American Federation of Labor v. Buck's Stove & Range Co.

33 App. D.C. 83, 1909 U.S. App. LEXIS 6037

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 11, 1909
• Docket: No. 1916
• Status: Published

Opinions

Mr. Justice Robb

delivered the opinion of the Court:

This is a bill of complaint on behalf of the Buck’s Stove & Range Company, of St. Louis, Missouri, against the American Federation of Labor, a voluntary association, Samuel Gompers, its president, its eight vice presidents, its secretary, and certain other defendants local to the District of Columbia. After hearing upon the bill and defendants’ return to the rule to show cause, an injunction pendente lite was granted. Evidence was thereupon taken by each side, and a final hearing had which resulted in the following decree:

“The above entitled cause coming on at this time for final hearing, and having been submitted to the court by the respective parties, through their solicitors, upon the pleadings and the evidence, and having been duly considered, it is thereupon by the court, this 23d day of March, a. d. 1908, adjudged, ordered, and decreed that the defendants the American Federation of Labor, Samuel Gompers, Frank Morrison, John B. Lennon, James Duncan, John Mitchell, James O’Connell, Max Morris, Denis A. Hayes, Daniel J. Keefe, William D. Huber, Joseph F. Valentine, Rodney L. Thixton, Clinton O. Buckingham, Herman C. Poppe, Arthur J. Williams, Samuel R. Cooper, and Edward L. Hickman, their and each of their agents, servants, attorneys, confederates, and any and all persons acting in aid of or in conjunction with them or any of them, be, and they hereby are, perpetually restrained and enjoined from conspiring, agreeing, or combining in any manner to restrain, obstruct, or destroy the business of the complainant, or to prevent the complainant from carrying on the same without interference from them or any of them, and from interfering in any manner with the sale of the product of the complainant’s factory, or business by defendants, or by any other person, firm, or corporation, and from declaring or threatening any boycott against the complainant or its business, or the product of its factory, or against any person, firm, or corporation engaged in handling or selling the said product, and from abetting, aiding, or assisting in any such boycott, and from printing, issuing, publishing, or distributing through the mails, or in any other manner, any copies or copy of the American Federationist, or any other printed or written newspaper, magazine, circular, letter, or other document or instrument whatsoever, which shall contain or in any manner refer to the name of the complainant, its business or its product in the ‘We Don’t Patronize’ or the ‘unfair’ list of the defendants, or any of them, their agents, servants, attorneys, confederates, or other person or persons acting in aid of or in conjunction with them, or which contains any reference to the complainant, its business or product, in connection with the term ‘unfair’ or with the ‘We Don’t Patronize’ list or with any other phrase, word, or words of similar import, and from publishing or otherwise circulating, whether in writing or orally, any statement or notice, of any kind or character whatsoever, calling attention to the complainant’s customers, or of dealers or tradesmen, or the public, to any boycott against the complainant, its business or its product, or that the same are, or were, or have been, declared to be ‘unfair,’ or that it should not be purchased or dealt in or handled by any dealer, tradesman, or other person whomsoever, or by the public, or any representation or statement of like effect or import, for the purpose of, or tending to, any injury to or interference with the complainant’s business,, or with the free and unrestricted sale of its product, or of coercing or inducing any dealer, person, firm, or corporation, or the public, not to purchase, use, buy, trade in, deal in, or have in possession stoves, ranges, heating apparatus, or other product of the complainant, and from threatening or intimidating any person or persons whomsoever from buying, selling, or otherwise dealing in the complainant’s product, either directly, or through orders, directions, or suggestions to committees, associations, officers, agents, or others, for the performance of any such acts or threats as hereinabove specified, and from in any manner whatsoever impeding, obstructing, interfering with, or restraining the complainant’s business, trade, or commerce, whether in the State of Missouri, or in other States and Territories of the United States, or elsewhere wliersoever, and from soliciting, directing, aiding, assisting, or abetting any person or persons, company or corporation, to do or cause to be done any of the acts or things aforesaid.

“And it is further adjudged, ordered, and decreed that the complainant recover against the defendants the cost of this suit, to be taxed by the clerk, and that it have execution therefor as at law.”

The complainant is a manufacturer of stoves and ranges, and its business represents an investment of about $1,000,000, and its sales each year amount to about $1,250,000, and extend throughout the various States and Territories of the United States.

The American Federation of Labor includes nearly two million- wage earners in the United States and Canada. Under the constitution of the Federation its members are classified according to their trades into separate groups or organizations. In St. Louis there is a Metal Polishers Union and various other local unions. In addition there is the St. Louis Central Trades & Labor Union, composed of the local unions. In August, 1906, certain metal polishers employed in complainant’s factory became involved in a controversy with the complainant, and simultaneously withdrew from complainant’s employ; in other words, struck. Thereupon the Metal Polishers Union declared the complainant “unfair” to organized labor, and published the declaration in their local labor journal, issued circulars, to the same effect, and in various ways sought to boycott complainant’s product. Thereafter application was made to the Central Trades & Labor Union for an indorsement of the boycott, and in November, 1906, such indorsement was made.

The American Federation of Labor, in November of each year, holds a convention, which is composed of delegates from the various subordinate bodies. At the November, 1906, convention, a resolution was introduced for an indorsement of the action of the St. Louis bodies in their controversy with the complainant, and to have complainant published in the “We Don’t Patronize” list of the American Federationist, the official organ of the federation. This resolution was referred to the executive council with power to act, and said council, at its next meeting, in March, 1907, placed complainant and its product upon the “We Don’t Patronize” list of the federation, and directed the publication thereof in said list in the Federationist, and such publication was thereafter made. The executive council is composed of the president, secretary, treasurer, and the eight vice presidents of the federation. Immediately following the action of said executive council in so placing complainant upon said list of the federation, the following circular was given wide publicity:

Important Notice!

