People ex rel. Gill v. Smith , 10 N.Y. St. Rep. 730 ( 1887 )

Barrett, J.—

The result of my examination of these papers is, that aprima facie case has been made out, sufficient to put the relators upon trial or rather to justify the submission of the facts to the grand jury. The difficulty with the positions taken by the learned counsel for the relators is, that here there was no question with regard either to advancing or maintaining the rate of wages. The law, as expressed in the present statute (Penal Code, § 170) permits orderly and peaceable co-operation to effect these ends, and undoubtedly, as an incident to this authorized co-operation—that is, to render it effective—a resort to all lawful means of enforcement. Upon this head, the exhaustive opinions delivered by Chief Justice Shaw in Massachusetts (Commonwealth v. Hunt, 4 Metcalf, 111), and Chief Justice Daly in this state (Stevedores v. Walsh, 2 Daly, 1), are clear and conclusive. Peaceable withdrawal from employment, commonly called a “strike,” however extensive, is plainly such an incident. Violence, of course, is not, nor is a threat of violence—whether direct or as implied in a disorderly and turbulent strike. It is true that an absolute scale of wages cannot be effectively maintained so long as persons, outside of the combination, work for less than the fixed rate. Yet such persons have a perfect right to so work and are entitled to protection against lawlessness; that is, to protection, not against the peaceable strike, but against violence, or threats of violence, direct or, as above suggested, in the form of a disorderly and turbulent strike.

Where, however, there is no relation, direct or indirect, between wages and strikes, the combination which brings the latter about for unlawful purposes is a criminal conspiracy. The strike then involves a “diminishing of the quantity of productive labor,” which, as was said by Savage, O. J., in The People v. Fisher (14 Wend., 18), is " an injury to the community and an act injurious to trade. ” The judgment in that case, upon this head, is not affected by the later statute; nor is it questioned by the cases already referred to. The unlawful purpose may also be evidenced by force, threats or intimidation to prevent another from exercising a lawful - trade or calling. Penal Code, § 168, subd. 5. This last provision was not in the Bevised Statutes when The People v. Fisher was decided. Consequently the criminal conspiracy doctrine there discussed had reference solely to acts claimed to be injurious to trade and commerce. Here, however, the complaint .overs both grounds, namely: Acts preventive of the exercise of a lawful calling (subd. 5), and acts productive of “injury to trade or commerce” (subd. 6). It is contended that both these subdivisions of section 168 are limited' by section 170; and this is clearly so; but such limitation only goes to the extent of legalizing the peaceable and orderly strike when resorted to in good faith for the authorized purposes.

Sections 168 and 170, as thus construed, are entirely harmonious. That which is lawful under section 170 cannot, of course, be unlawful under section 168. In other words, what is permitted by section 170 cannot be a conspiracy to commit an act injurious to trade or commerce; nor can it amount to a conspiracy to prevent another from exercising a lawful trade or calling, by force, threats or intimidation.

But what is not permitted by section 170 may constitute a conspiracy and be punishable under subdivisions 5 and 6 of section 168. I cannot, therefore, assent to the doctrine that section 170 authorizes a combination of individuals to-compel by means condemned in section 168, all workingmen to join the co-operative forces or to punish those who are supposed to be inimical thereto.

This section (170) is a weapon in aid not of compulsory organization, but of voluntary co-operation. The construction contended for by the relators would make the labor organizations, rather than the courts, the sole judges of whether their acts have any relation to or bearing upon the advancement of wages or the maintenance of the rate. It would enable such organizations to use the wage question, however remote or even imaginary, as a mere pretense to cloak designs entirely foreign thereto. Such was not the legislative intent evinced in either the letter or the spirit of the statute. The latter should be liberally interpreted to give due effect to its beneficent purposes, but it should not, by an unreasonable or strained construction, be turned from a measure of protection into an engine of oppression.

The facts presented to the magistrate tend to show a deliberate purpose to impoverish and crush a citizen for no reason connected in the slightest degree with the advancement of wages or the maintenance of the rate. In execution of that purpose they also tend to show acts injurious to trade and acts preventive (by threats) of the exercise of a lawful calling.

Such facts should certainly be submitted to the grand jury. It follows that the relators were properly committed and that the writs should be dismissed and the relators remanded.