(Montgomery Co., O. Common Pleas,

1901.)

#### THE DAYTON MANUFACTURING COMPANY v. THE METAL POLISHERS, BUFFERS, PLATERS AND BRASS WORKERS UNION NO. 5, OF DAYTON, OHIO, EDWARD J. LEO AND (240 OTHERS).

Every working man has a right to belong to a labor organization of he chooses. He has an equal right to refuse to belong, and the denial or either j-ight, whether by the labor or the capitalistic organization, is a species of despotism.

Organization into unions by workingmen for the securing of better and uniform wages, and the use of persuasion to induce other workingmen to join the union, and to refuse to work except for the established wage, and the presentation of their cause to the public in newspapers or circulars, in a peaceable way and with no attempt at coercion are lawful.

But the boycotting of one who refuses to accede to the demands of the union is unlawful, where the means used to prevent persons from dealing with the persons boycotted are threatening, in their nature, and tend naturally to overcome, by fear or loss of property, the will of others, and compel them to do what they would not otherwise do, though unaccompanied by actual vjolence or threats of violence.

Injunction will lie to restrain a combination of persons from attempting to ruin complainant’s business by bringing to bear upon his customers and employes intimidating and coercive means.

Courts of Equity will enjoin mere persuasion when it 'has for its object a malicious or unlawful end or persuading third parties to break a contract, or otherwise to act in violation of the legal rights of the plaintiff.

The members of the union having agreed among themselves to divulge none of its proceedings and to stand by the legal majority in all matters, are presumed to have full knowledge of all that was going on. It will not do for the nomparticipating members to sav that they should not be held responsible because they did not personally engage in the boycott or picketing or the‘threats and violence. When a conspiracy is once formed among a number of individuals, the act of one is the act of all. It is equally true that the act of the legal majority of the union is the act of each of its members, and all will be included in the injunction.

Kijmler, J.

This cause came on for hearing for' a perpetual injunction.

The petition in the case was filed on the 14th day of May, 1900, and alleges, in substance, that the plaintiff is a corporation-, organized under the general laws- of Ohioj that it is engaged in manufacturing car trimmino-s in brass and plated goods, locomotive headlights and other fabrics; that it has expended in buildings, machinery and tools two hundred and fifty thousand dollars, and has one hundred and fifty employes that work in said factory; that in carrying on said business it has a department in said factory known as the polishers and buffers department, in which it had constantly employed a number of metal polishers and buffers, and that it was necessary to have said department and men employed therein for the. operation of its business; that nearly all of said defendants are members of said Union No. 5 which is a voluntary assocition, whose business and proceedings are carried on in secret; that on the 9th day October, 1899, Louis. Kissinger and sixteen other defendants named in the petition were in the employ of plaintiff in the polishing and buffing department of said factory; that on said 9th day of October all of said seventeen defendants were discharged because the output of said department was not satisfactory to the general manager and other officers of the plaintiff; that since said 9th day of October the plaintiff has been compelled -to have a large portion of the polishing and buffing re*575quired in its business done outside of its factory.

The petition charges specifically that' between the 9th day of October, 1899, and the 12th day of February, 1900, and between thle 8th day of March, 1900, and the 14th day of May, 1900, the said defendants, the Metal Polishers, Buffers, Platers afid Brass Workers Union No. s, of Dayton, Ohio, its officers, members, committees and representatives, and others ássociated and confederated with them, combined and conspired together to prevent plaintiff from having its necessary polishing and buffing done in the city of Dayton by others engaged in the same business, thereby compelling plaintiff to have said work done outside of the city of Dayton; that said conspiring deiendants threatened the remaining employes in said department, and others who were subsequently employed and to be employed to take thj places of those discharged, with force and violence, in order to compel said employes of thle same trade to leave or not enter the service of plaintiff, and for the purpose of crippling plaintiff’s business and compelling it to submit to all the demands of said defendants; that said defendants have unlawfully and wrongfully combined and conspired together to prevent, by threats, intimidation, force and violence, certain persons from dealing with said plaintiff; that the employes of plaintiff have been accosted, abused and assaulted, whilfe go_ing to and from their homes, by said defendants because they refused to emit the service of plaintiff; that said defendants during all of said period, from early morning to late at nighlt, have loitered around plaintiff’s factory for the purpose of picketing the same, in order to ascertain who are employed bv plaintiff, and to induce such employes, by means of threats and violence, to quit the employment of plaintiff; that said conspiring defendants have, by means of threats and violence, induced and attempted to induce employes of plaintiff to break and violate their written and unexpired contracts with plaintiff; that said defendants have caused large crowds to assemble around and about plaintiff’s factory in the day and night time, in order to intimidate plaintiff’s employes and to annoy and embarrass plaintiff in the peaceful pursuit of its lawful business; that said crowds have been ■ so boisterous and unruly that the police department has, on numerous occasions, been compelled to send its officers to plaintiff’s factory, in order to disperse the crowds and escort plaintiff’s employes to their homes after working hours.

This is a brief summary of the petition, which is quite lengthy, consisting of twenty-seven pages of typewritten matter, and replete with charges of conspiracy, threats^ violence, intimidation, unlawful picketing, boycotting, etc., on t'hie part of defendants and their associates and confederates, to prevent plaintiff from employing whom it pleases and of conducting its own business in a manner suitable to itself.