The executive council of the American Federation of Labor, in session at Washington, District of Columbia, March 18-23, 1907, placed the Buck’s Stove & Range Company, of St. Louis, on the Unfair list. The publication of this concern will be made in the “We Don’t Patronize” list commencing in the May issue of the American Federationist.

This firm is commencing to advertise in daily papers all over the country, endeavoring to offset the above action. All members take notice. Appoint committees to visit the dealers and bring it to the attention of all friends of organized labor.

The effect of the action of the local and national bodies upon the business of the complainant was immediate and far reaching. In St.- Louis dealers were waited upon by officers and representatives of the various local organizations, notably the Central Trades & Labor Union, and were told that they must cease handling complainant’s product or they would themselves be boycotted. On October 18, 1907, which, it will be noted, was subsequent to the action of the Federation in indorsing the position of the local bodies, a committee composed of the secretary of the Central Trades & Labor Union, the vice-president of the Metal Polishers Union, and a representative of the International Metal Workers Union, called upon the St. Louis House Furnishing Company and.notified the compaany that, if it did not cease handling the product of the complainant, it would be boycotted. The representative of the company informed the committee that the company had about $5,000 worth of Buck’s stoves and ranges on hand, and offered to discontinue dealing with the complainant if the committee would purchase the stoves the company had in stock. This the committee refused to do, and left with the admonition that if the company did not stop it would be put upon the “unfair” list. Thereupon, the company continuing to handle the product of the complainant, a boycott against it was prosecuted by the local unions, and circulars were distributed in the following forms:

Boycott

St. Louis House Furnishing Company, 904 Franklin avenue,

[Agent for Buck’s Stoves and Ranges, which are Unfair to Organized Labor.

■Indorsed by

Metal Polishers Union No. 13. Stove Mounters No. 86.

■ Steel Range Workers No. 34. Central Trades & Labor Union of St. Louis and Vicinity.

H. D. Hackman, a hardware dealer of St. Lonis, and the Hencken & Broeken-Kroeger Furniture Company, of East St. Louis, were also boycotted for dealing in complainant’s product.

Notices were given other local dealers, but, owing to their acquiescence in the demands made upon them, further action was not taken against them. The action taken in St. Louis is typical of that pursued throughout the country.

The Strauss-Miller Company, of Cleveland, Ohio, was compelled to cancel all back orders and abandon all relations with complainant, owing to the position taken by the labor unions of that city.

The H. L. McElroy Company, of Youngstown, Ohio, after a conference with union representatives, wrote complainant: “It would be a serious calamity for us to be compelled to change our line at this time, but we cannot endanger the success of our entire business by arousing the antagonism and animosity of the labor xinions.”

Bass & Harbour, of Oklahoma City, after an interview with labor representatives, wrote complainant that they “found it a good deal cheaper to stay out of the trouble than to get into it.”

Alonzo Miller, of Staunton, Illinois, wrote that he had been waited upon by a committee from the Miners, Clerké, & Labor Unions, who stated the union’s side of the controversy with complainant. The letter closes with: “They therefore forbid me of selling the Bucks stove any way shape or form and if I did they would boycott me and of course I can not ruin my business oh account of your stoves.” Under date of September 30, 1907, Miller wrote complainant that a motion was carried in the local union to .fine any member who should buy a Buck’s range or heater. The letter concludes: “If you do not send your man I will send these stoves and ranges back at once, as I will not ruin my business on account of your stoves.”

J. H. Kaufman & Company, of Aberdeen, Washington, wrote complainant that they had been advised.by the Trades Council that complainant’s stoves and ranges had been boycotted by the labor union on account of strike. The letter concludes that, if the difficulty was not soon settled, the concern would be compelled to discontinue dealings with complainant.

The Brownfield-Canty Carpet Company, of Butte, Montana, wrote in part as follows: “We have been notified by the labor union of Butte that we must stop handling your line, as your ■company has heen declared unfair to labor. We know nothing .about the affair only what a circular from the Metal Polishers’ Union says, but, as Butte is the strongest union city in the Union, we will have to quit the line.”

Baker & Gidcumb, of Harrisburg, Illinois, wrote that the union people of that city would not allow them to handle complainant’s goods.

3?. W. Schneck & Company, of Milwaukee, Wisconsin, wrote that they had been notified by a “vice president of the International Union of N. A.” that the complainant was on the “unfair” list, and that they would he reported as complainant’s .agents or representatives unless some settlement was made.

A letter dated September 9, 1907, from one of complainant’s customers at Great Palls, Montana, stated that their plans to put in a car load of complainant’s product had been “knocked in the head by the unions in the town” requesting the firm not to handle complainant’s product, which request, the firm added, “is equal to a demand.” .

A letter dated October 12, 1907, from the Davenport Purniture and Carpet Company, of Davenport, Iowa, contained the information that the firm had been waited on by labor union representatives, “who stated there was now a boycott on against your company and would be against all people handling your product.”

A letter from Mobile, Alabama, stated that the firm had received a notice from the local organization of the boycott .against complainant’s stoves, and a request that the firm cease handling them, which, the letter adds, “of course I refused to ■do, telling them that we had contracted ahead with you for your ■stoves, and that we were compelled to use them, and asked them not to put us on the unfair list, owing to our circumstances; but I don’t know what the committee will do.”

A letter from Louisville, Kentucky, from one of complainant’s customers, stated that they had been notified by representatives of the local labor organizations that, if they handled complainant’s stoves, they were liable to be considered as unfair to union labor.

