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and that employees discharged for certain causes are not to be employed by them, then it enters into, and forms part of, every contract of employment that neither a false entry shall be made, nor one so made communicated, directly or indirectly, to any other railroad company. Suppose it was the custom of the railroads, when an employee was discharged without cause, to give him a card or statement to that effect, and if he did not have such card or statement he could not get employment with other railroad companies, then that custom would enter into every contract of employment; and if a company wrongfully refused to give it to the discharged employee, and in consequence of which refusal he was injured, a cause of action would lie for the damages sustained.
An action was brought in the supreme judicial court of this State, nisi prius term, in Waldo County, by Webster C. Perkins against Fremont Pendleton and others, to recover damages for injury resulting from the action of defendants in coercing Perkins's employer, the Mount Waldo Granite Company, to discharge him. The reason set forth for the action of the defendants was that the plaintiff would not
join the Granite Cutters' National Union. To the plaintiff's declara· tion the defendants demurred, said demurrer being overruled by the presiding judge, who held the deciaration good. The case was then carried before the full bench at the law term upon exceptions, and its deci. sion, rendered April 9, 1997, affirmed the decision of the court below. The case is reported in 38 Atlantic Reporter, page. 96, under the title of Perkins v. Pendleton et al.
The following is quoted from the opinion of the court:
It must be conceded that for a person to wrongfully—that is, by the employment of unlawful or improper means-induce a third party to break a contract with the plaintiff, whereby injury will naturally and probably, and does in fact, ensue to the plaintiff, is actionable; and the rule applies both upon principle and authority as well to cases where the employer breaks his contract as where it is broken by the employee; in fact it is not confined to contracts of employment.
But in this case the plaintiff does not allege that the Mount Waldo Granite Company was induced by the wrongful means adopted by the defendants to break a contract, nor that there was any contract between the plaintiff and the employers for any definite time. We must, therefore, assume that there was none, that either party had the right to terminate the employment at any time, and that the act of the Mount Waldo Company in discharging the plaintiff was lawful, and one which the company had a perfect right to do at any time. The question presented, then, is whether a person can be liable in damages for inducing and persuading, by threats or other unlawful means, an employer to discharge his employee when the terms of the contract of service are such that the employer may do this at his pleasure, without violating any legal right of the employee. The question is a novel one in this State, but it has already arisen and been passed upon by the courts of some other States.
Our conclusion is that wherever a person, by means of fraud or intimidation, procures either the breach of a contract or the discharge of a plaintiff from an employment, which, but for such wrongful interference, would have continued, he is liable in damages for such injuries as naturally result therefrom; and that the rule is the same whether by these wrongful means a contract of employment definite as to time is broken, oran employer is induced, solely by reason of such procurement, to discharge an employee, whom he would otherwise have retained.
We think that the important question in an action of this kind is as to the nature of the defendant's act, and the means adopted by him to accomplish his purpose. Merely to induce another to leave an emplorment, or to discharge an employee, by persuasion or argument, however whimsical, unreasonable, or absurd, is not, in and of itself, unlawful, and we do not decide that such interference may become unlawful by reason of the defendant's malicious motives, but simply that to intimidate an employer by threats, if the threats are of such a character as to produce this result, and thereby cause him to discharge an employee whom he desired to retain, and would have retained, except for such unlawful threats, is an actionable wrong.
In 1840 certain journeymen shoemakers, members of the Boston Journeymen Bootmakers' Society, were indicted and tried for conspiracy in the municipal court of Boston. They were convicted, and the case was carried to the supreme court upon exceptions, which reversed the decision of the lower court and the judgment was arrested. The case, Commonwealth v. Hunt et al. (4 Metcalf, 111), has been so often referred to by recent writers and speakers on the labor question, and the decision of Chief Justice Shaw therein has been so often appealed to as having decided very definitely in favor of the right of workmen to combine with the object of raising their wages, etc., that rather copious extracts from the opinion delivered by Chief Justice Shaw, including a sufficient statement of the allegations in the indictment, are here reproduced. A careful reading will doubtless convince the reader that the only point definitely settled in this case was that the indictment as framed did not charge a criminal conspiracy, not that the facts developed were absolutely insuficient to support an indictment had it been properly framed. The following is quoted from the opinion:
Without attempting to review and reconcile all the cases, we are of opinion that, as a general description, though perhaps not a precise and accurate definition, a conspiracy must be a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means. We use the term criminal or unlawful because it is manifest that many acts are unlawful which are not punishable by indictment or other public prosecution; and yet there is no doubt, we think, that a combination by numbers to do them would be an unlawful conspiracy and punishable by indictment.