The petition' also avers that the injunction suit of February 12, 1900, was dismissed on March 8, 1900, in consideration of the promises on the part of defendants, that they would not interfere with the business or employes of the plaintiff working in said manufacturing establishment.’

The petition further avers that plaintiff has no adequate remedy at law and that it has suffered and will continue to suffer great and irreparable injury, and prays for a perpetual injunction.

The defendants have filed two answers to the petition which are substantially the same. They admit that plaintiff is a corporation duly incorporated and organized under the laws of the state of Ohio; admit that it has a capital stock as averred in the petition and that it is carrying on a manufacturing business in the citv of Dayton; admit that the Metal Polishers, Buffers, Platers and Brass porkers Union No. 5, of Dayton, Ohio, is an unincorporated association; admit that on the 9th day of October, 1899, and for a long time thereafter, Edward J. Leo, and about two hundred more of the defendants, were members of the Metal Polishers, Buffers, Platers and Brass Workers Union No. 5, of Dayton, Ohio, and aver that the remaining defendants are not members of said Union No. 5, and admit that Louis Kissinger, together with the other persons named in plaintiff’s petition, were in the employ of plaintiff as in said petition alleged, in the oolishing and buffing department, and that they were discharged by said plaintiff from said employment; they admit that plaintiff filed its bill in equity in this court against the Metal Polishers, Buffers, Platers and Brass Workers Union No. 5, of Dayton, Ohio, and other defendants therein named, on thie 12th day of February, 1900, and admit that said case was disposed of in said court according to the en*576try of said court set out in plaintiff’s petition; admit that Jerry Hawkins was arrested and fined in the police court of the city of Dayton, Ohio, for carrying concealed weapons; admit that certain notices were served upon certain officials of the city of Dayton, as set out in ■plaintiff’s petition; admit that certain notices appeared in the newspapers of the city of Dayton, Ohio, as set out in plaintiff’s petition, but deny that they or either of them caused said articles to appear in said newspapers, or hiad any prior knowledge of the same; said defendants deny that they or any number of them at any time appeared in or around plaintiff's premises in an unlawful manner or for an unlawful purpose, or for the purpose of inerfering in an unlawful manner with the plaintiff in the prosecution of its business, or of intimidating ns employes, or in any manner or form interfering with said plaintiff in the prosecution of its business.

Said defendants deny all acts of conspiracy charged against them in plaintiff’s petition, and deny each and every allegation of plaintiff’s petition not specifically admitted.

The petition and answers make up the issue of fact upon which this case is to be finally settled and determined<tin so far as this court is concerned.

The hearing of the case lasted fourteen days, and was argued at length with great ability, and we have determined to state our conclusions of fact separately from our conclusions of law. The answers filed by the defendants greatly simplify the finding of facts.

FINDING OF FACTS.

1st. That the defendant Union No. 5, is an unincorporated secret association known as a labor union or labor organization, and that the object of the union as expressed in 'its constitution and ritual is as follows:

Article II.

Section 1. The object of this organization shall be to encourage all persons working at our craft to become union men; try and procure employment for the unemployed'; to maintain a fair and equitable rate of wages; to uphold our rights as citizens, and try to settle our grievances by arbitration.”

Pledge.

That in order to become a member of said Union No. 5, each applicant is reauired to take the following obligation:

> “I, -■, do hereby solemnly promise on my honor as a man that I will not reveal to any persons any business or proceedings of any meeting of this Local, unless by order of this Local, to any but those I know to be members in good standing; and I further promise to the best of my ability to abide by the by-laws, constitution and prices of this organization, and I will at all times abide by the decisions of the legal majority • I will use all honorable means to procure employment for the members of this organization in preference to others;

> I will not wrong a brother or see him wronged if in my power to prevent.

> “I do further promise to assist a member of this organization when and wherever I may find him in distress.”

The applicant is then addressed by the president as follows: ,

> “You are now a member of this organiza, tion, and I give you my right hand in full acknowledgment thereof.”

Thereupon the applicant becomes a full fledged member of the union.

2d. That on the 9th day of October, 1899, Louis Kissinger and sixteen other defendants named in the petition, were in the employ of plaintiff in its polishing and buffing department, all of whom were members of Union No. S, nine of whom joined said union between September 20th and October 4th, 1899; that on said 9t'hi day of October, 1899, the plaintiff discharged Louis Kissinger and said sixteen other defendants; that they were discharged is admitted in defendants’ answer and by William Orr, one of said discharged defendants, in his report to the union on the evening of October 9th; none of these discharged defendants were working, under contract with plaintiff, but were employed from day to day

3d. Before said defendants were discharged, William Orr, one of the defendants above named, demanded the discharge of a fellow workman whom Orr called Dummy, employed in the polishing department and a non-union man. This the foreman refused to do. Thereupon Orr said to Mr. Stewart, the foreman of the department:

> “I might as well be candid with you, every man here in this room is sworn to stick together, and I have been put here as spokesman. It ain’t a very pleasant position to be in for I will be blamed for it all, but somebodv has to do it and we don’t want any trouble, but we can’t work with that man.”

On the evening of October 9th the said Orr reported the discharge of the men in the *577polishing department to Union No. 5. Thereupon said union appointed a lockout committee from its members for the purpose of picketing the shop of plaintiff, and to prevent all the discharged men from returning to work in the polishing and buffing department, and to prevent all persons of the same trade from entering the service of plaintiff, and for the further purpose of inducing all persons who might enter said service in said department, to leave said service unless they became members of the union. The picketing 'as ordered by the union began on the morning of October 10th, 1899, at and around plaintiff’s factory, and continued almost constantly from that time until the 12th day of February, 1900, w'hien the first temporary restraining order was issued by this court.

