§ 107. Picketing.—Closely allied to the boycott, as a means of enforcing a demand, is the device of picketing. This term, as employed in connection with strikes, designates the act of establishing a watch over the actions of workmen not connected with the association by which it is conducted, for the purpose of dissuading them from accepting employment, or of persuading them to abandon it. Pickets are stationed where they will be able to see other workmen as they are going to or returning from their work, 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. L. 151; Crump v. Commonwealth, 87 Va. 927; s. C., 10 Am. St. Rep. 395; 6 S. E. Rep. 620; United States v. Kane, 23 Fed. Rep. 748; Callan v. Wilson, 127 U. S. 540, 545; s. C., 8 Sup. Ct. Rep. 1301. Powers, J., in State v. Stewart, 59 Vt. 286; s. c., 59 Am. Rep. 710; 9 Atl. Rep. 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 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; s. c., 3 Am. St. Rep. 23; 8 Atl. Rep. 890, an indictment for conspiracy to violate a statute very similar to section 1893, of our code, was sustained by the court. While conspiracy in itself is not an indictable offense under our law, all these authorities show conclusively that such a combina tion 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, an injunction will lie to restrain the conspirators. Brace v. Evans, 3 Ry. & Corp. Law Journal, 561; Cogley on Strikes and Lockouts, 342; Emack v. Kane, 34 Fed. Rep. 47; Sherry v. Perkins, 147 Mass. 212; s. c., 9 Am. St. Rep. 689; 17 N. E. Rep. 307; Coeur d'Alene Mining Co. v. Miners' Union, 51 Fed. Rep. 260; s. c., 19 L. R. A. 382; Casey v. Cincinnati Typographical Union, 45 Fed. Rep. 135; s. c., 12 L. R. A. 193; Toledo, A. A. & N. M. R. R. Co. v. Pennsylvania Co., 54 Fed. Rep. 730; s. c., 19 L. R. A. 387; and Arthur v. Oakes, 63 Fed. Rep. 327; s. C., 25 L. R. A. 414." Longshore Printing Co. v. Howell, 26 Ore. 527, 546. with a view to the accomplishment of this purpose. Like the boycott, picketing may be conducted in a quiet and orderly manner, or there may be a resort to threats and intimidations. Where the act does not extend beyond inoffensive persuasion it is not necessarily unlawful, but where it amounts to intimidation and coercion it is a criminal conspiracy. In a leading English case, an indictment for conspiracy, to molest and obstruct workmen, with a view to coerce them to quit their employment, and to molest and obstruct employers with a view to coerce them to alter their mode of business, the evidence being that the defendants had continually watched and walked up and down before the prosecutor's premises, and had accosted their workmen, inviting them to quit their employment and promising them money if they did so, and threatening if they refused they would be known as "black sheep," and would not be able to get employment elsewhere, it was held that the question was whether the watching and besetting was carried on in such a manner and to such an extent, that it would operate on the will by giving rise to apprehension or annoyance, and that if the watching and besetting had been done with the intention to coerce, the defendants ought to be found guilty. The rule is the same as that relating to the 1 Reg. v. Hibbert, 13 Cox Cr. Cas. 82. See also Reg. v. Duffield, 5 Cox Cr. Cas. 404; Reg. v. Shepherd, 11 Cox Cr. Cas. 325; Connor v. Kent, 2 Q. B. 545; Reg. v. Selby, 5 Cox Cr. Cas. 495; Reg. v. Bauld, 13 Cox Cr. Cas. 282; Perkins v. Rogg, 28 Wkly. L. Bull. 32; Commonwealth v. Silvers, 11 Pa. Co. Rep. 481; Crump v. Commonwealth. 84 Va. 927; s. c., 10 Am. St. Rep. 895; U. S. v. Kane, 23 Fed. Rep. 748; s. C., 25 Am. & Eng. R. Cas. 608; Richter v. Journeymen Tailors' Union, 24 Wkly. L. Bull. 189; Sherry v. Perkins, 147 Mass. 212; Carew v. Rutherford, 106 Mass. 1; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317; Wick China Co. v. Brown, 164 Pa. St. 449; Reg. v. Druitt, 10 Cox Cr. C. 592; Temperton v. Russell, L. R. (1893) 1 Q. B. 435. A patrol by strikers in front of a factory, used in combination with social pressure, threats of personal injury or unlawful harm, and persuasion to break existing contracts, is an unlawful interference with the rights of both employer and employe, since it is a means of intimidation indirectly to the employer and directly to persons actually employed or seeking to be employed by him. Vegelahn v. Guntner, 167 Mass. 92; S. C., 44 N. E. Rep. 1077; 43 Cent. L. J. 464. Black's Law Dic strike in general or to the boycott. As workmen are free to abandon the service of their employer, and to decline to do any business with him, and as they may by all proper means endeavor to persuade others to join them in the effort to accomplish their purpose, so they may establish a tionary thus defines the word as here used: "Picketing by members of a trade union on a strike, consists in posting members at all the approaches to the works struck against, for the purpose of observing and reporting the workmen going to or coming from the works, and of using such influence as may be in their power to prevent the workmen from accepting work there." A court of equity has jurisdiction to enjoin the commission of unlawful acts, prejudicial to personal rights where the rights are clear and the injury irreparable. A man's business is property and may be protected against injury by unlawful acts tending to injure or destroy it. The fact that the acts complained of may be the subject of criminal prosecution does not oust equitable jurisdiction to prevent private injury. A bill in equity alleged that a number of persons had combined to proscribe the plaintiff's business by "boycotting" him, and requesting others so to do, by threatening the parties dealing with him that they in turn will be "boycotted" or proscribed, and by following his wagons through the streets with requests to the public to boycott him; and as a result of these acts, plaintiff's business had fallen off greatly and was threatened with entire destruction. Held, that a court of equity would enjoin the parties so conspiring to injure