Branson v. Industrial Workers of the World

30 Nev. 270 | Nev. | 1908

Per Curiam:

This is an action brought by the plaintiff and appellant against various voluntary unincorporated labor organizations — such organizations being designated in the complaint by their respective names — against the president and secretary, respectively, of each of said organizations; both in their official and individual capacity; also against a number of other persons, members of said organizations. At the time of the filing of the complaint a writ of attachment was obtained upon an affidavit, reciting that the ground of attachment was that" defendants criminally incurred the obligations for which the suit has been commenced.” In the affidavit for attachment a copy of the complaint was set out in full, and made a part thereof.

The complaint, briefly epitomized, alleged that plaintiff was the owner and publisher of two certain newspapers published in the State of Nevada, to wit, the Tonopah Daily Sun, published at Tonopah in Nye County, and the Goldfield Daily Sun, published at Goldfield in Esmeralda County; that plaintiff had invested more than $27,500 in said two newspapers, and the plants connected therewith, and that he was dependent upon the public for the support and patronage of the same; that plaintiff in the publishing of said newspapers employed only "union" men and paid them "union" wages; that the defendants demanded of plaintiff that he require his employees to become members of the defendant organization, the Industrial Workers of the World, and upon plaintiff’s refusal so to do, the defendants, and each of them, entered into a conspiracy to damage, injure, and ruin plaintiff’s business and interest in said two newspapers, by means of boycotts, threats, intimidation and violence; that in pursuance of said conspiracy, defendants are charged in the complaint with specific acts of violence, threats and intimidation, as follows:

"(1) That on' the 3d day of August, 1906, defendants caused and procured a strike of the newsboys or those who delivered and sold the Goldfield Daily Sun in Goldfield, Esmeralda County, Nevada, and that said newsboys thereupon struck and refused to sell or deliver said the Goldfield Daily Sun; that thereupon plaintiff employed one H. C. Farmer, and Everett Read to deliver his said papers, and thereupon said defendants caused said parties to be physically assaulted and called 'scabs’ and other opprobrious names, and by violence and intimidation prevented said parties from delivering said paper, and by said means, and others hereinafter set forth, plaintiff has been and is prevented from delivering his said papers in Goldfield.

" (2) The defendants issued and caused to be distributed a circular throughout Goldfield, and sent the same to the customers and subscribers of plaintiff, in which circular plaintiff, the Goldfield Daily Sun, was declared unfair. * * * And the public was asked and commanded not to buy said paper or in any way patronize the same.

"(3) That defendants visited all advertisers who advertised in the Goldfield Daily Sun, and falsely stated to all said advertisers that said paper was unfair, and.that defendants had boycotted the same, and demanded of said advertisers that they cease to advertise in said the Goldfield Daily Sun, and threatened said advertisers that if they continued to advertise in said the Goldfield Daily Sun any advertiser so doing would be boycotted by defendants.

" (4) That said defendants demanded of the public in general that they not subscribe for, advertise in, or in any way patronize the Goldfield Daily Sun, and threatened any one who did so with boycott by defendants.

" (5) That defendants visited all the news stands in Goldfield where the Goldfield Daily Sun was sold or dealt in, and threatened each and all of said news stands with a boycott at the hands of defendants, and that defendants would post any news stand selling the said the Goldfield Daily Sun as 'unfair’ and a-'scab,’unless said news stand ceased absolutely to sell or handle said paper. That one of said news stands was owned by one of plaintiff’s employees, and that defendants by the use of said threats and intimidations forced and compelled said employee not alone to cease selling or handling the said the Goldfield Daily Sun, but also quit the employ of plaintiff; and that said employee of plaintiff was forced to accede to the demands of defendants through fear that defendants would ruin his business unless he did comply with their demands.

" (6) That defendants maintained a blackboard or billboard on the public streets of Goldfield in front of the Miners’ Union Hall, on which blackboard or billboard they caused to be posted the names of all those who advertised in the Goldfield Daily Sun, and in connection with the names of said advertisers so posted stated that ' the Goldfield Daily Sun had been declared unfair,’ and asked the public not to patronize those persons or firms or corporations whose names appeared upon said blackboard or billboard for the reason that they advertised in the Goldfield Daily Sun; that by reason of said acts of defendants all advertisers save five, whose names were posted on said blackboard, were forced to and did withdraw their advertisements from the Goldfield Daily Sun.

" (7) That defendants established an espionage upon the office of the Goldfield Daily Sun and watched all persons who entered into the office of the said paper, and that by reason of the threats of a boycott and intimidation forced and compelled many persons to cease to patronize the job printing department of the Goldfield Daily Sun, and in many cases forced and compelled customers to cancel orders for work given to said paper, even after the work had been completed by plaintiff.

