Goldfield Consol. Mines Co. v. Goldfield Miners' Union No. 220

159 F. 500, 1908 U.S. App. LEXIS 5022

• Court: U.S. Circuit Court for the District of Nevada
• Decided: March 7, 1908
• Docket: No. 1,020
• Status: Published

Opinion

FARRINGTON, District Judge

(after stating the facts as above). 1. Evidence as to the probable and possible injuries which may result to complainant if members of the Goldfield Miners’ Union arc permitted to assemble and hold meetings pending this suit is not of such a character as to warrant an interlocutory order forbidding such assemblages. An injunction pendente lite should not usurp the place of a final decree neither should it reach out any further than is absolutely necessary to protect the rights apd property of the petitioner from injuries which arc not only irreparable, but which must be expected before the suit can be heard on its merits. Only those issues will be determined which are necessary factors in granting or denying a temporary restraining order. It is not necessary that the complainant’s rights be clearly established, or that the court find complainant is entitled to prevail on the final hearing. It is sufficient if it appears that there is a real and substantial question between the parties, proper to be investigated in a court of equity, and in order to prevent irremedial injury to the complainant, before his claims can be investigated, it is necessary to prohibit any change in the conditions and relations of the property and of the parties during the litigation. 22 Cyc. 822; 6 Pomeroy’s Eq. Juris. §621; Harriman v. Northern Securities Co. (C. C.) 132 Eed. 464, 485.

2. Complainant1 is the owner of the Combination Mines, and also the owner of more than 97 per cent, of the capital stock of the several subsidiary corporations which own the Mohawk, Laguna, and other mining properties mentioned in the complaint. It is urged that as a stockholder in these corporations complainant cannot maintain a suit for the relief sought without showing actual or virtual refusal by each of said corporations to bring the suit. This objection is based on the rule that a stockholder cannot sue in his own behalf on a corporate cause of action. The objection might be good if the Goldfield Consolidated Mines Company, merely as a stockholder, was asking relief for wrongs to property of the tributary corporations. But such is not the case. The allegations of the bill show that complainant is engaged in the business of mining, developing, and operating the property of these corporations, and that respondents, unless restrained, will unlawfully interfere with this business. The right to operate a mine and carry on the business of raining therein is property, whether the operator owns the mine or not. It is a right as distinct and real as the ownership of the fee itself. If complainant has such right, it has the further right to enjoy such property, and to operate the mines free from unlawful molestation and interference, and it naturally follows that the power of a court of equity" may be invoked to protect such right, even though the operator may not own the mine, or even a share of stock in the company which does own the mine.

3. Respondents urge that, inasmuch as complainant is a corporation organized under the laws of the state of Wyoming, it can have no standing in this proceeding, unless it exists in conformity with the Constitution and laws of that state. It is recited in the bill, and also in the plea and answer, that complainant owns more than 97 per cent, of the capital stock of the Goldfield Mohawk Company, the Red Top, Mining Company, the Jumbo Mining Company, Laguna Goldfield Mining Company, and Goldfield Mining Company, and that, under the laws of Wyoming, no corporation can be formed for the principal purpose of holding stock in other corporations. Without deciding whether such an objection can be raised in this proceeding, or by any party other than the state of Wyoming itself, it is proper to quote that portion of the statute referred to:

“It shall not be lawful for such company to use any of its funds in the purchase of any stock in any other company, nor in its own; provided, however, such company may in its discretion purchase, hold and own any stock, and to any amount in any other company that is or may be subsidiary or tributary to, and that 'does contribute to the objects and purposes of the first company in this proviso mentioned.” Section 3040, Iiev. St. AVyo. 1899.

Sufficient evidence has not been introduced to support a finding' that complainant has violated this statute. It has been held that, where a suit is brought by a corporation to enforce or protect a private right by injunction, a claim that the corporation is illegal or is a monopoly cannot he made collaterally as a defense. Am. Steel & Wire Co. v. Wire Drawers, etc. Unions (C. C.) 90 Fed. 608, 614; Allis-Chalmers Co. v. Reliable Dodge (C. C.) 111 Fed. 264, 266.

4. The evidence shows that a number of persons within the past two years have been deported from Goldfield, and in several cases the victim has been ordered, or advised to leave, by an officer of the respondent union. None of these incidents in evidence, however, have any direct connection with the present labor trouble in Goldfield. Those who have been deported appear in some way to have incurred the hostility of the Western Federation of Miners during the labor difficulties in Idaho or Colorado, and for this, and not for any participation in the present trouble, they were punished. The deportations were accompanied in some cases by violent heatings, and in other instances, the undesired person left camp immediately on being ordered to do so.

o. The respondents allege, in substance, that the Goldfield Consolidated Mines Company entered into an unlawful combination with other corporations and mine and mill owners to prevent the employment of, to oppress, to boycott, and to drive from said district all laborers in and about the mines thereof, the respondents, included, who will not conform to and accept the scale of wages, and other conditions of employment, which the members of the combination dictate, and, in furtherance of this conspiracy, they adopted and published the resolutions of December 9, 1907. The argument is made that by reason of this alleged conspiracy, complainant is not in court with clean hands, and therefore is not entitled to equitable relief, either temporary or permanent.

The Nevada statute, Laws of 1903, p. 207, c. 111, provides as follows :

“Section 1. It shall be unlawful for any person, firm or corporation to make or enter inio any agreement, either oral or in writing, by the terms of which any employee of such person, firm or corporation, or any person about to enter the employ of such xierson, firm or corporation, as a coiuliiion for continuing or obtaining such employment shall promise or agree not to become or continue a member of a Libor organization, or shall xtromisc or agree; to become or continue a member of a labor organization.

