114 Ill. App. 40 | Ill. App. Ct. | 1904
delivered the opinion of the court.
The lengthy statement preceding this opinion has been made for the reason that other appeals from the judgments mentioned in the statement are pending here, and so that this opinion may, in part at least, apply to such other appeals. The appellants, Jacob Christensen (sued as George Christensen), Charles ITeinig -(sued as Heine), Andrew Emerson, Fred Wagner, A. Mashek and Jjee S. Fisher, are defendants to the bill, and all the appellants, except Fisher and John Brent, admit knowledge of the injunction, and the last mentioned two do not deny such knowledge, nor do their counsel, although such knowledge is averred in the petitions to which they are respondents; and they having been prominent in the strike and its prosecution, as admitted by their counsel, and the greatest possible publicity of the injunction being shown by the evidence, it is next to impossible that they were ignorant of it.
Counsel object that the bill is insufficient on which tobase an injunction. Christensen v. Kellogg Switchboard & Supply Co., 110 Ill. App. 61, was an appeal from the order granting the injunction, and appears to have been thoroughly considered. The court in that case considered the sufficiency of the bill to warrant an injunction, and held it sufficient and the injunction valid. All questions decided in that case, and also all questions which might have been decided, if properly presented, are res adjudieata as to all parties to the bill. As to appellants not parties to the bill, we perceive no good reason for dissenting from the opinion that the bill is sufficient and the injunction valid. On the contrary, we concur in the decision.
It is also contended that the informations on which the several contempt proceedings were based are and each of them is insufficient, in not more particularly alleging facts, and counsel urge that these objections go to the jurisdiction of the court. The court had jurisdiction of the persons of the defendants to the bill, and of the subject-matter of the bill, and had power to issue an injunction, and, in proceedings for contempt, in violating the injunction, no defense can be made on the ground of irregularity, or that there was error in the proceedings. Dickey v. Reed, 78 Ill. 261, 279; Leopold v. The People, 140 Ill. 552, 557; People v. Weigley, 155 Ill. 491, 501; Clark v. Burke, 163 Ill. 334, 337. In Dickey v. Reed, the court say : “ Where the court has power over the subject-matter, and authority to take such jurisdiction, and the court acts, its process must be obeyed,” etc. In Leopold v. The People, the court say: “If the court has jurisdiction of the parties and legal authority to enter the order, then a party cannot stand in defiance of it, however improvidently or erroneously made.” In Clark v. Burke, the court say : “ It is well settled that in a proceeding for contempt, in failing to obey an order of the court, the respondent may question the order which he is charged with refusing to obey only in so far as he can show it to be absolutely void, and cannot be heard to say that it is merely erroneous, however flagrantly it may appear to be so.” See, also, Glay v. The People, 94 Ill. App. 598, 600, and Ex parte Richards, 117 Fed. R., p. 668.
In the present case we think the petitions amply sufficient; that it is not necessary that one shall be a party to the bill, or officially served with the writ, in order for him to be bound by the injunction, but only that he shall have actual notice of it; see High on Injunctions, 3rd ed., sec. 17, and Ex parte Richards, 117 Fed. R. 658, 662, and cases cited. It is contended that the contempts are criminal, and therefore appellants should have been discharged on their answers. The relief sought is a permanent injunction, and preliminary thereto a temporary one of the same character as the permanent one prayed. Manifestly, the preliminary injunction is for the benefit of complainant, and therefore its enforcement is for its benefit.
As counsel for appellants say in their argument in Hopkins v. The People, general number 12,275, which is error to reverse two of the judgments in question, “ An injunction without contempt proceedings would be of no value;” which is true on the hypothesis that the persons enjoined should seek to violate the injunction. The injunction and its enforcement being for the complainant’s benefit, the proceedings must be regarded as civil. We regard the case of Loven v. The People, 158 Ill. 159, as conclusive of the question. In that case Loven, a former employee of the complainant in the bill, had learned, while in complainant’s employ, about certain medicines known by certain names, which the complainant had the exclusive right to manufacture and sell under those names, and was fraudulently selling medicines under the names of complainant’s medicines, and practically stealing the complainant’s business. A permanent injunction was granted, enjoining Loven in the premises. Subsequently, contempt proceedings were instituted against Loven, and the court adjudged him guilty and that he be committed to jail for ten days. It ivas urged, on appeal, that Loven should be discharged on his answer, but the court held the contrary, saying : “There is a well-recognized distinction between the practice in contempts, properly so-called, when the proceeding is to vindicate the majesty of the law, or the dignity of the court, and cases involving acts treated as contempts, for the enforcements of orders and decrees,” etc. See, also, Barclay v. Barclay, 184 Ill. 471, 475, and cases cited; Rapalje on Contempt, sec. 21;. People v. Court of O. & T., 101 N. Y. 245; Thompson v. Penn. R. R. Co.,. 48 N. J. Eq. 105; and Clark v. Burke, 163 Ill. 334.
