers,” each certifying that the person to whom it is issued “is a fair consuming dealer,” and is entitled to their fraternal support until a specified date. Coupons are annexed for certification by particular industries. These cards are of such size, color and appearance that, if publicly displayed in stores or places of business, they will attract attention.
There was issued, under date of March 31, 1894, “by the Essex Trades Council and auxiliary circle bodies,” a small pamphlet of convenient size to be carried in the pocket, which is entitled “The Fair List of Newark, N. J.,” and to be “for the information of people who buy service or product and who have enterprise enough to seek to place their money where it will do them most good.” It contains names and addresses of tradesmen and persons in business, including lawyers, interspersed with items of information and advice.
The plaintiff Barr determined to employ “plate matter” in making up part of his daily paper. (This consists of reading matter edited, set up and stereotyped in New York.) All plaintiff’s employees were members of the local typographical union. This union had declared against the use of plate matter in the city of Newark, which fact was known to Mr. Barr. Through his foreman, he sought to have this resolution of the union relaxed in favor of his paper, but on its refusal so to do adhered to his determination, and, by letter dated March 13, 1894, informed his foreman that he would use plate matter on and after March 17th, saying further, that, not desiring to lose any of the men in his department, the union scale of wages would be maintained, and that he would gladly retain the services of such as might be willing to stay. Some of the employees determined to remain, others, however, left in consequence of his disregard of the union’s determination, and the union withdrew its endorsement of the newspaper. The union thereupon, through its delegates, informed the Essex Trades Council of this fact and requested its assistance. In response, the council appointed a committee in reference to the controversy, and, on March 30, 1894, issued a circular addressed to the public, which, after giving its version of the dispute, concludes with this appeal:—
“Friends, one and all, leave this council-boycotting ‘Newark Times’ alone. Cease buying it! Cease handling it! Cease advertising in it! Keep the money of fair men moving only among fair men. Boycott the boycotter of organized fair labor.”
This circular was distributed in the city of Newark.
In April, 1894, the trades council issued a small four-page sheet entitled “The Union Buyer. Official bulletin of united fair custom of Newark and vicinity. Issued by the Essex Trades Council.” It is impressed at the heading with the union label. It purports to be volume I, number 1, issued at Newark, N. J., April, 1894. Its first announcement is as follows:—
“Our mission—To support the supporters and boycott the boycotters of organized fair labor. To promote the public welfare by the diffusion of common cents, urging all to carry these in trade only to those who will return them to the people in the shape of living wages.”
The whole paper is devoted to the controversy between the unions and the “Newark Times,” no other object being considered. It refers throughout to that paper either by reversing the letters of the name “Times” as “Semit,” or by turning the type bottom side up. The first article after the declaration of its mission is a statement from Typographical Union No. 103, under the heading of “‘The Times’ Trouble.” The only grievance stated against the “Times” grows out of the use of plate matter, and ends with “workingmen and advertisers, remember that plate matter means forty-five cents a day, and understand why the ‘Newark Times’ is an unfair office.” Then follow five columns of “Notes and Comments.” These are all directed to the controversy, and are in vigorous and denunciatory language, and conclude as follows:—
“In conclusion, the council desires to state that the issue between it and the ‘Semit’ is now wide open. It is a fight between the ‘Semit’ and its supporters and the council and its supporters. We give the great public absolute freedom in the choice of its side, but not a single cent of our money will be knowingly let pass to any one who buys the ‘Semit,’ keeps the ‘Semit,’ advertises in the ‘Semit,’ or in any other way leads us to believe that a portion of our honestly-earned money may find its way into the pockets to furnish support to the unfair management of the ‘Semit’ or any of those who have so foully betrayed the cause of organized fair labor.”
At the foot of this document is placed, in large type, the request, “When through reading, please pass to your neighbor.”
This paper was circulated in Newark. There were other publications, but the defendants deny any responsibility for them, and there is no evidence to connect them with their issue or circulation.