plaintiffs from a continuance of these injurious and threatening acts. Brace v. Evans, 3 Ry. & Corp. L. J. 561. "The question remains whether this unlawful demand was sought to be enforced by unlawful means and that depends upon the character of the so-called 'boycott.' Of course, gentlemen, it was unlawful to platoon the street in front of T's place in great numbers, with strange devices, with placards and with circulars denouncing the men inside. That it was unlawful in the sense of the civil law there can be no doubt whatever. It was an unlawful conspiracy within the civil law, for which an appropriate action for damages would lie. Whether the men were amenable to the criminal law is another question, dependent upon intimidation. The essence of the overt act is intimidation. I charge you that it was not necessary that there should be any overt act of violence, nor any direct threat by word of mouth. If those men (parading up and down, dressed as they were, doing what they did, distributing the circulars as they did) presented even to the weak and helpless an attitude of intimidation, that is sufficient. The gentle, the timid and the weak had the right to approach and quietly enter that place of entertainment without being molested, annoyed or disturbed; and if the attitude, conduct and method of these men was such as to deter any of T's customers from entering his place, or to inspire any part of the public with the sense of danger in ignoring picket, as long as they do not resort to acts of violence, or in any manner interfere with the freedom of others. In another English case, where, on an indictment, under 6 Geo. IV., chap. 129, § 3, for conspiracy to force workmen to leave their employment, the evidence being that the defendants merely waited outside the place where the workmen were employed, and tried to induce them not to work there, and that their conduct was civil and peaceable, it was held that the question was whether they had endeavored to control the free action or overcome the free will of the their appeals, then there was intimidation within the sense of the criminal law." Barrett, J., in People v. Wilzig, 4 N. Y. Crim. Rep. 403, 419. The defendants were members of a trade union of the tailors. The workmen having at the instigation of the union, struck for wages, and the masters having employed work people, men and women, not being members of the union, the defendants, who were members of the managing committees of the union, caused "pickets" to be stationed about the doors of such employers to note work people who went in and out, for the purpose of deterring them from continuing in such employ and inducing them to join the union. Proof was given of the use of insulting expressions and gestures used by "the pickets" to the non-union work people. Held, to be intimidation," "molestation" and "obstruction," within the meaning of the statutes. Reg. v. Druitt, 10 Cox Cr. Cas. 592. "Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority: (1) Uses violence to or intimidate such other person or his wife or children, or injures his property; or (2) persistently follows such other person about from place to place; or (3) hides any tools, clothes or other property owned or used by such other person, or deprives him of or hinders him in the use thereof; or (4) watches or besets the house or other place where suc other person resides, or works, or carries on business, or happens to be, or the approach to such house or place; or (5) follows such other person with two or more persons in a disorderly manner, in or through any street or road, shall, on conviction thereof, by a court of summary jurisdiction, or on indictment hereinafter mentioned, be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceed ing three months, with or without hard labor. Attending at or near the house or place where a person resides or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section." Section 6 of Conspiracy and Protection of Property Act 1875 of England. as workmen by force or intimidation. If there had been merely persuasion, no matter what the consequence of it was, peaceable and unaccompanied by menace or violence, this would not render the defendants amenable to criminal justice on such a charge, they being then protected by 22 Vict. chap. 34.1 The English doctrine has been accepted at least to some extent in this country, but in some of the States it has been made a misdemeanor, by statute, to persuade employes to abandon their employers. In Rogers v. Evarts, it was held that an injunction will not lie to restrain handicraftsmen from combining, and peaceably and without intimidation, persuading their fellow workmen to leave the service of their employers, in order to compel an advancė in wages, on the ground that such persuasion invades the constitutional right of the employer to prosecute his business free from unlawful obstruction. A body of handicraftsmen, combining for the purpose of peaceably and without intimidation persuading their fellow craftsmen to leave their employment in order to obtain an advance in wages, may lawfully pay the expenses of those who leave and post in their places of assembly the names of such persons as have contributed to the fund for the support of those who have surrendered their wages." In the opinion in this case, the court said: "In People v. Kostka, Justice Barrett says: "The mere fact that no violence was used in the street is not conclusive. It is for you (the jury) to say whether the attitude of these men was threatening. Nor is it necessary that there should have been a direct threat. If you believe that the attitude actually presented by the distributors of those circulars was an attitude of intimidation, either to the passers by or to the woman inside, considering all the circumstances, then all who participated in it, directly or indirectly, are within the meaning of that word intimidation, as used in the Conspiracy Act.' It stands conceded Reg. v. Shepherd, 11 Cox Cr. Cas. 325. 2 Rogers v. Evarts, 17 N. Y. Supl. 3 People v. Kostka, 4 N. Y. Crim. Rep. 434. |