Several rules upon the subject seem to be well established, to wit, that the unlawful agreement constitutes the gist of the offense, and therefore that it is not necessary to charge the execution of the unlawful agreement. (Commonwealth v. Judd, 2 Mass., 337.) And when such execution is charged it is to be regarded as proof of the intent, or as an aggravation of the criminality of the unlawful combination.
Another rule is a necessary consequence of the former, which is that the crime is consummate and complete by the fact of unlawful combination, and, therefore, that if the execution of the unlawful purpose is averred, it is by way of aggravation, and proof of it is not necessary to conviction; and therefore the jury may find the conspiracy and negative the execution, and it will be a good conviction. And it follows, as another necessary legal consequence, from the same principle, that the indictment must-by averring the unlawful purpose of the conspiracy, or the unlawful means by which it is contemplated and agreed to accomplish a lawful purpose, or a purpose not of itself criminally punishableset out an offense complete in itself, without the aid of any averment of illegal acts done in pursuance of such an agreement; and that an illegal combination, imperfectly and insufficiently set out in the indictment, will not be aided by averments of acts done in pursuance of it.
From this view of the law respecting conspiracy we think it an offense which especially demands the application of that wise and humane rule of the common law, that an indictment shall state with as much certainty as the nature of the case will admit the facts which constitute the crime intended to be charged. This is required to enable the defendant to meet the charge and prepare for his defense, and, in case of acquittal or conviction, to show by the record the identity of the charge, so that he may not be indicted a second time for the same offense. It is also necessary, in order that a person, charged by the grand jury for one offense, may not substantially be convicted on his trial of another. This fundamental rule is confirmed by the Declaration of Rights, which declares that no subject shall be held to answer for any crime or offense until the same is fully and plainly, substantially and formally, described to him.
From these views of the rules of criminal pleading it appears to us to follow, as a necessary legal conclusion, that when the criminality of a conspiracy consists in an unlawful agreement of two or more persons to compass or promote some criminal or illegal purpose, that purpose must be fully and clearly stated in the indictment; and if the criminality of the offense, which is intended to be charged, consists in the agreement to compass or promote some purpose, not of itself criminal or unlawful, by use of fraud, force, falsehood, or other criminal or unlawful means, such intended use of fraud, force, falsehood, or other criminal or unlawful means must be set out in the indictment..
With these general views of the law, it becomes necessary to consider the circumstances of the present case, as they appear from the indictment itself, and from the bill of exceptions filed and allowed.
One of the exceptions, though not the first in the order of time, yet by far the most important, was this:
The counsel for the defendants contended, and requested the court to instruct the jury, that the indictment did not set forth any agreement to do a criminal act, or to do any lawful act by any specified criminal means, and that the agreements therein set forth did not constitute a conspiracy indictable by any law of this Commonwealth. But the judge
refused so to do, and instructed the jury that the indictment did, in his opinion, describe a confederacy among the defendants to do an unlawful act, and to effect the same by unlawful means; that the society, organized and associated for the purposes described in the indictment, was an unlawful conspiracy, against the laws of this Commonwealth; and that if the jury believed, from the evidence in the case, that the defendants, or any of them, had engaged in such a confederacy, they were bound to find such of them guilty.
We are here carefully to distinguish between the confederacy set forth in the indictment and the confederacy or association contained in the constitution of the Boston Journeymen Bootmakers' Society, as stated in the little printed book which was admitted as evidence on the trial. Because, though it was thus admitted as evidence, it would not warrant a conviction for anything not stated in the indictment. It was proof as far as it went to support the averments in the indietment. If it contained any criminal matter not set forth in the indictment it is of no avail. The question then presents itself in the same form as on a motion in arrest of judgment.