A letter from Galesburg, Illinois, read in part as follows: “A committee representing the Buffers & Metal Polishers Union of this city called upon us to-day at the request of a similar union in your city. They claim you are on what they call ‘the unfair list,’ and requested us to take action in the matter and discontinue handling your goods. This looks like ‘boycott’ to us. They are coming again to talk the matter over.” '

F. S. Bode, of Kenosha, Wisconsin, wrote that he needed stoves, but could not handle them owing to the labor unions in his city. His letter concludes: “Always had nice dealings with you but I’m forced to do this.”

A letter from the Schunk-Marquardt Company, of Toledo, Ohio, stated that “again we have been notified by the labor unions that the Buck Stoves & Range Company are still on the unfair list, and that if we continue to handle Buck stoves and ranges they will boycott us. Not only on Buck stoves and ranges, but on all hardware.”

Similar letters were received from many other cities, but we do not deem it necessary to make further allusion to them in this connection.

Different traveling salesmen of complainant testified to loss of patronage in different cities because of representations made by representatives of labor unions that dealers handling Buck’s stoves would themselves be boycotted.

The bill charges that the publication of concerns in the “We Don’t Patronize” list of the Federationist is “for the purpose of singling out and designating individuals and concerns so named, and of notifying their customers, and the public generally, and all the members of said twenty-seven thousand local unions in their several localities, and of the several national and international unions, state federations, and central city labor unions that they are to be treated by them as unjust and hostile to the unions upon whose application such action is based, and that their business, products, and customers are to be boycotted by each and all the members of the American Federation of Labor and their friends and sympathizers, and that the whole power of its vast organization and combination is to be used against them to injure and destroy their business thereby, and that all the members of the American Federation of Labor are to abstain from purchasing or using said products, and from dealing with any person who purchases, handles, or uses said product.” The bill proceeds to set out specific instances of boycotts against complainant’s patrons because they had continued to handle complainant’s stoves.

In answer to these averments in respect to the publication in the “We Don’t Patronize” list of the Federationist defendants “deny that the purpose thereof is to use ‘the whole power of its (American Federation of Labor) vast organization and combination’ ‘to injure and destroy their (those not patronized) business thereby.’ They deny that said ‘We Don’t Patronize’ list prohibits or interferes with any constituent organization or its members ‘dealing with any person who purchases, uses, or handles said product.’ ” They also disclaim knowledge concerning specific instances of boycotting mentioned in the bill.

The first question, therefore, to be determined, is whether the defendants were connected with, and, under this complaint, responsible for, the acts above set forth. The complainant, on the one hand, contends that the action of said executive council and the publication in the “We Don’t Patronize” list of the Federationist signified to each labor union throughout the land that they were to boycott not only complainant’s product, but all those who, upon demand, did not cease business dealings with complainant. In other words, that what actually happened was the result intended. The defendants, on the other hand, earnestly contend that the sum total of their offending has been a concerted severance of business intercourse with complainant, and that they are not responsible for what actually occurred.

The record shows that Mr. Gompers has been the president of the federation since 1886, and that he is a man of ability and a natural leader of men. It is apparent from a perusal of the record that during all these years he has been a dominant factor in the affairs of the federation, and that the general policy of organized labor throughout the land is shaped and controlled by the association of which he is the president. The record shows that a very large number of boycotts have been declared and prosecuted by the federation in the past, and that, as a result of these boycotts, considerable litigation has ensued. The decisions of the courts in the various labor cases where the boycott has been under consideration have been the subject of frequent discussion by Mr. Gompers, and he has frequently issued instructions and advice to the members of the federation, both in the annual conventions of the federation and through the editorial columns of the Federationist. We will briefly review the previous position of the federation in respect to the boycott in our effort to ascertain the significance of the “We Don’t Patronize” list.

In the annual convention of 1894, delegates from an organization that had refused or neglected to enforce a boycott against a wholesale clothing house were not seated, and it was resolved “to recommend to the public and organized labor to refuse to patronize or deal with any retail clothier handling the goods of said manufacturers.”

The convention of 1899 was held at Detroit, Michigan. Mr. Gompers, in his annual report to that convention, under the head “Boycott — -The Bight and Practice,” said: “It has been my purpose for some time to present, in a comprehénsive manner, the right of the workers to employ the power of the 'boycott.’ With that object in view, the editorial appearing in the October issue of the American Federationist, under the caption, 'The Boycott as a Legitimate Weapon,’ was written and published. It is commended to your serious consideration.”

This report was referred to a committee, which, in its report, indorsed the above editorial, and urged its careful reading. In the editorial referred to Mr. Gompers said: “A sympathetic boycott is as legal and legitimate as a sympathetic strike. Just as men. may strike for any reason, or without any reason at all, so may they suspend dealings with merchants or others for any reason or for no reason at all. Thus a boycott may extend to an entire community without falling under the condemnation of any moral or constitutional or statutory law. But I shall be triumphantly told, boycotters never do confine themselves to moral suasion and appeal; that they resort to threats, intimidation, and coercion, and it is this which makes what is called 'compound boycotting’ — that is, boycotting which extends to parties not concerned in the original dispute — criminal and aggressive. * * * This sounds very plausible. It is easy to deduce from such premises that boycotters interfere with property rights and the pursuit of lawful callings, and that, under the national and state Constitutions, to say nothing about explicit anticonspiracy laws, they are to be held civilly and criminally liable. * * * But this argument about the employment of threats and intimidation is fallacious and superficial. Its apparent validity disappears when, not satisfied with ugly-looking words, we demand precise definitions. No one pretends for a moment that it would be proper for a boy-cotter to approach a merchant and say, 'You must join us in suspending all dealings with that employer or newspaper or advertiser, on pain of having your house set on fire or physical assault.’ This would be an unlawful threat, and people who would try to enlist others in their campaign by threats of this character would certainly be guilty of a criminal conspiracy. Do boycotters use such threats ? Do they contend for the right to employ force or threats of force ? Our worst enemies do not contend that they do. They ‘threaten,’ but what do they threaten ? They ‘intimidate,’ but how ? Let Judge Taft, who issued his sweeping antiboycotting injunction, be a witness on this point. He said: 'As usually understood, a boycott is a combination of many to cause a loss to one person by coercing others, against their will, to withdraw from him their beneficial interests through threats that, unless those others do so, the many will cause similar loss to them.’ * * * No man in his senses will dispute this axiomatic proposition; namely, that a man has a right to threaten that which he has a right to carry out. * * * You may tell a man that, if he does a certain thing, you will never speak to him or call at his house. This is a threat, but it is a threat that you have a right to make. Why ? Because you have a right to do what you threaten. The same thing is strictly true of boycotting. * * * A man may be coerced by actual force, by the threat of force, or by indirect means which the law cannot and does not prohibit. Coercion by a threat to suspend dealings is, to revert to our illustration, in the same category with coercion through a threat to cease friendly intercourse. * * * Labor claims the right to suspend dealings with any and all who refuse to support what it considers its legitimate demand.”

