tending to confuse our present discussion, an element that has to but a slight extent figured in the controversy, namely, the tendency of such combinations to destroy competition. This we shall consider hereafter in connection with combinations to increase prices.1 § 8. Legality of combinations to quit employment; strikes. The right of a single individual, apart from contractual relations, to quit his employment, that is, to discontinue working for a particular employer, seems never to have been seriously questioned. The idea has been advanced the test of liability, instead of whether the act was the natural incident or outgrowth of the relation in which the party stood. The force of this criticism will be more apparent upon a consideration of the facts of the case. See discussion thereof, § 15. In Longshore Printing Co. v. Howell, 26 Oreg. 527, 540; s. c., 38 Pac. Rep. 547 (1894), are thus stated the limitations upon the activities of such organizations: "These associations must depend for their membership upon the free and untrammeled choice of each individual member. No resort can be had to compulsory methods of any kind, either to increase, keep up or retain such membership. Nor is it permissible for associations of this kind to enforce the observance of their laws, rules and regulations through violence, threats or intimidation, or to employ any methods that would induce intimidation or deprive persons of perfect freedom of action. Such organizations may be preserved and their membership augmented by reasoning and fair arguments, and even by persuasion and entreaty, and an observance of their adopted constitutions and by-laws may be exacted through the same peaceful means, but beyond this it is not advisable, from a legal standpoint, to venture." See also United States v. Cassidy, 67 Fed. Rep. 698, 711 (D. Ct. Cal., 1895). 1 See § 27. 2 See Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 130 (1842). In Arthur v. Oakes, 24 U. S. App. 239, 252; s. c., 63 Fed. Rep. 310, 317 (7th Cir., 1894), it is intimated that, in case of a breach by an employee of his contract of employment, he might be liable, "in some states of case, to criminal prosecution for loss of life or limb by passengers or others, directly resulting from his abandoning his post at a time when care and watchfulness were required upon his part in the discharge of a duty he had undertaken to perform." Such liability has, indeed, in some cases been declared by statute. See Appendix. 3 See Barr v. Essex Trades Council, 53 N. J. Eq. 101, 114; s. c., 30 Atl. Rep. 881 (1894); Clemmitt v. Watson, 14 Ind. App. 38; s. c., 42 N. E. Rep. 367 (1895). that the nature of the employment may create an implied agreement not to quit, at least, without reasonable notice,1 but this exception to the general doctrine remains to become generally established. It has been seriously questioned whether this right to quit one's employment equally exists in case of a combination to so quit employment or discontinue working. In other words, the question is whether strikes are legal, for we define a strike as a simultaneous quitting of employment by a number of employees in pursuance of agreement. Apart from the lurking idea already This doctrine was applied in ties. In ordinary conditions, as Toledo, Ann Arbor, etc. Ry. Co. v. between employer and employee, Pennsylvania Co., 54 Fed. Rep. 746, the privilege of the latter to quit 752 (Cir. Ct. Ohio, 1893), where it the former's service at his option was said of railroad employees (in cannot be prevented by restraint this particular case, a locomotive or force. The remedy for breach engineer), after referring to their of contract may follow to the empresumed knowledge of the duty ployer, but the employee has it in of their employers, both under the his power to arbitrarily terminate Interstate Commerce Law and an the relations and abide the conseorder of the court, to receive and quences. But these relative rights haul interstate freight: "An im- and powers may become quite difplied obligation was therefore ferent in the case of the employees assumed by the employees, upon of a great public corporation accepting service under such con- charged by the law with certain ditions, that they would perform great trusts and duties to the pubtheir duties in such manner as lic." See, as to violation of into enable it not only to discharge junction, § 16. See also Arthur v. its obligations faithfully, but also Oakes, 24 U. S. App. 239, 254; s. C., to protect it against irreparable 63 Fed. Rep. 310,318 (7th Cir., 1894). losses and injuries and excessive 2 The following definitions of a damages by any acts