Various labor unions represented in the trades council then passed a prepared set of resolutions, which were printed and distributed in Newark. One of these requested all enterprising business houses to abstain from advertising in the “Times” until the trouble had been adjusted, stating that hundreds of their friends had refused to buy and read the “Times,” and that its circulation had become considerably reduced because of its alleged unfair stand. Another asked such advertisers as had made contracts with the “Times” for definite periods, to consider whether it would not be far more advantageous for them in the end to take out their advertisements, leave their space entirely blank and pay the few cents their contracts called for, than to jeopardize thousands of dollars of trade that fair labor would be “compelled to withhold so long as such advertisements appeared, and for an indefinite period thereafter,” adding that “those who now continue to advertise in the ‘Times’ merely succeed in making themselves conspicuous as persons to carefully and studiously keep away from.”
These resolutions found their way into the hands of the advertisers in the “Times.”
The various trades unions, affiliated in the council, represent, as is claimed by them, a purchasing power amounting to over $400,000 in each and every week. Owing to the issue and distribution of the aforesaid circular and resolutions, the individual members of the union, and their friends and sympathizers, withheld their patronage from the “Newark Times.” The circulation of the paper was thereby considerably reduced.
The issue and distribution of said circular and resolutions caused certain persons, who had theretofore advertised in the “Times,” to cease advertising in that paper.
Green, V. C.
[After stating the testimony of Mr. Beckmeyer, secretary of the Essex Trades Council, as to the signification of the word “boycott,” as used in the circular and publications.]
From which it is to be gathered that the use of the word “boycott” in the publications, as applied to the “Times,” would be regarded by the members of the various unions to mean only that they should refrain from trading or dealing with the complainant, and with those who oppose the organizations in their actions and doings with reference to the complainant.
I do not see that this changes the character of the injury, but even if it does, so far as the members of the organizations are concerned, the difficulty is that these communications were addressed to the public and indiscriminately circulated. They were not intended only for members of the order by whom a technical signification would be given to the word “boycott,” but to the general public who would read them and give the word its accepted meaning.
[After quoting various definitions of “boycott”] Mr. Justice Taft, in Toledo Co. v. Penn. Co., 54 Fed. Rep. 746, says: “As usually understood a boycott is a combination of many to cause a loss to one person by coercing others against their will, to withdraw from him their beneficial business intercourse, through threats that, unless those others do so, the many will cause similar loss to them.”
But the defendants insist, and counsel vigorously urge, that this particular boycott is not open to such adverse criticism, because “there was no violence, intimidation, coercion or threats used, and that everything was done in a peaceful and orderly manner.” How far is this claim borne out by the facts? It is true, there was no public disturbance, no physical injury, no direct threats of personal violence or of actual attack on or destruction of tangible property as a means of intimidation or coercion. Force and violence, however, while they may enter largely into the question in a criminal prosecution, are not necessary factors in the right to a civil remedy. But even in criminal law, I do not understand that intimidation, even when a statutory ingredient of crime, necessarily presupposes personal injury or the fear thereof. The clear weight of authority undoubtedly is that a man may be intimidated into doing, or refraining from doing, by fear of loss of business, property or reputation, as well as by dread of loss of life, or injury to health or limb; and the extent of this fear need not be abject, but only such as to overcome his judgment, or induce him not to do, or to do, that which otherwise he would have done or have left undone.
There can be no reasonable dispute that the whole proceeding or boycott in this controversy is to force Mr. Barr, by fear of loss of business, to conduct that business, not according to his own judgment, but in accordance with the determination of the typographical union, and, so far as he is concerned, it is an attempt to intimidate and coerce.
Next as to the members of the various labor unions. According to Mr. Beckmeyer, all the organizations represented in the trades council and the individual members thereof, in strict conformity with the purpose and object for which the said council was organized, withheld their patronage from the said newspaper on the mere announcement by the typographical union to the trades council that that union had withdrawn its endorsement from the “Times.” Why? It is said that it was only the exercise by each person of his right to spend his money as his own will dictated. The fallacy of this is apparent. It loses sight of the combination, the whole strength of which lies in the fact that each individual has surrendered his own discretion and will to the direction of the accredited representative of all the organizations. He no longer uses his own judgment, but, by entering into the combination, agrees to be bound by its decree. As is said in Templeton v. Russell, supra, “those men had bound themselves to obey, and they knew they had done so, and that if they did not obey they would be fined, or expelled from the union to which they belonged.” It is common knowledge, if indeed it does not amply so appear by the papers in this case, that a member of a labor organization who does not submit to the edict of his union asserts his independence of judgment and action at the risk, if not the absolute sacrifice, of all association with his fellow-members. They will not eat, drink, live or work in his company. Branded by the peculiarly offensive epithets adopted, he must exist ostracized, socially and industrially, so far as his former associates are concerned. Freedom of will under such circumstances cannot be expected.