“¡See. 2. Any person or persons, firm or firms, corporation or corporations, violating the provisions of section 1 of this act shall be deemed guilty of a misdemeanor,” etc.

The agreement to be executed by the employés as provided for in the resolution is plainly in violation of this statute. But complainant contends that the statute is unconstitutional, and that its right to exclude members of the Western Federation of Miners from its employ, and to employ nonfederation men who are willing to work at the reduced wage scale, is guaranteed by the federal and state Constitutions.

It is provided by section 1 of the fourteenth amendment to the Constitution of the United States as follows:

“Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.”

The Constitution of Nevada, art. 1, § 8, has a similar provision:

“No person shall be * * * deprived of life, liberty, or property, without due process of law.”

The obvious purpose of the Nevada statute just quoted is to invade and control the discretion of the employer in selecting his men. If the statute is valid, an employer cannot malee it a condition on which he will hire men that they shall not belong to any particular labor union; to do so is made a crime, no matter how vicious, turbulent, or lawless the organization may be. This statute lays no similar restriction upon the employés. Their freedom of contract is unrestrained. There is nothing in the statute which forbids union men from discriminating against nonunion men, or nonunion men from discriminating against union men. There is nothing which prevents union men from exacting, as a condition upon which they will work, an agreement that every nonunion man must be discharged, or join the union.

It may be to the advantage of a manufacturer to do business exclusively with some one labor union; its patronage may be immensely valuable to him; but to contract with his men that they must be members of such union, it matters not how wisely that organization may be controlled, or how great the advantage and profit to the master and his servants, if the latter become members of the organization, the employer, under the statute, is guilty of a crime if he insists, as a condition of employment, that his employés shall join the union. On the other hand, another operator may believe that the success of his business depends upon thé undivided loyalty and support of his men, and that he cannot have such loyalty and. support if they belong to, and are bound to submit to the control of, a labor organization; but he also violates this statute by exacting as a condition of employment that his men shall not join a union.

Among the reasons formally assigned in the statement of the association, dated December 1, 1907, justifying the action and resolution of the mining company, we find the following:

“4. The Union has encouraged, protected and assisted its members in the crime of stealing ore from the mines of the district. * * * During the six months ending December 31st, 1906, there was stolen from the Mohawk Mine alone not less than one million dollars, and during the past six months there has been taken from the Little Florence Mine not less than two thousand dollars per day. The union has refused to permit underground watchmen (and) ordered a strike when effective change rooms were placed upon the property.”

It is a constitutional right of an employer to refuse to have business relations with any person or with any labor organization, and it is immaterial what his reasons are, whether good or bad, well or ill founded, or entirely trivial and whimsical. Under the conditions existing in Goldfield at the time the resolutions were published, it is possible that the only practical method of exercising this right was to require all employés to refrain from being or becoming members of the Western Tederatioii of Miners. Thus we have a right guaranteed by the Constitution, and its exercise blocked, or at least hindered and restricted, by the statute of Nevada. It is too clear to require a citation of authorities that the Legislature has no power to restrict the exercise of a constitutional right, unless the interests of the public, as distinguished from the interests of the individual, or of a class of individuals, demand such restraint. The act so forbidden by the Legislature must be detrimental to the public welfare, and the health, safety, or morals of the community to justify such interference. There can be no pretense here, and none is made, that the execution of such a contract as the one in question has any tendency to injure the health, safety, or morals of the public, or of either employer or employes. It is clear that the Nevada statute deprives the employer of the right to contract as to certain matters which may be vital to him, and that it also, while not preventing, does obstruct the exercise of his right to exclude objectionable persons from his employ. The fact that the statute includes an element which is not found in any other similar statute to which attention has been called, in that it prohibits contracts requiring employes to join a union as a condition of employment, in no wise heals its invalidity; the added element simply makes larger and wider the invasion of the liberty of the employer to fix the terms and conditions upon which he will contract for labor.

The terms “life, liberty, and property” as used in tlie federal Constitution, embrace every right which the law protects. They include not only the right to hold and enjoy, but also the means of holding, enjoying, acquiring, and disposing of property. The right to labor is property. It is one of the most valuable and fundamental of rights. The right to work is the right to earn one’s subsistence, to live and to support wife and family. The right of master and servant to enter into contracts, to agree upon the terms and conditions under which the one will employ and the other will labor, is property. The master has the right to fix the terms and conditions upon which he is willing to give employment; the servant has the right to fix the terms and conditions upon which he will labor, and any statute which curtails and limits that right deprives the party affected of his property, and, in the same measure, of his liberty. Both parties are free to enter into, or refuse to enter into, the contract. Before the law, there is the same freedom to employ as to work, to buy as to sell, to choose one’s employe as to dioose one’s employer.

“The liberty of contracting relating to labor, Inducios both parties; the one has as much right to purchase as the other to sell labor." Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832; Lochner v. New York, 198 U. S. 45, 56, 25 Sup. Ct. 539, 49 L. Ed. 937.

“One citizen cannot be compelled to give employment, to another, nor can any one be compelled to be employed againsf: his will.” Gillespie v. The People, 188 Ill. 176, 58 N. E. 1007, 52 L. R. A. 283, 80 Am. St. Rep. 176.

The right of an employer to refuse to employ any particular individual, or any class of individuals, is neither greater nor less than the right of a man to refuse to work for any particular individual, or class of individuals. The reason for the refusal can in no wise control, enlarge, or diminish the legal right of refusal, the right to employ, or thé right to refuse to be employed.