"(8) That defendants combined and conspired with the employees of the Tonopah-Goldfield Railroad Company who handle freight and with the transfer companies operating in Goldfield, whereby said railway employees and said transfer companies agreed not to in any way handle, deliver, or forward any of the' freight sent by or to plaintiff or the Goldfield Daily Sun, and that by reason of said combination and conspiracy said railway employees have refused to handle or unload freight sent to or by the Goldfield Daily Sun, and the transfer companies have refused to handle in any way freight sent to or by the Goldfield Daily Sun, and that as a direct result of said combination and conspiracy plaintiff is unable to receive, or ship any freight unless his own employees receive the same at the cars or deliver the same to the cars for shipment.

" (9) That defendant organizations have enforced their said boycott against plaintiff and his paper the Goldfield Daily Sun and the Tonopah Daily Sun, and has compelled its members to enforce said boycott by placing a fine of $15 upon any member who bought a copy of- either paper.

" (10) That the defendant organizations have directed and ordered all their members to withdraw their subscriptions from the Tonopah Daily Sun under a penalty of a fine by or a dismissal from said organizations.

• " (11) That defendants have persuaded and endeavored to compel those who sell and deliver the Tonopah Daily Sun to strike and refuse to sell said paper or to deliver the same to its subscribers, and in pursuance of said conspiracy and combination have offered to pay said newsboys, and those who deliver and sell said the Tonopah Daily Sun, $1.50 per day if they would strike and refuse to sell or deliver said newspaper.

"(12) That said defendants have caused by threats and intimidation the newsboys, and those who sell and deliver the Tonopah Daily Sun in Manhattan, Nye County, Nevada, to strike and refuse to sell or deliver said the Tonopah Daily Sun, and thereby greatly decrease the circulation of said paper, and prevented plaintiff from obtaining new subscribers.

"(13) That defendants or their agents have visited the newsdealers in Tonopah, Nye County, handling or selling the Tonopah Daily Sun, and demanded of them that they cease selling or handling the Tonopah Daily Sun, and threatened them that if they did not do so that they, the defendants, would boycott the newsdealers continuing to handle said the Tonopah Daily Sun.

" (14) That defendant Shaw entered the office of the plaintiff in Tonopah, and attempted by threats and intimidation to compel plaintiff to submit to the demands of the defendants, and persisted in his said threats and intimidations until it became necessary to eject him from plaintiff’s said office.

" (15) That defendants have demanded that advertisers in the Tonopah Daily Sun withdraw their advertisements from said paper, and have threatened that unless they did so defendants would boycott them, and that as a result of said threats and intimidations, advertisers in said paper have withdrawn their advertisements therefrom and have ceased to advertise in said paper.

"(16) That defendants have publicly, falsely stated and caused said statement to be circulated among the public that the Tonopah Daily Sun was unfair, and that the same was published solely in the interests of the mine owners, and demanded of all persons that for these reasons they do not subscribe for or patronize said paper.

"(17) That plaintiff is informed and believes, and therefore alleges the facts to be, that defendant organization I. W. W. and its officers plotted and planned to blow np and destroy the plant of said the Tonopah Daily Sun, and was prevented from so doing only by the vigilance of the plaintiff in guarding his said property.

”(18) That defendants for the purpose of intimidating plaintiff and preventing him from publishing his said newspaper, and for the purpose of injuring and destroying his business and his property rights in said newspapers, and for the purpose of depreciating in value thereof and forcing plaintiff to comply with their demands have repeatedly publicly stated and threatened as follows: That. the boycott (against plaintiff) would not be raised until the plaintiff had sold both his newspapers, and that if plaintiff did not do so his two plants would not be worth fifteen cents. That plaintiff would have to sell his Goldfield paper, prove the sale to be bona fide, compel the employees of the Tonopah Daily Sun to join the Industrial Workers of the World, and publish in the Tonopah Daily Sun an apology to the Industrial Workers of the World. That the purchaser of the said the Goldfield Daily Sun would have to carry the so-called 'I. W. W. card’ or publish a column devoted to the Industrial Workers of the World. That plaintiff could sell his business and plant in Goldfield only to the I. W. W. That they (defendants) would not let up on plaintiff until they had driven him from the State of Nevada.

"(19) The defendants caused plaintiff’s employees to be assaulted while they were delivering mail to the United States postoffice or taking mail therefrom

The complaint further alleges that as a result of the alleged conspiracy of defendants, and the acts and things done in pursuance thereof, plaintiff was damaged in the sum of $25,000, and judgment for that amount, together with costs, is prayed for against defendants.

