reason of the fact that plaintiffs are em- provisions of the order must be taken to ployed thereon." cover and include acts constituting an unAs already stated, it was proper for the lawful conspiracy or boycott, — nothing trial court to enjoin defendants from all further, and are not open to the objections acts amounting to a boycott, and the ques- urged against them by defendants. As to the tion presented is whether the order of the third subdivision, we are of opinion that trial court goes beyond this in scope and the acts there attempted to be restrained effect. The first subdivision of the order are such as might lawfully be committed, restrains and enjoins defendants, their mem- and are not subject to equitable control. It bers and agents, from in any manner in- is fair to the trial judge to say, however, terfering with the business of plaintiffs by in this connection, that the order was drawn means of threats or intimidation, of any by plaintiffs' attorney, as is usual in such kind, directed against their customers or cases, and was undoubtedly adopted by him prospective customers. The second subdi- as covering only the case made by the comvision enjoins them from interfering with plaints. But it goes beyond this, and rethe customers, or prospective customers, of strains acts other than acts constituting plaintiffs, by threats of any kind or nature, boycotting. This particular provision spe"and particularly from notifying such cus-cifically enjoins defendants, their members, tomers or prospective customers that plain- agents, and representatives from going upon tiffs are unfair." We are of opinion that the premises where the plaintiffs are emneither of these restraining clauses, except ployed, for the purpose of ordering, directthe part we have italicized, goes beyond or ing, or notifying men belonging to the varirestrains defendants from acts other than ous allied unions to desist from work upon boycotting, and they were therefore proper. the premises by reason of the fact that It is immaterial whether contract relations plaintiff's are employed thereon. actually existed between plaintiffs and their customers at the time, for it would be just as injurious and destructive to plaintiffs' business to prevent them by such means from obtaining customers with whom they could enter into contracts as to interfere by unlawful threats of intimidation and cause existing contract relations to be broken. It is plaintiffs' business as a whole that the law protects, and not some particular transaction involved therein. If a notification to such customers, actual or prospective, that plaintiffs are "unfair," portends injury to them or plaintiffs, and such as to bring the case within the rule against boycotting, it was properly made a part of the temporary injunction. Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 42 L. R. A. 407, 74 Am. St. Rep. 421, 77 N. W. 13. Whether such a notification would in any case amount to a threat or intimidation must be determined from all the facts and circumstances of each particular case. Such notice might have special significance in a particular case, and have no meaning in another. But the complaints before us, by which we are controlled in determining the case, there being no finding other than in effect that their allegations are true, contain no allegations that the mere notification of customers that plaintiffs are "unfair" has any special significance, that it portended injury, or was intended as a threat or intimidation, and for this reason we hold that the court below was not justified in making this an element of the injunctional order. In other respects the

The authorities, as already noted, very generally hold that a strike is not unlawful, that members of labor unions may singly or in a body quit the service of their employer, and, for the purpose of strengthening their association, may persuade and induce others in the same occupation to join their union, and, as a means to that end, refuse to allow their members to work in places where nonunion labor is employed. 18 Am. & Eng. Enc. Law, 2d ed. p. 84. They may refuse to have any sort of dealings with an employer of nonunion labor, singly or collectively; they may persuade and induce their members to join them; and there would seem to be no reason why they should be limited as to the place where they may do such acts. There would be nothing wrongful or unlawful in their going upon the premises of the owner, with his permis sion, where their associates were engaged at work, for the purpose of notifying or ordering them to desist from work thereon, unless, perhaps, their conduct in that respect be so persistent and annoying to the owner of the premises or contractor as to constitute a nuisance. It is clear, upon authority, that this particular part of the injunctional order goes beyond the limits of the law, and cannot be sustained.

It is therefore ordered that the order appealed from be modified to conform to the views herein expressed, and, as so modified, it is affirmed.

Rehearing denied.

MISSOURI SUPREME COURT.

SANTE FE 4.

Messrs. Edward C. Crow, Attorney Gen- | Co. v. People, 156 Ill. 448, 47 Am. St. Rep. eral, Frank Hagerman, and Adiel Sher- 200, 41 N. E. 188; Nester v. Continental wood, for relator:

aggrieved have another remedy by private action.

The ancient writ of quo warranto was a civil remedy to oust a corporation from its People cx rel. M'Kinch v. Bristol & R. franchises for abuses thereof, or for violaTurnp. Road, 23 Wend. 222; Thompson v. tion of its duty to the public under its charPeople, 23 Wend. 537; People ex rel. Stew-ter or grant of corporate power. art v. Young Men's Father Matthew Total People ex rel. Atty. Gen. v. Utica Ins. Co. Abstinence Benev. Soc. No. 1, 41 Mich. 67, 1| 15 Johns. 358, 8 Am. Dec. 243; People ex N. W. 931; Smith v. State, 21 Ark. 294; rel. Atty. Gen. v. River Raisin, R. & L. E. People ex rel. Atty. Gen. v. Stanford, 77 R. Co. 12 Mich. 389, 86 Am. Dec. 64; Ang. & Cal. 360, 2 L. R. A. 92, 18 Pac. 85, 19 Pac. A. Priv. Corp. § 734; State ex rel. Circuit 693. Attorney v. County Ct. 51 Mo. 350, 11 Am. Rep. 454.