Temporary restraining order dissolved by consent of parties in interest.

On the 8th day of March, 1900, the case came on for hearing on motion to dissolve the temporary restraining order of Februray 12th, but said case was settled and dismissed, as appears from the following entry :

> “This day came on the above case for hearing upon the motion to dissolve the temporary restraining order as prayed for in thie petition.. Thereupon came the defendants and > b>r their counsel, not admitting that they, or any of them, have committed any of the matters charged against them in the petition, stated in open court that they and-each of them had and now have *no*intention of committing any of the acts charged in the petition, or of interfering with the business or employes of the plaintiff on which statement this case is dismissed without prejudice to a future action. Costs paid’.” ! | i * ^ |

Soon thereafter, the defendants resumed the picketing around and about plaintiff’s factory, and continued to do so until the 14th day of May, 1900, when this suit was- brought and the temporary injunction allowed. During said period the picketing varied in character, at times there were only a few of the defendants around plaintiff’s factory and they were peaceable and quiet; at other times large crowds assembled there and conducted themselves in a boisterous and riotous, manner to such an extent that the- police department was called upon to send policemen to the factory to disperse the crowds, and upon one occasion sixteen policemen were required to dispel the unruly crowds, and at another time it became necessary for Sergeant McBride to read the Riot Act and to order two or three patrol wagon loads to be taken to the station house. The pickets and other persons congregated at and around the factory during the week pribr to May the 14th were especially noisy and abusive in their language and deportment.

> We further find that upon various occasions the employes working in the polishing and buffing department after October 9, 1899, were followed to their homes, abused, threatened and assaulted on the streets and in the street cars, and in one instance a workman by the name of Hayes was assaulted on his way home from the factory and on the same evening his house was stoned; and in another instance a workman by the name of Johnson was assaulted on a street car and so badly injured that he was confined to his bed under the care of a physician for the period of one week; again it occurred, that two employes, Brown and Kendall, were assaulted and injured in front of the Garfield Club rooms. At different times a workman by the name of Jerry Hawkins was abused and' assaulted on the street and in a saloon. He was upon several occasions surrounded by threatening crowds, so that it became necessary for Mr. Kirby, the general manager of plaintiff, or someone else, to escort him to his home, in order to prevent violence from being inflicted upon him. He was a special policeman, regularly ajppointed by fine police department to protect the property ! and employes of plaintiff’s factory. Notwith- | standing that fact, he was arrested, prosecuted i and found guilty in the police court of"carry- * ing concealed weapons and fined. His case is ^ now pending on error in the court of common | pleas.

I Several employes, notably, Eberle, Petty, Freed, Munch, Brown, Meeker, Furry, Kendall, Brownlee, Hayes and Hawkins, were either followed or threatened or. assaulted, in order to induce them to break their contracts with plaintiff or leave the employ of plaintiff,

4th. We 9, 1900, ' plaintiff could not employ persons sufficient to do the necessary work in its polishinc department, and that it attempted'to have its work done in the city of Dayton, outside of its shop, by Bates Bros., The Pasteur-Chamberland Filter Co., and Jordan Bros., and that these establishments were visited by a committee of Union No. S and notified that they could net do the work of The Dayton Manufacturing Company; *578that they could complete unfinished work already on hand, and when that was dene, they should take, no more work for the plaintiff. This protest, however, was subsequently withdrawn by the committee and these establishments were permitted to do the work of T'hie Dayton Manufacturing Company, provided the work was done by union men. Plaintiff, however, did ship its machinery and equipments _o Hamilton, Ohio, and there established a polishing and buffing department, in order to have its necessary work done, under the supervision of Theodore Barlow, one of the plaintiff’s employes; and did ship some of its unfinished materials to Cincinnati for completion; all of which was done at a great loss of time and expense to plaintiff.

5tfa. We find further, that on the 28th day of March, 1900, the plaintiff was. compelled to shut down its polishing department and to keep it closed until the 6th day of April following, and that during said period it arranged for the boarding and lodging of its employes in said department on the third story of its factory, where all of such employes where boarded and lodged for several months.

6th. We find that Union No. 5, during said period, paid out large sums of money to the members that were discharged by plaintiff, for strike pay and committee work.

Conclusions Op Law.

It now becomes our duty to apply the law as we find it, to the facts in the case. While the authorities cited by counsel are compartively modern, the legal rights of both employer and employe have been so well and clearly defined by the American and English decisions that the question has become a well-beaten path, and to add anything more or do anything else other than cite these authorities would seem to be a work of supererogation.

In order to determine the .questions arising in this case, correctly and intelligently, we must go back to the organic law of the land. The constitution is the irremovable guide post, which fixes and limits the boundaries of our personal, political, property and religious rights. It is supreme law of the land, “beyond the reach of all legislative control, whether by authorised or unauthorized bodies;” to it we tn-'st all bow our heads in subjection.

Art. i. Sec. 1, of the bill of rights provides that:

> "All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety.”

Art. 1. sec. 16, of same provides that:

> “All courts shall be open, and every person^ for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law; and justice administered without denial or delay.”

