Part 9 (2/2)

But the significance of the eighties in the development of relations of the courts to organized labor came not from these cases which were, after all, nothing but ordinary police cases magnified to an unusual degree by the intensity of the industrial struggle and by the excited state of public opinion, but in the new lease of life to the doctrine of conspiracy as affecting labor disputes. During the eighties and nineties there seemed to have been more conspiracy cases than during all the rest of the century. It was especially in 1886 and 1887 that organized labor found court interference a factor. At this time, as we saw, there was also pa.s.sed voluminous state legislation strengthening the application of the common law doctrine of conspiracy to labor disputes. The conviction of the New York boycotters in 1886 and many similar convictions, though less widely known, of partic.i.p.ants in strikes and boycotts were obtained upon this ground.

Where the eighties witnessed a revolution was in a totally new use made of the doctrine of conspiracy by the courts when they began to issue injunctions in labor cases. Injunctions were an old remedy, but not until the eighties did they figure in the struggles between labor and capital. In England an injunction was issued in a labor dispute as early as 1868;[31] but this case was not noticed in the United States and had nothing whatever to do with the use of injunctions in this country. When and where the first labor injunction was issued in the United States is not known. An injunction was applied for in a New York case as early as 1880 but was denied.[32] An injunction was granted in Iowa in 1884, but not until the Southwest railway strike in 1886 were injunctions used extensively. By 1890 the public had yet heard little of injunctions in connection with labor disputes, but such use was already fortified by numerous precedents.

The first injunctions that attained wide publicity were those issued by Federal courts during the strike of engineers against the Chicago, Burlington, & Quincy Railroad[33] in 1888 and during the railway strikes of the early nineties. Justification for these injunctions was found in the provisions of the Interstate Commerce Act and the Sherman Anti-Trust Act. Often the State courts used these Federal cases as precedents, in disregard of the fact that there the issuance of injunctions was based upon special statutes. In other cases the more logical course was followed of justifying the issuance of injunctions upon grounds of equity. But most of the acts which the courts enjoined strikers from doing were already prohibited by the criminal laws. Hence organized labor objected that these injunctions violated the old principle that equity will not interfere to prevent crime. No such difficulties arose when the issuance of injunctions was justified as a measure for the protection of property. In the Debs case,[34] when the Supreme Court of the United States pa.s.sed upon the issuance of injunctions in labor disputes, it had recourse to this theory.

But the theory of protection to property also presented some difficulties. The problem was to establish the principle of irreparable injury to the complainant's property. This was a simple matter when the strikers were guilty of trespa.s.s, arson, or sabotage. Then they damaged the complainant's physical property and, since they were usually men against whom judgments are worthless, any injury they might do was irreparable. But these were exceptional cases. Usually injunctions were sought to prevent not violence, but strikes, picketing, or boycotting.

What is threatened by strikes and picketing is not the employer's physical property, but the relations he has established as an employer of labor, summed up in his expectancy of retaining the services of old employes and of obtaining new ones. Boycotting, obviously, has no connection with acts of violence against physical property, but is designed merely to undermine the profitable relations which the employer had developed with his customers. These expectancies are advantages enjoyed by established businesses over new compet.i.tors and are usually transferable and have market value. For these reasons they are now recognized as property in the law of good-will and unfair compet.i.tion for customers, having been first formulated about the middle of the nineteenth century.

The first case which recognized these expectancies of a labor market was Walker _v._ Cronin,[35] decided by the Ma.s.sachusetts Supreme Judicial Court in 1871. It held that the plaintiff was ent.i.tled to recover damages from the defendants, certain union officials, because they had induced his employes, who were free to quit at will, to leave his employ and had also been instrumental in preventing him from getting new employes. But as yet these expectancies were not considered property in the full sense of the word. A transitional case is that of Brace Bros.

_v._ Evans in 1888.[36] In that case an injunction against a boycott was justified on the ground that the value of the complainant's physical property was being destroyed when the market was cut off. Here the expectancies based upon relations which customers and employes were thought of as giving value to the physical property, but they were not yet recognized as a distinct a.s.set which in itself justifies the issuance of injunctions.

