due profit, purchases large quantities of an article of merchandise, to hold it, not for a fair rise, but to compel buyers to pay a price greatly above, as he knows, what can be regularly sustained in the market, he may, on principle, be deemed, with us, to be guilty of the common-law offense of engrossing."1 It is, without doubt, an immoral act, to ask an unconscionably high price for a commodity, taking advantage of the pressing wants of the people; and it may, under a high code of morals, be held to be an extortion, for one to purchase and hold merchandise for the purpose of gaining from its sale more than a fair profit; but it cannot be claimed that there is a trespass upon the rights of others in doing so, or that the rights of others are thereby threatened with injury. One is simply exercising his ordinary rights in demanding whatever price he pleases for his property. But apart from this objection, the great difficulty, if not impossibility, in ascertaining what is an extortionate price, and the practical inability, to enforce it, would predetermine such a law to become a dead letter.

§ 96. Prevention of trade. While the manipulation of capital by single individuals cannot threaten the public welfare by the general oppression of the masses; when two or more people combine their energies and their capital, the acquisition of this extraordinary power becomes easier and more common. In fact, it may be stated that, practically, combination is absolutely necessary in all cases to its acquisition. But combinations are beneficial, as well as injurious, according to the motives and aims with which they were formed. It is, therefore, impossible to prohibit all combinations. The prohibition must rest upon the objectionable character of the object of the combination. One of these objectionable objects is the restraint of trade. At common law, and it is

combinations in restraint of

1 Bishop Crim. Law, § 969.

still the law in most, if not all, of the States, [in some there are statutory regulations on the subject], all combinations in restraint of trade were unlawful, and no contracts, founded upon the combination, would be enforced by the courts.1

The cases are numerous and apply to almost all kinds of combinations, the object of which is the extortion of the public. As expressed by one judge, "a combination is criminal, whenever the act to be done has a necessary tendency to prejudice the public; or to oppress individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purpose of the latter, whether of extortion or of mischief." Even where this effect is more or less remote, the combination will be void. Thus the English court has refused to enforce an agreement, entered into by several employers in the same line of business, to suspend or carry on the business, in obedience to the direction of the majority. So also, are all combinations among employees void, whose object is the restraint or control of a particular trade. The obligations of the individual member to obey the orders of the league or combination, to refuse to offer his services to one, against whom the combination is directed, cannot be enforced in the courts.*

Labor organizations are very common in this country, and a consideration of their rights and powers inside of the law is therefore necessary. It can hardly be denied that so far as these organizations have charitable objects in view, the care of their sick and indigent members, the dissemination of useful literature among them and their enlightenment on

11 Hawk Pleas C., ch. 80, § 1; 1 Bl. Com. 150; Rex v. Waddington, 1 East, 43; 1 Smith's Lead. Cas. 367, 381; Lang v. Weeks, 2 Ohio (N. s.) 519; Thomas v. Tiles, 3 Ohio, 74; Barry v. Croskey, 2 Johns. & H. 1; Jones v. Lees, 1 H. & N. 189, Gulich v. Ward, 5 Halst. 87; Benjamin on Sales, 799.

2 Com. v. Carlisle, Brightley, 40.

8 Hilton v. Eckersley, 6 El. & Bl, 47, 66.

Hornby v. Close, L. R. 2 Q. B. 183.

matters connected with their trade, they are lawful. For such purposes the formation of associations can never be prohibited in any free State. Their prohibition would be a violation of constitutional liberty. But so far as these combinations have for their object the control of trade, and of the price of labor, they constitute combinations in restraint of trade, and all contracts founded upon them are void. A successful combination of labor will raise the price of labor and hence the cost of the commodity above its normal value in the same manner as the combination of capitalists will increase the cost of the commodity by increasing the return to capital. Free trade is only possible by a prohibition of both classes of combinations which, if successful, are equally dangerous to the public safety and comfort.