In his testimony Mr. Gompers took occasion to say that he had not uttered a word of which he was not proud and which he would not reaffirm. Counsel for the defendants in their brief refer to this editorial as correctly setting forth the position of organized labor in respect to the boycott.

The 1905 convention adopted a report from the committee on boycotts, in which it was stated: “We must recognize the fact that a boycott means war, and to successfully carry on a war we must adopt the tactics that history has shown are most successful in war. The greatest master of war said that ‘War was the trade of a barbarian, and the secret of success was to concentrate all your forces upon one point of the enemy, the weakest, if possible.’ In view of these facts, the committee recommends that the State federations and central bodies lay aside minor grievances and concentrate their efforts and energies upon the least number of unfair parties or places in their jurisdiction. One would be preferable. If every available means at the command of the State federations and central bodies were concentrated upon one such, and kept up until successful, the next on the list would he more easily brought to terms, and within a reasonable time none opposed to fair wages, conditions, or hours but would be brought to see the error of their ways and submit to the inevitable. Under the present system our efforts are largely wasted and our ammunition scattered. Let us reduce the boycotts to the lowest possible number and concentrate our efforts upon those, and we feel certain better results will be obtained.”

In an editorial in the February, 1908, Federationist, Mr. Gompers reviewed the opinion of the learned justice below in issuing the temporary injunction, and, among other things, said: “Neither coercion, threats, nor conspiracy, in the unlawful sense (italics ours), have been resorted to, yet the whole injunction is based npon this wrong assumption.”

At the annual convention of the federation at Norfolk, Virginia, in 1901, Mr. Gompers, in his report, discussed the boycott against complainant, and its causes, and also this suit, which had then been commenced.' After stating his version of the original controversy with complainant, Mr. Gompers continued: “The investigation demonstrated clearly Mr. Van Cleave’s hostile purpose towards the organization in question (International Brotherhood of Foundry Employees), and every effort at an amicable adjustment was fruitless. It was then that my colleagues aand myself, the executive council, approved the position and action of the organization affected, and this fact was published in the American Federationist.”

A resolution was thereupon introduced and adopted: “That each central body affiliated with A. F. of L. be and is hereby instructed to appoint a committee who shall conduct and manage a 'campaign of education’ among the membership affiliated with their central body, as well as dealers in stoves and ranges in their locality, and thoroughly inform them of the entire facts of the dispute between the Metal Polishers, Buffers, Platers, Brass «fe Silver Workers’ Union of North America, the Brotherhood of Foundry Employees, also as to the attitude of J. W. Van Cleave and the Manufacturers’ Association towards organized labor. Be it further

“Resolved, That the said committee shall report on the first of each month to the officers of the A. F. of L. the progress of the 'campaign of education,’ together with a complete list of all dealers in their locality who are handling and ‘ selling the product of the Buck Stove «fe Range Company. Be it further

“Resolved, That all commissioned organizers of the A. F. of L. shall report on the first of each month to the officers of the A. F. of L. the progress made in this ‘campaign of education’ by the different committees of the different central bodies in their respective districts, and also render such aid to all committees as lay in their power.”

The committee on boycotts recommended “that the executive council be instructed to remove from the ‘We Don’t Patronize’ list the names of firms in all instances wherein the executive council has knowledge that the national or international union responsible for the boycott are not ■ aggressively pushing the same.”

Under date of November 26, 1907, an official statement over the signature of Mr. Gompers as president, and attested by Frank Morrison as secretary, “By order of the executive council of the American Federation of Labor,” was sent out '“to all organized labor and friends.” In this statement we find the following: “As you are well aware, so inimical to the welfare of labor was the Buck’s Stove & Range Company’s management that the organization concerned felt obliged to declare the product of that company unfair. The workmen’s organization appealed to the American Federation of Labor to indorse its action. After due investigation, that indorsement was given and is still further affirmed. The circumstances leading to this action are so widely known that they need not be here recounted.”

It will thus be seen that in the nomenclature of the federation, “we don’t patronize” is synonymous with and equivalent to “boycott;” the publication of the former being notice to the craft that the latter is to follow. The record shows that during the year 1907 Mr. Gompers was in the city of St. Louis at least four different times, and that while there he was in conference with some of the labor leaders who were responsible for the inauguration of the boycott against complainant. It further appears that, in his lecture tours, and in his official capacity as president of the federation, he frequently visited other sections of the country. It also appears that the federation has in the field over 1,200 so-called “organizers,” whose duty in part appears to be to aid in pushing boycotts and to report thereon to the federation. Nowhere in his testimony, nor in the testimony of any of the defendants who were called as witnesses, is the denial made that the publication of complainant in the “We Don’t Patronize” list was not intended to inaugurate exactly the sort of boycott that was in fact prosecuted. Nowhere does it appear in the testimony of these defendants that any one of them ever even suggested to any of the subordinate organizations and membership of the federation that they modify in any way their boycott against complainant. It will be noted that the answer to the specific averment of the bill hereinbefore set out only goes so far as to deny that the “We Don’t Patronize” list prohibits or interferes with any constituent organization or its members dealing with persons who handle complainant’s stoves. The answer does not deny that the “We Don’t Patronize” list does not indicate to subordinate organizations the course of conduct that was in fact pursued.