Our supreme court say, in passing on the constitutionality of the amended mechanic’s lien statute, that:

> “The inalienable right of enjoying liberty and acquiring property, guaranteed by the first section of the bill of rights • of the constitution, embraces the- right to be free in the enjoyment of our faculties, subject only to such restraints as are necessary for the common welfare.” *Palmer & Crawford*v. *Tingle,*Syl. 1, 55 Ohio St., 423.

> “Liberty and the common welfare demand that all, rich and poor alike, shoul1 have an equal chance and to be treated alike, and laws should be enacted for their equal protection and benefit.

> “With liberty and the equal protection of the laws, the weak and poor of today become the rich and influential of the future. And it is a narrow, unworthy and unpatriotic policy to attempt to drive the poor and weak out of business for the benefit of the rich and influential. One of the principal virtues of the statute claimed by its friends is that it has driven all the poor and weak contractors out of business. This result, instead of being commended, is to be deplored.”

“The liberty of making contracts is absolutely essential to the acquisition, possession and protection of property.” *25 Am. S. R.,*873.

“The doctrine is generally recognized and enforced that every person living under the protection of the general government has the right to follow such occupation or industrial pursuit as to him seems fit, provided it is not injurious to the morals, health, safety or welfare of thle public; and such persons generally are entitled to the equal protection of the laws in respect to persons and property; and, as incident thereto, the right to employ labor, make contracts in regard thereto upon such trems as may be agreed upon by the parties, and to enforce such contracts when made. *Ex parte Kuback,*85 Cal., 274, (and others). *579And the same is true of prviate corporations, with respect to the business they are .chartered to engage in.” *The Wheeling Bridge and Terminal Ry. Co.*v. *Gilmore,*8 C. *C.*R., 665. The Remedy — So Called Government By Injunction.

Injunction is the law’s remedy in such cases.

That injunction is the appropriate remedy to meet a case like this is too well settled to admit of intelligent argument; that injunction will lie, although the acts complained of will render the party or parties amenable to a criminal prosecution or make them liable to a civil- action for damages, is clear. If there ever was anything in the so-called doctrine of “government by injunction,” it was killed beyond resurrection by the supreme court of the United States. The opinion was written by Mr. Justice Brewer, all other judges concurring, five Re-, publicans and four Democrats. *In Re Debs,*158 U. S., 364.

Boycotting.

That boycotting is illegal and has no standing in this country or England, is well setteld by a long line of decisions. “The word ‘boycott,” in itself, implies a .threat.” *Braca*v. *Evans, 3*Ry. and Corp. Law. J., 561.

On this subject we will first call your attention to a Michigan case. In that case, Jacob Beck & Sons filed a bill in equity against the Railway Teamsters Protective Union, the Detroit Council of Trades and Labor Unions, George Innis and others, to enjoin the boycotting of complainants’ business. The - appeal was by complainants from a decree enjoining merely the use of violence or threats of violence. The first four syllabi are as follows:

> “1. The law will protect employers against the unlawful intereference of trades unions in their right to employ whom they please, at such prices as they and the persons employed ean agree upon, and to discharge them at the expiration of their terms of service Or for violation of their contracts.

> “2. Organization into unions by workingmen for the securing of better and uniform wages, and the use of persuasion to induce other workingmen to join the union, and to refuse to work except for the established wage, and the presentation of their cause'to the public in newspapers or circulars, in a peaceful way and with n® attempt at coercion, are lawful. '

> “3. But the boycotting of one who refuses to accede to the dem .nds of the union is unlawful, where the means used to prevent persons from dealing with the persons 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, though unaccompanied by actual violence or threats of violence .

> “4. Injunction will lie to restrain a combination of persons from attempting to ruin complainant’s business by bringing to bear upon his customers and employes intimidating and ceorcive means.” *Beck*v. *Railway Teamsters’ Protective Union,*118 Mich., 497.

> “The word ‘boycott’ is usually understood as a combination of many to cause a loss to one person by coerciing others against their will, to withhold from him their beneficial business intercourse, through threats that, unless those others do so, the many will cause similar loss to them.

> “Undoubtedly, this is the common understanding of its meaning.

> “The law sanctions only peaceful means, which leave every one to the exercise of his own free will. The boycott, condemned by the law, is not alone that accompanied by violence and threat of violence, but that where the means used are threatening in their nature, and intended and naturally tend to overcome, by fear of loss of property, the will of others, and compel them to do things which they would not otherwise do.”

' Erie, C. J., speaking of the laborer’s rights, says:

> “Every person has a right under the law, as between himself and h'is fellow subjects, to-full freedom in disposing of his own labor or his own capital, according to his own will. It follows that every other person is subject to-the correlative duty arising thereform, and is-prohibited from any obstruction to the fullest exercise of htis right which can be made compatible with the exercise of similar rights by-others.”

*Erie, Trades Unions,*12; *Allen*v. *Flood,*23 App. Cas., 1, 73, 118 Mich., 323-526; *Toledo R. R. Co.v. Penna. Co.,*34 Fed., 73.

“The defendants have not appealed from the decree against them. No attempt is made by their counsel to defend or justify _their_ action, or to deny the many acts of intimidation,, threats, and almost violence; and the learned circuit judge in his opinion said:

> - “ T am satisfied these things have been done, and that defendants have combined together *580for tbiis purpose. I do not intend to justify the publication.’