Appellants’ counsel object to the overruling by the court of motions for bills of particulars, and to a hearing on affidavits, instead of calling witnesses and examining them in open court. It was clearly a matter within the discretion of the court as to whether or not a bill of particulars should be ordered. This is true even in indictments for conspiracy. 1 Bishop on Crim. Procedure, section 643. We are also of opinion that bills of particulars were unnecessary to enable appellants to prepare their defense, as the affidavits setting forth the facts are made a part of the informations, respectively. It is not the practice to furnish bills of particulars in contempt cases. In Loven v. The People, supra, the information charging contempt was heard on affidavits, and whether such information shall be so heard is a matter within the court’s discretion.
It is admitted in the answers of appellants Christensen, Doty, Heinig, Emerson, Wagner and Mashek, to the petition filed June 3, 1903, and the supplemental petition filed June 5, 1903, in substance, that they were picketing complainant’s place of business, and interfering with its employees and with persons seeking employment with it, notifying them of the strike and persuading the former to leave its employ and the latter not to enter it, and that each of them occupied a position near to said place of business for the purpose of so doing. The evidence is that a number of other persons were engaged as the above named appellants were, after the issuing of the injunction and prior to June 3, 1903. It is shown byr affidavits that a number of complainant’s employees were stopped by pickets on their way to complainant’s factory; that one of said employees, when on his way to work, was stopped by Christensen, who'took hold of and would not let him go, and told him that if he continued to work he would have to pay a $50 fine to the union, and, on another occasion, told him that if he continued to work it would not be healthy for him; that a person who had accepted work at complainant’s factory was, on leaving the factory, accosted by four pickets, who asked him what he intended doing at Kellogg’s, and if he didn’t know there was a strike there, and, upon his stating that he ivas going to work the next morning,.they said to him, “ We will see that, you don’t go to work tomorrow morning.” One of complainant’s employees on his way home from work was stopped by two of its former employees, who were strikers, and had been picketing and patrolling, and was asked if he was working at Kellogg’s, and when he answered affirmatively, they said, “ Why don’t you go out on a strike with the rest of us? We’ll give you till Friday to get out of there; ” and when he said he was satisfied with his wages, they said, “ We’re going to win this strike, and wdien we get back there we’ll make things hot for you scabs. You won’t be able to work there.” Another employee was stopped by four pickets, one of whom said to him, “ Are you working over at Kellogg’s ? ■ If you are you had better look out.” Another, on being stopped by pickets and told there was a strike at Kellogg’s, said he didn’t care, when one of them said to him, “You don’t care? Well, suppose we make you care? ” Another employee, on his way home from work, was accosted, stopped and remonstrated with for working for complainant, by a person whose name was unknown to him but whom he saw the next clay on a street corner near complainant’s place of business, in company with pickets, and when the emplojme declined to talk further the unknown person knocked him down and kicked him twice. .Another employee was stopped by pickets, one of whom, on being informed that he was working for complainant, said to him: “ Don’t you dare to come to work tomorrow. If you do, we’ll blow your brains out;” and another of the pickets said to him, “ There’ll be trouble if you keep on working there.” Other similar incidents occurred.
Appellants O’Brien and Queenan, in their answers to the petition filed June 22, 1903, admit picketing and persuading complainant’s employees to quit its employment and those seeking employment with it to desist therefrom, and claim they had legal right so to do. and that they had acted under the advice contained in the letter of Clarence S.'Darrow copied in the preceding “ Statement of the Case.” June 12,1903, the date of the Darrow letter, the court passed on the question of the guilt of the respondents to the petition and supplemental petition filed June 3 and 5, 1903, and distinctly stated that picketing of the character shown by the evidence was unlawful, and would not be permitted. Mr. Darrow, in his letter, instructed that the pickets should not exceed ten in number, apparently implying, as we think, that pickets in excess of that number could not act with impunity.