This next step was taken in the Barr[37] case in New Jersey in 1893.

Since then there have been frequent statements in labor injunction cases to the effect that both the expectancies based upon the merchant-function and the expectancies based upon the employer-function are property.

But the recognition of ”probable expectancies” as property was not in itself sufficient to complete the chain of reasoning that justifies injunctions in labor disputes. It is well established that no recovery can be had for losses due to the exercise by others of that which they have a lawful right to do. Hence the employers were obliged to charge that the strikes and boycotts were undertaken in pursuance of an unlawful conspiracy. Thus the old conspiracy doctrine was combined with the new theory, and ”malicious” interference with ”probable expectancies” was held unlawful. Earlier conspiracy had been thought of as a criminal offence, now it was primarily a civil wrong. The emphasis had been upon the danger to the public, now it was the destruction of the employer's business. Occasionally the court went so far as to say that all interference with the business of employers is unlawful. The better view developed was that interference is _prima facie_ unlawful but may be justified. But even this view placed the burden of proof upon the workingmen. It actually meant that the court opened for itself the way for holding the conduct of the workingmen to be lawful only when it sympathized with their demands.

During the eighties, despite the far-reaching development of legal theories on labor disputes, the issuance of injunctions was merely sporadic, but a veritable crop came up during 1893-1894. Only the best-known injunctions can be here noted. The injunctions issued in the course of the Southwest railway strike in 1886 and the Burlington strike in 1888 have already received mention. An injunction was also issued by a Federal court during a miners' strike at Coeur d'Alene, Idaho, in 1892.[38] A famous injunction was the one of Judges Taft and Rickes in 1893, which directed the engineers, who were employed by connecting railways, to handle the cars of the Ann Arbor and Michigan railway, whose engineers were on strike.[39] This order elicited much criticism because it came close to requiring men to work against their will. This was followed by the injunction of Judge Jenkins in the Northern Pacific case, which directly prohibited the quitting of work.[40] From this injunction the defendants took an appeal, with the result that in Arthur _v._ Oakes[41] it was once for all established that the quitting of work may not be enjoined.

During the Pullman strike numerous injunctions, most sweeping in character, were issued by the Federal courts upon the initiative of the Department of Justice. Under the injunction which was issued in Chicago arose the famous contempt case against Eugene V. Debs,[42] which was carried to the Supreme Court of the United States. The decision of the court in this case is notable, because it covered the main points of doubt above mentioned and placed the use of injunctions in labor disputes upon a firm legal basis.

Another famous decision of the Supreme Court growing out of the railway strikes of the early nineties was in the Lennon case[43] in 1897.

Therein the court held that all persons who have actual notice of the issuance of an injunction are bound to obey its terms, whether they were mentioned by name or not; in other words, the courts had evolved the ”blanket injunction.”

At the end of the nineties, the labor movement, enriched on the one side by the lessons of the past and by the possession of a concrete goal in the trade agreement, but pressed on the other side by a new form of legal attack and by the growing consolidation of industry, started upon a career of new power but faced at the same time new difficulties.

FOOTNOTES:

[29] See above, 6.

[30] See above, 91-93.

[31] Springhead Spinning Co. _v._ Riley, L.R. 6 E. 551 (1868).

[32] Johnson Harvester Co. _v._ Meinhardt, 60 How. Pr. 171.

[33] Chicago, Burlington, etc., R.R. Co. _v._ Union Pacific R.R. Co., U.S. Dist. Ct., D. Neb. (1888).

[34] In re Debs, 158 U.S. 564 (1895).

[35] 107 Ma.s.s. 555 (1871).

[36] 5 Pa. Co. Ct. 163 (1888).

[37] Barr _v._ Trades' Council, 53 N.J.E. 101 (1894).

[38] Coeur d'Alene Mining Co. _v._ Miners' Union, 51 Fed. 260 (1892).

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