It is also highly significant that throughout the country the notice to dealers that they must cease handling complainant’s product was not the sporadic and unauthorized act of individual unionists, but, on the contrary, the act of accredited leaders. From whom did they derive their inspiration ? Was it a mere coincidence that they acted in such perfect harmony and ever to the same end and purpose ? We think not.

In the editorial to which allusion has been made, and which was brought to the attention of and indorsed by the federation in convention assembled, Mr. Gompers contended for the right to do and advised the doing of exactly what was done in this case.

The bill of complaint was filed August 19, 1907. The defendants were therein notified of the exact nature of the boycott that was then being prosecuted against complainant; but, notwithstanding the knowledge thus obtained, we find the executive council of the federation on November 26, 1907, reaffirming without qualification and in an official statement, as before stated, what had been done.

In view of all this we think there is no room for doubt that this combination or boycott which had its inception in St. Louis was inaugurated in accordance with the settled policy of the American Federation of Labor, and that when the federation in due course approved and indorsed the same, it acted with full knowledge not only of what had already occurred, but of what would be likely to follow. If, therefore, anyone is responsible what happened, these defendants certainly are. Connecticut Mutual L. Ins. Co. v. Hillmon, 188 U. S. 218, 47 L. ed. 451, 23 Sup. Ct. Rep. 294; United States v. Babcock, 3 Dill. 581, Fed. Cas. No. 14,487; United States v. Standard Oil Co. 152 Fed. 294.

We approach a consideration of the legal questions involved in this case with a full realization of their widespread inportance. We realize to the fullest extent that through the instrumentality of labor unions much has been accomplished for the betterment and amelioration of the conditions surrounding those who toil. In common with all who have the welfare of their country at heart, we are gratified that such progress has been made in behalf of labor, and we are proud of the intelligence, thrift and patriotism of the American workingman. We believe him to be anxious for his rights, but, like all other good citizens, desirous of obeying the law. We would not if we could, and could not if we would, take from him the right of organization. We would accord him every right under the law that his employer enjoys, and we believe mature consideration will fully convince him, and those whose solemn responsibility it is to counsel and guide him, that he should ask for no more.

Eliminating, as we have, all collateral considerations, the clean-cut question is presented, whether a combination, such as was entered into in this case, which has for its object the coercion of a given firm through the instrumentality of the boycott, is lawful.

In the Declaration of Independence, it is stated that among the inalienable rights with which the Creator has endowed all men are life, liberty, and the pursuit of happiness. The 5th and 14th Amendments to the Constitution contain provisions against deprivation of life, liberty, or property without due process of law; the former Amendment operating upon Congress, the later upon the several States.

Mr. Justice Harlan, speaking for the court in Powell v. Pennsylvania, 127 U. S. 684, 32 L. ed. 256, 8 Sup. Ct. Rep. 992, said: “The main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, is an essential part of his rights of liberty and property, as guaranteed by the 14th Amendment. The court assents to this general proposition as embodying a sound principle of constitutional law.”

Again, in Allgeyer v. Louisiana, 165 U. S. 589, 41 L. ed. 835, 17 Sup. Ct. Rep. 427, the court quoted with approval the following from the concurring opinion of Mr. Justice Bradley in Butchers’ Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 762, 28 L. ed. 588, 4 Sup. Ct. Rep. 652; “The right to follow any of the common occupations of life is an inalienable right. It was formulated as such under the phrase ‘pursuit of happiness’ in the Declaration of Independence. * * * This right is a large ingredient in the civil liberty of the citizen.”

In Hopkins v. Oxley Stave Co. 28 C. C. A. 99, 49 U. S. App. 709, 83 Fed. 912, the circuit court of appeals for the eighth circuit said: “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.”

It will thus be seen that the supreme law of the land guarantees protection to all who desire to engage in a lawful calling or business, subject, of eourse, to such reasonable regulations as it may be necessary to impose. /And, when Mr. Gompers advises his followers that a man is entitled to protection against a threatened destruction of his house, but none against a malicious destruction of the business which enables him to maintain his house, Mr. G-ompers is mistaken. Was the combination entered into by appellants unlawful ? <^A conspiracy has been defined as a combination of two or more persons to accomplish something unlawful, or something not in itself unlawful by unlawful means. Pettibone v. United States, 148 U. S. 203, 37 L. ed. 422, 13 Sup. Ct. Rep. 542. In determining whether the acts of the appellants are within this definition we will here review a few of the adjudged cases on this branch of the law.

Callan v. Wilson, 127 U. S. 540, 32 L. ed. 223, 8 Sup. Ct. Rep. 1301, was an information in the police court of the District of Columbia, charging the defendants with a conspiracy to prevent certain members of a local union, who had been expelled therefrom, from pursuing their calling as musicians in the United States. The conspiracy, as set forth in the complaint, was to be effected by the defendants and the members of other associations with which they were affiliated refusing to work in any capacity with the expelled members, or with, or for any person or firm working with or employing them, and by warning and threatening every person or firm employing such expelled members that, if they did not cease to employ and refuse to employ them, they would not receive the custom or patronage either of the persons so conspiring or of the members of affiliated organizations. The question before the court was whether the offense charged was a petty offense or one of so serious a nature that the defendants were entitled to a trial by jury. The court held that the offense charged was of the latter character.