Certain of the defendants appeared specially, and filed a notice and motion, the body of which is as follows:

"The defendants, Industrial Workers of the World,' Tono-pah Miners’ Union No. 121, Mining Department Industrial Workers of the World, Goldfield Miners’ Union No. 220, Mining Department Industrial Workers of the World, Goldfield Branch Industrial Workers of the Wprld, Newsboys’ Union No. 45, I. W. W., Herbert T. Shaw, as president of the Tonopah Branch of the Industrial Workers of the World, Gr. A. Roberts, as secretary of the Tonopah Branch of the Industrial Workers of the World, J. M. Brown and Joe Smith, respectively as president and secretary of the Tonopah Miners’ Union No. 121, Mining Department Industrial Workers of the World, F. Clough and J. B. Barry,'respectively as president and secretary of the Goldfield Miners’ Union No. 220, Industrial Workers of the World, L. O’Handley, and A. Morris, respectively as president and secretary of the Newsboys’ Union No. 45,1. W. W., above named appearing herein only for the purpose of this motion, ask: That the complaint on file herein be stricken from the files, the summons vacated, quashed and set aside, and all and singular proceedings, so. far had and taken in said court and cause be annulled and declared void; that plaintiff take nothing thereby, and that said action be dismissed, and upon the following grounds: That the said complaint does not conform to the provisions of section 39 of the civil practice act of this state (Comp. Laws, 3134), in that the same does not specify that said defendants, so as aforesaid, specially appearing, are thereby sued as persons natural or artificial; upon the contrary, said action is brought, and the same is pending and prosecuted against said defendants, and each of them, as a voluntary 'unincorporated association, composed of persons voluntarily combined and associated together for their common benefit.’ That said complaint complains and alleges that said action is against said defendants not as natural or artificial persons, but as an unincorporated voluntary association or society, which is not a legal entity, and has no existence apart from and separate from those persons comprising said unincorporated voluntary association. That said action is brought and pending against said defendants in the name and names of unincorporated voluntary associations, separate and apart from the person and persons who compose them.”

At the same time, the same defendants appearing specially, and subject to the foregoing motion, reserving all the rights therein claimed, moved: " That the writ of attachment issued out of said court in said cause be vacated, quashed, set aside, dissolved, discharged, and declared void, and all and singular funds, property and money thereby seized upon and held be released and discharged therefrom upon the following grounds: That said writ of attachment was improperly issued, in this: That the affidavit upon attachment, filed in said cause, does not conform to the provisions of an act of the Legislature of the State of Nevada, entitled 'An act to amend an act entitled "An act to regulate proceedings in civil cases in the courts of justice in this state? and to repeal all other acts in relation thereto,’ approved March 8, 1869; approved February 14, 1887, Stats. 1887, p. 55, c. 48; for in - that said attachment was attempted to be issued on account of defendants having criminally incurred the obligation for .which suit has been commenced, whereas said affidavit sets forth no fact or facts describing any criminal act or acts on the part of the defendants, or any or either of them, and contains no statement of fact or facts describing any act' or acts of defendants showing the commission of any criminal act whereby said defendants, or either of them, were criminally liable, or which would subject the defendants, or any or either of them, to civil damages. That said affidavit does not contain any fact or facts showing that any acts or acts of defendants, or that any or either of them criminally incurred any obligation for which plaintiff has commenced suit, or for which plaintiff is at all entitled to recover any compensation whatsoever. That said affidavit fails to' show that the nature of the plaintiff’s claim is just, or that he is entitled to recover in this action. That said affidavit is wholly insufficient and does not state any fact or facts sufficient to conform to the provisions of the statute aforesaid, in that it fails to show that any debts whatever, or that the amount for which this suit is commenced, has been criminally or otherwise incurred by said defendants, or any or either of them. That said affidavit for attachment was and is wholly insufficient to give this court jurisdiction to issue the writ of attachment, for it fails to show that any liability of defendants, or any or either of them, was incurred criminally, fraudulently, or otherwise. That said affidavit does not state facts sufficient to show the nature of the plaintiff’s claim, and particularly that said claim is a just one, and that the same was criminally contracted whereby an obligation on the part of the said defendants was incurred for which this suit was commenced.”

These motions coming on regularly to be heard before the trial court, the following order was made: "It is ordered that as against each and all of the voluntary unincorporated associations named and set forth in the complaint as defendants, ‘the motion of defendants to dismiss said action and dissolve said attachment is heréby granted:’ From this .order plaintiff appeals.

