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grievances.^ On the ground that the right to a trade-mark can
not exist apart from a business, and that such a mark is not
itself property, the officers and members of a union were held
not to be entitled to an injunction restraining the unauthorized
use of the label of the union.'

The Supreme Court of the United States defines a trade-mark
as a device to indicate "origin or ownership," and this would
appear to be broad enough to cover the case of the label of a
union. The subject has been made a matter of legislative ac-
tion in nearly all of the states of the Union, provision being made
for the registration and protection of the label adopted, and in
many cases the word, " trade-mark " is so defined as to include the
union label."* Apart from statute, it has been held that while
such a label is not a trade-mark, and no one has a vendible
interest therein, but only a contingent right to use it, equity
will nevertheless protect a complainant against fraudulent use

> Cigar Makers v. Conhaim, 40 Minn. 243, 41 N.W. 943.
« McVey v. Brcndd, 144 Pa. St. 235, 22 Atl. 912.
» Wecncr v. Brayton, 152 Mass. 101, 25 N.E. 46.

« Conn., G.S.. sees. 4907-4012 ; Ind., A.S.. scca. 8693-8703 ; Mass., R.L., ch. 72,
Bees. 7-14; N.Y., C.L., Ch. 13, bccb. 15, 16.


by which the public is deceived and the rightful users are made
to suffer pecuniary loss.' The statutes on the subject have
been generally held to be constitutional. ^ In the Illinois and
Indiana cases cited, the same label was under consideration as
that condemned in the courts of Pennsylvania ; ' but it was said
in these cases that the language was not an attack, but was de-
fensive only. In some cases the question of class legislation
was raised, but the courts ruled that the act was neither local,
private, nor discriminatory, but merely allowed a legitimate
statement as to the class of workmanship employed. Descrip-
tive words are no proper part of a trade-mark, but their use
will not invalidate an otherwise appropriate mark.^ In opposi-
tion to the point made by the Massachusetts court in the case
of Weener v. Brayton, supra, it has been held that since such a
label is a symbol of the reputation of the goods on which it is
placed, it acquires the character of property, and is therefore a
valid subject of legislation.^ An international label was held
not to be within the protection of a state law unless it was af-
firmatively shown that it could properly be registered there-
under ; ® and the form of any label for which the protection of
the law is sought must conform to the provisions of the statute.'

' Carson v. Ury, 39 Fed. 777. See also Hetterman v. Powers, 102 Ky. 133, 43
S.W. 180.

» Schmalz v. Wooley, 57 N.J. Eq. 303, 41 Atl. 939 ; Tracy v. Banker, 170 Mass.
266, 49 N.E. 308 ; People v. Fisher, 50 Hun. 552, 3 N.Y. Supp. 786 ; Perkins v.
Heert, 158 N.Y. 306, 53 N.E. 18 ; State v. Bishop, 128 Mo. 373, 31 S.W. 9 ; Cohn
V. People, 149 111. 486, 37 N.E. 60 ; State v. Hagan, 6 Ind. App. 167, 33 N.E. 223 ;
State V. Montgomery, 57 Wash. 192, 106 Pac. 771.

' McVey v. Brendel, supra.

* People V. Fisher, supra.
' State V. Bishop, supra.

• State Ji. Hagan, supra.

"> Lawlor v. Merritt & Son, 78 Conn. 630, 63 Atl. 639.


The use of a label not identical but misleading in appearance
on a casual examination is a violation of a statute prohibiting
the use of counterfeits or colorable imitations/ and it is as much
an offense to use a genuine label without authority as to use an
imitation thereof.^ A statute prohibiting the use of a label
without authority, or the use of a counterfeit label, was held not
to make knowledge an ingredient of the offense, the act itself
making the user liable ; ^ though it has been held that guilty
knowledge must be shown, since nothing will be taken by way
of intendment in the enforcement of a penal statute.'* The
statutes frequently penalize only the known or wailful violation
of the law, and where such is not shown, no penalty will attach,
and circumstances may even warrant the remission of costs in
the issue of an injunction against further use of the label.* A
provision in a statute that the penalty to be adjudged against
a violator of the law may be fixed by the complainant associa-
tion and by it recovered in an action for debt amounts to usurpa-
tion of the judicial function, depriving the defendant of property
without due process of law, and is unconstitutional.®

Under this head may be mentioned the statutes of a few
states ^ which require the union label to be placed on public
printing. No decision of a court seems to have been made as
to the constitutionality of such statutes, though they would
obviously fall under the same condemnation as have ordinances

» Myrup r. Friedman. 112 N.Y. Supp. 1138.