The affidavits in support of the petition of June 22 do not purport to state all the pickets on duty between June 5, when the supplemental petition was filed, and June 22, when the second petition was filed, but do name twenty men and eleven women acting as pickets between those dates. . The affidavits show that, between the dates mentioned, O’Brien picketed and patrolled in the immediate neighborhood of complainant’s place of business on the 8th, 9th, 10th, 11th, 12th, 13th, 16th, 17th and 18th days of June, 1903, and that Queenan did likewise for seven days, commencing June 4, and ending June 15, 1903. It appears also from the affidavits in support of the petition of June 29, that the same system of picketing, patrolling and interfering with employees of the complainant and those seeking employment with it, were continued, and that the conditions were worse after than before June 22. The following is shown by affidavits:
On the evening of June 18, 1903, Mamie Whalen, an employee of complainant, when returning home from work in company with five other girls, also in complainant’s employ, -passed on Congress street, half way between Aberdeen street and Center avenue, twelve or fifteen men and boys, one of whom ran up to John Radcliffe, watchman of complainant, who accompanied the girls for the purpose of protecting them, and asked Radcliffe if he was protecting the girls, and on being told he was, struck him, knocked him down and brutally kicked him, and another of the men was about to strike him with a club, -when one of the girls grabbed him by the arm and prevented him. Also that the girls returned to the factory with Radcliffe, and when about four blocks from there, one McDonough and another person were walking in front of them, when appellant Emerson and another person, both of whom had been in the employ of -complainant and had been picketing and patrolling round its place of business, ran up and struck and knocked down McDonough, and some teamsters who were driving along jumped from their wagons and commenced kicking him. On McDonough inquiring why they were hitting him, Emerson said, “You are protecting those girls;” when the girls said, “ISTo, he isn’t, we have nothing to do with him;” and they then permitted him to get up, when he exhibited his card, showing that he was employed at the public library. Emerson then began to apologize and told McDonough he was mistaken, when McDonough declined to accept any apology, and Emerson again knocked him down. Emerson was one of those fined $10 on the first petition. On June 19, 1903, Ed Behlendorf, employee of complainant, on returning home from his work in company with Griswold, another employee, was met by some person unknown to the affiants, who struck Behlendorf in the face and knocked him down senseless, and then signalled three other men, who ran over while he was lying on the ground, one of whom struck Griswold, who then ran away to call the police.
Thomas Queenan is the business agent of the Electrical Workers’“Union. At the east door of the factory he spoke to one Hall and tried to persuade him to quit working for complainant, and said to him, “ Do you not know they have got to come to terms with us?” and Hall answered, “Ho,I do not know that,” when appellant Queenan said, “Well, you should know.”
An employee of complainant was stopped by appellant John O’Brien as the former was going to his lunch at the noon hour, when O’Brien said to him, “You boys ought to stay out and join the union. ' You want to try and get the other fellows out and join the union also.” When the employee said he was satisfied with his work and did not want to quit, O’Brien responded, “ If you do not come out by night, I will lick you.”
It is practically impossible, without extending this opinion beyond all reasonable bounds, to refer to all of the affidavits in support of the petition of June 22. They are very numerous and it clearly appears from them that a large number of the former employees of complainant picketed and patrolled, in the immediate neighborhood of complainant’s factory, and in the approaches thereto, and endeavored, sometimes by warnings, sometimes by threats, and, in a number of times, by actual assault and beatings and the use of opprobrious epithets, to deter complainant’s employees from remaining in its employ, and to prevent others seeking employment with it from entering its employ, by means of which constant fear of bodily injury was engendered in the minds of such persons.
The appellants deny that they personally used force, threats or intimidation of any sort, and say that they were very peaceable and mildly persuasive. But the very presence of a large number of pickets, with the avowed purpose of preventing complainant’s employees from remaining in its employ, and those seeking employment with it to desist therefrom, was itself intimidation. In Farmers’ Loan & Trust Co. v. N. Pac. R. R. Co., 60 Fed. R. 803, 820, Mr. Justice Jenkins quotes the following remarks of Mr. Justice Brewer on the subject: “ The common rule as to strikes is this: Plot merely do the employees quit the employment, and thus handicap the employer in the use of his property, and perhaps in the discharge of duties which he owes to the public, but they also forcibly prevent others from taking their places. It is useless to say that they only advise; no man is misled. When a thousand laborers gather around a railroad track and say to those who seek employment that they had better not, and when that advice is supplemented every little while by a terrible assault on one who.disregards it, every one knows that something more than advice is intended. It is coercion—-force; it is the effort of the many, by the mere weight of numbers, to compel the one to do their bidding.”