Next as to the advertising public. Tradesmen advertise in newspapers for the sole purpose of drawing customers to their stores. An authoritative announcement, not from one, but from many sources, that the body of organized labor in the city or county representing a purchasing power of $400,000 a week would cease to deal with those whose advertisements appeared in the newspaper, would have a much more deterrent effect than any threat of violence. To say that this is only advice, or an intimation, to the advertiser for his guidance if he sees fit to accept it, is trifling with the language. Advice, behind which lurks the threat of the withdrawal of such a volume of business, could have no other effect than to intimidate and coerce, as it did in fact make several change their judgment, which had previously led them to advertise in the paper. The claim that this boycott was attempted to be enforced without intimidation or coercion will not bear the light of examination.
A legal excuse for the action of the defendants is next sought in the claim that the Essex Trades Council is a business institution, and that what it has done has been in prosecution of such business, seeking, I suppose, to bring the case within the rule of Mogul Steamship Co. v. McGregor, 15 Q. B. Div. 476; 23 Q. B. Div. 598. That case proceeded on the doctrine of a lawful competition in business, both parties being engaged in carrying on the same character of business, and the acts complained of having been adopted for the advancement of the defendant’s own trade, viz., carrying goods on a steamship line, although thereby damage to the other party necessarily ensued.
I see no similarity in the business of these parties. That of the complainant is the publisher of a newspaper. Members of the typographical union, and stereotypers’ and pressmen’s union, are skilled workmen, whose services might be employed in such business, but they are not carrying on any enterprise in competition with that of the complainant. So far as the other unions are concerned, the most, if not all of them, have no connection with such trade.
Neither does the claim of the Essex Trades Council, that it is a business institution, stand on any firmer ground. The only element of business which it is engaged in would appear from the facts to be the furnishing to tradesmen of printed cards, certifying that they are proper persons for the members of trades unions to deal with, suitable to be displayed in conspicuous places in such tradesmen’s places of business. This was supplemented by the issue, under date of March 31, 1894, of the small pocket pamphlet entitled “The Fair List of Newark, N. J.,” containing the names and addresses of tradesmen and persons in business in Newark, with items of information and advice. Why this is called a business does not appear. It is not stated that any compensation is either required or received by the trades council from the tradespeople for granting or continuing those endorsements, but whether this is so or not, it is in no sense a competing business with the publication of a daily newspaper, and therefore does not come within the principle of the case referred to.
The order to show cause, as far as relates to [eight specified organizations], they having all disclaimed any participation in the acts complained of, must be discharged, with costs. The said order to show cause, so far as relates to the other defendants, must be made absolute, with costs, and an injunction may issue against them, restraining them from distributing or circulating any circulars, printed resolutions, bulletins, or other publications containing appeals or threats against the “Newark Times,” or the complainants, its publishers, with the design and tending to interfere with their business in publishing said paper, and from making any threats or using any intimidation to the dealers or advertisers in such newspaper tending to cause them to withdraw their business from such newspaper.[621]
Henshaw, J. The plaintiff went into equity seeking an injunction to restrain the defendants from illegal interference with its business. Plaintiff conducted a livery, board and feed stable in the city and county of San Francisco. The officers and representatives of defendant made request of him to “unionize” his stable by discharging his non-union employees and employing union men in their places. Upon his refusal, a strike of the union men was declared. Following the strike, a boycott was decreed. A patrol about plaintiffs place of business was established, and, under the findings, these representatives of the defendants, the pickets, “called forth in loud, threatening, and menacing tones to the patrons and customers of plaintiffs not to patronize plaintiffs in their said business; defendant, the Stablemen’s