167 Mass. 92 | Mass. | 1896
The principal question in this case is whether the defendants should be enjoined against maintaining the patrol. The report shows that, following upon a strike of the plaintiff’s workmen, the defendants conspired to prevent him from getting workmen, and thereby to prevent him from carrying on his business, unless and until he should adopt a certain schedule- of prices. The means adopted were persuasion and social pressure, threats of personal injury or unlawful harm conveyed to persons employed or seeking employment, and a patrol of two men in front of the plaintiff’s factory, maintained from half past six in the morning till half past five in the afternoon, on one of the busiest streets of Boston. The number of men was greater at times, and at times showed some little disposition to stop the plaintiff’s door. The patrol proper at times went further than simple advice, not obtruded beyond the point where the other person was willing to listen; and it was found that the patrol would probably be continued, if not enjoined. There was also some evidence of persuasion to break existing contracts.
The patrol was maintained as one of the means of carrying out the defendants’ plan, and it was used in combination with social pressure, threats of personal injury or unlawful harm, and persuasion to break existing contracts. It was thus one means of intimidation indirectly to the plaintiff, and directly to persons actually employed, or seeking to be employed, by the plaintiff, and of rendering such employment unpleasant or intolerable to such persons. Such an act is an unlawful interference with the rights both of employer and of employed. An employer has a right to engage all persons who are willing to work for him, at such prices as may be mutually agreed upon; and persons employed or seeking employment have a corresponding right to enter into or remain in the employment of any person or corporation willing to employ them. These rights are secured by the Constitution itself. Commonwealth v. Perry, 155 Mass. 117. People v. Gillson, 109 N. Y. 389. Braceville Coal Co. v.
The defendants contend that these acts were justifiable, because they were only seeking to secure better wages for themselves by compelling the plaintiff to accept their schedule of wages. This motive or purpose does not justify maintaining a patrol in front of the plaintiff’s premises, as a means of carrying out their conspiracy. A combination among persons merely to regulate their own conduct is within allowable competition, and is lawful, although others may be indirectly affected thereby.
Nor does the fact that the defendants’ acts might subject them to an indictment prevent a court of equity from issuing an injunction. It is true that ordinarily a court of equity will decline to issue an injunction to restrain the commission of a crime; but a continuing injury to property or business may be enjoined, although it may also be punishable as a nuisance or other crime. Sherry v. Perkins, 147 Mass. 212. In re Debs, 158 U. S. 564, 593, 599. Baltimore & Potomac Railroad v. Fifth Baptist Church, 108 U. S. 317, 329. Cranford v. Tyrrell, 128 N. Y. 341, 344. Gilbert v. Mickle, 4 Sandf. Ch. 357. Mobile v. Louisville & Nashville Railroad, 84 Ala. 115, 126. Arthur v. Oakes, 63 Fed. Rep. 310. Toledo, Ann Arbor, & North Michigan Railway v. Pennsylvania Co. 54 Fed. Rep. 730, 744. Emperor of Austria v. Day, 3 DeG., F. & J. 217, 239, 240, 253. Hermann Loog v. Bean, 26 Ch. D. 306, 314, 316, 317. Monson v. Tussaud, [1894] 1 Q. B. 671, 689, 690, 698.
A question is also presented whether the court should enjoin such interference with persons in the employment of the plaintiff who are not bound by contract to remain with him, or with persons who are not under any existing contract, but who are seeking or intending to enter into his employment. A conspiracy to interfere with the plaintiff’s business by means of threats and intimidation, and by maintaining a patrol in front of his premises in order to prevent persons from entering his employment, or in order to prevent persons who are in his employment from continuing therein, is unlawful, even though such persons are not bound by contract to enter into or to con
In the opinion of a majority of the court the injunction hould be in the form originally issued. So ordered.
The practice of issuing injunctions in cases )f this kind is of very recent origin. One of the earliest authorities in the United States for enjoining in equity acts somewhat like those alleged against the defendants in the present case is Sherry v. Perkins, 147 Mass. 212, decided in 3 888. It was found as a fact, in that case, that the defendants entered into a scheme by threats and intimidation to prevent persons in the employment of the plaintiffs as lasters from - continuing in such employment, and in like manner to prevent other persons from entering into such employment as lasters ; that the use of the banners was a part of the scheme; that the first banner was carried from January 8, 1887, to March 22, 1887, and the second banner from March 22, 1887, to the time of the hearing; and that the plaintiffs were injured in their business and property thereby. The full court say: “ The act of displaying banners with devices, as a means of threats and intimidation to prevent persons from entering into or continuing in the employment of the plaintiffs, was injurious to the plaintiffs, and illegal at common law and by statute. Pub. Sts. c. 74, § 2. Walker v. Cronin, 107 Mass. 555. . . . The banner was a standing menace to all who were or wished to be in the employment of the plaintiffs, to deter them from entering the plaintiffs’ premises. Maintaining it was a continuous unlawful act, injurious to the plaintiffs’ business and property, and was a nuisance such as a court of equity will grant relief against. Gilbert v. Mickle, 4 Sandf. Ch. 357. Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551.”
