1

States. Not only obstruction of the mails, but any direct and intended interference with interstate commerce, if committed by one person, is an offense against the United States, and punishable as such. The law of conspiracy therefore in such a case is not the basis of the criminal action, as the offense is not made by the combination, but by the illegality of the end proposed, whether the means employed are lawful or unlawful. The enactment of the English statute by congress would have no material bearing upon the law of conspiracy as now applied in interstate commerce cases. As a concerted peaceable cessation from labor is lawful, in interstate employment as in any other, there is in such cases no illegality in the object sought, and no statute is required to legalize such action.

The English statute only applies to criminal prosecutions for conspiracies, and combinations for unlawful, though not criminal ends, as the destruction or injury of another's property or business, without justifiable reason, are still unlawful in England, and still constitute the basis of civil liability.

§ 96 (84). Interstate commerce in relation to employes therein.-There has been some difference of judicial opinion as to the illegality of boycotts when unattended with violence, intimidation or other illegal methods, that is whether in the absence of statute, the act which one might lawfuly do, as the withholding of patronage from another, is made illegal by combinations with others to do the same act. Thus it has been said that malice or the specific intent to injure the party may constitute a combination an illegal conspiracy, while other authorities have based the legal right to relief upon the greater probability of injury in the case of a combination, and it has been denied that private malice can be an ingredient in making a civil action, except in certain recognized exceptions where malice is essential, as in malicious prosecution.

1 Sec. 10 of Interstate Commerce Act, infra.

2 See prevailing and dissenting opinions in Hopkins v. Oxley Stave Co., supra, and Vegelhan v. Hunter, 167 Mass. 92 (1886); Taft, J., on the state bench of Ohio, in Moores v. Bricklayers' Union, 23

Weekly Law Bul. 48, and 7 Railway & Corp. Law Journal, 108 (1890); Allen v. Flood, 67 L. J. Q. B. Rep. 119; (1898), App. Cases 1; Paper of L. C. Karuthoff on Malice as an Ingredient of Civil Actions, American Bar Association of 1898.

This distinction, however, is academic rather than practical in its relations to interstate commerce. There is an obvious distinction between the relations of quasi-public corporations, such as carriers to their employes,-which is emphasized by their connection with interstate commerce, and thus a matter of direct federal concern,-and that of private employers to their employes, which grows out of the peculiar relations of such carriers to the public. The former cannot "lock out" their employes by suspending business for a time because of unsatisfactory labor conditions which prevent them from doing business profitably, and in such matter they have not the rights which may be exercised by private manufacturers. The cars must continue to move and traffic must continue to flow. Any interference with the traffic therefore except that which is the incidental result of the exercise of a lawful right, as the ceasing from employment for the betterment of one's own conditions, is unlawful.

This principle does not require the existence of through routing arrangements between carriers, but rests on the broad declaration of national policy which requires the interchange of traffic, whether through routing under contractual arrangements exists, or not.

This immunity of interstate commerce from direct interference not justified by the lawful exercise of rights is not limited to railroads or other interstate carriers, but is applicable to any parties engaged in transporting or handling interstate traffic, such as teamsters, draymen, transfer employes, or others, that is wherever the services are essential to the continued moving of interstate traffic from the point of shipment

The weight of American authority is condemnatory of "boycotts," that is, of organized efforts to destroy another's business. The cases are usually complicated, however, with distinctly illegal "means." See State v. Glidden, 55 Conn. 46 (1887); Crump v. Commonwealth, 84 Va. 927 (1889); State v. Stewart, 59 Vt. 273 (1887); State v. Donaldson, 32 N. J. Law, 151, where indictments for con

spiracy in boycott cases were sustained. See also Casey v. Central Typo. Union, 45 Fed. Rep. 135 (1891); Old Dominion S. S. Co. v. McKenna, 30 Fed. Rep. 49 (1887) (So. Dist. of Ohio); Carew V Rutherford, 106 Mass. 1; Walker v. Cronin, 107 Mass. 555; Doremus v. Hennesy, 176 Ill. 608; Lucke v Clothing Cutters & Trimmers As sembly, 77 Md. 396.

2

by the consignor in one state to the delivery to the consignee in another state.1 Thus combinations in restraint of interstate commerce are obnoxious to the federal law, though the subjects of such contracts are within the jurisdiction of the state. A boycott involving any form of interference with interstate traffic at any stage would be unlawful. Thus, a combination in New Orleans to enforce the employment of none but union men in all departments of labor became a combination in restraint of interstate commerce within the meaning of the statute when, in order to gain its ends, it sought to bring about a discontinuance of labor in all departments of business including the transportation of goods from state to state and from foreign nations.*

897 (85). "Picketing" and "soliciting" in interstate commerce. The same distinction is to be applied and the same distinction recognized in determining the rights of striking employes in picketing the approaches to stations or besetting, by soliciting or otherwise, their fellow-employes who do not strike, or those who are employed to take their places. It is not within the scope of this work to consider what is the extent or what are the limitations of the right to picket or solicit in private employment. Such questions are frequently presented to the state courts, and also in the federal courts in cases where their jurisdiction is invoked on grounds of diverse citizenship, and no distinctly federal question is involved." The public interest, which is not considered paramount in ordinary trade disputes, that is, the public convenience and even the publie necessities, are often not given the weight that they should have. But wherever interstate or foreign commerce is involved, this public interest is made paramount by the laws of the United States. All classes of the community, workingmen as well as capitalists, are interested in the prompt transmission of the mails and the uninterrupted carriage of persons and freight.