Union, through its agents and representatives, has stated to and threatened patrons and customers and other persons dealing with plaintiffs that if said patrons and customers and other persons continued to patronize and do business with plaintiffs, said Stablemen’s Union would cause them respectively to be boycotted in their business.” Menacing terms and threatening language were made use of by the agents, representatives, and pickets of the union toward the employees of the plaintiffs, such as: “Unfair stable; union men locked out and non-union men put in; look at this stable, the only unfair stable on Market Street; the stable that always was and always will be unfair. This is a scab stable. When we catch you outside, we will finish you. We will get you yet. It is a scab stable, full of scabs. We will fix you yet. It is a matter of time when we will get you all right. You will never get out of the stable alive. We will break you in half. We will beat you to death. When we catch you outside, we will finish you.” A judgment for an injunction followed upon these findings, and that judgment by its terms commanded the defendant, its agents and employees, to desist and refrain “from in any wise interfering with, or harassing, or annoying, or obstructing plaintiff in the conduct of the business of their stable, known as the Nevada Stables and situated at number 1350 Market Street, in the city and county of San Francisco; or from in any wise molesting, interfering with, threatening, intimidating, or harassing any employee or employees of plaintiffs; or from intimidating, harassing, or interfering with any customer or customers, patron or patrons of plaintiffs in connection with the business of plaintiffs, either by boycott or by threats of boycott, or by any other threats; or by any kind of force, violence, or intimidation, or by other unlawful means, seeking to induce any employee or employees of plaintiffs to withdraw from the service of plaintiffs; or by any kind of violence, threats, or intimidation inducing, or seeking to induce, any customer or customers, patron or patrons, of plaintiffs to withdraw their patronage or business from them, or from stationing or placing in front of said plaintiffs’ place of business any picket, or pickets, for the purpose of injuring, obstructing, or in any wise interfering with, the business of plaintiffs, or for the purpose of preventing any customer or customers, patron or patrons, of plaintiffs from doing business with them; or from in any other way molesting, intimidating, or coercing, or attempt to molest or intimidate or coerce any customer, patron, or employee of plaintiffs now or hereafter dealing with, or any employee now or hereafter employed by, or working for plaintiffs in their said business.”
This appeal is from the judgment. The findings are not attacked. Certain objections to the complaint are presented upon demurrer, and these may be briefly disposed of. The complaint is sufficient to invoke the interposition of a court of equity. It is in this respect similar to the complaint considered in Goldberg-Bowen Co. v. Stablemen’s Union, 149 Cal. 429. The complaint alleges specific acts calling for preventive relief, and is not confined to mere generalities, as was the case in Davitt v. American Bakers’ Union, 124 Cal. 99. The fact that certain of the acts charged amount to crimes or threatened crimes, does not offer reason why equity will refuse to restrain them. While equity will not attempt to restrain the commission of a crime as such, the fact that an act threatening irreparable injury to property rights, is of itself criminal, does not deprive a court of equity of its right and power to enjoin its commission. (In re Debs, 158 U. S. 564; Sherry v. Perkins, 144 Mass. 212; Vegelahn v. Guntner, 167 Mass. 92.) In like manner, while equity will not enjoin against a trespass as such, yet when the acts committed and threatened are in the nature of a continuing trespass, working irreparable injury, they will be enjoined. (Boston R. R. v. Sullivan, 177 Mass. 230; Lembeck v. Nye, 47 Ohio, 336.)
Appellants’ principal contentions upon the appeal, however, are the following: First, that, as the controversy between these parties arises from and over a trade dispute, the court is powerless to grant any injunction under the language of “An act to limit the meaning of the word ‘conspiracy’ and also the use of restraining orders and injunctions as applied to disputes between employers and employees in the State of California, approved March 20, 1903” (Pen. Code, page 581); second, that the boycott is a legal weapon in a trade dispute and, therefore, an injunction should not issue to restrain its use or threatened use; third, that “picketing” as an adjunct to the boycott is itself legal and may not be forbidden.