Of the authorities cited in Sherry v. Perkins, Gilbert v. Mickle was a suit in equity by an auctioneer against the mayor of the city of New York, to restrain him and those acting under
Since the Judicature Act, however, the courts of England have interfered to restrain by injunction the publication or continued publication of libellous statements, particularly those injuriously affecting the business or property of another, as well as injunctions similar to that in the present case. St. 36 & 37 Vict. c. 66, § 25, subsect. 8. Monson v. Tussaud, [1894] 1 Q. B. 671, 692. Lyons v. Wilkins, [1896] 1 Ch. 811, 827. But in the absence of any power given by statute, the jurisdiction of a court of equity having only the powers of the English High Court of Chancery, does not, I think, extend to enjoining acts like those complained of in the case at bar, unless they amount to a destruction or threatened destruction of property, or an irreparable injury to it.
In England, the rights of employers and employed, with reference to strikes, boycotts, and other similar movements, have not in general been left to be worked out by the courts from common law principles, but statutes from time to time have been passed defining what may and what may not be permitted. The administration of these statutes largely has been through the criminal courts.
As a means of prevention, the remedy given by Pub. Sts. c. 74, § 2, would seem to be adequate where the section is applicable, unless the destruction of or an irreparable injury to property is threatened, and there is the additional remedy of an indictment for a criminal conspiracy at common law if the acts of the defendants amount to that. If the acts complained of do not amount to intimidation or force, it is not in all respects clear what are lawful and what are not lawful at common law. It seems to be established in this Commonwealth, that intentionally and without justifiable cause to entice by persuasion a workman to break an existing contract with his employer, and to leave his employment, is actionable, whether done with actual malice or not. Walker v. Cronin, 107 Mass. 555. What constitutes justifiable cause remains in some respects undetermined. Whether to persuade a person who is free to choose his employment not to enter into the employment of another person gives
Such persuasion, when accompanied by falsehood about such other person or his business, may be actionable, unless the occasion of making the statements is privileged, and then the question of actual malice may be important. This, I think, is the effect of the decision in Rice v. Albee, 164 Mass. 88. When one man orally advises another not to enter into a third person’s employment, it would, I think, be a dangerous principle to leave his liability to be determined by a jury upon the question of his malice or want of malice, except in those cases where the words spoken were false. In the present case, if the establishment of a patrol is using intimidation or force within the meaning of our statutes, it is illegal and criminal; if it does not amount to intimidation or force, but is carried to such a degree as to interfere with the use by the plaintiff of his property, it may be illegal and actionable, but something more is necessary to justify issuing an injunction ; if it is in violation of any ordinance of the city regulating the use of streets, there may be a prosecution for that, and the police can enforce the ordinance; but if it is merely a peaceful mode of finding out the persons who intend to go to the plaintiff’s premises to apply for work, and of informing them of the actual facts of the case in order to induce them not to enter into the plaintiff’s employment, in the absence of any statute relating to the subject I doubt if it is illegal, and I see no ground for issuing an injunction against it.
As no objection is now made by the defendants to the equitable jurisdiction, I am of opinion, on the facts reported, as I understand them, that the decree entered by Mr. Justice Holmes should be affirmed without modification.
In a case like the present, it seems to me that, whatever the true result may be, it will be of advantage to sound thinking to have the less popular view of the law stated, and therefore, although when I have been unable to bring my brethren to share my convictions my almost invariable practice is to defer to them in silence, I depart from that practice in this case, notwithstanding my unwillingness to do so in support of an already rendered judgment of my own.