“It is a part of every man’s civil right that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, eapriee, prejudice, or malice. With his reasons neither the public nor third persons have any legal concern. It is also his right to have business relations with any one with whom he can make contracts.” 2 Cooley on Torts, p. 587.

Statutes similar to the Nevada act in question have existed in other states, but, in every jurisdiction where their validity has been called in question, they have been held invalid, under the constitutional provision that no one shall be deprived of life, liberty, or property without due process of-law. Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277, 52 L. Ed. -; People v. Marcus, 185 N. Y. 257, 77 N. E. 1073, 7 L. R. A. (N. S.) 282, 113 Am. St. Rep. 902; Id. (Sup.) 97 N. Y. Supp. 323; State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 90 N. W. 1098, 58 L. R. A. 748, 91 Am. St. Rep. 934; Coffeyville, etc., Co. v. Perry, 69 Kan. 297, 76 Pac. 848, 66 L. R. A. 185; State v. Julow, 129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 50 Am. St. Rep. 443; Gillespie v. People, 188 Ill. 176, 58 N. E. 1007, 52 R. R. A. 283, 80 Am. St. Rep. 176; State v. Goodwill, 33 W. Va. 179, 10 S. E. 285, 6 L. R. A. 621, 25 Am. St. Rep. 863; Railway Co. v. Schaffer, 65 Ohio St. 414, 62 N. E. 1036, 87 Am. St. Rep. 628.

In Adair v. United States, supra, Adair, a foreman for the Rouisville & Nashville Railroad Company, discharged O. B. Coppage, a fireman in the employ of the company, on the ground that he was a member of a labor organization. Adair was convicted in the District Court of the United States for the Eastern District of Kentucky, under the tenth section of the act of Congress of June 1, 1898, 30 Stat. 428 [U. S. Comp. St. 1901, p. 3210] which provides, among other things that:

“xVny agent or officer” of an interstate carrier, “wiio shall require any employee, or any person seeking employment, as. a condition of suck employment, to enter into an agreement either written or verbal, not to become or remain a member of any labor corporation, association or organization; or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of liis membership in such labor corporation, association, or organization * * * is hereby declared to he guilty of a misdemeanor.”

The lower court (152 Fed. 737) held that it was within the power of Congress to enact such a law under the provisions of the commerce clause of the federal Constitution, but it is significant (page 753 of 152 Fed.) that the court refused to criticise the decisions of the states of Missouri, Illinois, Wisconsin, and New York, in which similar statutes were held to be unconstitutional. On the contrary, the court intimated that those decisions were correct, because such legislation by a state is in violation of the fourteenth amendment. In other words, Congress may, but the states cannot, enact such a statute. The case was taken to the Supreme Court of the United States, and there the provision of the statute, unde” which the defendant was convicted, was held to be an illegal invasion of the personal liberty, as well as of the right of property, of the defendant Adair, and therefore unconstitutional. The court said:

“While, as already suggested, I he rights of liberty and property guaranteed, by file Constitution against deprivation without due process of law is subject to such reasonable restraints as the common good or the general welfare may require, it is not within the functions of government — at least in the absence of contract between the parties — to compel any person in the course of his business and against his will to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another. The right of a person to sell his labor upon such terms as lie deems proper is, in its essence, the same as the right of the purchaser of labor to proscribe the conditions upon which lie will accept such labor from file person offering to sell it. So the right of the employ? to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employ?. It was the legal right of the defendant Adair, however unwise such a course might have been, to discharge Ooppage because of his being a member of a labor organization, as it was the legal right of Ooppage. if he saw fit to do so, however unwise such a course on his part might have been, to quit the service in which he was engaged, because the defendant employed some persons who were not; members of a labor organization. In all such particulars the employer and the employ? have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government' can legally justify in a free land.”

In People v. Marcus (Sup.) 97 N. Y. Supp. 323, the defendant was convicted under a statute forbidding an employer to exact an agreement from an employe, as a condition of employment, not to join a labor union. The case was appealed to the Supreme Court, and subsequently to the Court of Appeals. In both appellate courts the statute was held invalid, because it was in contravention of the fourteenth amendment to the Constitution of the United States. The Supreme Court used the following language:

“The contracts at which the provision of the Pemil Code in question is ¡limed, it is true, do discriminate against labor unions; but tha t is in the lawful exercise of the right of the employer to employ whomsoever he pleases, and it is not competent for the Legislature to make it a crime for him to decide the question upon considerations of race, or of religion, or of the affiliations of the individual with civic organizations, uhlessj of course, he makes a contract contrary to public policy and affecting the state itself, as, for instance. imposing as a condition that the employ? shall not join the National Guard, the maintenance of which is essential to the peace and safety of 11k; people of the state. The statute, however, clearly discriminares in favor of labor unions by forbidding an employer either to impose as a condition of employment that the employ? shall sever his relation with the union, or, ii not a union man, shall not join a union. Ini the making of such a contract, both the employ? and the employer are acting within their strict legal rights. The employ? is not obliged to accept the. employment on those conditions, and the employer is not obliged to give it without them.”

An unlawful conspiracy is a combination between two or more persons to do an unlawful or criminal act, or to do a lawful act by criminal or unlawful means. 8 Cyc. 620.