* Tracy v. Banker, supra.

» Bucla r. Newman, 31 N.Y. Supp. 449. 10 Misc. 460.

* State V. Bishop, supra.

» United Garment Workers v. Davis, (N.J. Eq.) 74 Atl. 306.

•Cigar Makers' International Union r. GoldborK, 72 N.J.L. 214, 61 Atl. 457.

» Mont.. R.C.. sec. 254 ; Ncv., PL., sec. 1515.


of cities to the same effect.^ Such laws are condemned as class
legislation, tending to the promotion of monopolies, and leading
to unwarrantable expenditure of the public funds, even where
the law does not require the award of contracts to the lowest
responsible bidder.

The right to wear the badge of a labor organization or to carry
a union card is restricted to actual members by the statutes of
a number of states.^ On principle, such statutes would seem
to fall fairly within the rule as to the right of the union label to
protection, and to be valid as preventing fraud. It has been
held, however that a statute forbidding the wearing of the
badge of any organization except as permitted or provided by
the constitution and by-laws of the same ^ was unconstitutional
as delegated legislation, since the right was made dependent on
other than a pubhc law ; the act was also held void as discrim-
inatory, in violation of the provisions of the fourteenth amend-
ment of the federal Constitution.^

Section 117. Restrictive Combinations. Antitrust Laws. —
Combinations of workmen may be condemned, or at least set
outside of the protection of the law, on the ground that they are
in restraint of trade. Their purpose to restrict employment to
their own numbers or those in affiliation with them operates to
exclude nonmembers from employment ; and the courts will
not enforce by injunction or otherwise the contracts of mem-
bers to continue as such or to observe the rules of the associa-

> Holden v. City of Alton, 179 El. 318, 53 N.E. 556 ; Marshall & Bruce Co. v.
NashvUle, 109 Tenn. 495, 71 S.W.815; Atlanta «. Stein, 111 Ga. 789, 36 S.E. 832 ;
Miller v. City of Des Moines, 143 Iowa 409, 122 N.W. 226.

« Conn., Acts 1907, ch. 113 ; Ga., Acts 1899, p. 79 ; Mass., Acts 1909, oh. 514,
sees. 31, 32 ; Minn., R.L., sec. 5053, etc.

» Mont., Acts 1907, ch. 18.

* State V. HoUand, 37 Mont. 393, 96 Pac. 719.


tion, or in any way guarantee the status of the organization or
of a member (unless property rights are involved), on the ground
that such judicial sanction of the regulations would be an un-
justifiable interference with the freedom of contract and of
trade.^ If an association is essentially for the purpose of re-
striction of output and of employment, and actively operates
to impair the freedom of employers as well as restricting its
own members, it may be disbanded as illegal i^ or an injunction
may issue against a combination to further a strike where the
object of the strike is to enforce a closed-shop agreement.'

In some cases the language used in the consideration of com-
binations of workmen indicates a purpose to apply the same
rules to them as to business agreements ; * though in others a
distinction is sharply drawn, the right of laborers and profes-
sional men to combine to fix a price on their services being held
lawful both at common law and under statutes generally.^ It

» O'Brien v. Musical M. P. & B. U., 64 N.J. Eq. 525. 54 Atl. 150.

» Kealey v. Faulkner, 18 Ohio S. & C. P. Dec. 498.

' Reynolds v. Davis, 198 Mass. 294, 84 N.E. 457 ; Goldfield Consol. Mines Co.
V. Goldfield Miners' Union, 159 Fed. 500.

* Lohse Patent Door Co. v. Fuelle, 215 Mo. 421,114 S.W. 997.

» Rohlf V. Kasemeier, 140 Iowa 182, 118 N.W. 276. It has been said recently
that "so far as economic principles are concerned, and so far as considerations of
fairness and justice are involved, there is not a word to be said in favor of any
scheme of legislation which condemns combinations of capital and at the same
time encourages combinations of labor." (Eddy on Combinations, sec. 896.)
Admitting the possibility of abuse of both classes of combinations, the author
quoted assumes the necessity of regulation, both groups being important to the
welfare of society and the one demanding the other as its correlative. Another
writer (Coglcy, Strikes and Lockouts) reaches the same conclusion, though ho
says that the employer undoubtedly hius the advantage because he has the most
means, which is merely "the good fortune of the one party and the hard luck of the
other, and is not the fault of the law." The actual legislative attitude has had
some attention, both as regards labor organizations in particular (sec. 1 10), and in
relation to employed persons in general (sees. .3 and 4) ; and while the courts


appears to be the rule, however, that where the question is
one simply of the rights of employers to agree on the terms of
the labor contract and the personnel of their employees, there
is little if any difference between their rights and those of work-