In Union Pac. Ry. Co. v. Ruef, 120 Fed. R. 102, the court say, ib. 107: “ The mere fact that the shops are picketed can only be intended for intimidation. The fact that a line of pickets is immediately in front of the shops, or a few blocks away, is a difference in degree only.” The court then quotes with approval the following from American Steel & Wire Co. v. Wire Drawers’ and Die Makers’ Union, 90 Fed. R. 608, 614: “The whole fallacy of the defense against this bill and the proof offered to sustain it lies in a convenient misapprehension or a necessary misunderstanding of the character of that force or violence which all agree is not permitted in the conduct of a strike. It seems to be the idea of the defendants that it consists entirely of physical battery and assaults, and that if -these appear in the proof, and they can be justified as they might be on a criminal indictment or in a police court, that ends the objection, and the justified assaults and batteries will not support an injunction. The truth is that the most potential and unlawful force or violence may exist without lifting a finger against any man, or uttering a word of threat against him. The very plan of campaign adopted here was the most substantial exhibition of force, by always keeping near the mill large bodies of men, massed and controlled by the leaders, so as to be used for obstruction if required. A willing wire worker, but a timid man, would be deterred by the mere knowledge of that fact from going to the mill when he desired to go, or had agreed to go, or, being already at work, feared to return through the streets where the men were congregated, or, having started, would turn back, fearing the trouble that might come of the attempt. Such a force would be violence, within the prohibition of the law ; and its exhibition should be enjoined, as violating the property rights of the plaintiffs in the streets, their liberty of contracting for substituted labor, and the liberty of the substitutes to work if they wished to accept the lowered wages, and to pass through the streets to their work.” See, also, the following cases: Ex parte Richards, 117 Red. R., p. 666-7, and cases cited; O’Neil v. Behanna, 182 Penn. St., 236, 243, in which the court say: “ The strikers and their counsel seem to think that the former could do anything to attain their ends, short of actual physical violence. This is a most serious misconception. The ‘ arguments ’ and ‘ persuasion ’ and 6 appeals ’ of a hostile and demonstrative mob have a potency over men of ordinary nerve which far exceeds the limits of lawfulness. The display of force though none is actually used is intimidation, and as much unlawful as violence itself.”
The affidavits in support of the petition filed July 14, 1903, show that on divers days between June 22, when the second petition was filed, and July 14, 1903, appellants Fisher, Christensen, Evans, Mashek and Brent picketed and patrolled around and about complainant’s place of business, watching the streets, alleys and approaches thereto, daily shifting their positions; that they so stationed themselves that all complainant’s employees were obliged to pass through their picket line, and that their attitude was ugly and menacing, and such as to cause fear in the mind of an ordinary person, and that John O’Brien picketed and patrolled in a similar way June 19 and 20,1903. The conditions between the dates last mentioned were worse than before. Complainant’s employees and persons seeking employment with it were waylaid on their way to and from the factory, insulted, threatened, and, in numerous instances, assaulted and beaten by the strikers, pickets and patrollers, and complainant’s business was seriously and injuriously interrupted. June 30, 1903, when a number of men and girls, employees of complainant, were being escorted from the factory to their homes, they were met by a number of men and boys and a very serious riot occurred. The employees were hissed and called scabs; bricks and stones were thrown at those escorting them, and some shooting occurred. Four of the girls deposed that appellant John O’Brien passed them on that occasion, and called them scabs and other names in a threatening way. Finally, there occurred what is called a sympathetic strike, by the Teamsters’ Union, which it is reasonable to infer occurred by the request of officers of unions whose members had quit complainant’s employ and were “ prosecuting ” the strike. Before this sympathetic strike, complainant’s teaming and hauling had been done by the Arrow Transfer Company, and that company could not, by reason of the sympathetic strike, fulfill its teaming contract with complainant, because the teamsters in its employ would not be permitted to haul for complainant. The result was that June 24, 1903, all teaming and hauling of merchandise to and from complainant’s factory were stopped.