An examination of the resolution in question shows that the association agreed to do five acts, namely: First, to reduce the wages of the men employed by the various members of the association; second, to resume operations, giving preference to old employes; third, to reduce the cost of living in Goldfield District 20 per cent; fourth, to have no further dealings with the Goldfield Miners’ Union, or any organization affiliating with the Western Federation of Miners; fifth, to require each person presenting himself to any member of the association for emplojunent to sign, as a condition of such employment, an agreement that Ije is not, and during the period of his employment will not become, a member of respondent union. The fifth item may be regarded as the means agreed upon to accomplish the first and the fourth. None of the proposed acts are either unlawful or criminal. For these reasons I must hold that complainant in entering into the agreement with the other members of the Goldfield Mine Operators’ Association, which is embodied in the resolutions of December 7,1907, was not guilty of any unlawful conspiracy against the respondents.

6. Is the evidence sufficient to show the establishment of a picketing system and concerted action by the pickets to coerce and intimidate the employés of the mining company, and thus prevent complainant' from operating its mines? The union, by unanimous vote of those present at the meeting of November 26th, declared a strike, and later appointed a strike committee composed of five members. This committee is clothed “with power and authority to oversee and regulate the conduct of said strike.” The members of this committee state in their joint affidavit that the committee and the union found the picket system “practically useless,” and therefore picketing “has been adopted onfy to a limited degree”; that is to say, men are not assigned to any particular duty or place, no picket lines or squads of pickets have been organized, but union members in numbers ranging from 30 to 75 approach complainant’s premises at the hours of the morning and afternoon change of shifts, and they do this at their own volition, without any concert among themselves, and without special, or any, direction from, or understanding with said union, or any of its members, officers, or committees. This picket system as organized, evidentl)'' contemplated the active participation of every' member of the union, for the affidavit states “that all of the miners belonging to said union were instructed • * * * to peaceably address any nonunion man willing to listen, and endeavor in a lawful manner to persuade him to join said union, or refrain from injuring 'the cause of labor by taking the place of nonunion miners.” The miners were also instructed to refrain from violence, intimidation, and unlawful conduct of every kind in dealing with complainant, and with nonunion men. The miners engaged in the strike were not only carefully instructed, but evidently they were carefully watched by the members of the strike committee, each of whom says that he “has taken an active interest in said strike,” and “has kept in such close and constant touch with all miners engaged in said strike,” and been in' such “a position to ascertain and know” the fact, that he can say that “none of said miners trespassed” on, “or in any way molested complainant’s property,” or demanded of any of its employés that he should not work, etc. This committee also maintains such authority over the miners engaged in the strike that each of them could testify that he would have “reprimanded and disciplined any miner engaged in the strike who indulged in any act or word in the nature of a threat or intimidation.”

It is as unreasonable to suppose that these men assembled without design or concert among themselves, and without any direction or understanding with the union or its officers or committees, as it is to suppose that the wheels of a watch get into place by accident. Why are all miners belonging to the union instructed “to peaceably address any nonunion miner willing to listen, and endeavor in a lawful manner to persuade him to join the union, etc? If it is not intended that the instruction should be obeyed, why is it given ? It cannot be assumed for an instant that the person who gave such instructions, or that any or all of the miners who received them, had any other thought but that they were to go where the nonunion men were to be found, and address them. At this time the respondent union counted on its rolls about 1,200 resident miners, of whom in the neighborhood of 150 had, before the strike, been employed in complainant’s mines. After “all of the miners belonging to the union” are so instructed, it is not at .all remarkable that from 30 to 15 of them, or even as many as 200, as complainant’s affidavits show, assemble at or near the crossing between the Combination Mines and the company’s boarding house. If ail these uen obeyed instructions, and the affidavit of the strike committee says they did, the common design and purpose which they were each and all seeking to effect was to induce nonunion miners to join the union, and not to work for complainant. If the nonunion men consent, the mining company, being without miners, will be unable to operate, atid it must yield to the demands of the union, or close down the mines. On the other hand, if the nonunion men refuse, and the company obtains enough nonunion men to work its property, the strike will he a failure, the power of the Western Federation of Miners in Goldfield broken, and the members must seek work elsewhere.

Each party has the right to enter into lawful competition for the support of the nonunion miners, and to endeavor by peaceful argument or persuasion to secure their co-operation, provided the persuasion is of such a character as to leave the person solicited feeling free to do as he pleases, and he is not persuaded to do that which in him would be unlawful. This is so, because workmen, when free from contract obligations, have a legal right, singly, collectively, or as a union, to quit-work; that is, to strike, and, having this right, they have the further right to use such lawful means to make the strike effective as are not inconsistent with the rights of others. Karges Furniture Co. v. Amalgamated Woodworkers’ Union, 165 Ind. 421, 15 N. E. 877, 2 L. R. A. N. S.) 188; 18 Am. & Eng. Ency. L. (2d Ed.) 88. The mining company has the right to employ nonunion men to take the places vacated by those who quit work. The latter have no legal interest or concern in the contract between the company and its new employes. The places which they vacated to strike are no longer theirs, and never again will he theirs unless they are re-employed. It is' difficult to see, when a man has voluntarily given up a job, how lie can maintain that lie has a shadow of claim or right to the vacated place. Union Pac. K. Co. v. Ruef (C. C.) 120 Fed. 102, 128.

