do now continue persistently and maliciously to visit a great many of the patrons of plaintiff, and to threaten them with a withdrawal of business, for the purpose of deterring them from giving work and employment to plaintiff, with the ultimate object of reducing its profits and income, and so to cripple and injure it in its business as to force it into a submission to the unlawful demands of the union. That the long-continued and constantly recurring acts of defendants and threats to continue said trespasses constitute a nuisance, and that by reason thereof plaintiff has lost heavily, and, if continued, the injury to its business will become irreparable; to prevent which an injunction is asked. A demurrer was interposed to the complaint, which being sustained the order is assigned here as error. J. H. Handy, for appellant. A. F. Sears, Jr., for respondents.

The

WOLVERTON, J. (after stating the facts). The questions presented for our consideration arise upon demurrer to the complaint, and hence all the allegations contained therein must be taken as true. This rule must be understood, however, to include only such allegations as contain statements of facts as distinguished from statements of conclusions of fact or of law. It is a well-settled rule of pleading, that bare allegations of conclusions cannot avail the pleader, especially where a demurrer is interposed, without a statement of the probative facts upon which said conclusions are based. Even then the conclusions may often be stricken out upon motion as irrelevant and redundant matter. A brief summary of the definite, tangible facts which appear upon the face of the complaint, and which alone can form the basis of this suit, will aid us materially in arriving at a correct conclusion as to whether the plaintiff is entitled to relief in equity by the extraordinary remedy of injunction. existence of the plaintiff as a corporation, and the Multnomah Typographical Union No. 58 as a voluntary unincorporated association, the objects of such association as shown by its constitution and by-laws, and the relations which defendants bear to such association, are all facts which are taken as granted. The overt acts charged upon which equity jurisdiction is invoked are about as follows: First. The executive committee of the Multnomah Typographical Union No. 58, without leave or license, and without lawful business, entered the premises of plaintiff and ordered all union men employed therein to quit under penalty of being dealt with in accordance with the laws, rules, and regulations of the union, which order was obeyed by the men. Second. The committee and members of the union circulated the fact that the employés of plaintiff had been called off. Third. The committee published the following advertisement in the local news columns of the Oregonian: "To Our Friends: Persons intending having job printing done

will bear in mind that the Longshore establishment on Front between Alder and Washington streets is a non-union office. Ex. Com. M. T. U. No. 58." Fourth. The committee and members of the union induced the common council of the city of Portland to reject plaintiff's bid for the city printing for the year 1893 by threatening said council with their displeasure and boycott at the polls. Fifth. On the 12th day of March, 1893, the union passed a resolution ordering all union men working for plaintiff to quit, and that the men being intimidated thereby observed the order. Sixth. The committee caused the following notice to be posted in numerous places, viz.: "Owing to the Longshore Printing Company breaking the rules of the Multnomah Typographical Union, all members of the union were withdrawn March 16th, '93." Seventh. The committee notified plaintiff that they now intended to | fight it to the death. Eighth. The Meier & Frank Company, whose business was valuable to plaintiff, withdrew their patronage, and Mason, Ehrman & Co., whose business is also valuable, notified plaintiff of their intention to withdraw. All these acts are alleged to have been committed in pursuance of a conspiracy entered into by and between the executive committee and members of Multnomah Typographical Union No. 58 for the purpose of injuring and destroying plaintiff's business, or compelling it to submit to the rules and regulations of the association. When divested of all surplusage, the complaint simply shows that defendants have been guilty of one act of trespass.that of entering plaintiff's premises unbidden; some acts by reason of which plaintiff was deprived of certain business,-that of the city printing for the year 1893; and of some acts on account of which one customer, the Meier & Frank Company, has withdrawn its employment of plaintiff, and another gave notice of an intention to do likewise. These constitute all the specific injuries which plaintiff has sustained at the hands of the defendants. To prevent further threatened injuries of the same nature and the damage to plaintiff's business from becoming irreparable an injunction is sought. The publi cation in the Oregonian, the posting of said notices, the circulation of the fact that the union employés of plaintiff had been called off, and the threat, made directly to the plaintiff by the executive committee, that they "now intended to fight it to the death," can hardly be termed such acts of malicious, unwarranted aggression as must of themselves be regarded as actionable per se; but of this we will have more to say hereafter.