But at common law the combinations of employees for their mutual protection against the demands of their employers are not punishable criminally, nor actionable civilly, unless they commit some distinct offense against the public or against an individual. While an agreement among workmen to labor for not less than a given sum, or to refuse to work for a particular employer, or to work with employees, who do not belong to the union or organization, and the like, will not be enforced by the courts against one who refuses to fulfill his obligations, since it is against public policy; there is no common-law wrong done to the public or to the individuals who may be affected by the combination, as long as they do not by threats or acts of trespass against the rights of persons and property, attempt an interference with the freedom of others to employ and be employed by whom they please. Says Chapman, Ch. J. Every man has a right to determine what branch of business he will pursue, and to make his own contracts with whom he pleases, and on the best terms he can. He may change from one occupation to another, and pursue as many different occupations as he pleases, and competition in business is lawful. He may refuse to deal with any man

66

or class of men; and 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. Freedom is the policy of this country.' Mr. Bishop states that in England and in this country, combinations among workmen to raise the price of wages are indictable at common law.2 In England, statutes have been passed making such combinations a criminal offense, but it is not a crime, independently of statute, for workmen to combine to enhance the price of labor. But there can be no question concerning the power of the State to make such combinations criminal misdemeanors, if the public safety should require it. The power to declare an act unlawful being admitted, the choice of remedies for its prevention is wholly within the discretion of the legislative power.

One

§ 96a. A combination to "corner” the market. of the commonest cases of combinations in restraint of trade, is where two or more dealers in a staple commodity undertake to "corner the market." Dos Passos defines "a corner" in the following language: "A scheme or combination of one or more bulls' who are 'long' of certain stocks or securities, to compel the bears,' or persons 'short' of the stock to pay a certain price for the same. Or it may be a combination to force a fictitious and unnatural rise in the market, for the purpose of obtaining the

1 Carew v. Rutherford, 106 Mass. 1, 13, citing Conn. v. Hunt, 4 Met. 111; Boston Glass Manufactory v. Binney, 4 Pick. 425; Bowen v. Matheson, 14 Allen, 499.

22 Bishop Crim. Law, §§ 224, 225, citing Rex v. Mawbey, 6 T. R. 619; Com. v. Hunt, 4 Met. 11; People v. Fisher, 14 Wend. 9.

• Com. v. Hunt, 4 Met. 111. See post, § 97 on Boycotting.

See People v. Fisher, 14 Wend. 9, in which it is held that the New York statute, concerning conspiracy, makes it a misdemeanor for work. men to combine to raise their wages.

2

advantage of dealers, purchasers, and all persons whose necessities or contracts compel them to use or obtain the thing cornered.' "' 1 In New York, Illinois, Georgia, and Nebraska, there are statutes prohibiting "cornering," and providing remedies for the breach of the statute, but it is safe to assert that the act is unlawful at common law, and independent of statute. A combination to raise funds, or create fictitious prices by the spread of false rumors, is clearly criminal conspiracy, for it injures every one who would have to make purchases of the commodity and were compelled to pay a higher price in consequence of the false rumors. So, also, will a combination be void, which is formed for the purpose of enhancing the price of a commodity by the making of fictitious sales. There is as much fraud in these cases as where the combination attained their ends by setting false rumors in motion. In both cases there is a fraud against the public. These cases are plain, because in both classes of cases there is a distinct act of deception or fraud. But the illegality of combinations is pushed to the extreme limit, when it is held that a combination to enhance the price of a commodity is always unlawful, even where there is no deception or fraud, and when the combination do nothing more than hold the goods which they control for higher prices. But that is the common-law rule. Such combinations are quite common in later days, and public opinion is very tolerant of them, rarely, if ever, condemning the practice as immoral, but there can be no question concerning their illegality. In Raymond v. Leavitt, plaintiff loaned defendant $10,000 for purpose of

1 Dos Passos on Stock Brokers, p. 454.

2 Rex v. De Berenger, 3 M. & S. 67. See, also, Hitchcock v. Coker, 6 Ad. & El. 438; Hinde v. Gray, 1 M. & G. 195; Horne v. Ashford, 3 Bing. 322; Com. v. Hunt, 4 Met. 111.

3 Marsh v. Russell, 2 Lans. 75; Stanton v. Allen, 5 Denio, 434; 2 Kent Com. 699; Bissbane v. Adams, 3 Comst. 129; Hooker v. Vandewater, 4 Denio, 349. See Craft v. McConoughy, 79 Ill. 346.

446 Mich. 447.