1. It will be observed that ■ in the first motion quoted above it was asked, first, ".that the complaint on file herein be stricken from the files”; second, "the summons vacated, quashed, and set aside”; third, that "all and singular the proceedings so far had * * * be annulled and declared void”; fourth, "that said action be dismissed.” There is no specific provision in the statutes for motions of this character, and they should not be granted unless the moving party is clearly entitled' to the relief asked for, and the pleadings are not capable of being amended so as to cure the defect complained of. It is manifest that the court could not appropriately grant any of the things demanded in the motion when there were any proper parties defendant. If the court had denied the motion, respondents could not have successfully assigned error, even though it be conceded that it was not proper to make voluntary unincorporated associations of persons, parties to actions merely by the name of the association. If no natural persons had been made defendants in this action, then the case would have been in the same situation as that of Mexican Mill v. Yellow Jacket S. M. Co., 4 Nev. 40, 97 Am. Dec. 510, relied on by respondents, in which this court said: " The very first step towards the commencement of a civil action or proceeding is the filing of a complaint, in which it is indispensable that there be shown a plaintiff and a defendant, and without which it is an absolute nullity, and renders void all subsequent proceedings had under it. In this, instance, no person natural or artificial is named as a plaintiff, and if an amendment were allowed to supply the omission the effect of such an amendment would necessarily be to make a plaintiff where there were none such at the inception of the action:’ In this case, however, the plaintiff is a natural person, and numerous natural persons are included as defendants. While the trial court could not grant the motion in its entirety, as prayed for, it did grant it in part, by dismissing the action in so far as the voluntary t unincorporated associations named and set forth in the complaint were concerned. It seems to be conceded that the effect of this order would be practically to strike from the complaint all defendants, excepting the few designated by name, while the many hu&dreds who compose the organizations would in no sense be parties to the action. For the purposes of this opinion, we will treat it as having such effect.

While a voluntary unincorporated association cannot by its name alone sue or be sued, nevertheless such an organization has its rights and responsibilities, which rights it may enforce by appropriate procedure; and, by the same procedure, it necessarily follows, it may be held accountable for its responsibilities. These organizations usually comprise a large membership, and are governed in accordance with prescribed rules and regulations by officers elected for the purpose. They frequently not only possess a large amount of property, but exercise vast powers in the communities in which they exist. It is conceded that they may sue or be sued by-joining all their members, but this, if requisite, would impose great inconvenience upon the organizations themselves, as well as hardship upon those seeking redress against such organizations, for it would be impossible, in many instances, for nonmembers to obtain the names of more than a small fraction of the membership, without great effort, delay, and probable expense. It is manifest, we think, from the complaint, that the plaintiff proceeded upon the theory that the persons constituting the defendant organizations, being numerous, he could proceed against a few personally, who would represent the whole body of the defendant organizations. . Counsel for appellant now contends that the defendant organizations are properly made defendants upon this theory. It has long been recognized in proceedings in equity that an action may be instituted by or against a voluntary unincorporated organization, where tbe members comprising tbe same were numerous, by simply joining as defendants a few natural persons, members of tbe organization, sufficient to represent and protect tbe interests of tbe entire membership, and that the few may be made plaintiffs or defendants for all. (Story’s Eq. El. 97; 15 Ency. Pl. & Pr. p. 608; 22 Ency. Pl. & Pr. p. 247; U. S. v. Coal Dealers’ Association, 85 Fed. 252.)

Tbe ease of United States v. Coal Dealers’ Association was a "bill by tbe United States against tbe Coal Dealers’ Association of California and tbe members of tbe association, and against Charles E. Allen, Central Coal Company, E. D. Chandler, George Eritcb, J. C. Wilson & Co., Oregon Improvement Company, Oregon Coal & Navigation Company, W. G. Stafford, trading as W. G. Stafford & Co., E. Dunsmuir’s Sons, John Eosenfeld, Louis Eosenfeld, and 'Henry Eosen-feld, partners, trading as John Eosenfeld Sons.”

Discussing this question, Morrow, Circuit Judge, said: "It is contended that, as tbe Coal Dealers’ Association is an unincorporated company, it cannot be brought into court by' making it a party defendant by that name. .In equity, tbe action must be against-the individuals comprising such an association; but there is this exception: Where the parties are numerous, some of them may be brought in as representing tbe whole association. Tbe title of this ease is ágainst 'The Coal Dealers’ Association of California, and All tbe Members of said Association,’ and also against seventeen individuals, who are designated as 'Members and Officers of Said Association.’ Tbe return of tbe marshal shows that all these individuals have been served; that tbe president of the association has been served as an individual, and as president of tbe association; and be has appeared in tbe capacity of president in tbe affidavit filed by him, as has also the secretary of tbe association. This, I think, is sufficient, under tbe rule requiring sufficient parties, to represent all tbe adverse interests in tbe suit.”