It may be broadly stated that "all combinations in restraint
of trade are contrary to public poHcy and illegal unless they are
for the reasonable protection, by reasonable and lawful means,
of persons dealing legally with some subject matter of contract." ^
Each case must turn on its conformity or nonconformity with
the terms of the above rule, and protestations of innocent pur-
pose or of simple obedience to the rules and obligations of the
association must be weighed against the actual effects of the
acts done and the reasonably anticipated consequences of rules
of the nature pleaded. A combination of laborers to prevent
the introduction of labor-saving machinery,^ or to secure the
employment of members of the union only' (though many of
the recent cases on this point seem to turn on the question of
methods and the consequences to nonunion workmen, and hold
the mere purpose of securing the employment of fellow-members
lawful), or to compel all employees of several employers to join
a particular union,^ or to prevent the employment of others to

have not uniformly recognized the constitutionality of dififerentiating statutes,
there is at least room for effort to adjust the unequal economic conditions ad-
nutted by the author last quoted and recognized in many judicial opinions, on
the ground that it is better to adapt legal and economic mles and doctrines to
existing facts than to insist on the doctrines and ignore the facts.
» Gatzow V. Buening, 106 Wis. 1, 81 N.W. 1003.

* Oxley Stave Co. v. Coopers' International Union, 72 Fed. 695.

» Elder v. Whitesides, 72 Fed. 724 ; Gatzow v. Buening, supra ; Curran v.
Galen, 152 N.Y. 33, 46 N.E. 297.

* McCord V. Thompson-Starrett Co., 113 N.Y. Supp. 385.


take the place of workmen out on strike,^ or a combination to
procure employees under contract to quit their employment,^
or, in general, a combination coming within the definition given
below (sec. 118) of a conspiracy, is unlawful.

Legislation directed to the operation of business agreements,
commonly known as antitrust legislation, is found in many
states and on the federal statute books. As noted in sec.
Ill, some of these laws expressly exempt labor agreements from
their application. A law prohibiting agreements to regulate
the price of any commodity was held not to apply to labor, the
court rejecting the view that labor can be classed as a com-
modity, and holding further that combinations to advance wages
are lawful.^ The exception as to labor combinations in the
antitrust law of Nebraska was declared unconstitutional by a
federal court ; * this view was disapproved by the supreme
court of the state, however, the law being held by it to be
valid as enacted.^ An Illinois statute that amended the anti-
trust law of that state by excepting wage agreements therefrom
was held by the supreme court of the state to be unconstitu-
tional,' on the ground that the law was discriminatory, citing
a similar conclusion of the Supreme Court of the United States
as to a law of the same sort making exceptions of a different

An association whose by-laws restrict competition in bidding

> Union P. R. Co. v. Ruef, 120 Fed. 102.

« Arthur v. Oakes. 63 Fed. 310, 11 CCA. 209.

» Rohlf V. Kasemeier, supra.

* Niagara Fire Insurance Co. v. Cornell, 110 Fed. 816.
' Cleland v. Anderson, 66 Ncbr. 252, 92 N.W. 306.

• People ex rel. Akin r. Butler St. Foundry Co., 159 111. 249, 66 N.E. 363. 8e«
also Eddy on Combinations, sees. 911, 912.

1 Connolly v. Pipe Co., 184 U.S. 640, 22 Sup. Ct. 431.


for work and require purchases of supplies to be made only from
dealers who conform to the rules of the association is in restraint
of trade and violates a law prohibiting contracts and combina-
tions to prevent or destroy full and free competition in produc-
tion.^ Any member of a combination, if acting singly and
individually, could lawfully refuse to deal with any person or
persons not meeting the conditions set by him for his customers
or patrons, and no law which would infringe upon his freedom
in that regard would be valid; but an act that is harmless
when done by one may become a public wrong through concert
of action, and may be prohibited or punished as a conspiracy
if it is injurious to the pubhc or to individuals against whom it
is directed.^ The fact that an agreement entered into by sev-
eral strips them of their own freedom of action as individuals
was mentioned in the case last cited as a further warrant for
holding the combination to be one in restraint of trade within
the purview of a statute prohibiting combinations of that na-
ture ; the statute was also held to be constitutional.