O’Brien, in his answer, says he was fined July 2, 1903, which was under the rule to show cause entered on the petition filed June 22,1903. He says that, since July 2,1903, he has not in any way participated in the strike. The court, on the petition filed June 22, could only investigate his conduct prior to that date, and in his answer he gives no account of himself in the interval between June 22 and July 2, except denying participation in the riot of June 30.
The purpose of the strike by complainant’s employees, and their prosecution of it as described, was to compel the complainant to execute the agreements referred to and made a part of the bill. The drafts of agreements, three in number, purport to be with the different unions, whose members were in complainant’s employ. The draft of agreement with the Metal Polishers, Buffers, Platers, Brass Moulders and Brass Workers, International Union of hi. A., International Union of Steam Engineers and International Brotherhood of Stationary Firemen, contains the following :
“ Article I. The party of the first part hereby agrees to • employ none but members of the aforesaid organizations or those who carry the regular working card of the said organizations, provided the various crafts will furnish such competent help as may be required by the party of the first part within twenty-four hours after notification.
Article VII. There shall be a steward for each craft in each factory appointed by the organization, whose duty it shall be to see that the men working in said factory belong to the organizations.
Article VIII. It is hereby agreed by the party of the first part that the business agent of the party of the second part shall have the privilege of interviewing any member of the party of the second part in the offices of the party of the first part during business hours.
Article X. A sympathetic strike to protect union principles shall not be considered a violation of this agreement.
Article XI. All the apprentices shall belong to the union and carry the working card of the organization.
Article XII. The number of apprentice^ not to exceed one for ten men or less of the different crafts.”
That the purpose of the strike was to compel the execution of the drafts of agreement is clear. It is averred in the sworn bill and deposed to in the affidavits of DeWolf, complainant’s president, Kellogg, its secretary and treasurer, and Edwards, its superintendent, that business agents of the different unions called on complainant, and insisted on its executing the agreements, and that, when complainant’s president refused, on the ground that the proposed agreements were unreasonable, it was threatened by one of said business agents that unless complainant would sign the agreements a strike would be called, and that said business agents called a strike, in response to which about 500 of complainant’s employees quit its employ. Appellants’ counsel admit in their brief, “ the purpose of the strike is to bring about the execution of the contracts,” and at least three of appellants so admit in their answers. It is unlawful to compel one to execute any contract. A contract executed under duress is voidable, and duress is present where a party “ is constrained, under circumstances which deprive him of the exercise of free will, to agree to or to perform the act sought to be avoided.” 10 Am. & Eng. Ency., 2nd ed., p. 321. “ Duress per minas exists when a person is induced to perform an act to avoid a threatened and impending calamity.” Ib. 324. Especially was the purpose to compel complainant to execute the agreements in question an unlawful purpose. Article I strikes at the right of contract, and provides that complainant shall employ none but members of the several unions, thus discriminating in favor of one class of men and excluding all others. In Matthews v. The People, 202 Ill. 389, the court, discussing the constitutionality of the Free Employment Agency Act, say, p. 401: “ An employer whose workmen have left him and gone upon a strike, particularly when they have done so without any justifiable cause, is entitled to contract with other laborers or workmen to fill the places of those who have left him. Any workman seeking work has a right to make a contract with such an employer to work for him in the place of any one of the men who have left him to go out upon a strike. Therefore, the prohibition contained in section 8 strikes at the right of contract, both on the part of the laborer and of the employer. It is now well settled that the privilege of contracting is both a liberty and a property right. Liberty includes the right to make and enforce contracts; because the right to make and enforce contracts is included in the right to acquire property. Labor is property. To deprive the laborer and the employer of this right to contract with one another is to violate section 2 of article 2 of the constitution of Illinois, which provides that ‘no person shall be deprived of life, liberty or property without due process of law.’ It is equally a violation of the fifth and fourteenth amendments of the constitution of the United States, which provide that no person shall be deprived of life, liberty or property without due process of law, and that no state shall deprive any person of life, liberty or property without due process of law, ‘nor deny to any person within its jurisdiction the equal protection of the law.’ Ritchie v. People, 155 Ill. 98; Adams v. Brenan, 177 Ill. 194; Gillespie v. People, 188 Ill. 176; Fiske v. People, 188 Ill. 206. The provision embodied in sections ‘is a discrimination between different classes of citizens founded on no justifiable ground, and an attempt to exercise legislative power in behalf of certain classes and against other classes, whether laborers seeking work or employers. It falls under the condemnation of the constitution.’” In Am. Steel & Wire Co. v. Wire Drawers’, etc., Unions, 90 Fed. Rep. 608, 613, the court say : “In this country the right to contract in business is a constitutional freedom, which not even state legislatures can impair, and, certainly, not strike organizations; for, surely, they cannot lawfully do what the legislature may not.”