Were this a proceeding in equity, there would be no question about tbe right of plaintiff to make certain of the members of the defendant organizations defendants for all their associates who had a common interest. This, however, is an action at law for damages, and the equity rule does not prevail unless made so by statute. Section 14 of the civil practice act of this state (Comp. Laws, 3109) provides: "Of the parties to the action, those who are united in interest shall be joined as plaintiffs or defendants; but if the consent of any one, who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. Tenants in common, joint tenants, or copartners, or any number less than all, may jointly or severally bring or defend or continue the prosecution or defense of any action for the enforcement of the rights of such person or persons.”

We think it was the intention of the legislature, by this provision of the statute, to make the equity rule applicable to all proceedings in the courts of this state, whether the same be of a legal or equitable nature. Under our code provision, there is but one form of civil action, and legal and equitable distinctions, so far as practice is concerned, are largely, if not entirely, done away with. To hold that the defendant organizations cannot be sued without including all members, which are so numerous, scattered and difficult to ascertain might cause such hardship and delay as would amount to a denial of justice. It is hard to conceive of any case to which the statute would be more applicable in its provisions that where the parties are numerous one or more may sue or defend for all.

This question came before the Supreme Court of Ohio in the case of Platt v. Colvin, 50 Ohio St. 703, 36 N. E. 735, and we quote with approval from the opinion in that case, as follows: "It was the general rule in chancery, before the adoption of the civil code, that suits must be prosecuted by the real parties in interest, and that all who were united in interest must be joined. There were, however, certain well-established exceptions to the rule, which, like the rule itself, were adopted for the convenient administration of justice. Among these exceptions, it is stated in Story's Equity Pleading, sec. 97, were ' (1) where the question is one of a common or general interest, and one or more sue, or defend, for the benefit of the whole; (2) where the parties form a voluntary association for public or private purposes, and those who sue, or defend, may fairly be presumed to represent the rights and interests of the whole; (3) where the parties are very numerous, and although they have, or may have, separate, distinct interests; yet it is impracticable to bring them all before the court.' In speaking of the second class of exceptions above mentioned, it is said that ’In cases of this sort the persons interested are commonly numerous, and any attempt to unite them all in the suit would be, even if practicable, exceedingly inconvenient, and would subject the proceedings to danger of perpetual abatements, and other impediments, arising from intermediate deaths, or other accidents, or changes of interest. Under such circumstances, as there is a privity of interest, the court will allow a bill to be brought by some of the parties in behalf of themselves and all the others, taking care that there shall be a due representation of all substantial interests before the court.’ So that the principle upon which that class of exceptions rested is not different in substance from that of the last class mentioned, namely, that the parties are numerous, and it is impracticable, in the convenient and speedy administration of justice, to have them all before the court; and the courts in many adjudged cases appear to have so regarded it. * * * (Taylor v. Salmon, 4 M. & C. 134, 18 Eng. Ch. R.; Walworth v. Holt, 4 M. & C, 18 Eng. Ch. R. 619; Small v. Atwood, 1 Younge's R. 407; Chancey v. May, Prec. in Ch. Finch’s Chan. Cas. 592.) There are many English and American cases of like character. Those already adverted to sufficiently show the nature of the exceptions which obtained in chancery to the general rule in' regard to parties, the principle upon which they were based, and the manner of their practical application. The rule, and its exceptions, in their breadth and substance, were adopted into our code (sections 4993, 5007, and 5008, Revised Statutes) and by its provisions made applicable to the civil action which it substituted for what was theretofore known as the suit in equity, and the action at law. It is argued by counsel for the defendant in error that the provisions of section 5008, permitting one or more to sue or defend for the benefit of all, when the question is one of a general or common interest of many persons, or when the parties are very numerous and it is impracticable to bring them all before the court, apply only to actions of an equitable nature, because, before the code, that manner of proceeding was allowed only in. suits in. equity. If that were a sufficient reason for restricting the provisions of that section to such actions, the same reason would make it necessary to so restrict the general requirement of the code that the plaintiffs must be the real parties in interest, and all must join who are united in interest; for that, as we have seen, was the general rule in equity, and not applicable to many actions at law; and so, with respect to the rule adopted by the code, requiring the petition to state the facts constituting the cause of action, and others of its provisions. Indeed, the mode of procedure in the civil action is, in most respects, taken from, or assimilated to, that which prevailed in suits in chancery. One object of the code in abolishing the distinction between actions at law and suits in equity, and prescribing the same method of procedure' for the prosecution of both, evidently was to simplify judicial proceedings, and facilitate the administration of justice; and to accomplish that end, its provisions, and proceedings under them, should receive that liberal construction which it is expressly required shall be given them. To restrain the application of section 5008 to actions of a purely equitable nature would, we think, be at variance with its language, and the general spirit and purpose of the code.”