It is apparent that one purpose of this suit is to prevent strikes by the union employés of the plaintiff, or, to put it more direct, to prevent the union from calling off or interfering with such of said employés as the association is able to control through its

organization. At one time, in England, it was maintained by some judges that trades unions were illegal combinations, and indictable at common law. In Rex v. Mawbey, 6 Term R. 636, Grose, J., by way of illustration, makes use of the following language: "As in the case of journeymen conspiring to raise their wages, each may insist on raising his wages, if he can; but if several meet for the same purpose it is illegal, and the parties may be indicted for a conspiracy." From a review of this case it is apparent that this language was not necessary to a decision of the points made. In Hilton v. Eckersley, 6 El. & Bl. 52, Crompton, J., in referring to Rex v. Mawbey, says that Grose, J., "assumed the illegality of such combinations as well-known law," and further remarked that "combinations of this nature, whether on the part of the workmen to increase, or of the masters to lower, wages, were equally illegal." But Lord Campbell, C. J., in a concurring opinion with Crompton, J., seriously doubted whether such was the law, and, after citing Rex v. Mawbey, said: "I cannot bring myself to believe, without authority much more cogent, that if two workmen, who sincerely believe their wages to be inadequate, should meet and agree that they would not work unless their wages were raised, without designing or contemplating violence or any illegal means for gaining their object, they would be guilty of a misdemeanor, or liable to be punished by fine and imprisonment. The object is not illegal, and therefore, if no illegal means are to be used, there is no indictable conspiracy. Wages may be unreasonably low or unreasonably high, and I cannot understand why in the one case workmen can be considered as guilty of a crime in trying by lawful means to raise them, or masters in the other can be considered guilty of a crime in trying by lawful means to lower them." And later English authorities concede that members of trades unions binding themselves not to work except under certain conditions, and to support one another in the event of being thrown out of employment in carrying out the views of the majority, do not bring themselves within the criminal law. Hornby v. Close, L. R. 2 Q. B. 153, and Far rer v. Close, L. R. 4 Q. B. 602. Since the enactment of statutes 6 Geo. IV. c. 129, as modified by 22 Vict. c. 34, and 34 and 35 Vict. c. 31, and similar statutes, trades unions are recognized as legal associations, with objects which they may endeavor to secure by pecuniary and other means of supporting strikes and the like, so long as they do not resort to secret or other violence, or to threats, intimidation, or any acts of like character which will tend to destroy freedom of action. Early American cases are in consonance with the earlier English adjudications, but later authorities concur in the more reasonable and enlightened view that trades unions, in the ordinary acceptation of

the term, are not within and of themselves unlawful combinations. "It is no crime for any number of persons, without an unlawful object in view, to associate themselves together, and agree that they will not work for or deal with certain men or classes of men, or work under a certain price or without certain conditions." Carew v. Rutherford, 106 Mass. 14; Snow v. Wheeler, 113 Mass. 186; Com. v. Hunt, 4 Metc. (Mass.) 134; Rogers v. Evarts (Sup.) 17 N. Y. Supp. 268. It was therefore not unlawful for Multnomah Typographical Union No. 58 to adopt a scale of wages. Neither was it unlawful for the union to make provisions in its by-laws limiting the number of apprentices to one for each newspaper office employing less than 25 men and two when employing 25 or more, and one to each job office, and two when employing 5 journeymen on an average. No member of this association can now be charged with criminal conspiracy as under the common law, simply because of the fact that he with others has combined for the purpose of maintaining wages or limiting the number of apprentices, as contrary to public policy. It must be understood, however, that these associations, like other voluntary societies, 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. So much for the organization and its enforced coherence.

It has been said that there is no such thing as a legal or peaceful strike. The term "strike" is differently defined by authors and judges. Webster defines it as "the act of quitting work; specifically, such an act by a body of workmen, done as a means of enforcing compliance with demands made on their employer." In 24 Am. & Eng. Enc. Law, 123, it is defined as follows: "The term 'strike' is applied commonly to a combined effort on the part of a body of workmen employed by the same master to enforce a demand for higher wages, shorter hours, or some other concession, by stopping work in a body at a prearranged time, and refusing to resume work until the demanded concession shall have been granted;" and again by Allen, J., in Railroad Co. v. Bowens, 58 N. Y. 582: “A