The federal antitrust act^ declares illegal "every contract,
combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce," interstate or foreign. This
act was held in an early case to apply to combinations of laborers
no less than to those of capitalists, and the fact that the origin
and general purposes of a combination were innocent and lawful
in no wise lessens the illegality of acts that offend against the
provisions of the statute.'* In this case an effort to secure the

1 Bailey v. Ass'n. of Master Plumbers, 103 Tenn. 99, 62 S.W. 853.

« Grenada Lumber Co. v. Mississippi, 217 U.S. 433, 30 Sup. Ct. 635 ; citing
Callan v. Wilson, 127 U.S. 655, 8 Sup. Ct. 1301.

» Act of July 2, 1890, 26 Stat. 209, Comp. Stat., p. 3200.

* United States v. Workingmen's Amal. CouncU, 54 Fed. 994 ; Affirmed
(C.C.A.), 57 Fed. 86.


employment of none but union men by the interruption of
commerce by violent means was held to be a restraint of trade
within the meaning of the act; so also of a boycott against a
connecting railway line, and a refusal to handle its cars until it
should come to terms with the organization ; ' and an injunc-
tion will properly lie against officers of an organization who
incite strikes in furtherance of a purpose condemned by the
act.^ The subject received an extensive discussion in its bear-
ing on the subject of combinations of labor in the case just cited.
This case was carried to the Supreme Court and there affirmed,'
though not on the grounds of a violation of the antitrust law,
but on the broader ground of the control of the national gov-
ernment over the transportation of the mails.

It was stated in the opinion in the above case that there was
no dissent from the opinion of the court below as to the scope
of the act, but this declaration was not understood in a later
case in an inferior court as upholding the applicability of the
law to a case in which efforts to unionize a factory involved the
boycotting of the product in various states to which shipments
were customarily made, with the result that such shipments
were largely reduced. The court in this instance held that the
only points of interference were the diminished sales in each
locality and the reduction of manufacture locally, neither of
which were matters classifiable as interstate commerce and
subject to federal control.'' The Supreme Court of the United
States, however, considered the question on appeal,^ and held

1 Waterhouso r. Comer, 55 Fed. 149.
« United States v. Debs. 64 Fed. 724.

• In re Debs. 158 U.S. 564. 15 Sup. Ct. 900.

* Loewc V. Lawlor, 148 Fed. 924.

» Same case, 208 U.S. 274, 28 Sup. Ct. 301.


that the combined acts had for their purpose an interference
with interstate commerce, that labor unions are in no wise
exempt from the strictures placed by the statute on combina-
tions in restraint of trade, and that a boycotting of goods sold
chiefly in other states than that of manufacture, for the purpose
of coercing the manufacturer into an agreement with the union,
was repugnant to the statute.



Section 118. Conspiracies. — The old common-law doctrine
of conspiracy, which was by statute made to cover all labor
combinations in Great Britain until within the past century, is
frequently invoked to meet cases in which combinations are
formed that are regarded as unduly interfering with business
or property interests. Of practically the same nature and effect
are certain prohibited combinations, not designated as con-
spiracies, for the purpose of "willfully or maliciously injuring
another in reputation, trade, business, or profession, by any
means whatever." ^ It has been repeatedly declared that what
one may lawfully do alone, many' may do in combination ; ^
though the better view is against the correctness of this asser-
tion, unless properly qualified ; ' but in general the fact of com-
bination does not of itself suggest illegality.

A conspiracy, however, is essentially illegal, being most
commonly defined as a combination of two or more persons to

> Wis., A.S. sec. 4466a.

»Bohn Mfg. Co. v. Hollis, 54 Minn. 223. 55 N.W. 119; Lindsay r. Montana
Federation of Labor, 37 Mont. 264, 96 Pac. 127 ; National Protective Ass'n. v.
Gumming, 170 N.Y. 315, 63 N.E. 369; Cooke, Combinations, Monopolies,
and Labor Unions, sec. 16.

» Aikens v. Wisconsin, 195 U.S. 194, 25 Sup. Ct. 3 ; Arthur v. Oakcs, 63 Fed.
310, 11 CCA. 209; Buck's Stove & Range Co. v. American Federation of
Labor. 35 Wash. L. Rep. 797, 70 Alb. L..I. 8 ; Pickett r. WaLsh. 192 Mass. 572, 78
N.E. 753 ; Lohse Patent Door Co. v. FucUe, 215 Mo. 421, 114 S.W. 997.
8 257


perform an illegal act, or effect an illegal purpose, or to accom-
plish some purpose not in itself criminal or unlawful by criminal
or unlawful means ; and a conspiracy to commit an offense may
be more severely punished than the offense itself, under pro-
vision of statute.^ The matter of definition and penalty may
be regulated by statute, and several states have provisions de-
claring that labor agreements are not conspiracies ; ^ though
such laws do not legaUze the class of conduct embraced in the
definition given above, and where there is a malicious or cor-
rupt agreement to deprive another of his liberty or property,
the law has been violated, regardless of these statutes ; ^ nor
does the fact that a state has a statute on the subject of conspir-
acy prevent common law actions in cases not falling within the
purview of the statute.*