The first count set forth that the defendants, with divers others unknown, on the day and at the place named, being workmen, and journeymen, in the art and occupation of bootmakers, unlawfully, perniciously, and deceitfully designing and intending to continue, keep up, form, and unite themselves into an unlawful club, society, and combination, and make unlawful by-laws, rules, and orders amor themselves, and thereby govern themselves and other workmen in the said art, and unlawfully and unjustly to extort great sums of money by 1.eans thereof, did unlawfully assemble and meet together, and being so assembled did unjustly and corruptly conspire, combine, confederate, and agree together that none of them should thereafter, and that none of them would, work for any master or person whatsoever in the said art, mystery, and occupation who should employ any workmen or journeymen, or other person in the said art who was not a member of cid club, society, or combination after notice given him to discharge such workman from the employ of such master, to the great damage and oppression, etc.
Now it is to be considered, that the preamble and introductory matter in the indictment, such as unlawfully and deceitfully designing and intending unjustly to extort great sums, etc., is me: c recital, and not traversable, and therefore can not aid an imperfect averment of the facts constituting the description of the offense. The same may be said of the concluding matter, which follows the averment, as to the great damage and oppression not only of their said masters, employing them in said art and occupation, but also of divers other workmen in the same art, mystery, and occupation, to the evil example, etc. If the facts averred constitute a crime, these are properly stated as the legal inference to be drawn from them. If they do not constitute the charge of such an offense, they can not be aided by these alleged consequences.
Stripped, then, of these introductory recitals and alleged injurious consequences and of the qualifying epithets attached to the facts, the averment is this, that the defendants and others formed themselves into a society and agreed not to work for any person who should employ any journeyman or other person, not a member of such society, after notice given him to discharge such workman.
The manifest intent of the association is to induce all those engaged
in the same occupation to become members of it. Such a purpose is not unlawful. It would give them a power which might be exerted for useful and honorable purposes or for dangerous and pernicious ones. If the latter were the real and actual object and susceptible of proof, it should have been specially charged. Such an association might be used to afford cach other assistance in times of poverty, sickness, and distress, or to raise their intellectual, moral, and social condition, or to make improvement in their art, or for other proper purposes. Or the association might be designed for purposes of oppression and injustice. But in order to charge all those who become members of an association with the guilt of a criminal conspiracy, it must be averred and proved that the actual, if not the avowed, object of the association was criminal. An association may be formed the declared objects of which are innocent and laudable, and yet they may have secret articles or an agreement communicated only to the members, by which they are banded together for purposes injurious to the peace of society or the rights of its members. Such would undoubtedly be a criminal conspiracy on proof of the fact, however meritorious and praiseworthy the declared objects might be. The law is not to be hoodwinked by colorable pretenses. It looks at truth and reality, through whatever disguise it may assume. But to make such an association, ostensibly innocent, the subject of prosecution as a criminal conspiracy, the secret agreement which makes it so is to be averred and proved as the gist of the offense. But when an association is formed for purposes actually innocent and afterwards its powers are abused by those who have control and management of it to purposes of oppression and injustice, it will be criminal in those who thus misuse it or give consent thereto, but not in the other members of the association. In this case no such secret agreement, varying the objects of the association from those avowed, is set forth in this count of the indictment.
Nor can we perceive that the objects of this association, whatever they may have been, were to be attained by criminal means. The means which they proposed to employ, as averred in this count and which, as we are now to presume, were established by the proof, were that they would not work for a person who, after due notice, should employ a journeyman not a member of their society. Supposing the object of the association to be laudable and lawful, or at least not unlawful, are these means criminal? The case supposes that these persons are not bound by contract, but free to work for whom they please, or not to work if they so prefer. In this state of things we can not perceive that it is criminal for men to agree together to exercise their own acknowledged * rights in such a manner as best to subserve their own interests. One way to test this is to consider the effect of such an agreement where the object of the association is acknowledged on all hands to be a laudable one. Suppose a class of workmen, impressed with the manifold evils of intemperance, should agree with each other not to work in a shop in which ardent spirit was furnisherl, or not to work in a shop with anyone who used it, or no. to work for an employer who should, after notice, employ a journeyman who habitually used it. The consequences might be the same. A workman who should still persist in the use of ardent spirit would find it more difficult to get employment; a master employing such an one might at times experience inconvenience in his work in losing the services of a skillful but intemperate