“ Their counsel frankly concede that ‘it was unlawful for defendants to enter upon the premises of the complainants, or to gather in groups in front of complainants’ premises, or to use any force or violence for the accomplishment of their purpose.’ In other words, they concede that defendants were engaged in an ‘unlawful conspiracy,’ as defined by Shaw, C. J., in *Com.*v. *Hunt,*4 Metc. (Mass.) in, 121 (38 Am. Dec., 346), a definition approved by the Supreme Court of the United States in *Callum*v. *Wilson,*U. S., 540, 555, viz.:

“The general rule of the common law is that it is a criminal and indictable offense for two or more to confederate and combine together, by concerted means, to' do that which is unlawful or criminal, to the injury of the public, or classes of the community, or even to the rights of an individual.

“The decree sanctioned the distribution of the boycott circulars to customers and the public ¡generally, except in front of the mill premises, and any form of boycott, either to complainants or to their customers, without the actual use of violence, and sanctioned threats to injure, affect, and ruin complainants’ business, when unaccompanied by violence or threat of violence. From this part of the decree complainants have appealed.

“It is conceded that courts of equity have jurisdiction to restrain conspiracies of this character when irreparable injury is sure to follow. Suits at law would be inadequate, and a multiplicity of suits at law would arise. Complainants were engaged in a lawful business, and carrying it on in a lawful manner. They had done nothing to the defendants, or any of them, either illegal, immoral, or unjust. They were paying wages to th'eir teamsters in fact greater than the union teamsters received, because they made no deductions for certain lost time which the union employers made. The law protects them in the right to employ whom they please, at prices they and their employes can agree upon, and to discharge them at the expiration of their term of service or for violation of their contracts. This right must be maintained, or personal liberty is a sham. So, also, the laborers have the right to fix a^ price upon their labor, and to refuse to work unless that price is obtained. Singly, or in combination, they have this right. They may use persuasion to induce men t© join their organization, or to refuse to work except for an established wage. They may present their cause to the public in newspapers or circulars, in a peaceable way, and with no attempt at coercion. If the effect in such case is ruin to the employer, it is *damnum absque injuria,*for they have only exercised their legal rights. The law does not permit either party to use force, violence, threats of force or violence, intimidation, or coercio.n. The right to trade and the personal liberty of the employer alone are .not involved in this case; the right of the laborer, to sell his labor when, to whom, and for what price he chooses is involved.” *Same case,*118 Mich., 515, 516 and 517.

“The decree must be modified so as to enjoin picketing, the distribution of the boycotting circular, and all acts of intimidation and coercion.” *Same case, 188*Mich., 529.

We next come to the case of *State*v. *Stewart,*59 Vt., 273, which was a prosecution under an indictment for a conspiracy, to hinder and prevent the Ryegate Granite Works from employing certain granite cutters and for hindering and deterring certain laborers from working for said corporation. On page 239 the learned judge says:

> “The principle upon which the cases, English and American, proceed, is, that every man has the right to employ his talents, industry, and capital as he pleases, free from the dictation of others; and if two or more persons combine to coerce his choice in this behalf, it is a criminal conspiracy. The labor and skill ot the workman, be it of high or low degree, the plant of the manufacturer, the equipment of the farmer, the investments of commerce, are all in equal sense property. If men by overt acts of violence destroy either, they are guilty of crime. The anathemas of a secret organization of men combined for the purpose of controlling the industry of others by a species of intimidation that works upon the mind rather than the body, are1 quite as dangerous, and generally altogether more effective, than acts of actual violence. And while such conspiracies may give to the individual directly affected by them a private right of action for damages, they at the same time lay a basis for an indictment on the ground that the state itself is directly concerned in the promotion of all legitimate industries and the development of all its resources, and owes the duty of protection to its citizens engaged in the exercise of their callings. The good order, peace, and *581general prosperity of the state are directly- involved in the question.”

Also, on page 290:

> “The exposure of a legitimate business.to the control of an association that can order away its employes and frighten away others that it may seek to employ, and thug, be compelled to cease the further prosecution of its work, is a condition of things utterly at war with every principle of justice, and with every safeguard of protection that citizens under our system of government are entitled to enjoy. The direct tendency of such intimidation is to establish over labor and over all industries, a control that is unknown to the law, and that is exerted by a secret association of conspirators, that is actuated solely by personal considerations, and whose plans, carried into execution, usually result in violence and the destruction of property.

> “That evils exist in the relations of capital and labor, and that workmen have grievances that oftentimes call for relief, are facts that observing men cannot deny. With such questions we, as a court, have no function to discharge further than to say that the remedy cannot be found in the boycott.”

Another interesting case will be found in 77 Maryland,. This was an action brought by the appellant to recover damages for the wrongful and malicious interference of thle appellee, by which he was discharged from his employment in a New York clothing house, and prevente 1 from the free exercise of his trade and occupation, and thereby deprived of his means and livelihood. In the syllabus, which is the law of the case, thle court say:

“Where an employe, a non-union man, who is performing the duties of his position to the entire satisfaction of his employers, who would gladly have retained hftn in their service, is ■discharged in consequence of a threat from a labor organization that in case he is any longer retained it will be compelled to notify all labor organizations of the city that thle business house of the employers is a non-union one, and thus subject them to a great loss, such interference by the labor organzalion is wrongful, and an action will lie against it bv the nonunion employe for the damages he has sustained in consequence of such discharge.”