We are not called upon in considering the motion and order in this proceeding to determine whether the manner in which plaintiff has made the organizations in question defendants is subject to objection. If there is a defect or misjoinder of parties defendant, that question should have been raised by demurrer (Comp. Laws, 3135), and plaintiff given an opportunity to amend. Wherever a pleading is defective, which defect may be cured by amendment, and such defect may be taken advantage of by demurrer, that course should be adopted. In discussing a similar question, this court, in Treadway v. Wilder, 8 Nev. 97, after saying that upon demurrer the pleading would have been bad, but the defect could have been remedied by amendment, said:- "No such opportunity was given, and a technical judgment may have cut off a substantial right; such is not the spirit of the code, nor, when properly interpreted, its practice.” Section 71 of our practice act provides: "The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the .substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect.” (Comp. Laws, 3166.) We think, as the court did not and could not grant the relief demanded in the motion, it should have denied it in toto, leaving respondents to whatever remedy they may have been entitled by demurrer.

2. It appears from the order of the lower court that the attachment was only dissolved as against the voluntary unincorporated associations designated by name in the complaint, but as to the natural persons therein named it was not dissolved. From this it would appear that the trial court did not consider the writ as against the natural persons defendant to have been improvidently issued, and in this view the trial court was clearly correct. What we have said in reference to the voluntary associations as parties defendant applies with equal force to the order dismissing the attachment as to them. If the attachment is good as against any defendants, it is good as to all.

It is contended by counsel for respondents that the affidavit fails to sufficiently charge that the alleged obligation of defendants to pay damages to plaintiff was criminally incurred. The affidavit charges such liability in the language of the statute (Comp. Laws, 3218), and, in addition, makes the complaint with its allegations a part of the affidavit. It is unnecessary for us to determine whether a bare allegation in the language of the statute would be sufficient, where, as in this ease, the facts upon which the damage is alleged to have been occasioned are fully set forth. If these alleged facts in themselves state a case that would be criminal, then the affidavit is unquestionably sufficient. There can be no question that a criminal conspiracy is alleged in the affidavit under all the authorities. The law, upon one portion of the case as it appears from the affidavit, is concisely stated in 8 Cyc. 639, as follows: " Neither at common law nor under statutes, modifying the common-law doctrine is it lawful for workmen to combine to injure another’s business by causing his employees to leave his service by intimidation, threats, molestation, or coercion. Such a combination constitutes an indictable conspiracy.”

Again, the same authority, in continuation of the same general topic, says: "This term (boycott) ordinarily means a confederation, generally secret, of many persons whose intent is to injure another, by preventing any and all persons from doing business with him through fear of incurring the displeasure, persecution, and vengeance of the conspirators. The character of agreement included in the term defined is highly unlawful and is an indictable conspiracy.”

Such a conspiracy is made punishable both by fine and imprisonment under section 4751 of the Compiled Laws of Nevada.

See, also, Comp. Laws, 4788; Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301; 2 Wharton, Crim. Law, 2322; 2 Bishop, Crim. Law, 172; Desty, Crim. Law, 11; 3 Chit. Crim. Law, 1138; 2 Russell on Crimes, 674; McLain, Crim. Law, 955, 963; Clark’s Crim. Law, 121; Crump v. Commonwealth, 84 Va. 927, 6 S. E. 620, 10 Am. St. Rep. 895; State v. Donaldson, 32 N. J. Law, 151, 90 Am. Dec. 649; Smith v. People, 25 Ill. 17, 76 Am. Dec. 783, and note; State v. Stewart, 59 Vt. 273, 9 Atl. 555, 59 Am. Rep. 710, and note, 720; People v. Kostka, 4 N. Y. Cr. Rep. 429; Emack v. Kane, 34 Fed. 47; Hopkins v. Oxley Stave Co., 83 Fed. 912, 28 C. C. A. 99; State v. Glidden, 55 Conn. 46, 8 Atl. 890, 3 Am. St. Rep. 23; Rex v. Eccles, 1 Leach, 274; Steamship Co. v. McGregor, 15 Q. B. Div. 476; Regina v. Druitt, 10 Cox, C. C. 592.

Many other cases, both English and American, state and federal, might be cited, but the foregoing are sufficient upon a question upon which there is little, if any, conflict of authority. Many decisions of a kindred nature, not criminal in their procedure, but in which the unlawfulness of certain conspiracies, considered with special reference to civil liability, may be found reviewed in the recent opinion of Farring-ton, J., in the case of the Goldfield Consolidated Mines Co. v. Goldfield Miners’ Union No. 220, et al. (C. C.) 159 Fed. 500.