The agreements in question would, if executed, tend to create a monopoly in favor of the members of the different unions, to the exclusion of workmen not members of such unions, and are, in this respect, unlawful. Contracts tending to create a'monopoly are void. Morris Run Coal Co. v. Barclay Coal Co., 68 Penn. St. 173, pp. 186-188; Arnot, Jr., v. Pittston, etc., Coal Co., 68 N. Y. 558; Central O. Salt Co. v. Guthrie, 35 O. St. 666. The legislature of the state cannot create a monopoly. People ex rel. v. Chicago Gas Trust Co., 130 Ill. 268, 296-7.
The purpose of the strikers is in violation of the'criminal code, which provides as follows:
“Sec. 158. If any two or more persons shall combine for the purpose of depriving the owner or possessor of property of its lawful use and management, or of preventing, by "threats, suggestions of danger, or any unlawful means, any person from, being employed by or obtaining employment from any such owner or possessor of property, on such terms as"the parties concerned may agree upon, such persons so offending shall be fined not exceeding $500, or confined in the county jail not exceeding six months.”
“Sec. 159. If any person shall, by threat, intimidation or unlawful interference, seek to prevent any other person from-working or from obtaining work at any lawful business, on any terms that he may see fit, such person so offending shall be fined not exceeding $200.” 1 Starr & Curtis, pages 1313, 1314.
Hot only was the purpose of the strike unlawful, but the means used to achieve the unlawful purpose were unlawful. The means used were the acts heretofore mentioned, and thereby injury to the complainant’s business. The appellants and their associates intended to stop the business of the complainant so far as they possibly could, and the evidence shows that they did stop it in great part, to complainant’s injury. The following is contained in the brief of appellants’ counsel, which we quote as illustrative of their view of the cause: “How do picketing, patrolling, persuading, or even slugging, affect property rights, except in the most fantastic sense? Injury to business has no independent existence whatever, because business has no tangible existence to be injured, in the true and unperverted sense.”
In Union Pac. Ry. Co. v. Ruef, 120 Fed. R. 102, 113, cited by counsel for appellants, the court say: “ And that one’s business is his or its property is likewise elementary, and is conceded by all. And that liberty means the right to do as he pleases, when he interferes with the rights of no other person, and the right to make contracts with all persons upon all subjects-matter, save and excepting with reference to immoral or unlawful matters, is also conceded by all who know anything of the propositions.” See, also, Doremus v. Hennessey, 106 Ill. 608, 615, in which the court say: “Every man has a right, under the law, as between himself and others, to full freedom in disposing of his own labor and capital according to his own will, and any one who invades that right, without lawful cause or justification, commits a legal wrong; ” also Am. Steel and Wire Co. v. Wire Drawers’, etc., Unions, cited supra; and Barr v. Essex Trades Council, 53 N. J. Eq. 101, and Thomas v. Cinn., etc., Ry. Co., 62 Fed. 803, 817. In the New Jersey case, p. 112, the court says, “A man’s business is his property.” The court further say, p. 113-114: “The freedom of business action lies at the foundation of all commercial and industrial enterprises; men are willing to embark capital, time and experience therein, because they can confidently assume that they will be able to control their affairs according to their own ideas, when the same are not in conflict with law. If this privilege is denied them, if the courts cannot protect them from interference by those who are not interested with them, if the management of business is to be taken from the owner and assumed by, it may be, irresponsible strangers, then we will have come to the time when capital will seek other than industrial channels for investments, when enterprise and development will be crippled, when interstate railroads, canals and means of transportation will become dependent on the paternalism of the national government, and the factory and the workshop subject to the uncertain chances of cooperative systems.” The case is instructive as to the law in relation to a combination to injure one’s business. Other authorities might be cited, but we know of no well-considered case, or indeed of any case, holding that a combination of persons to injure the business of another is not unlawful. That the appellants, and others associated "with them, acted in concert, in unlawfully endeavoring to injure, and in fact injuring complainant’s business, for an unlawful purpose, is fully sustained by the evidence. They conspired, breathed together, to effect the unlawful purpose, and by overt acts did all they possibly could to that end. It is not necessary to prove an express agreement between the appellants and those associated with them. It may be proved by circumstantial evidence. Spies et al. v. The People, 122 Ill. 1, 213; Patnode v. Westenhaver, 114 Wis. 460. In United States v. Weber, 114 Fed. R. 950, 953, the court say: “But if the object of the union is illegal, or if the methods employed by it, either to induce acquisitions to its ranks, or to accomplish its ulterior purposes, are illegal, it appears to be well settled that the persons who combine in such efforts are conspirators,” citing cases. The language quoted is cited with approval in Ex parte Richards, 117 Fed. R. 658, 608. In Doremus v. Hennessy, 176 Ill. 608, 614, the couit say: “Bo persons, individually or by combination, have the right to, directly or indirectly, interfere .with or disturb another in his lawful business or occupation, or to threaten to do so, for the sake of compelling him to do some act which, in his judgment, his own interest does not require.”