There is no law, nor is it within the power of this or any other court, to make an order by which the Goldfield Consolidated Mines Company can be compelled against its will to re-employ any miner who quit, or any member of the Western Federation of Miners; neither can any member of that organization be compelled against his will to work for the company. The nonunion men have the same right to work or not work, to agree upon the terms of employment, or to quit work, as union men, no more, no less. They have a perfect right to take the vacated jobs if they can agree with the company upon terms, and the respondents have no legal right to dictate what those terms shall be. They have the right to seek employment, to come and go from their work, or to go where they please on the public thoroughfare, without fear or molestation, threats, violence, or insult of any kind. They have a right to come and go without being picketed, or compelled to listen to argument or persuasion, whether it be peaceful or irritating. The pickets have no legal right to insist that any nonunion man shall listen to their solicitations if he is unwilling to do so, it matters not how peaceful and friendly such solicitations may be. Union Pac. R. Co. v. Ruef (C. C.) 120 Fed. 114. These considerations are true, because, under our system of government, every man has the right to enjoy his liberty and property until it is taken away from him by due process of law. To guard these rights is the true end and aim of our civilization. The existence of such a right in one man necessarily imposes upon every other man the duty to respect it, and upon the government and the courts the duty to guard and protect it. And it necessarily follows that any attempt to intimidate a man in order to compel him to refrain from exercising a legal right is unlawful, and this is true no matter whether the attempt is made by one man or many, or by a corporation or a labor union. Hence, if the pickets, or members of the respondent union, who gather at or near complainant’s premises at the time of the morning and afternoon change of shifts, assail nonunion men with threats, ridicule, and insult, or follow them to or from their work with vile language and abusive epithets in order to compel them to quit work, or refrain from offering their labor to the complainant, they are guilty of unlawful conduct.

The affidavit of the strike committee states that the instructions given to the miners engaged in the strike have been strictly obeyed; it also states that no member of the union has violated any right of the Goldfield Consolidated Mines Company, or of its employés, or has committed any act of violence or intimidations, or in any way molested complainant or the nonunion men. It should also be stated here that no evidence on the part of either complainant or respondents identifies any particular member of Goldfield Miners’ Union with any specified act of violence or intimidation against the men who are now working for, or offering their labor to, the company. The affidavits on the part of complainant, as well as other evidence in the case, however, convince the court that the company’s premises are almost constantly picketed, day and night, by members of the Miners’ Union; that there are altogether too many pickets, especially at the railroad crossing used by the workmen in going to and from the mines and mill to the company’s hoarding house. The unnecessary massing oí so many men at this point is, in itself, an act of intimidation, which is further aggravated by insults, threats, and ridicule. It is-not necessary that a man should be knocked down to be intimidated. The most reprehensible intimidation may exist not only without violence, hut without words, or even the lifting of a finger. Whether conduct is intimidating or not depends upon the circumstances of each case. What would fill a timid man with fear might only provoke the mirth of a strong man; and a simple request, when backed up by a display of physical force, may overawe the most determined man, even though there is neither threat nor violence. The vast majority of wage-earners are peaceful, law-abiding men, who instinctively avoid trouble and the giving of offense. Such men would cease working or refuse to work if compelled to run the gauntlet of a picketing system such as the evidence shows is in force at and near complainant’s premises in Goldfield. Notwithstanding the denials of the respondents, the affidavits of so many witnesses, guards, and employés who testify to what they have actually seen and heard, who have repeatedly passed by or made their way through squads of pickets at the crossing, and -who were often the victims of ridicule, insult, and. threat, leave no doubt in the mind of the court that the pickets were, in the main, members of the Goldfield Miners’ Union; that they so assembled with a common purpose, and that purpose was to coerce and intimidate nonunion men who wished to- work for, or who are already in the employ of the company. This conviction is strengthened by the fact that the complainant has 50 guards and deputy sheriffs in its employ for the protection of its employés. It is unreasonable to suppose that complainant would go to an expense of $250 per dav for this purpose if guards were not needed. Otis Steel Co. v. Local Union, No. 218 (C. C.) 110 Fed. 698. The fact that men have quit and refused to work, and the further fact that it is the custom to send and have the men go in a body between the mines and the company’s boarding house, and that guards are stationed on the way, show that there is something in the appearance, conduct, language, or numbers of the pickets which inspires fear among the employés of the company. It is significant' that all these precautions are taken while a body of federal troops is stationed only a few hundred yards away. It also appears that the company cannot, by reason of the fear which exists, obtain a sufficient number of men to operate its mines. Peaceful picketing, in theory, is not only possible, but permissible, and. as long as it is confined strictly and in good-faith to gaining information, and to peaceful persuasion and argument, it is not forbidden by law. Unfortunately, peaceful picketing is it very rare occurrence. This follows from the very nature of things. Men who want to work for an employer who is eager to employ them must be persuaded not to work — persuaded not to- exercise their legal rights. In such case, peaceable solicitation is of but little effect, and when it' becomes persuasion by intimidation it is universally condemned, and has been declared unlawful in everv jurisdiction where the question has been raised. These views will find abundant support, not only in the cases which have already been cited, but in the following authorities: In re Doolittle (C. C.) 23 Fed. 545; Mackall v. Ratchford (C. C.) 82 Fed. 41; American Steel & Wire Co. v. Wire Drawers’, etc., Unions (C. C.) 90 Fed. 608, 614; Southern R. Co. v. Machinists’ Union (C. C.) 111 Fed. 54; Union Pac. R. Co. v. Ruef (C. C.) 120 Fed. 124; Knudsen v. Benn (C. C.) 123 Fed. 636; Atchison, T. & S. F. Ry. Co. v. Gee (C. C.) 139 Fed. 582, 584; Pope Motor Car Co. v. Keegan (C. C.) 150 Fed. 148; Allis-Chalmers Co. v. Iron Molders’ Union (C. C.) 150 Fed. 155, 179; Beck v. Ry. Teamsters’ Protective Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421; Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443 ; Jensen v. Cooks’ & Waiters’ Union, 39 Wash. 531, 81 Pac. 1069, 4 L. R. A. (N. S.) 302; Fletcher Co. v. International Ass’n of Machinists (N. J. Ch.) 55 Atl. 1077; O’Neil v. Behanna, 182 Pa. 236, 37 Atl. 843, 38 L. R. A. 382, 61 Am. St. Rep. 702; Winslow Bros. Co. v. Building Trades Council, 31 Chicago Legal News, 337, cited in note to Jensen v. Cooks’ & Waiters’ Union, 4 L. R. A. (N. S.) 306.