Mr. Justice Harlan, in reviewing Callan v. Wilson, in Arthur v. Oakes, 25 L.R.A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 310, said: “It thus appears that combinations and conspiracies by two or more persons, with the intent to injure the rights of others, were illegal at common law.” He further said According to the principles of the common law, a conspiracy upon the part of two or more persons, with the intent, by their combined power, to wrong others or to prejudice the rights of the public, is, in itself, illegal, although nothing be actuallY^done.-ln execution of such conspiracy. This is fundamental in our jurisprudence. j^So a combination or conspiracy to procure an employee or body of employees to quit service, in violation of the contract of service, would be unlawful, and, in a proper case, might be enjoined if the injury threatened would be irremediable at law. It is one thing for a single individual or for several individuals, each acting upon his own responsibility, and not in co-operation with others, to form the purpose of inflicting actual injury upon the property or rights of others. It is quite a different thing in the eye of the law for many persons to combine or conspire together with the intent not simply of asserting their rights, or of accomplishing lawful ends by peaceful methods, but of employing their united energies to injure others or the public. An intent upon the part of a single person to injure the rights of others or of the public is not in itself a wrong of which the law will take cognizance, unless some injurious act be done in execution of the unlawful intent. But a combination of two or more persons with such an intent, and under circumstances that give them, when so combined, a power to do an injury they would not pos- \ sess as individuals, acting singly, has always been recognized/ as in itself wrongful and illegal.”

Quinn v. Leathem [1901] A. C. 495, contains a very exhaustive discussion of the subject. A trade union notified Leathern, a butcher, that they would not work for him, nor for one Munce, one of his customers, unless he unionized his shop and discharged his then assistants. This Leathern refused'to do, whereupon the union notified Munce that they would not work for him if he bought Leathern’s meat, and, because of such notice, Munce withdrew his trade from Leathern, who brought an action for damages against members of the union who were responsible for what was done. Lord Macnaghten said: i-A^man may resist without much difficulty the wrongful act of an individual. He would probably have at least the moral support of his friends and neighbors; but it is a very different thing * * * when one man has to defend himself against many, combined to do him -wrong.” Lord Brampton, quoting Lord Halsbury in another case, said: “The liberty of a man’s mind and will to say how he should bestow himself and his means, his talents and his industry, was as much a subject of the law’s protection as was that of his body.” [Mogul S. S. Co. v. McGregor, G. & Co. [1892] A. C. 38.] The plaintiff was permitted to recover.

In Thomas v. Cincinnati, N. O. & T. P. R. Co. 4 Inters. Com. Rep. 788, 62 Fed. 818, the court said: “What were the purposes of .this combination of Debs, Phelan, and the American Bailway Union board of directors ? They proposed to inflict pecuniary injury on Pullman by compelling the railway companies to give up using his cars, and, on the refusal of the railway companies to yield to compulsion, to inflict, pecuniary injury on the railway comoanies hy inciting their employees to quit their .services, and thus paralyze their business. * * * But the eombinution^rasTanlOTErmtHout respect to the contract feature. It was a boycott. The employees of the railway companies had no grievance against their employers. Handling and hauling Pullman cars did not render their services any more burdensome. They had no complaint against the use of Pullman cars as cars. They came into no natural relation with Pullman in handling the ears. He paid them no wages. He did not regulate their hours, or in any way determine their service. Simply to injure him in his business, they were incited and encouraged to compel the railway companies to withdraw custom from him by threats of quitting their service, and actually quitting their service. This inflicted an injury on the companies that was very great, and it was unlawful, because it was without lawful excuse.”

In Barr v. Essex Trades Council, 53 N. J. Eq. 111, 30 Atl. 881, the complainant, the proprietor of a daily newspaper, decided, against the wishes of a local typographical union of which his employees were members, to use plate matter in making up his paper. Upon the carrying into effect of his decision the union immediately interested withdrew its indorsement of the paper and reported the matter to the trades council, an amalgamation of local unions, which issued a circular calling on all friends to boycott the paper and to cease buying and advertising in it. An active campaign was inaugurated in furtherance of the boycott, and patrons of the paper were threatened with the opposition of organized labor unless they withdrew their support from the paper. An injunction was granted, restraining the further prosecution of the boycott.

In Beck v. Railway Teamsters’ Protective Union, 118 Mich 497, 42 L.R.A. 407, 74 Am. St. Rep. 421, 77 N. W. 13, it was held that the boycotting of one who refuses to accede to the demand of the union is unlawful, where the means used to prevent persons from dealing with the person boycotted are threatening in their nature, and tend naturally to overcome, by fear of loss of property, the will of others, and compel them to do what they would not otherwise do, although such means are unaccompanied by actual violence or threats of violence.^.

So far as we are advised, the decisions of the Federal and State courtsthimighout the country, with the Mngle ^exception of Montana, are in harmony with those to which specific allusion has been_made. . We do not deem it necessary, however, to do more than cite a few of them: Cœur D’Alene Consol. Min. Co. v. Miners’ Union, 19 L.R.A. 382, 51 Fed. 260; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 19 L.R.A. 387, 5 Inters. Com. Rep. 522, 54 Fed. 730; United States v. Weber, 114 Fed. 950; Seattle Brewing & Malting Co. v. Hansen, 144 Fed. 1011; My Maryland Lodge No. 186 of Machinists v. Adt. 100 Md. 238, 68 L.R.A. 752, 59 Atl. 721; Vegelahn v. Guntner, 167 Mass. 92, 35 L.R.A. 722, 57 Am. St. Rep. 443, 44 N. E. 1077; Plant v. Woods, 176 Mass. 492, 51 L.R.A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011; Berry v. Donovan, 188 Mass. 353, 5 L.R.A.(N.S.) 899, 108 Am. St. Rep. 499, 74 N. E. 603, 3 A. & E. Ann. Cas. 738; Erdman v. Mitchell, 207 Pa. 79, 63 L.R.A. 534, 99 Am. St. Rep. 783, 56 Atl. 327; Purvis v. Local No. 600, U. B. C. & J. 214 Pa. 348, 12 L.R.A.(N.S.) 642, 112 Am. St. Rep. 757, 63 Atl. 585, 6 A. & E. Ann. Cas. 275; State v. Stewart, 59 Vt. 273, 59 Am. Rep. 710, 9 Atl. 559; Boutwell v. Marr, 71 Vt. 1, 43 L.R.A. 803, 76 Am. St. Rep. , 42 Atl. 607; Charles A. Olcott Planing Mill Co. v. Fuelle (Mo.) 114 S. W. 1013.