1. As to the first of these contentions, this court had occasion in Goldberg, etc., Co. v. Stablemen’s Union, 149 Cal. 429, to consider the statute above referred to and relied upon by appellants, and declared that if the construction there contended for (and here contended for) was the proper construction, this provision of the court was void. Not only would it be void as violative of one’s constitutional right to acquire, possess, enjoy, and protect property, but as well would it be obnoxious to the constitution in creating arbitrarily and without reason a class above and beyond the law which is applicable to all other individuals and classes. It would legalize a combination in restraint of trade or commerce, entered into by a trades union, which would be illegal if entered into by any other persons or associations. It would exempt trades unions from the operation of the general laws of the land, under circumstances where the same laws would operate against all other individuals, combinations, or associations. It is thus not only special legislation, obnoxious to the constitution (Art. IV, sec. 25, subds. 3 and 33), but it still further violates the constitution in attempting to grant privileges and immunities to certain citizens or classes of citizens which, upon the same terms, have not been granted to all citizens (Art. I, sec. 21).
2. In considering the second proposition, whether or not a court of equity may enjoin a boycott, the meaning of the word is of primary importance. It is defined in 4 Am. & Eng. Enc. of Law, 2d ed., page 85, as follows: “The boycott is a conspiracy, the direct object of which is to occasion loss to the party or parties against whom the conspiracy is directed, and the means commonly used is the inducing of others to withdraw from such party or parties their patronage and business intercourse by threats that, unless they so withdraw, the members of the combination will cause, directly or indirectly, loss of a similar character to them.” Appellants announce their willingness to accept this definition, substituting the word “confederacy” or “combination” for “conspiracy.” But the definition, even as so amended, it will be noted is not complete. The “means commonly used” are specified, but other means may be and frequently are employed. A boycott may adopt illegal means and thus become a “conspiracy,” a word which imports illegality; or a boycott may employ legal means and methods, and thus be merely a legitimate combination by a number of men to accomplish, within the law, a legal result. The crux of the question and the strain in every case turns, then, upon the means employed. We think that to-day no court would question the right of an organized union of employes, by concerted action, to cease their employment (no contractual obligation standing in the way), and this action constitutes a “strike.” We think, moreover, that no court questions the right of those same men to cease dealing by concerted action, either socially or by way of business, with their former employer, and this latter act, in its essence, constitutes the “primary boycott.” But what acts organized labor may do, and what means it may adopt to accomplish its end, without violation of the law, have presented questions of much nicety, over which the courts have stood, and still stand, widely divided. It would not be profitable to discuss and analyze these widely divergent cases. It is sufficient to formulate briefly the principles adopted in this state, many of which have recently found elaborate expression in the case of Parkinson v. Building & Trades Council of Santa Clara, 36 Cal. Dec. 445. The right of united labor to strike, in furtherance of their trade interests (no contractual obligation standing in the way) is fully recognized. The reason for the strike may be based upon the refusal to comply with the employees’ demand for the betterment of wages, conditions, hours of labor, the discharge of one employee, the engagement of another—any one of the multifarious ends which in good faith may be believed to tend toward the advancement of the employees. After striking, the employees may engage in a boycott, as that word is here employed. As here employed it means not only the concerted right to the withdrawal of social and business intercourse, but the right by all legitimate means of fair publication, and fair oral or written persuasion, to induce others interested in or sympathetic with their cause, to withdraw their social intercourse and business patronage from the employer. They may go even further than this, and request of another that he withdraw his patronage from the employer, and may use the moral intimidation and coercion of threatening a like boycott against him if he refuse so to do. This last proposition necessarily involves the bringing into a labor dispute between A and B, C who has no difference with either. It contemplates that C, upon the demand of B, and under the moral intimidation lest B boycott him, may thus be constrained to withdraw his patronage from A, with whom he has no controversy. This is the “secondary boycott,” the legality of which is vigorously denied by the English courts, the federal courts, and by the courts of many of the states of this nation. Without presenting the authorities, which are multitudinous, suffice it to state the other view in language of the President of the United States but recently uttered: “A body of workmen are dissatisfied with the terms of their employment. They seek to compel their employer to come to their terms by striking. They may legally do so. The loss and inconvenience he suffers he cannot complain of. But when they seek to compel third persons, who have no quarrel with their employer, to withdraw from all association with him by threats that, unless such third persons do so, the workmen will inflict similar injury on such third persons, the combination is oppressive, involves duress, and if injury results, it is actionable.” (President Taft, McClure’s Magazine, June, 1909, page 204.) Notwithstanding the great dignity which attaches to an utterance such as this, which, as has been said, is but the expression of numerous courts upon the subject-matter, this court, after great deliberation, took what it believed to be the truer and more advanced ground above indicated and fully set forth in Parkinson v. Building & Trades Council, etc., supra. In this respect this court recognizes no substantial distinction between the so-called primary and secondary boycott. Each rests upon the right of the union to withdraw its patronage from its employer and to induce by fair means any and all other persons to do the same, and in the exercise of those means, as the unions would have the unquestioned right to withhold their patronage from a third person who continued to deal with their employer, so they have the unquestioned right to notify such third person that they will withdraw their patronage if he continues so to deal. However opposed to the weight of federal authority the views of this court are, that they are not unique may be noted by reading National Protective Association v. Cumming, 170 N. Y. 315; Lindsay v. Montana Federation of Labor, (Mont.) 18 L. R. A. (N. S.) 707, where the highest courts of those states formulate and adopt like principles.