In Mackall v. Ratchford (C. C.) 82 Fed. 41, the defendants had joined a body of over 200 striking miners in marching with music and banners by one of the mines belonging to .the complainant. The men marched and countermarched along the public highway for 3 days, early in the morning and again late at night when the men were coming off shift, and on each occasion the men taking part in the procession stopped on each side of the road where the miners must cross in going to and from the mine. The avowed object of the strikers was to induce the miners to join the strike. There were no threats and no loud, boisterous, or taunting language. The court found that the purpose was to intimidate the men, and thereby induce them to abandon their work, and secure their co-operation in closing the mines. It was held that the conduct of the defendants was intimidating and unlawful, and they were punished for violating the preliminary injunction.

In American Steel & Wire Co. v. Wire Drawers’, etc., Unions (C. C.) 90 Fed. 608, 614, the court said:

“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 or 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 mem, massed and controlled by the leaders, so as to be used for obstruction if required. * * * 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 plaiutifi's 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.”

In Beck v. Railway Teamsters’ Protective Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 416, 74 Am. St. Rep. 421, members of a union followed the complainant’s teamsters along the street, hallooing at them, and using abusive language, and intercepting on the street those who were going to the mill with their teams. In reference to this the court said:

“To picket (onijffiiliinnfV premises in order to intercept i'licir ('eawsimr or parsin'.*; going there (<> trade is unlawful. It itself is an act of huimidanon, and an unwarrantable interference with the right of free trade. * * it will not do to say that these pickets are thrown out for the purpose of pea'-eablo argument and persuasion. They are intended to intimidate and <•«('?<<a. As applied to cast's of this diameter, the lexicographer;; tiras destine the1 word •picket’: ‘A body of men belonging to a trades union sent to watch and annoy men worldug in a shop not belonging to the union, or against which a strike is in progress.' ”

In United States v. Kane (C. C.) 23 Fed. 748, no force was used by the strikers, there were merely persuasions to quit work. The court, however, held that these persuasions were made under such circumstances, and by such numbers, that it tended to intimidate the men who desired to work, and those who participated were punished.

In Pope Motor Car Co. v. Keegan (C. C.) 150 Fed. 148, 150, this language is used:

“Large numbers of strikers were congregated in the neighborhood of ¡he works, anal used threatening and intimidating language to employes and oflicers of the complainant. Undoubtedly such conduct is unlawful. The presence of a large number of strikers, under such eireumsl anees, is in itself intimida ling.”

7. The evidence clearly shows that complainant and its employes have been and are victims oE unlawful picketing', and, if we may judge the intention and the design of the pickets by their conduct, they have been and are actuated by a common purpose to injure complainant’s business by coercing and intimidating its men.

Judge Sanborn says in Allis-Chalmers Co. v. Iron Molders’ Union (C. C.) 150 Fed. 155, 181:

“There can bo no doubt, as it seems to me, that the constant and regular maintenance of the pickets after repeated acts of violence by pickets, the. use <--£ abusive epithets, ilie creariou of an unfriendly atmosphere surrounding the workmen, with the other conditions mentioned, constitute a clear case of conspiracy among the pickets to unlawfully intimidate anil coerce the workmen.”

In Eddy on Combinations, § 539, it is said:

“A picket is the agent of a combination. * * * In determining the object of the combination, the courts will probe deeper than resolutions and mere professions of good will and lawful intentions. It unfortunately happens that There is seldom a case where a picket is maintained that the members of the jacket or their hangers-on do not resort to acts of violence, and to jeers, cries, epithets, and threats calculated and intended to intimidate workmen who are not members of the combination. So true is this that the very term ‘picket’ has come to moan in the popular mind threats, violence, and intimidation. It is conceivable, however, that a picket entirely lawful might be established about a factory, but such a picket would go no further than interviews and lawful persuasion and inducement. The slightest evidence of threats, violence, or intimidation of any character ought i:o bo sufficient to convince court and jury of the unlawful character of the picket, since 1lie picket, under the most favorable consideration, means an interference between employer seeking employf's and men seeking employment.”

8. Whether the union is an original conspirator or whether, after* it became aware of the coercive conduct of the pickets, it became a party to the conspiracy by co-operating with and supervising them, is immaterial. In either event, the Miners’ Union is a conspirator and is responsible for the acts of its co-conspirators.

In the recent case of United States v. Standard Oil Co. (C. C.) 152 Fed. 290, 294, the court uses the following language:

_ “The Waters-Pierce Oil Company is still a distinct legal entity, a corporation of the state of Missouri. The knowledge of its officers and directors is its knowledge, and those officers and directors cannot have caused this corporation to act its important part in the accomplishment of the purpose of this conspiracy without knowledge of the conspiracy, its scheme, its object, and its effect. One who learns of a conspiracy after it is formed, and then joins it, or knowingly aids in the execution of its scheme, and shares in its profits, becomes from that time as much a co-conspirator as if he were one of those who originally designed it and put it in operation. * * * If a series of acts are to be performed with a view to produce a particular result, he who aids in the performance of any one of these acts, in order to bring about the result, must have the intention to effectuate the end proposed, and if he operates with others, knowing them to have the same design, there is in fact an agreement between him and them. His criminal intent is not to be distinguished from the intent of those who first formed the plans of the conspiracy.”