In the first place, a word or two should be said as to the meaning of the report. I assume that my brethren construe it as I meant it to be construed, and that, if they were not prepared to do so, they would give an opportunity to the defendants to have it amended in accordance with what I state my meaning to be. There was no proof of any threat or danger of a patrol exceeding two men, and as of course an injunction is not granted except with reference to what there is reason to expect in its absence, the question on that point is whether a patrol of two men should be enjoined. Again, the defendants are enjoined by the final decree from intimidating by threats, express or implied, of physical harm to body or property, any person who may be desirous of entering into the employment of the plaintiff so far as to prevent him from entering the same. In order to test the correctness of the refusal to go further, it must be assumed that the defendants obey the express prohibition of the decree. If they do not, they fall within the injunction as it now stands, and are liable to summary punishment. The important difference between the preliminary and the final injunction is that the former goes further, and forbids the defendants to interfere with,the plaintiff’s business “by any scheme . . . organized for the purpose of . . . preventing any person or persons who now are or may hereafter be . . . desirous of entering the [plaintiff’s employment] from entering it.” I quote only a part, and the part which seems to me most objectionable. This includes refusal of social intercourse, and even organized persuasion or argument, although free from any threat of violence, either express or implied. And this is with reference to persons who have a legal right to contract or not to contract with the plaintiff, as they may see fit. Interference with existing contracts is forbidden by the final decree. I wish to insist a
I agree, whatever may be the law in the case of a single defendant, Rice v. Albee, 164 Mass. 88, that when a plaintiff proves that several persons have combined and conspired to injure his business, and have done acts producing that effect, he shows temporal damage and a cause of action, unless the facts disclose, or the defendants prove, some ground of excuse or justification. And I take it to be settled, and rightly settled, that doing that damage by combined persuasion is actionable, as well as doing it by falsehood or by force. Walker v. Cronin, 107 Mass. 555. Morasse v. Brochu, 151 Mass. 567. Tasker v. Stanley, 153 Mass. 148.
Nevertheless, in numberless instances the law warrants the intentional infliction of temporal damage because it regards it as justified. It is on the question of what shall amount to a justification, and more especially on the nature of the considerations
To illustrate what I have said in the last paragraph, it has been the law for centuries that a man may set up a business in a country town too small to support more than one, although he expects and intends thereby to rum some one already there, and succeeds in his intent. In such a case he is not held to act “ unlawfully and without justifiable cause,” as was alleged in Walker v. Cronin and Rice v. Albee. The.reason, of course, is that the doctrine generally has been accepted that free competition is worth more to society than it costs, and that on this ground the infliction of the damage is privileged. Commonwealth v. Hunt, 4 Met. 111, 134. Yet even this proposition nowadays is disputed by a considerable body of persons, including many whose intelligence is not to be denied, little as we may agree with them.
I have chosen this illustration partly with reference to what I have to say next. It shows without the need of further authority that the policy of allowing free competition justifies the intentional inflicting of temporal damage, including the damage of interference with a man’s business, by some means, when the damage is done not for its own sake, but as an instrumentality in reaching the end of victory in the battle of trade. In such a case it cannot matter whether the plaintiff is the only rival of the defendant, and so is aimed at specifically, or is one of a class all of whom are hit. The only debatable ground is the nature of the means by which such damage may be inflicted. We all agree that it cannot be done by force or threats of force. We all agree, I presume, that it may be done by persuasion to leave
I pause here to remark that the word “threats” often is used as if, when it appeared that threats had been made, it appeared that unlawful conduct had begun. But it depends on what you threaten. As a general rule, even if subject to some exceptions, what you may do in a certain event you may threaten to do, that is, give warning of your intention to do in that event, and thus allow the other person the chance of avoiding the consequences. So as to “ compulsion,” it depends on how you “ compel.” Commonwealth v. Hunt, 4 Met. 111, 133. So as to “ annoyance ” or “ intimidation.” Connor v. Kent, Curran v. Treleaven, 17 Cox C. C. 354, 367, 368, 370. In Sherry v. Perkins, 147 Mass. 212, it was found as a fact that the display of banners which was enjoined was part of a scheme to prevent workmen from entering or remaining in the plaintiff’s employment, “by threats and intimidation.” The context showed that the words as there used meant threats of personal violence, and intimidation by causing fear of it.
I have seen the suggestion made that the conflict between employers and employed is not competition. But I venture to assume that none of my brethren would rely on that suggestion. If the policy on which our law is founded is too narrowly expressed in the term free competition, we may substitute free struggle for life. Certainly the policy is not limited to struggles between persons of the same class competing for the same end. It applies to all conflicts of temporal interests.
So far, I suppose, we are agreed. But there is a notion which latterly has been insisted on a good deal, that a combination of persons to do what any one of them lawfully might do by himself will make the otherwise lawful conduct unlawful. It would
One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way. I am unable to reconcile Temperton v. Russell, [1898] 1 Q. B. 715, and the cases which follow it, with the Mogul Steamship Company case. But Temperton v. Russell is not a binding authority here, and therefore I do not think it necessary to discuss it.
If it be true that workingmen may combine with a view, among other things, to getting as much as they can for their labor, just as capital may combine with a view to getting the greatest possible return, it must be true that when combined they have the same liberty that combined capital has to support their interests by argument, persuasion, and the bestowal or refusal of those advantages which they otherwise lawfully control. I can remember when many people thought that, apart from violence or breach of contract, strikes were wicked, as organized refusals to work. I suppose that intelligent economists
The general question of the propriety of dealing with this kind of case by injunction I say nothing about, because I understand that the defendants have no objection to the final decree if it goes no further, and that both parties wish a decision upon the matters which I have discussed.