It has been said that it is important to any correct understanding of or adjudication upon such questions that a definition of the word “boycott” should be first stated. Thus, to say that a boycott is a “conspiracy” immediately implies illegality, and puts the conduct of the boycotters under the ban of the law. So also does the definition which describes boycotting as “illegal coercion” designed to accomplish a certain end. As we have undertaken to define boycott, it is an organized effort to persuade or coerce, which may be legal or illegal, according to the means employed. In other jurisdictions where a definition is given to a boycott which imports illegality the injunction will of course lie against boycotting as such. In this state the injunction will issue, depending upon the circumstances whether the means employed, or threatened to be employed, are legal or illegal.
3. We are thus brought to consider the method of “picketing,” the use of which appellants contend is a legal weapon in their hands. So far in this discussion we have dealt exclusively with the respective rights of the employer and of the employee. There are other parties, however, whose rights are entitled to equal consideration, and whose rights always become involved and imperilled when picketing is adopted as a coercive measure in aid of a boycott.
If the strikers have the right, as above indicated, to withdraw patronage themselves and by fair publication, written and oral persuasion to induce others to join in their cause, and finally by threat of like boycott to coerce others into so doing, their rights go no further than this. It is the equal right of the employer to insist before the law that his business shall be subject at the hands of the strikers to no other detriment than that which follows as a consequence of the legal acts of the strikers so above set forth. It is not to be forgotten that when the employees have struck, they occupy no contractual relationship whatsoever to their former employer, and have no right to coerce him or attempt to coerce him by the employment of any other means than those which are equally open to any other individual or association of individuals. No sanctity attaches to a trades union which puts it above the law, or which confers upon it rights not enjoyed by any other individual or association. The two classes of persons to whom we have adverted and whose rights necessarily become involved where a picket or patrol is established, are, first, the rights of those employed or seeking employment in the place of the striking laborers, and, second, the rights of the general public. It is the absolute, unqualified right of every employee, as well as of every other person, to go about his legal business unmolested and unobstructed and free from intimidation, force, or duress. The right of a labor association to strike is no higher than the right of a non-union workman to take employment in place of the strikers. Under the assurance and shield of the Constitution and of the laws, the non-union laborer may go to and from his labor and remain at his place of labor in absolute security from unlawful molestations, and wherever the laws fail to accord such protection, in so far is their execution to be blamed. In this country a man’s constitutional liberty means far more than his mere personal freedom. It means that, among other rights, his is the right freely to labor and to own the fruits of his toil. (Ex parte Jentzsch, 112 Cal. 468.) Any act of boycotting, therefore, which tends to impair this constitutional right freely to labor, by means passing beyond moral suasion, and playing by intimidation upon the physical fears, is unlawful.
The inconvenience which the public may suffer by reason of a boycott lawfully conducted is in no sense a legal injury. But the public’s rights are invaded the moment the means employed are such as are calculated to and naturally do incite to crowds, riots, and disturbances of the peace.