Judge Shaw, in Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 38 Am. Dec. 346, 355, says:

“When an association is formed for purposes actually innocent, and afterward its powers are abused, by those who have the control and management of it, to purposes of oppression and injustice, it will be criminal in those who thus misuse it, or give consent thereto.”

In order to demonstrate that the union originated or joined this conspiracy, it is not necessary to prove any formal or explicit agreement. The existence of a conspiracy may be shown by circumstantial evidence.

“Where an unlawful end is sought to be effected and two or more persons, actuated by the common purpose of accomplishing that end, work together, in any way, in furtherance of the unlawful scheme, everyone of said persons becomes a member of the conspiracy.” United States v. Babcock, 24 Fed. Cas. No. 14,487; The Mussel Slough Case (C. C.) 5 Fed. 680, 684; United States v. Cassidy (D. C.) 67 Fed. 698, 702; Spies v. People, 122 Ill. 170, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320.

The system of picketing was adopted by the union and its strike committee, and this picketing has been and is under the supervision of the union, through its strike committee. Each member of the committee has taken an active interest in the strike, keeping in close and constant touch with all union men engaged therein, and all, or nearly all, of the pickets are members of the union. Even if it were possible to believe' that the union was innocent of any improper design when it adopted the picketing system “to-a limited degree,” it is idle to contend that it has remained in ignorance of the misconduct of its pickets. The knowledge of the strike committee was the knowledge of the union. Spaulding v. Evanson (C. C.) 149 Fed. 913. Nevertheless, the union, through its strike committee, continued its supervision of the strike, and its members continued-to threaten and abuse nonunion men. The coercion was in behalf of the union, for the benefit of the union, and in aid of the strike inaugurated by the union. The union cannot now, •while it is consciously and uncomplainingly accepting the benefits of this terrorism, relieve itself from responsibility by saying that it has always instructed the miners against lawlessness of every sort.

Neither the history of the Goldfield Miners’ Union, nor its conduct as detailed in the evidence, justifies any assumption that it was guiltless of wrongful purpose in adopting a system of picketing. There is hardly a page iti the history of picketing which does not record lawless deeds and acts. When the union, by its instructions, practically made all its members pickets, it was bound to anticipate the natural and almost inevitable consequences, to foresee that the pickets would do just what they did and are doing, or something worse. We are justified in assuming that the union intended and designed, and therefore conspired, to effect the natural consequences of its acts. It is idle to talk of 30 to 75 pickets, and at times more than 100, gathering twice a day at the crossing for friendly solicitation. Such bands of men were never sent by the union to confer with the Mine Operators’ Association. The picketing, designed by the instructions, was designed and intended to inspire fear and apprehension among the employes. Such assemblages are never conducive to lair argument; they are simply intended to back up persuasion with a display of physical force.

In Union Pacific R. Co. v. Ruel (C. C.) 120 Fed. 102, 125, the evidence showed that few of the strikers had committed any unlawful' acts; it was therefore contended, for reasons similar to those urged in this case, that the injunction should be denied as to all who did not commit any unlawful acts. They were not responsible, first, because they did not participate in the unlawful acts, and, second, because there was no sufficient evidence of a conspiracy, therefore they could not be held as co-conspirators. The court said:

"In the light of these authorities (Allis-Chalmers Co. v. Reliable Lodge [C. C.] 111 Fed. 207; Southern R. Co. v. Machinists’ Local Union No. 14 [C. C.] Ill Fed. 49; Farley v. Peebles, 50 Neb. 723, 733, 70 N. W. 231), it seems clear that all of the respondents who were members of the various organizations which established and maintained the picket line, as well as those who are shown by the evidence to have personally participated in the assaults and various ads of intimidation, must in this action be held chargeable with the results naturally flowing therefrom. * * * The strikers ® * * voluntarily put into operation a system of espionage which history shows is almost universally accompanied by intimidation, force', and violence. Can it be doubted for a moment that, had there been no strike and no picketing-, there would have been no assaults, no threats, and no intimidations?”

The recent case of Franklin Union No. 4 v. The People, 121 Ill. App. 617, is a strong one. The union declared a strike and established a picket system. Violent assaults, threats, vile language, and other forms of intimidation were used by the pickets to coerce complainant’s employes to quit work. The court, in adjudging the union itself guilty of contempt for violating the preliminary injunction, uses the following language:

“There is no room for reasonable doubt that the union was a party to the conspiracy charged in the bill, and that the picketing was established and continued under the direction of plaintiff in error through its officers and strike committees. * * * The picket system once established, the intimidation, assaults, slugging, and bloodshed followed ns naturally and inevitably as niglit follows day. There can be no such thing as peaceful, ’polite and gentlemanly’ picketing, any more than there can be chaste, ‘polite and gentlemanly’ vulgarity, or peaceful mobbing or lawful lynching. * ® ® Consequently the mere fact of a picket system being established by men known to be unfriendly constitutes and is a threat of physical violence and an intimidation to the peaceful man. ® ® * It is idle to talk of picketing for lawful persuasive purposes. Men do not form picket lines for the purpose of conversation and lawful persuasion. Such picketing as is established by the evidence in the case at bar is intended to annoy and intimidate, whether physical violence is resorted to or not, and is unlawful in either case. * * * The union or its members had no legal right to interfere with the business of complainants or to disturb them in their lawful business or occupation, as was done in this ease, for the purpose of compelling them to make agreements with the union or its members as individuals in regard to the wages to be paid. * * * The union was the main factor in the conspiracy, and by reason of its money and its control of its members it was the real power back of the whole sc heme. Tinder the authorities cited above and many others and the evidence the union must be hold guilty of willfully violating the injunction, and it must suffer the consequences.”