In the opinion the court say:

“In this case, we think the interference of the appellee was in law malicious and unquestionably wrongful. The appellant was a man of tamily, a good workman, engaged in a lawful pursuit, performing his duties in an entirely satisfactory manner, without objection in any respect, and wjlling and desirous of becoming a member of the appellee if an opportunity had been offered him. He was not able to obtain membership with the appellee, nor was he permitted to continue his work with his employers, who would gladly have retained him in their service, if they could have done so without loss or embarrassment to themselves.

“The provisions of law authorizing the creation of the appellee corporation provide for the formation of trade unions ‘to promote the well-being of their every day life, and for mutual assistance in securing the most favorable conditions for the labor of their members and as beneficial societies.’ Code, Art., 23, section 37.

“But when the state granted its generous Sanction to the formation of corporations of the character of the appellee, it certainly did not mean that such promotion was to be secured by making war upon the non-union laboring man, or by any illegal interference with his rights and privileges. The powers with which this class of corporations are clothed are of a peculiar character, and should be used with prudence, moderation and wisdom, so that labor in its organized form shall not become an instrument of wrong and injustice to those who, in the same avenue of life, and sometimes under less favored circumstances, are striving to provide the means by which they can maintain themselves and their families. It is essential to good government and the peace of society that correct legal principles be applied in the consideration of all questions; for it is undeniably true that wrong principles cannot and never do produce salutary remedies.

“Courts are bound to look at things just as they are, to pass on facts just as they are developed, to treat the conduct of men just as it is, and to impute to them that intention which their acts and their conduct disclose was their intention. *United States*v. *Kan.,*23 Fed. Rep., 730;” *No.*7307, *K. of L. of Baltimore City,*77 Maryland, 369, 403; *Lucke v. Clothing Cutters & Trimmers’ Assembly.*

These three cases ought to be sufficient to satisfy the mind of any reasonable man that boycotting is illegal in every sense. These cases are each of a different character: one is a bill in equity to restrain boycotting, one a *582criminal prosecution for entering into a criminal conspiracy, and the other an action for damages, for a wrongful and malicious interference, where plaintiff was discharged from his employment, — all of these cases were against labor organizations or their members. If any person desires to pursue this subject further, I will call attention to the following additional authorities;

*S¿Conn.,*46; S3 *N. J. Eq.,*101; 23 *Law Bulletin,*48; and cases cLed.

Picketing.

The modern authorities are to the effect that picketing in front and about complainant’s factory, whether in the streeets or adjacent property, is unlawful and may be enjoined.

“The picketing of the premises of. a person boycotted, for the purpose of intercepting his customers and employes, and the distribution of ‘boycott circulars,’ containing statements wholly false as to the relations with his employes, pursuant to ,an avowed intention of ruining his business, though carried out without violence, are, in themselves, acts of coercion which may be enjoined.

“To picket complainants’ premises in order to intercept their teamsters or persons going there to trade is unlawful. It itself is an act of intimidation, and an unwarranteinterference with the right of free trade. The highways and public streets must be free to all for the purpose of trade, commerce, and labor. The law protects the buyer, the seller, the merchant, the manufacturer, and the laborer in the right to walk the streets unmolested. It is no respectar of persons; and it makes no difference, in effect, whether the picketing is done ten thousand feet away.

“It will not do to say that these pickets are thrown out for the purpose of peaceful argument and persuasion. They are intended to intimidate and coerce. As applied to cases of this c'haracte , the lexicographers thus define the word ‘picket’: ‘A body of men belonging to a trades union sent to watch and annoy men working in a shop not belonging to the union, or against which a strike is in progress.’ *Cent. Diet; Webs. Diet..*The word originally had no such meaning. This definition is the result of what has been done under it, and the common application that bias been made of it. This is the definition the defendants put upon it in the present case. Possibly the decree is specific enough to include picketing, but we deem it our duty to place it beyond controversy.” *Beck*v.

*Teamsters’ Protective Union,*118 Mich. 520 and 521.

In the case of *Am. Steel & Wire Co. v. Wire Drawers and Die Makers’ Union Nos.*1 *and*3, *et al., go*Fed. Rep., 608, the syllabi are as follows:

> “1. The owner of a house, whether a dwelling store, or mill, has a distinct right of property in the streets or'highways adjacent and used as approaches to it; and a use of such streets or highways by others for the purpose of forcibly preventing access to such house is an unlawful interference with such right, and constitutes a private nuisance, which may be abated by injunction.

> “2. A claim that a corporation is a trust,, and illegal, cannot be made collaterally as a defense to a suit bv the corporation to enfgrce a private right by injunction.

> “3. Defendants, who had formerly been employes of plaintiff, in its mills, as wire drawers, but who had gone out on a strike, for more than two months had patrolled the streets adjacent to plaintiffs’ works both day and night, keeping within call at all times a large body of men, for the claimed purpose of dissuading other workmen from taking employment in their places. The evidence showed but a single instance during that time in which defendants stood aside and permitted a wire drawer to-enter the mill, and that instance was disputed, although in a number of instances workmen attempted unsuccessfully to enter, and several conflicts occurred between them and the strikers. Held, that such action was an unlawful interference by defendants with plaintiff’s rights of property and freedom to contract, which entitled plaintiff to relief by injunction.

> “4. It is not. necessary that actual batteries or assaults shall be committed, to constitute unlawful force or violence which will afford' ground for relief by injunction; but a display of force sufficient to deter others from attempting to exercise a lawful right, and intended to accomplish that purpose, is sufficient.