1 See Rhodes v. Iowa, 170 U. S. 412, 42 L. Ed. 1088 (1897).

2 Addyston Pipe & Steel Co. v. United States, supra; United States v. Swift, 122 Fed. Rep. 529 (N. Dist. of Ill.) (1903).

See Knudson v. Benn (Dist. of Minn.), 123 Fed. Rep. 636 (1903).

• United States V. Workingmen's Amalgamated Council of New Orleans (E. D. of La.), supra.

5 Kolley v. Robinson (C. C. A., 8th Cir.), 187 Fed. 415; Iron Moulders' Union V. Allis-Chalmers (C. C. A., 7th Cir.), supra.

Any form of interference therefore with the free movement of interstate traffic, whether by picketing or soliciting, or any form of obstruction, would be a direct interference with interstate commerce and unlawful as such, when it is not the incidental result of the exercise of a lawful right, as the concerted cessation from employment. It is true that a concerted cessation from employment, as in strikes, results also in an interference with interstate commerce, and may involve widespread public inconvenience and suffering, but that is the incidental result of the exercise of a lawful right. After this right is exercised, the interference thereafter resulting from boycotting any interstate traffic, or soliciting or besetting employes in such commerce to leave their employment, is not incidental, but is caused by a direct interference with interstate commerce. This distinction is not based upon any favor to the carrier, or for any abridgment of the rights of employes, but because the public interest, which concerns all citizens alike, is paramount.1

§ 98 (86). The status of interstate railroad employes is that of free contract.-The relation of interstate carriers to their employes is that of free contract, terminable by either party, subject to the terms of the contract. This relation therefore is not analogous to that of seamen in the maritime service, who to a certain extent surrender their liberty in their employment and are punishable for an unlawful desertion. It was said in Arthur v. Oakes that, in the absence of legisla

1 United States V. Workingmen's Amalgamated Council, supra; Knudson v. Benn, supra (Minn.); Union Pacific R. Co. v. Ruef (Dist. of Neb.), 120 Fed. Rep. 102 (1902).

2 The supreme court said, Rob ertson v. Baldwin 165 U. S. 1. c. 287, 41 L. Ed. 715 (1896), in sustaining the constitutionality of sections 4598 and 4599, R. S. U. S., 3 Comp. Stat. p. 3115, authorizing apprehension of deserting seamen, that "seamen are treated by congress, as well as by the parliament of Great Britain, as deficient in

that full and intelligent responsibility for their acts which is ac credited to ordinary adults, and as needing the protection of the law, in the same sense in which minors and wards are entitled to the protection of their parents and guardians." Harlan, J., dissented, say ing that the holding of any person in custody for the purpose of compelling him to render personal service in a private business was "involuntary servitude," prohibed by the constitution.

811 C. C. A. 209, and 63 Fed. Rep. 310 (1894).

tion to the contrary, the right of one in the service of a quasipublic corporation to withdraw himself at such time as he sees fit, and the right of the managers of the corporation to discharge an employe whenever they see fit, must be deemed so far absolute that no court could compel the continuance of the employment on the demand of either party.

It has been suggested that there are limits upon the right of the employes of a railroad to abandon their employment; that is, that it should not be exercised at a time or under circumstances indicating a purpose to obstruct commerce or to prevent its operation, rather than to exercise the lawful right of withdrawal from employment.' Thus the supreme court, in affirming the jurisdiction of the circuit court in punishing an engineer for contempt of an injunction," said that it was not necessary to decide whether an engineer may suddenly and without notice quit the service of a railroad company at an intermediate station or between stations, though cases may be imagined where the sudden abandonment of a trainload of passengers might imperil their safety or even their lives, as in this case the court below had found from the testimony that the petitioner did not quit in good faith, but intended to continue in the company's service, and that his conduct was a device to avoid obeying the order of the court.

This subject of the exercise of the right to leave employment was discussed by the circuit court of appeals for the seventh circuit in an opinion by Justice Harlan' in a case wherein the

1 While there is по federal statute on the subject, there are special statutory provisions in the several states, Maine, Pennsylvania, Illinois, New Jersey, Kansas, Delaware and Mississippi, the purpose of which is to prevent such sudden abandonment of employment as should endanger life or seriously obstruct the actual physical use of the railroad. In several of the states the provision is made that no locomotive engineer, and in some states conductors and trainmen, shall abandon the locomotive and

train at any other place than the regular scheduled end of the road. Illinois Revised Statutes, 3 Starr & Curtis, p. 3297; Maine R. S. 1903, p. 927, sec. 7; Pennsylvania R. S. Purdon's Dig. 920; New Jersey R. S. 1895, p. 2696, sec. 245; Kansas R. S. 1909, sec. 2384; Delaware R. S., p. 928; Mississippi R. S. 1906, sec. 1345. See also Report of Industrial Commission, vol. 5, p. 132; vol. 17, p. 601.

2 In re Lennon, 166 U. S. 548 (1897), 41 L. Ed. 1110.

8 Arthur v. Oakes, supra.