From these decisions it will be gathered that the boycott, as generally understood, is a combination to harm one person by coercing others to harm him. The combination in this case, in our opinion, not only answers this definition of a boycott, but the definition previously given of a common-law .conspiracy. immediate purpose and result of this combination, as we have seen, was to interfere with complainant’s lawful business, and to deprive complainant and its customers'of their right to trade intercourse. It matters not that' the remote object of. the... combination was to benefit such members -oFthe íocáITmmiis as shouldTbebmp'oTCdby^ompakLa^rbecause thelaw lo oks to the~ ummedllteriñNñoFIoTEN^^^ntairobject of the combination. If the immediate, object is irnl R-wfiiT'Nhe-X.oui hin aSon-isAr-nlaw^..fuL If the immediate object is lawful, as in the" cáse of legitimate trade competition; including strikes, the combination, generally speaking, is lawful. This distinction will be found in the cases cited. - . 1 . . -r ■ • '

ATIiat no physical coercion was practised in-this case does not alter our conclusion, since restraint of the mind, as the evidence in this ease clearly demonstrates, is just as potent as a threat of physical violence. Barr v. Essex Trades Council and Purvis v. Local No. 500, U. B. C. & J. supra.

<^Fhe contention^ put forward that, inasmuch as each member of the federation has the right to bestow his trade where he will, according to his whim or fancy, it cannot be unlawful for a combination of members to do what each, acting separately, may do, and that, therefore, the combination may lawfully discontinue or threaten to discontinue business intercourse with a given firm and all who handle its product; or, to state the proposition bluntly, that the boycott, as previously defined, is lawful. To admit the soundness of this contention-is to give legal support and standing to an engine of harm and oppression utterly at variance with the spirit and theory of our institutions, place the weak at the mercy of the strong, foster monopoly, permit an unwarranted interference with the natural course of trade, and deprive the citizen of the freedom guaranteed him by the Constitution. The loss of the trade of a single individual ordinarily affects a given dealer very little. .Being discriminating, the_purchasing public, if left free Jo exercise its own judgment, will not act arbitrarily or maliciously, but will be controlled by natural considerations,.. But a powerful combi--: nation to boycott immediately deflects the„ natural course- of trFderSd~JmnTonows~mTtFwaEeJ3ecause of the unlawful design of the conspirators to coerce or destroy the . object of their displeasure. In other words, it is the .conspiracy, 'and not __ natural .causes^thaf is responsible for the result._ From time immemorial the law has frowned upon combinations formed for the purpose of doing harm, and we think public policy demands .Jhat,.such a combination as we have found to exist in'this. case be declared unlawful. As was said by Mr. Chief Justice Fuller of a similar combination: “The combination charged falls within the class of restraints of _ trade aimed' at compelling third parties .and strangers .involuntarily not to engage in the course of trade except on conditions tFat the combination im- _ poses; and there is no doubt that (to quote from the well-known work of Chief Justice Earle on Trade Unions) (at-confe-mon law,eyery. person has individually, and the public also has collectively, a righi to require that the course of trade should be kept free from unreasonable, obstruction. Loewe v. Lawlor, 208 U. S. 294, 52 L. ed. 496, 28 Sup. Ct. Rep. 301. The action in that case was brought under the Sherman act, but the quotation given nevertheless is applicable here. In our opinion,' it is . more important to wage earners-than to employers of labor that we declare this combination unlawful, for, if wage earners may combine to interfere with the lawful business of employers, it follows that employers may combine to coerce their employees. J

It is next contended that the decree entered in this case is an infringement of the constitutional guaranty of freedom of speech and of the press. In so far as it seeks to restrain acts in furtherance of the boycott we do not think it constitutes either a censorship of the press or an abridgment of the right of free speech. An unlawful combination was found to exist, which, unless cheeked, would destroy complainant’s busines and leave complainant without adequate redress. The court, therefore, very properly sought to restrain the cause of the mischief,— the unlawful combination. The “We Don’t Patronize” or “Unfair” list and oral declarations of the boycott were included in the decree because they were among the means employed in carrying out the unlawful design.