of omission on strike have been given: "A contheir part. One of these implied certed or general quitting of work conditions on their behalf was that by a body of men or women for they would not leave its service the purpose of coercing their emor refuse to perform their duties ployer in some way, as when higher under circumstances when such wages or shorter hours are deneglect on their part would im- manded, or a reduction of wages is peril lives committed to their care, resisted; a general refusal to work or the destruction of property in- as a coercive measure." Century volving irreparable loss and in- Dictionary. "The act of combining jury, or visit upon it severe penal- and demanding higher wages for considered, that an act entirely lawful if done by a single individual may be unlawful by reason of being done in pur work; cessation from labor or neglect of duty in a spirit of mutiny or revolt." Webster. "A cessation from work, as of workmen, in order to extort higher wages; - a revolt; a mutiny." Worcester. "A combination among laborers, those employed by others, to compel an increase of wages, a change in the hours of labor, some change in the mode and manner of conducting the business of the principal, or to enforce some particular policy in the character or number of the men employed, or the like." Delaware, L. & W. R. R. Co. v. Bowns, 58 N. Y. 573, 582 (1874). (This definition was substantially adopted in Anderson's Law Dictionary.) "The act of a body of workmen employed by the same master, in stopping work all together at a pre-arranged time, and refusing to continue until higher wages or shorter time, or some other concession, is granted to them by the employer." Black's Law Dictionary. We consider all these definitions open to criticism, as including intent in the conception of a strike. More nearly resembling the definition given in the text is that of Kay, J., in Lyons v. Wilkins, 1 L. R. Ch. (1896), 811, 829, "an agreement between persons who are working for a particular employer not to continue working for him." In Farrer v. Close, 4 L. R. Q. B. 602, 612 (1869), the definition given by Hannen, J., is "a simultaneous cessation of work on the part of the workmen." The notion expressed in Farmers' Loan See modifica & Trust Co. v. Northern Pacific R. R. Co., 60 Fed. Rep. 803, 819 (Cir. Ct. Wis., 1894), that compulsion and force are essential elements of the definition of a strike, deserves severe condemnation. tion of this decision in Arthur v. Oakes, 24 U. S. App. 239, 267; s. C., 63 Fed. Rep. 310, 327 (7th Cir., 1894), holding that an order in broad terms restraining strikes by employees of a railroad operated by receivers should be limited to "those designed to physically cripple the trust property, or to actually obstruct the receivers in the operation of the road, or to interfere with their employees who do not wish to quit, or to prevent by intimidation or other wrongful modes, or by any device, the employment of others to take the places of those quitting, and not such as were the result of the exercise by employees, in peaceable ways, of rights clearly belonging to them, and which were not designed to embarrass or injure others, or to interfere with the actual possession and management of the property by the receivers." See, on the general subject, article in 27 Am. Law Rev. 708 (1893), by U. M. Rose, on "Strikes and Trusts;' in 17 Crim. Law Mag. 1 (1895), by J. Z. Erwin, on "Are Strikes Preventable by Judicial Action?" As to effect of strike in excusing failure of a carrier to deliver, see textbooks on the general subject of carriers. 1 See § 4. suance of a combination of individuals to do the same act, it is difficult, on principle, to discover any illegality in a strike, as we have just defined it, and this is the view that has been generally adopted in this country. In England, 1 Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 130 (1842); Carew v. Rutherford, 106 Mass. 1, 14 (1870); Barr v. Essex Trades Council, 53 N. J. Eq. 101, 114; s. c., 30 Atl. Rep. 881 (1894); Longshore Printing Co. v. Howell, 26 Oreg. 527, 543; s. C., 38 Pac. Rep. 547 (1894); Clemmitt v. Watson, 14 Ind. App. 38; s. c., 42 N. E. Rep. 367 (1895); Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 737 (Cir. Ct. Ohio, 1893); Arthur v. Oakes, 24 U. S. App. 239, 253; s. c., 63 Fed. Rep. 310, 318 (7th Cir., 1894), modifying Farmers' Loan & Trust Co. v. Northern Pacific R. R. Co., 60 Fed. Rep. 803 (Cir. Ct. Wis., 1894); United States v. Elliott, 64 Fed. Rep. 27, 32 (Cir. Ct. Mo., 1894); Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 717; s. c., 83 Fed. Rep. 912, 917 (8th Cir., 