A picket, in its very nature, tends to accomplish, and is designed to accomplish, these very things. It tends to and is designed, by physical intimidation, to deter other men from seeking employment in the places vacated by the strikers. It tends, and is designed, to drive business away from the boycotted place, not by the legitimate methods of persuasion, but by the illegitimate means of physical intimidation and fear. Crowds naturally collect; disturbances of the peace are always imminent and of frequent occurrence. Many peaceful citizens, men and women, are always deterred by physical trepidation from entering places of business so under a boycott patrol. It is idle to split hairs upon so plain a proposition, and to say that the picket may consist of nothing more than a single individual peacefully endeavoring by persuasion to prevent customers from entering the boycotted place. The plain facts are always at variance with such refinements of reason. Says Chief Justice Shaw in Commonwealth v. Hunt, 4 Met. 111: “The law is not to be hoodwinked by colorable pretences; it looks at truth and reality through whatever disguise it may assume.” If it be said that neither threats nor intimidations are used, no man can fail to see that there may be threats, and there may be intimidations, and there may be molesting, and there may be obstructing, without there being any express words used by which a man should show violent threats toward another, or any express intimidation. We think it plain that the very end to be attained by picketing, however artful may be the means to accomplish that end, is the injury of the boycotted business through physical molestation and physical fear caused to the employer, to those whom he may have employed or who may seek employment from him, and to the general public. The boycott, having employed these means for this unquestioned purpose, is illegal, and a court will not seek by over-niceties and refinements to legalize the use of this unquestionably illegal instrument. (Vegelahn v. Guntner, supra, Crump v. Commonwealth, 84 Va. 927; Union Pacific v. Ruef, 120 Fed. Rep. 124; 18 Ency. of Law, 2d ed., page 85.)
In conclusion, then, and applying these principles to the injunction here under consideration, it appears that, while the injunction was properly granted, it was broader in its terms than the law warrants. It was, for example, too broad in restraining defendants from “in any wise interfering with” plaintiff’s business, since the interference which we have discussed, of publication, reasonable persuasion, and threat to withdraw patronage, is legal and such as defendants could employ. So, also, was the injunction too broad in restraining defendants from “intimidating any customer by boycott or threat of boycott,” since, as has been said, the secondary boycott is likewise a legal weapon. In all other respects, however, the injunction was proper.
The trial court is directed to modify its injunction in the particulars here specified, and in all other respects the judgment will stand affirmed.
We concur: Lorigan, J.; Beatty, C. J.; Melvin, J.
Shaw, J. I agree with all that is said by Justice Henshaw in his opinion, except the part relating to the so-called “secondary boycott” and the attempt to draw a distinction between the compulsion of third persons caused by picketing, and the compulsion of third persons produced by a boycott. My views concerning the “secondary boycott” are expressed in my dissenting opinion in Parkinson v. Building Trades Council, (Cal.) 98 Pac. 1040. The means employed for the coercion or intimidation of a third person in a “secondary boycott” are unlawful whenever they are such as are calculated to, and actually do, destroy his free will and cause him to act contrary to his own volition in his own business, to the detriment of the person toward whom the main boycott or strike is directed; in other words, whenever the means used constitute duress, menace, or undue influence. Whether this coercion or compulsion comes from fear of physical violence, as in the case of picketing, or from fear of financial loss, as in the secondary boycott, or from fear of any other infliction, is, in my opinion, immaterial, so long as the fear is sufficiently potent to control the action of those upon whom it is cast. I can see no logical or just reason for the distinction thus sought to be made. There is no such distinction in cases where contracts or wills are declared void, because procured by duress, menace, or undue influence. There should be none where actual injury is produced or threatened through such means acting upon third persons. Nor do I believe any well-considered case authorizes any such distinction. The opinions in the case of National Protective Association v. Cummings, 170 N. Y. 315, are devoted to a discussion of the right to strike and the limitations of that right and not to a discussion of the “secondary boycott.” A close analysis of the cases on the subject will, as I believe, show that this court stands alone on this point.
For these reasons I do not agree to that part of the judgment directing a modification of the injunction. I believe that it should stand in the form as given by the court below.
Angellotti, J., and Sloss, J.
We concur in the judgment. The modification of the judgment is in line with the views announced in the Parkinson case. So far as “picketing” is concerned, while we are not prepared to hold that there may not be acts coming within that term as it is accepted and understood in labor disputes, that are entirely lawful and should not be enjoined, we believe that as to such “picketing” as is described in both findings and judgment in this case, the views expressed in the opinion of the court are correct.[622]