Conspiracies are classed as civil and criminal, the former
giving rise to liability in damages to the person injured thereby,
and the latter being punishable by the state as for any other
offense. In criminal conspiracies the offense consists in the
combination, and punishment will follow the proof of the con-
spiracy without regard to the attainment of its ends, since the
law regards the act of unlawful combination and confederacy
as dangerous in itself to the peace and welfare of society; ^ while
in civil conspiracies some damage to the complaining party
must be shown. Any party thereto is liable for the conse-

1 Clune V. United States, 159 U.S. 590, 16 Sup. Ct. 125.

» Cal., Sims' Pen. Code, p. 581 ; Md., P. G. L., Art. 27, sec. 33 ; Minn., R.L.,
sec. 4868 ; N.Y., C. L., ch. 40, sec. 582, etc.

» State V. Glidden, 55 Conn. 46, 8 Atl. 890 ; Lucke v. Clothing Cutters, 77 Md.
896, 26 .\tl. 505 ; Arthur v. Oakea, supra.

* State V. Dalton, 134 Mo. App. 517, 114 S.W. 1132.

'United States v. Caasidy, 67 Fed. 698; Clune v. United States, supra;
Arthur v. Oakes, supra.


quences of unlawful combinations, though he personally may
not have participated in the performance of the acts leading up
to them ; ^ or even though no act whatever was done, if the
conspiracy was criminal.^ The fact that a civil recovery has
been had is no bar to criminal proceedings, and vice versa.^

The statutes of a number of states require the performance of
an overt act to establish criminal liability, but the performance
of that act may still entail hability upon all,^ and the act itself
need not be criminal if the conspiracy was so and the act shows
a purpose of carrying it out.^

No conspiracy can exist without more parties than one, so
that a judgment for damages against one party to an alleged
conspiracy, the other parties being cleared of the charge, is
self-contradictory.® One need not be an original conspirator
to become liable as such if he makes himself party to a con-
spiracy with knowledge of the character of its acts and purposes
or of their reasonable tendency,^ and the innocent and lawful
act of combining for mutual benefit passes into indictable con-
spiracy when threats, intimidation, and violence are adopted as
means of enforcing the demands of the associates on employers
or third persons. Inasmuch as any conspiracy charged will
usually operate in one or more of the methods commonly em-
ployed by combinations in the prosecution of their ends, the
subject will recur under the several topics, as strikes, boycotts,
picketing, blacklisting, etc.

' Toledo, etc., R. Co. v. Pennsylvania Co., 54 Fed. 730.

' Arthur v. Oakes, supra; State v. Buchanan, 5 Har. & J. (Md.) 317.

« State V. Dal ton, supra; Underhill v. Murphy, 117 Ky. 640, 78 S.W. 4S2.

• U.S., R.S., sec. 5440. See Toledo, etc., R. Co. v. Pennsylvania Co., supra.

• United States v. Gordon, 22 Fed. 250.

• St. Louis S. W. R. Co. v. Thompson, 102 Tex. 89, 1 13 S.W. 144.

' Conkcy v. Russell, 111 Fed. 417 ; ex parte Richards, 117 Fed. 658; Goldfield
Consol. Mines Co. v. Miners' Union, 15'J Fed. 500.


The statutes declaring that labor agreements as to the con-
ditions of employment are not conspiracies may contain the
specific provision that the statute is to be construed as applying
only to the combinations in question, and do not authorize the
use of force or violence or threats thereof ; * or they may merely
state that the orderly and peaceable assembling and coopera-
tion of workmen for securing or maintaining desired conditions
is not a conspiracy ; ^ nor is a refusal to work, following such an
agreement, with the adoption and use of means to make the
agreement effective.'

While these statutes, therefore, have the obvious intent of
declaring such agreements lawful, they do not permit any vio-
lent or coercive action, and if they attempted to do so, they
would be unconstitutional and void as putting certain persons
above and beyond a salutary law that governs all others ; * and
while they prevent the prosecution as conspirators of those in
combination, they do not take away the right of any individual
injured by the combination to sue the responsible parties to
recover damages/ The statute may itself provide (as in the
Pennsylvania law cited above) that it does not prevent the

Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 21 of 32)