In this case Judge Farrington, in referring to the rights guaranteed to every citizen under section 1 of the fourteenth amendment to the Constitution of the United States (which is as follows: "Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws”) and article I, section 8, of the Constitution of Nevada (which contains a similar provision as follows: "No person shall be * * * deprived of life, liberty, or property without due process of law”), very appropriately and correctly said and quoted: "The terms 'life, liberty, and property,’ as used in the Federal Constitution, embrace every right which the law protects. They include not only the right to hold and enjoy, but also the means of holding, enjoying, acquiring, and disposing of property. The right to labor is property. It is one of the most valuable and fundamental of rights. The right to work is the right to earn one’s subsistence, to live and to support wife and family. The right of master and servant to enter into contracts, to agree upon the terms and conditions under which the one will employ and the other will labor, is property. The master has the right to fix the terms and conditions upon which he is willing to give employment; the servant has the right to fix the terms and conditions upon which he is willing to labor, and any statute which curtails and limits that right deprives the party affected of his property, and, in the same measure, of his liberty. Both parties are free to enter into, •or refuse to enter into, the contract. Before the law, there is the same freedom to employ as to work, to buy as to sell, to choose one’s employee as to choose one’s employer. 'The liberty of contracting, relating to labor, includes both parties; the one has as much right to purchase as the other to sell labor.’ (Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832; Lochner v. New York, 198 U. S. 45, 56, 25 Sup. Ct. 539, 49 L. Ed. 937.) 'One citizen cannot be compelled to give employment to another, nor can any one be compelled to be employed against his will.’ (Gillespie v. The People, 188 Ill. 176, 58 N. E. 1007, 52 L. R. A. 283, 80 Am. St. Rep. 176.) The right of an. employer to refuse to employ any particular individual, or any class of individuals, is neither greater nor less than the right of a man to refuse to work for any particular individual, or class of individuals. The reason for the refusal can in no wise control, enlarge, or diminish the legal right of refusal, the right to employ, or the right to refuse to be employed. 'It is a part of every man’s civil right that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice. With his reasons neither the public nor third persons have any legal concern. It is also his right to have business relations with any one with whom hé can make contracts. (2 Cooley on Torts, 587.)’”

In Ex Parte Boyce, 27 Nev. 229, 75 Pac. 1, 65 L. R. A. 47, we said: "Labor properly directed creates wealth, and all honest toil is noble and commendable. The right to acquire and hold property guaranteed by our Constitution is one of the most essential for the existence and happiness of man, and for our purposes here we may consider it to be the cornerstone in the temple of our liberties, and that it implies and includes the right to labor. It may also- be granted that labor, the poor man’s patrimony, the creatorof wealth, and upon which all must depend for sustenance, is the highest species of property, and the right to toil is as sacred and secure as the millions of the wealthy; but individual rights, however great, are subject to certain limitations necessary for the good of others and the community, and inherent in every well-regulated government. * * * Broadly speaking,, the right to acquire and hold property, which presupposes the one to labor at all ordinary pursuits, is subordinate to this greater obligation not to injure others, individually or collectively, and to contribute and aid in the support of the government in all its legitimate objects.”

It necessarily follows that any attempt by conspiracy to interfere with these fundamental and essential rights or by threats, intimidation, and violence, to prevent the employer from hiring or the employee from laboring, isi unlawful under our system of government by which all men are free and equal. No.organization or combination of men or individuals can lawfully prevent the exercise of these constitutional rights by all others. If it were legal for the defendant organizations or the officers and members by force, threats or intim-' idation to prevent the employees of plaintiff from continuing in their employment, it would be equally so for the unions to which plaintiff’s employees belong and for owners’ and operators’ associations or for other organizations or the officers and members thereof by force, threats, or violence to prevent the members of the defendant organizations from working, even to the extent of starvation; As the law bears equally upon all, it is self-evident that if any labor union or organization could by threats, force, and intimidation lawfully prevent the members of any other union or organization from laboring for employers, or could by force, threats, and intimidation prevent employers from hiring members of other unions or organizations, that every other union or organization would have the same and equal right, resulting eventually in control by the organization exercising the most force and violence, and in the overthrow and subversion of law and order.