1897). Alone to the contrary among recent decisions seems Mapstrick v. Ramge, 9 Neb. 390; s. c., 2 N. W. Rep. 739 (1879), but it is clear that the court did not consider the point. See § 4. In Arthur v. Oakes this doctrine was declared with great emphasis. There an injunction against employees of the receiver of a railroad restraining them from "so quitting the service of the said receivers, with or without notice, as to cripple the property, or to prevent or hinder the operation of said railroad," was refused, on the general ground that a court of equity will not by injunction prevent one individual from quitting the personal service of another. And this was held applicable though the employees were those of a railroad. The court say: "Undoubtedly the simultaneous cessation of work by any considerable number of the employees of a railroad corporation, without previous notice, will have an injurious effect, and for a time inconvenience the public. But these evils, great as they are, and although arising in many cases from the inconsiderate conduct of employees and employers, both equally indifferent to the general welfare, are to be met and remedied by legislation restraining alike employees and employers, so far as necessary adequately to guard the rights of the public as involved in the existence, maintenance and safe management of public highways. In the absence of legislation to the contrary, the right of one in the service of a quasi-public corporation to withdraw therefrom at such time as he sees fit, and the right of the managers of such a corporation to discharge an employee from service whenever they see fit, must be deemed so far absolute that no court of equity will compel him against his will to remain in such service, or actually to perform the personal acts required in such employments, or compel such managers against their will to keep a particular employee in their service." Nor is however, as a logical application of the doctrine there announced, that combinations among workmen are illegal as criminal conspiracies, the result was judicially reached that strikes are illegal,' though perhaps without a very clear idea of the distinction between strikes that are, and those that are not, accompanied with unlawful methods. It will be noted that the conception of a strike, that is, a mere quitting of employment, in no sense covers acts performed by the employees after they have quitted the employment. Nor, in the view that we have taken, does it in any sense involve the intent with which they quit the employment. It is obvious the right affected by Re Debs, 158 U. S. 564, 598; s. c., 15 Supm. Ct. Rep. 900 (1895), notwithstanding what may have been said in the decision in 64 Fed. Rep. 724, 763 (Cir. Ct. Ill., 1894), here affirmed. See previous decision in 63 Fed. Rep. 436 (Cir. Ct. Ill., 1894). This decision (i. e., in 158 U. S. 564) has only an indirect bearing upon the subject of labor combinations. The relief granted was simply against interference with interstate commerce, and it is expressly stated that the object of the bill was not "to restrain the defendants from abandoning whatever employment they were engaged in;" that "the right of any laborer or any number of laborers to quit work was not challenged." See as to effect of Federal Anti-trust Law, § 21. This overrules what was Isaid in Waterhouse v. Comer, 55 Fed. Rep. 149, 157 (Cir. Ct. Ga., 1893), that in view of the Interstate Commerce Act and United States Revised Statutes, section 5440, "a strike or 'boycott,' as it is popularly called, if it was ever effective, can be so no longer." See also Farmers' Loan & Trust Co. v. Northern Pacific R. R. Co., 60 Fed. Rep. 803, 823 (Cir. Ct. Wis., 1894). The right to strike has in some cases been expressly declared by statute. See Appendix. It scarcely needs adding that the announcement to the employer of the intention to quit is lawful. See Longshore Printing Co. v. Howell, 26 Oreg. 527, 543; s. C., 38 Pac. Rep. 547 (1894). 1 Hornby v. Close, 2 L. R. Q. B. 153 (1867). See § 7, p. 28. But since the enactment in 1875 of the "Conspiracy and Protection of Property Act" (see also § 14) strikes have been regarded as legal in England. See Gibson v. Lawson, 2 L R. Q. B. (1891), 557; Temperton v. Russell, 1 L. R. Q. B. (1893), 715; Lyons v. Wilkins, 1 L. R. Ch. (1896), 811, 829. In Perrault v. Gauthier, 28 Canada Supm. Ct. 241 (1898), it was held that no action would lie for a strike instituted by the fellow-employees of the plaintiff because of his membership in a rival organization, which resulted in his quitting employment to avoid causing loss to his employers. 2 See § 14. |