Each conspirator is responsible for the acts and declarations of every other conspirator in furtherance of the common purpose. In Hamilton v. Smith, 39 Mich. 222, 231, cited with approval in Lasher v. Littell, 202 Ill. 551, the court say : “ Wherever two or more conspire together to commit an actionable wrong, everything said, done, or written, by any one of them, in the execution or furtherance of their common purpose, is deemed to be said, done or written by every one, and is a relevant fact as to each.” This proposition is so thoroughly established that it may be regarded as elementary. Cooley on Torts, 2nd ed., p. 145; Spies v. The People, 122 Ill. p. 226; Patnode v. Westenhaver, 114 Wis. 460, 474. In reference to the conduct of appellants, their counsel, in their printed argument, admit: “ The appellants in this court were prominent in the calling and in the prosecution of the said strike, and after they and their co-employees had left the service of the Kellogg Switchboard & Supply Company they went into the streets at different distances from the place of business of the Kellogg Switchboard & Supply Company and took positions where they could meet any one who happened to be on his way for the purpose of taking employment with the Kellogg Switchboard & Supply Company. These men have been denominated pickets by the' prosecution. It matters not what word is used to designate the office that they were performing in the prosecution of the strike, any more than some words have a tendency to affect the public imagination more than others. But while these men were standing in the streets—300, 400 or 500 feet from,the place of business of the Kellogg Switchboard & Supply Company, they were unquestionably endeavoring to induce all persons having in mind the taking of service with the complainant, not to do so. They were distributing printed cards which were offered in evidence as exhibit'A, and is in the words and figures as follows : ‘ Machinists who may be seeking employment at the Kellogg Company, know that the former employees have ceased work; therefore, by accepting a position, you are taking a fellow workman’s place.’ ” The cards actually distributed were as follows: “ Machinists who may be seeking employment at the Kellogg Switchboard & Supply Co. To know that the men formerly employed there have ceased work, to secure union conditions to govern their employment. Therefore, by accepting a position in their plant, at the present time, you are taking a fellow workman’s position, and their position has been endorsed W the International Association^ Machinists. Be guided accordingly.”
The conspiracy originated simultaneously with the calling of the strike, and continued till the filing of the last petition, July 14,1903. It was a single conspiracy, and the court on', the hearing of each of the second and third petitions, did not err in hearing the prior evidence. The evidence was competent as tracing and showing the character of the conspiracy. State v. McCahill, 72 Ia. 111, 115.
It is an indispensable condition of the enjoyment by each citizen of the liberty and rights guaranteed by the constitution and laws, that he shall respect and not unlawfully infringe upon the liberty or rights of any other citizen. This cannot be done with impunity.
In Mashek v. The People, Gen. No. 11416, Mashek was sentenced to be committed to the county jail for sixty days, while Christensen was sentenced to be so committed for only thirty days. We cannot find in the evidence any reason for this discrimination. Mashek is not shown to have been more guilty than Christensen. On the contrary, we think if there was any difference in the guilt of the two, Mashek was the less guilty. The judgment, therefore, in Mashek v. The People, Gen. No. 11416, will be reversed and judgment will be entered here that Mashek be committed to the county jail, there to remain for thirty days, unless sooner legally discharged. In each of the other above entitled appeals, the judgment will be affirmed.