Note. — -“i. In the case of *Lyons*v. *Wilkins,*the English court of appeals rendered on December 20, 1898, a decision which is directly in line with the decision of Judge Hammond. It was held that an injunction would be granted to restrain persons from watching or besetting the works or place of business of an employer, or person working for him, for the purpose of persuading or otherwise preventing persons from working for him, or for any other *583•purpose, except merely to obtain or cbmmuni•cate information.

Inducing Others To Break Their Contracts.

Our courts have held that it is unlawful for one person to induce another to break his contract with his employer; thus as was said by the court in the case of *R. R. Co.*v. *McConnell,*82 Fed. Rep., 65, 8 and 9 Syllabi:

> “One who wrongfully interferes in a contract between others, and, for the purpose of gain to himself, induces one of the parties to break it, is liable to the party injured thereby; and his continued interference may be ground ior an injunction, where the injury resulting will be irreparable.

> ■ “Where it is clearly shown that a complainant’s rights are being violated, and that injury 'results, and the only remedy at law is by a large number of suits for damages, which, by reason' of their number and cost, will produce no substantial results, the injury is irreparable, and ^affords ground for injunction.”

We also find in the case of *Shoe Co.*v. *Saxey,*131 Mo., 212, that:

> “A court of equity may interfere by injunction to prevent persons from attempting by •intimidation, threats of violence, and olner unlawful means, to force employes to quit work ■and join a ‘strike’.

“The injunction in this case does not hinder the defendants doing anything that they have a right to do. They are free men, and Wave a right to quit the employ of plaintiffs whenever they see fit to do so, and no one can prevent them; and whether their act of quitting is wise or unwise, just or unjust, it is nobody’s business but their own. And they have a right to use fair persuasion to induce others to join ■them in their quitting. But when fair persuasion is exhausted they have no right to resort to force or threats of violence. The law will protect their freedom and their rights, but it will not permit them to destroy the freedom and rights of others. The same law whlich guarantees the defendants in their rights to quit the employment of plaintiffs at their own will and pleasure also guarantees the other employes the right to remain at their will and pleasure.

“These defendants are their own masters,, but they are not -the masters of tfhle other employes, and not only are they not the masters •of the other employes, but they are not even their guardians.

“There is a maxim of our law to the effect .that one may exercise his own right as he' pleases, provided that he does not thereby prevent another exercising his right as he pleases. This maxim, or rule of law, comes nearer than any other rule in our law to the golden rule of divine authority: ‘That which you would have another do unto you, do you even so unto them.’ Whilst the strict enforcement of the golden rule is beyond the mandate of a human tribunal, yet courts of equity, by injunction, do restrain men, who are so disposed, from so exercising their own rights as to destroy the rights of others.” *Same case*222, 223.

And we find Justice Harlan saying in *Arthur*v. *Oakes,*63 Fed. Rep., that:

> “Syllabus 7. 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 in. execution of such conspiracy. This is fundamental in our jurisdiction So, a combination or conspiracy to procure an employe or body of employes to quit service in violation, of tihle contract of service, would be unlawful, and in a proper case might be enjoined, if the injury threatened would be irreparable at law.” 63 *Fed. Rep.,*311.

Application Of The Law To The Facts.

Applying the law as we find it from the authorities cited, to the facts in this case, we are irresistibly driven to the conclusion that prior to the 9th day of October, 1899, William Orr, one of the defendants herein, undertook to unionize the polishing and buffing department of plaintiff’s factory, and that after the seventeen defendants were discharged, the defendants, The Metal Polishers, Buffers, Platers and Brass Workers Union No. 5, of Dayton, Ohio, its officers, members, walking delegates, committees and representatives, together with certain unknown persons, did unlawfully combine and conspire together for the purpose of boycotting and crippling plaintiff’s business, and picketing plaintiff’s place of business, in order to compel plaintiff to reinstate the discharged men, and in order to compel plaintiff to employ only such persons as were satisfactory to the union^ and for the further purpose of compelling .plaintiff to discharge all persons objectionable to the union, who were in plaintiff’s service after October, 9, 1899.

When we take into consideration that the defendant union is a secret organization, whose members are pledged to secrecy and who agree *584to stand by the legal majority, one can readily understand how difficult it was to arrive at a satisfactory conclusion of the facts in the case by positive testimony. By tfh'e very necessities of the case, made so by the defendants themselves, we had to rely largely on circumstantial evidence. Circumstantial evidence, however, to a court or jury is frequently more convincing than positive testimony. The members of the union having agreed among themselves to divulge none of its proceedings and to stand by the legal majority in all matters, are presumed to have full knowledge of all that was going on. It will not do for the non-participating members to say that tih'ey should not be held responsible because they did not personally engage in the boycott or jricketing or the threats and violence. When a conspiracy is once formed among a number of individuals, the act of one is the- act of all. It is equally true that the act of the legal majority of the union is the act of each of its members.

*O. M. Gottschalí,*for Plaintiff in Error:

As to combinations:

*Eddy on Combinations,*sec. 368; *Arthur*v. *Oakes,*63 Fed. Rep., 321; *State*v. *Glidden,*55 Conn., 75; *Moores*v. *Bricklayers Union,*23 W. L. B., 48; *State*v. *Dyer,*67 Vt., 690; *Vegelahn*v. *Guntner,*167 Mass., 92; *Pettibone*v. *U. S.,*148 U. S., 197; *Thomas*v. *C. N. O. & T. P. Ry. Co., 62*Fed. Rep.; *Casey v. Typographical Union,*45 Fed. Rep., 135; *Wabash R. R. Co.,*24 Fed. Rep., 217; *Crump*v. *Commonwealth,*84 Va., 927; *In Re Debs,*158 U. S., 564; *State*v. *Jacobs,*7 O. N. P., 261.