In the case of Hopkins v. Oxley Stave Co., supra, cited and quoted from by counsel for respondents in his brief, the court says: "While the courts have invariably upheld the right of individuals to form labor organizations for the protection of the interests of the laboring classes, and have denied the power to enjoin the members of such associations from withdrawing peaceably from any service, either singly or in a body, even where such withdrawal involves a breach of contract (Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310, 25 L. R. A. 414), yet they have very generally condemned those combinations ‘usually termed 'boycotts,’ which are formed for the purpose of interfering, otherwise than by lawful competition, with the business affairs of others, and depriving them, by means of threats and intimidation, of the right to conduct the business in which they happen to be engaged according to the dictates of their own judgments. The right of an individual to carry on his business as he sees fit, and to use such implements or processes of manufacture as he desires to use, provided he follows a lawful avocation and conducts it in a lawful manner, is entitled to as much consideration as his other personal rights; and the law should afford protection against the efforts of powerful combinations to rob him of that right and coerce his will by intimidating his customers and destroying his patronage. A conspiracy to compel a manufacturer to abandon the use of a valuable invention bears no resemblance to a combination among laborers to withdraw from a given employment as a means of obtaining better pay. Persons engaged in any service have the power, with which a court of equity will not interfere by injunction, to abandon that service, either singly or in a body, if the wages paid or the conditions of employment are not satisfactory; but they have no right to dictate to an employer what kind of implements he shall use, or whom he shall employ. Many courts of the highest character and ability have held that a combination such as the one in question is admitted to have been is an unlawful conspiracy, at common law, and that an action will lie to 'recover the damages which one has sustained as the direct result of such a conspiracy.”

Referring to the section of the crimes and punishments act of Nevada relative to conspiracy, counsel for respondents in his brief says: "The conspiracy statute, which was but declaratory of the common law, was amended in 1887, Compiled Laws, 4751, and provides: 'That no part of this act shall be construed in any court of this state to restrict or prohibit the orderly and peaceably assembling or cooperation of persons employed in any profession, trade or handicraft for the purpose of securing an advance in the rate of wages, or compensation, or'for the maintenance of the same.’ * * * Whether the means by which labor combinations seek to effect its objects and purposes is criminal or not depends upon the lawfulness of the mode or aetion taken in and by which injury is inflicted or threatened — that is, whether it is an actionable wrong or is merely such as the law denominates damnum absque injuria”

According to the complaint and affidavit in this case, the defendants are not within the provisions of the amendment of the statute in any sense whatever. No question of an advance in the rate of wages paid employees, or the maintenance of the same,-is here involved. Upon the contrary, the complaint alleges that plaintiff was employing "union” men and paying "union” wages. So far as the complaint now before the court is concerned, it appears that both the plaintiff and his employees were entirely satisfied with existing conditions. The damage alleged in this case to have been sustained was not caused by the employees of- plaintiff seeking by peaceable means to maintain or better their condition, but by outsiders, who are alleged to have demanded of plaintiff that he compel his employees to become members of what would appear to be a rival labor organization, and, upon his refusal, entered into the conspiracy charged, to compel him to accede to their demands, or they would ruin his business. Nor is it charged even that defendants were seeking to accomplish their declared purpose by " orderly and peaceably assembling or cooperation”; but, upon the contrary, by means of intimidation, threats of violence and actual violence. Counsel for. respondents ‘ has not cited us an authority, nor do we think one can be found, holding that what defendants are charged in the. complaint with having conspired to accomplish by resorting to intimidation and acts of violence, did not state facts which constitute crime.

It is not necessary that all of the acts alleged to have been committed in pursuance of the conspiracy charged be, in themselves, of a criminal nature; and it is unnecessary to determine whether each and every specific act alleged is unlawful. Some of the acts charged are known by all men to be unlawful, and when they are performed as a part of the means to carry out the purpose which the complaint alleges the defendants combined to accomplish, a conspiracy, criminal in its nature, is sufficiently charged, at least for the purposes of an affidavit for attachment.

Counsel for respondents in his brief says that the return of the sheriff shows that certain property was wrongfully attached under the writ. No question of that kind is presented in the record, and could not be upon the orders appealed from. If the sheriff has taken under his charge property not subject to attachment, the statute affords- an appropriate and only remedy.

The briefs in this case have covered a much wider scope than the questions involved upon the record, and a considerable discussion has been indulged in, based upon the law controlling under a state of facts different from those alleged in plaintiff’s complaint. We are governed in the law of this case by what is alleged to exist, not by some other state of facts which a trial may subsequently develop. It would, therefore, be of no value as a precedent, and of little other value, to enter upon a purely academic discussion of questions not now before the court.

In considering the order of the district court, similarly as questions upon demurrer, the charges and allegations of the complaint are assumed to be true for the purposes of the appeal, to the end that plaintiff may have an opportunity to present proof, but whether the defendants did in fact commit the unlawful acts charged by the complaint or not, remains to be determined‘upon the trial, and by a jury, if any of the parties desire one, after defendants have been given an opportunity to make denial or answer setting up any defense they may have, and all parties have presented their evidence and been heard.

For the reasons given, the orders appealed from are reversed, and the cause is remanded for further proceedings.