In the still more recent case of the Sailors’ Union of the Pacific et al. v. Hammond Lumber Co. (C. C. A.) 156 Fed. 450, Judge Gilbert holds that the fact that the disorders of the strike were deprecated by the officers and leaders of the unions does not relieve the unions of responsibility, or render the court powerless to deal with them in their collective capacity, for violent acts committed and threatened to be continued.

9. “That conditions exist” in Goldfield “which border upon and threaten an immediate state of domestic violence” is stated in the joint resolution of the Legislature of Nevada. That this apprehension is well grounded is also shown by the report of the Special Commission which investigated conditions in Goldfield by direction of the-President of the United States, and also by the action of the authorities in retaining the troops in Goldfield. The commission says “the question as to possible future violence and disorder on the withdrawal of the troops” depends “largely on the personnel of the Miners’ Union, and their leaders in particular.” The policy and purpose of the Miners’ Union and its leaders finds expression in the constitution of the Western Federation of Miners and in the constitution of the Goldfield Miners’ Union No. 220. The former preamble to the constitution of the Western Federation of Miners declared that one of the objects of that organization is “to use all honorable means to maintain and promote friendly relations between ourselves and our employers, and endeavor by arbitration and conciliation, or other pacific means, to settle any- difficulties which may arise between us, and thus strive to make contention and strikes unnecessary.” This was the proper spirit, and it meets the approval of good and patriotic men everywhere. But in June, 1907, at the annual convention of that organization, this provision was stricken from the constitution, and nothing of similar or equivalent import appears therein. Is it unjust to infer from this action that conciliation, arbitration, and the maintainance of friendly relations between employer and employé are no longer among the objects of the organization, and that it proposes to favor strikes and contention ? In the same constitution, prior to June, 1907, it was provided that “it shall be unlawful for any union to enter upon a strike unless ordered by three-fourths of its resident members in good standing voting. Such question shall be decided by a secret ballot at a special meeting called for that purpose.” This provision was amended by the same convention so as to read as follows:

“It shall be unlawful for any union to enter upon a strike sinless ordered by two-thirds of the votes cast upon the questions; such question shall be decided by referendum rote at a special meeting called for that purpose.”

That the ballot should be secret is no longer essential; it may be by referendum vote, and the distinction between three-quarters of all resident members in good standing voting and two-thirds of all the votes cast upon the question is also significant. These changes have rendered it much easier for a minority to declare a strike. The present strike was declared by not more than 700 votes. The same convention increased the difficulty of settling strikes by adding to the constitution this provision:

“No local union or unions of the W. F. M. shall enter into any signed contract or verbal agreement for any specified length of time with their employers.”

This provision seems to provide for and render possible such a condition that the employer cannot count upon any definite period of industrial peace. Whether there shall be constant turmoil and contention must dependmpon the personnel of the men who control the action of the union. The industrial struggle between employer and employe, with occasional truces, whose length cannot be regulated by agreement with the local union, must go on until, as the preamble to the present constitution of the Western Federation of Miners says, “the producer is recognized as the sole master of his product.”

Conciliation, arbitration, and the promotion of friendly relations between employer and employé, and the elimination of strikes and contention, are no longer among the declared objects of the Western Federation of Miners, and its policy seems to be to render strikes easier, settlements more difficult, and settlements by local unions for any definite period impossible. The preamble to the constitution of the Goldfield Miners’ Union declares that “the working class and the employing class have nothing in common. There can he no peace so long as hunger and want are found among millions of working people, and the few, who make up the employing class, have all the good things of life. Between these two classes a struggle must go on until all the toilers * * * take and hold that which they produce by their labor.” In the early part of the year 1907, a celebration was held by the Goldfield Miners’ Union and “under its auspices a procession marched through the streets of that city carrying the red flag of anarchy as a sole emblem, and bearing aloft legends and mottoes of an incendiary character.”

About the beginning of the strike or lockout of March, 1907, the following notice was sent to the then manager of the Goldfield Consolidated Mines Company;

“Goldfield, Nevada, March 8th, 1907.

“Mr. John W. Finch,

“Nixoru Building.

“Dear Sir: Goldfield Miners’ Union No. 220, W. F. M., have passed a law that all workers employed around the mines must hold a membership card in this union, and if they do not join our members shall refuse to work. This pertains principally to carpenters. We demand that members of our organization only shall follow that work and shall draw the same wages as men now following that line of work. This goes into effect at once.”

In the agreement by which that strike was settled, it was conceded that the union should have jurisdiction over all men employed in and around the mines, mills, and smelters, excepting superintendents and managers. A similar concession is to be found in each agreement recited in the record between complainant and the respondent union by which a strike was settled.

These considerations strengthen my conviction that injunctive relief is necessary. One of the most important elements to be considered in determining whether injurious conduct is to be apprehended which ought to be restrained by order of this court is the character of the dominant faction of the Goldfield Miners’ Union. If that faction is animated by the spirit and the purpose exhibited in the constitutional amendments made by the Western Federation of Miners, it would be remarkable if intimidation, and coercion were not resorted to if necessary to secure “jurisdiction over all men regularly empkryed in and around the mines.” When the spirit which prompts conciliation, arbitration, and friendly relations between employer and employé is banished, we are not far from anarchy. »

An injunction‘pendente lite will issue against all of the respondents, except C. E. Mahoney.