Courts of equity have refused to enjoin the publication of a mere libel, but they have not hesitated to enjoin either written or oral publications constituting a means to the carrying out of an unlawful combination. Thus, in Vegelahn v. Guntner, supra, an injunction was granted restraining threats against those willing to be employed, such threats being a step in the prosecution of the conspiracy. In Beck v. Railway Teamsters’ Protective Union, supra, “picketing and distribution of boycotting circulars and all acts of intimidation and coercion” were enjoined. In Casey v. Cincinnati Typographical Union No. 3, 12 L.R.A. 193, 45 Fed. 135, the publication and circulation of posters, handbills, and circulars printed and circulated in furtherance of the conspiracy were enjoined. Similar decrees were entered in Cœur D’Alene Consol. Min. Co. v. Miners’ Union; Barr v. Essex Trades Council; Erdman v. Mitchell; Purvis v. Local No. 500, U. B. C. & J.; and My Maryland Lodge No. 186 of Machinists v. Adt; — supra; Jackson v. Stanfield, 137 Ind. 592, 23 L.R.A. 588, 36 N. E. 345, 37 N. E. 14; Brown v. Jacobs’ Pharmacy, 115 Ga. 439, 57 L.R.A. 547, 90 Am. St. Rep. 126, 41 S. E. 553. In Thomas v. Cincinnati, N. O. & T. P. R. Co. 4 Inters. Com. Rep. 788, 62 Fed. 818, the court said: “It would be strange, indeed, if that right [of free speech] could be used to sustain the carrying out of such an unlawful and criminal conspiracy as we have seen this to be.” In Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276, Mr. Justice Holmes, speaking for the court, said: “It is suggested that iL^IseveLal acts charged are lawful and that Jp|ent can make no differen^NTBuF;;^ny~arALound together asjparts of a síngll plán[‘ and the plan maw make the parts unlawful.” Again, in Aikens v. Wisconsin, 195 U. S. , 49 L. ed. 160, 26 Sup. Ct. Rep. 3, the same justice said: /“No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and, if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law.”

The cases relied upon by appellants are not in point here for the reason that they involved mere libels, which, as above stated, /courts pf equity to restrain.

Oral and written 'declarations in furtherance of a conspiracy are tentacles of the conspiracy, and must be treated as such, and not as indépendent acts. /It would be an anomalous situation, indeed, if a court of equity, having ample jurisdiction to restrain the carrying out of a conspiracy to deprive a citizen of rights guaranteed him by the Constitution, could be prevented from affording relief by the interposition of such a claim as is here made, ^freedom of action is at least as sacred as an untrammeled tongue or pen, and those who conspire to defeat the former right ought not to be permitted to interpose a plea based upon the latter.

But we think the decree in this case goes too far when it enjoins the publication or distribution through the mails or wise of the Federationist or other periodicals or newspapers containing any reference to complainant, its business or product, as in the “We Don’t Patronize” or “Unfair” list of the defendants. The court below found, and in that finding we concur, that this list in this ease constitutes a talismanic symbol indicating to the membership of the federation that a boycott is on and should be observed. The printing of this list, therefore, was what the court sought to prevent, and what, in our opinion, the court had power to prevent; but the decree should stop there, and not attempt to regulate the publication and distribution of other matter over which the court has no control. In other words, this branch of the decree should merely prohibit the printing of complainant, its business or product, in the “We Don’t Patronize” or “Unfair” list in furtherance of the boycott. The italicized words should be added, for, when the conspiracy is at an end, the federation will have the same right that any association or individual now has to comment upon the relations of complainant with its employees. It is the existence of the conspiracy that warrants the court in prohibiting the printing of this list. Manifestly, when the conspiracy ends, the prohibition ought also to end.

We are of the opinion that the decree is too broad in other ...respects. It, being based upon a finding that a conspiracy to boycott exists, should deal .with acts of commission, and not acts of omission. To be more specific, we think it should attempt no more than a prohibition of the boycott and the means of carrying it on; that is, the declarations or threats of boycott or other manner of intimidation against complainant’s patrons or those handling or wishing to purcharo its product. We have no power to .compeLthe defendants to purchase complainant’s stovesr’~We‘have nower to nreront-defenHaStsTlEmF^rw" ants and agents, .from preventing others from purchasing

There being no evidence m any way connecting counsel for defendants with the prosecution of this boycott, we think the decree should not be so worded as to include them. While “attorneys” probably was used in the decree in a tautological sense, its inclusion at all was unnecessary.

NThe point is made that this decree should not include the federation, because it is a mere voluntary association. This point appears to be well taken, since there is no such legal entity as an unincorporated association. Taff Vale R. Co. v. Amalgamated Soc. [1901] A. C. 426. This, however, is suit at law for damages, but a nroceedingJnmq.uibmagaiñst certain_^3resentativeNññmbéS°of~añ~aÍso^ation composed of a large numhcmof ^ all of whom individuallv would be impossible. In such a case it has been'held “thára number of members may be made parties defendant as,.repre.-_ AentativakoSESkMissdLJ" Pickett v. Walsh, 192 Mass. 590, 6 L.R.A.(N.S.) 1067, 116 Am. St. Rep. 272, 78 N. E. 753, 7 A. & E. Ann. Cas. 638. We_think it clear in this case that named members of the federation fully represent its membership, and that service upon them is sufficient.

For the reasons given the decree is modified and affirmed as follows: It is adjudged, ordered, and decreed that the defendants Samuel Gompers, Frank Morrison, John B. Lennon, James Duncan, John Mitchell, James O’Connell, Max Morris, Denis A. Hayes, Daniel J. Keefe, William D. Huber, Joseph F. Valentine, Rodney L. Thixton, Clinton O. Buckingham, Herman C. Poppe, Arthur J. Williams, Samuel R. Cooper, and Edward L. Hickman, individually and as representatives of the American Federation of Labor, their and each of their agents, servants, and confederates, be, and they hereby are, perpetually restrained and enjoined from conspiring or combining to boycott the business or product of complainant, and from threatening or declaring any boycott against said business or product, and from abetting, aiding, or assisting in any such boycott, and from directly or indirectly threatening, coercing, or intimidating any person or persons whomsoever from buying, selling, or otherwise dealing in complainant’s product, and from printing the complainant, its business or product, in the “We Don’t Patronize” or “Unfair” list of defendants in furtherance of any boycott against complainant’s business or product, and from referring, either in print or otherwise, to complainant, its business or product, as in said “We Don’t Patronize” or “Unfair” list, in furtherance of any such boycott.

The costs of this appeal are equally divided between appellants and appellee. Modified and affirmed. •—

<^An appeal by the appellants to the Supreme Court of the United States was allowed March 26, 1909.