strike is 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." From these definitions it would seem that all strikes are not unlawful, and do not necessarily engender breaches of the peace. Sir James Hannen, in his dissenting opinion in Farrer v. Close, L. R. 4 Q. B. 611, says: "I am of the opinion that strikes are not necessarily illegal. A strike is properly defined as 'a simultaneous cessation of work on the part of the workmen,' and its legality or illegality must depend on the means by which it is enforced, and on its objects. It may be criminal, as if it be part of a combination for the purpose of injuring or molesting either masters or men; or it may be simply illegal, as if it be the result of an agreement depriving those engaged in it of their liberty of action, similar to that by which the employers bound themselves in the case of Hilton v. Eckersley, 6 El. & Bl. 66; or it may be perfectly innocent, as if it be the result of the voluntary combination of the men for the purpose only of benefiting themselves by raising their wages, or for the purpose of compelling the fulfillment of an engagement entered into between employers and employed, or any other lawful purpose." Justice Harlan, in the now celebrated case of Arthur v. Oakes, 63 Fed. 327, says: are not prepared, in the absence of evidence, to hold as a matter of law that a combination among employés having for its object their orderly withdrawal in large numbers or in a body from the service of their employers, on account simply of a reduction in their wages, is not a 'strike,' within the meaning of the word as commonly used. Such a withdrawal, although amounting to a strike, is not, as we have already said, either illegal or criminal." If one person can lawfully quit the service of his employer because of the rate of wages paid or the employment of objectionable persons, cannot several or many persons, first agreeing among themselves to the same purpose, likewise lawfully quit? Conspiracy at common law was a combination between two or more persons to do an unlawful thing, or to

do a

"We

lawful thing by unlawful means. Where not under special contract for a definite time, a simultaneous severance of the relations between employer and employés at the instance of the employés, and where there was no preconcerted action of such employés, was never considered unlawful. Coming to the means employed, it is not unlawful for several or many employés to agree between themselves to quit their employer. As we have seen, at one time it was held to be an unlawful conspiracy for laborers to combine for the purpose of quit

ting simultaneously with the ultimate purpose of raising their wages, or inducing their employer to confine his employment to certain kinds of labor, or the like; but this is not now the law, the principle underlying which having long since been discarded as inconsistent with liberty and the spirit of our free institutions. After workmen have thus combined, it is still not unlawful for them, by the use of fair means, to communicate the reasons for their design, and to signify their intention of quitting to their employer. 24 Am. & Eng. Enc. Law, 123; Manufacturing Co. v. Hollis, 54 Minn. 233, 234, 55 N. W. 1119; Walsby v. Anley, 7 Jur. (N. S.) 466; People v. Kostka, 4 N. Y. Cr. R. 434; People v. Wilzig, Id. 417; Rogers v. Evarts (Sup.) 17 N. Y. Supp. 268. Within these limits, a perfectly legitimate strike may be inaugurated and maintained, the object being to better the condition of workmen. Such an object is not only legitimate and lawful, but is just and praiseworthy. It was not wrongful, therefore, for the Multnomah Typographical Union to adopt a rule limiting the number of apprentices, and seek by fair means to enforce the observance thereof, so that its purpose in that respect was lawful. The claim that a monopoly is thus being promoted surely constitutes no grounds for equitable interference by injunction. This whole controversy has arisen because of the existence of the rule referred to and the efforts of the union to require its observance at the hands of the plaintiff. When, however, unlawful means are used to uphold or maintain a strike, or if the purposes for which it is maintained are unlawful, then it follows as a matter of course that the strike is in itself unlawful.

It is claimed in this case that the means employed by defendants were not permissible, and, being violative of the rights of plaintiff, it is entitled to an injunction to prohibit their continuance. This brings us to the gist of the controversy. The statute provides (Hill's Ann. Laws Or. § 1893): “If any person shall by force, threats or intimidation, prevent, or endeavor to prevent, any person employed by another from continuing or performing his work, or from accepting any new work or employment; or if any person shall circulate any false written or printed matter, or be concerned in the circulation of any such matter, to induce others not to buy from or sell to or have dealings with any person, for the purpose or with intent to prevent such person from employing any person, or to force or compel him to employ or discharge from his employment any one, or to alter his mode of carrying on his business, or to limit or increase the number of his employees or their rate of wages or time of service, such person shall be deemed guilty of a misdemeanor," etc.; and by section 1897 it is made a misdemeanor for any person to "wilfully and wrongfully commit any act which grossly injures

**

*

the person or property of another, or which grossly disturbs the public peace, or health, or which openly outrages the public decency and is injurious to public morals." Section 1748 provides: "If any person, either verbally or by any written or printed communication, shall threaten any injury to the person or property of another with intent thereby to extort any pecuniary advantage or property from such other, or with intent to compel such other to do any act against his will, such person upon conviction thereof shall be punished," etc. All these statutes are invoked in aid of plaintiff's contention. The first clause of section 1893 is directed against any person unlawfully preventing or endeavoring to prevent any person employed by another from continuing or performing his work. There are but two instances shown by the complaint in which the employés of plaintiff quit work.