As to picketing.

If _ only two men went there, of their own volition, for the purpose of picketing, it was contrary to law.

*Barr v. Essex Trades Council, the Typographical Union,*53, N. J., 101 *Murdock*v. *Walker,*152 Pa. St., 595; *The American Steel & Wire Co.*v. *Wire Drawers & Dye Makers Union,*90 Fed. Rep., 608, *Hopkins*v. *Oxley Stave Co.,*83 Fed. Rep., 912; *Vegelahn*v. *Guntner,*167 Mass., 92; *Eddy, on Combinations,*sec. 345-5-6-9; *Curran*v. *Galen,*152 N. J., 33.

As to threats:

Threats, and intimidations produced by such threats need not be fhteats of personal physical violence or harm, nor any -threatening words necessary to constitute such a “threat.” Persuasions and requests are sufficient, if they are made under circumstances as to convey the impression that they are to be obeyed. 34 *American Law Review,*182; *Vegelahn*v. *ner,*167; Mass., 92; *Beck*v. *Railway Teamsters Protective Union,*118 Mich., 497; *Sherry*v. *Perkins,*147 Mass., 212; *Couer d‘Allene Co.*v. *Miners Union.*31 Fed. Rep., 260, 266; *Casey*v. *Typographical Union,*45 Fed. Rep., 45 Fed. Rep., 135, 143.

As to thes jurisdiction of this court as to-defendants:

Courts of equity will enjoin mere persuasion when it has for its object the malicious or unlawful end or persuading third parties to-break a contract, or otherwise to act. in violation of the legal rights of the plaintiff. *Am. Law Review,*176; *Toledo A. A. & N. M. Ry. Co.*v. *Pennsylvania Company,*54 Fed. Rep., 730; *Mackrall*v. *Ratchford, et al.,*84 Fed. Rep., 41-2; *Flaccus*v. *Smith,*decided April 15, 1901, by S. C. Pen; *Plant*v. *Wood,*N. W., Rep., ion, *Vegelahn*v. *Guntner,*167 Mass., 92.

As to the form of order: *Steel & Wire C.*v. *Unions,*90 Fed. Rep., 608; *Am. Law Review,*176 et seq; *U. S.*v. *Sweeny,*95 Fed., 434, 439, 440; *In Re Debs,*158 U. S., 564, 593, 579; *Murdock*v. *Walker,*152 Pa. St., 595; *Barr*v. *Essex Traders Council,*53 N. J. E., 101; *Arthus*v. *Oakes,*11C. C. A., 209; *Debs case,*158 U. S., 577; *In Re Lennon,*166 U. S., 548.

*John A. McMahon,*also for Plaintiff:

Any organization which engages 111 systematic boycotting is an illegal organization. The highest courts have so declared. *Lucke*v. *The Clothing Cutters and TrimmeysAssembly,TjMA.zóg; State*v. Stewart, 59 Vt. 2730.

If the defendants would live within the objects and purposes of their organization as expressed in their constitution and by-laws, all would be well and we would never hear of any trouble between the employer and employes. But when the members of the union go beyond their conceded right to peacefully persuade or arbitrate, and resort to threats, intimidation and violence to accomplish their ends, they must expect to face tfhle courts, which always have and always will condemn such conduct. If we are obedient to the law, we will continue to be a happy, contented and prosperous people, but if we turn our backs to the principles of the Declaration of Indepencence and fail to obey the laws and uphold the constitution, our republican form of government, which was framed by the wisest men whose names appear in the book of time, will be wrecked in. a storm of anarchy.

Thie motion to dismiss non-participating defendants herein who are not members of the union will be sustained. The motion to dismiss non-participating member of the union will be overruled.

A decree, therefore, may be taken in this case m favor of the plaintiff for a perpetual injunction, as prayed for in the petition. Counsel, in preparing the entry, can use the form in the *Debs case,*158 U. S., 564, in so far as it is applicable in this case.

*585To hinder or prevent an employer from ,em- ! ploying whom he pleases, or to hinder or deter workingmen from working for him, is a criminal conspiracy; a condition of things at war with every principle of justice. An influence exerted by a secret association of conspirators, actuated solely by personal considerations. 55 *Conn.,*46, 47.

When two or more persons combine to commit a misdemeanor such combination is a crime. A combination for the purpose of intimidating an employer and compelling him to discharge certain of his workingmen is a violation of t'hte statutes.

*Thomas*v. *Barr,*53 N. J. Eq., 101.

Boycotting is a violation of the rights of fellow citizens and under the ban of the law. Picketing and distribution of boycott circulars are violations of the law.

*Beck*v. *Railway Teamsters’ Protective Union,*118 Mich., 497; *Moores*v. *Bricklayrs’ Union No. 12,*23 Law Bulletin, 50.

Boycotting a criminal act. A hateful and dangerous practice which will unlimately divide any community into warring factions.

*T. A. A. & N. M. R. Co.*v. *Penn.,*54 Fed. Rep., 740.