As to

the first of these it is alleged: "That the said executive committee, combining and conspiring as aforesaid, for the purpose aforesaid, and professing to act by authority of the union, and in the capacity of the officers of the same, without lawful business entered the premises of the plaintiff, and ordered all members of the said union there and then at work under contract with the plaintiff to cease work further for it, under penalty of being dealt with according to the laws and regulations of said union. Said workingmen were intimidated and influenced thereby, and without delay immediately obeyed said unlawful and injurious order." And as to the second instance, the complaint alleges: "That on the 12th day of March, 1893, the then president of said union, and its members and officers, by a resolution of said union passed on that day, maliciously and solely because plaintiff refused to submit to the said union, ordered all union men working for plaintiff to cease working for it; and the said workingmen, being intimidated by said order, did obey said order, and ceased to fulfill their contracts with plaintiff." In the one instance the men quit under an order from the executive committee and in the other in pursuance of a resolution of the union. No intimidation is specifically alleged or shown, unless it can be inferred that by a refusal to quit the members of the union would subject themselves to the charge of insubordination to the order. And it does not appear that there was sufficient odium attached to this to put the members in fear, or that compliance with the order and resolution was induced thereby. The more reasonable presumption is that they quit because of the mutual understanding between the members to abide the action of the union and its executive committee. latter clauses of section 1893 can have no application here, as it is not alleged or claimed that the notice published in the Oregonian and the one posted in numerous places were false.

The

The more serious phase of this case, and the one which demands special attention, is the alleged boycott of plaintiff in its business, inaugurated for the purpose of so handicapping it as to compel submission to the rules and regulations of the union. Every person has a right to require that he be protected in his property rights. "The labor and skill of the workman or the professional man, be it of high or low degree, the plant of a manufacturer, the equipment of a 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." Ray, Contract. Lim. 409; State v. Stewart, 59 Vt. 273, 9 Atl. 559. Sections 1897 and 1748, supra, seem especially designed to prevent and punish acts which are grossly injurious to person or property, and attempts to compel others to do any act against their will. It seems the principle that a combination or conspiracy of two or more persons to injure the rights of others is illegal, although nothing has been done in execution of that intent, has not been embodied in our statutes; but there is no good reason why civil liabilities may not ensue by reason of a conspiracy to commit that which is not made unlawful by statute. "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 portions or classes of a community, or even to the rights of an individual." Com. v. Hunt, 4 Metc. (Mass.) 121. "Combinations against law or against individuals are al ways dangerous to the public peace and to public security." State v. Burnham, 15 N. H. 401. "An agreement to effect an injury or wrong to another by two or more persons is constituted an offense, because the wrong to be effected by a combination assumes a formidable character. When done by one alone, it is but a civil injury, but it assumes a formidable or aggravated character when it is to be effected by the powers of the combination." Reg. v. Parnell, 14 Cox, Cr. Cas. 514. The entire current of authority for the last century or more is to the same effect. See State v. Donaldson, 32 N. J. Law, 151; Crump's Case (Va.) 6 S. E. 620; U. S. v. Kane, 23 Fed. 748; Callan v. Wilson, 127 U. S. 540, 555, 8 Sup. Ct. 1301. Powers, J., in State v. Stewart, 59 Vt. 286, 9 Atl. 559, says: "A combination of two or more persons to effect an illegal purpose, either by legal or illegal means, whether such purpose be illegal at common law or by statute, or to effect a legal purpose by illegal means, whether such means be illegal at common law or by statute, is a common-law conspiracy." And in State v. Glidden, 55 Conn. 47, 8 Atl. 890, an indictment for conspiracy to violate a statute very similar to section 1893, supra, was sustained by the court. While conspiracy in itself is not an indictable offense un

der our law, all these authorities show conclusively that such a combination for the purpose of doing injury to the public or to individuals is per se wrongful. Civil consequences are not changed by reason of the fact that the combination is not made a statutory offense. Recent decisions sustain the doctrine that in a proper case, where two or more persons conspire and confederate together for the purpose of destroying or injuring the business of another, or doing violence to his property or property rights, and it is clearly made to appear that the injury is threatened and imminent, and will become irreparable to the suitor, injunction will lie to restrain the conspirators. Brace v. Evans, 3 Ry. & Corp. Law J. 561; Cog. Strikes, 342; Emack v. Kane, 34 Fed. 47; Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307; Coeur d'Alene Consol. & Min. Co. v. Miners' Union, 51 Fed. 260; Casey v. Union, 45 Fed. 135; Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 730; and Arthur v. Oakes, supra. The case of Sherry v. Perkins was put directly upon the ground that the acts complained of constituted a nuisance. The cases of Brace v. Evans, Emack v. Kane, Coeur d'Alene Consol. & Min. Co. v. Miners' Union, and Casey v. Union may well be taken upon the same ground. Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co. went upon the ground that circuit courts of the United States have jurisdiction by a bill in equity to restrain violations of the interstate commerce law to the irreparable injury of the complainant; and Arthur v. Oakes, that any illegal combination or conspiracy upon the part of employés, which has for its object to cripple the property in the hands of a receiver, and to embarrass the operation of railroads under his management, would be enjoined.

The cases principally relied upon by plaintiff to sustain the injunction in the case at bar are Brace v. Evans and Casey v. Union. In each of these cases the acts complained of were most aggravated and virulent. In the former the plaintiffs were proprietors and managers of a steam laundry, with a large and lucrative business. Circulars were issued alleging abusive treatment of the employés by plaintiffs, and asking all persons to cease patronizing them. This was followed by several other circulars, similar in character, some of which had printed thereon in large letters, "Boycott Brace Bros." A sign was placed on a building in large letters: "Headquarters Brace Bros. Boycott Committee." Men followed plaintiffs' wagons in buggies having banners attached to the harness on each side of the horse containing "Boycott Brace Bros." in large letters. Persons visited plaintiffs' agents, and requested them to cease acting as such, and upon their refusal to do so circulars were distributed denouncing them, and asking the public to boycott them. Men were posted in front of their places of business, who distributed cir

culars in large numbers, thereby collecting large and noisy crowds, which seriously interfered with the conduct of their business, and required the protection of the police. As a result, the agents of plaintiffs resigned, and many of their customers withdrew their patronage. In the latter case the facts shown by the bill of complaint and affidavits in support of the injunction were scarcely less reprehensible. Casey, the plaintiff, was the proprietor of the Covington Daily Commonwealth. The boycott was directed against his paper. Notices and letters were sent ev

ery where to his subscribers and advertisers, requesting and demanding that they should withdraw their patronage from the Commonwealth. The following are only specimen extracts therefrom: "Take Notice. It is requested of all who are friendly to organized labor that they buy nothing from the following firm: The Commonwealth (newspaper and job office), Covington, Kentucky." "The union now appeals to all in sympathy with labor to use their influence with Mr. Casey; try to show him the error of his way, and, failing in that, to withdraw their patronage from the 'rat' or 'scab' Commonwealth until it is unionized." "The union will consider it a great favor for you to give up the agency of the Commonwealth. If you do not do so, we will have to consider you the enemy of organized labor." "If you wish to retain the good will of labor, withdraw your advertising from the Commonwealth, refuse to subscribe for the sheet, and your aid in our behalf will be highly appreciated."

An article appeared in the Union Bulletin, the organ of the defendant union, entitled "Boycott the Commonwealth," which was full of such expressions as: "The boycott is still on, and will be until the proprietor of that 'rat' sheet employs union men." "Withdraw your patronage from the 'scab' Commonwealth." "Do not patronize a merchant who advertises in the 'rat' Commonwealth." "If you see the paper in any place of business, refuse to buy goods unless the merchant immediately stops the 'rat' sheet." "We call upon every friend of organized labor to get his printing done in the union printing offices. Beware of that 'rat' trap at Fifth and Scott streets, Covington, Ky." The inevitable result of such an attack was to utterly destroy Casey's Commonwealth, and leave him without occupation or property of any value.

Has plaintiff herein brought itself within the purview of the doctrine of these cases, or, in other words, does it show such threatened and imminent injuries to its business and property as will result in its irreparable detriment and loss? The allegations of the existence of a conspiracy between the officers and members of the Multnomah Typographical Union No. 58, to compel the plaintiff to submit to the dictation of the union upon pain of being boycotted in its business must be taken as true for the purposes of the