Providing a penalty for the doing of an act, which is ground of forfeiture, is no It may be maintained in the name of the answer to an action by the state, unless the people to restrain a corporation from exstatute takes away the remedy in quo war-ercising authority not possessed by it under ranto, and makes the penalty exclusive. its charter or by law. Commercial Bank v. State, 6 Smedes & M. 519, 45 Am. Dec. 280.

People v. New York, 32 Barb. 35; Com. v. Delaware & H. Canal Co. 43 Pa. 295; Peo

| but, disregarding those provisions of law, the city established merely nominal rates with the intent practically to distribute water free, and then tax the property of the inhabitants to pay the interest and the 1 per cent of the principal. An information in the nature of quo warranto was brought to enjoin the city from supplying water at nominal rates, and from

their tolls would amount to if paid by the trip, had refused to allow reiator to pass at the commuted rates of toll. The court held that, even if this were so, the relator had suffered no legal injury, because he had not been obliged to pay a higher rate than the one fixed | by law; and that, if the injury had been a legal one, even then he was not entitled to a forfeiture of the company's charter by quo war-taxing the inhabitants to pay said interest and ranto, but that the appropriate action was in his own name for the damage done, because the remedy by quo warranto was not allowed where the law affords a private remedy. The court detracts from the force of this holding, however, by further saying, obiter, that, even if more toll had been demanded than the law al lowed, the penalty was by fine, and not by forfeiture of the charter.

In Coddard v. Smithett, 3 Gray, 116, an information in quo warranto was filed under a statute especially providing that "any person whose private right or interest has been injured, or is put in hazard by the exercise by any private corporation, or any persons claiming to be a private corporation, of a franchise or privilege not conferred by law, whether such person be a member of such corporation or not, may apply to the supreme judicial court for leave to file an information in the nature of a quo warranto." The information was filed by a member of a religious society against the vestrymen thereof, alleging, among other things, the taxing of pews by vestrymen illegally chosen, and was disallowed, even under the statute above referred to, on the ground, in part, that the wrong complained of was not the exercise of a franchise or privilege not conferred by law, but rather was the informal, irregular, or perhaps illegal, mode in which the business of the corporation (if it was a corporation within the meaning of the statute) was conducted; and further, that for the alleged misconduct the applicant had an adequate and complete remedy; that upon the attempted collection of the alleged illegal pew tax he could pay the tax under protest, and then, upon showing it to be illegal, could recover back the money in an action at law.

In Atty. Gen. v. Salem, 103 Mass. 138, the city was directed by statute to establish such rates for the use of water as would provide annually for the payment of the interest, and at least 1 per cent of the principal of bonds issued for the construction of the waterworks;

principal; but the court held that quo warranto would not lie when the act complained of was the neglect to perform a duty imposed by law in the exercise of a legal franchise, and not the usurpation of a franchise not granted; since, upon quo warranto, if any judgment was rendered, it would be a judgment of forfeiture of, or ouster from, the whole of the franchise, which, in this instance, was not desired. And further, the court said that the grievance complained of was not a public wrong in which every subject of the state was interested, and could not, therefore, be redressed by a public prosecution or proceeding.

While conceding that a corporation wilfully and knowingly taking a toll not due, or more than it ought, under pretense of its corporate powers, incurs a forfeiture of its charter, one of the judges, in a dissenting opinion in People ex rel. Bishop v. Kingston & M. Turnp. Road Co. 23 Wend. 193, 35 Am. Dec. 551, said that he was not prepared to admit that the naked fact of taking too much toll, without an averment that the company acted knowingly, wrongfully, or in breach of its trust, was suf ficient to forfeit the charter, although the company, it was stated, would in such case be lia ble, civiliter, to refund the money improperly

exacted.

But the fact that an individual, or individuals, aggrieved, have an ordinary adequate remedy does not operate to prevent the state's proceeding by quo warranto when the illegal charge is one in which the public as a whole is interested, as appears from several decisions.

It was argued on demurrer to the petition in State ex rel. Sheets v. Toledo R. & Light Co. 23 Ohio C. C. 603, supra, II., that the subjectmatter of the suit was founded on the contract with the city, and not on franchise; but the court held that the fact that the city, or individuals, might have a remedy by actions ex contractu or otherwise afforded no obstacle to the state's availing itself of this extraordinary remedy for the advantage of the general public,

ple ex rel. Atty. Gen. v. Utica Ins. Co. 15 Johns. 358, 8 Am. Dec. 243.

The information in the nature of quo warranto was originally a criminal proceeding.

State ex rel. Hequembourg v. Lawrence, 38 Mo. 536; State ex rel. Broatch v. Moores, 56 Neb. 1, 76 N. W. 530; Rex v. Marsden, 3 Burr. 1817.

At some time later the ancient writ of quo warranto was superseded by the information in the nature of quo warranto, and after that time was regarded as a civil proceeding carrying with it the power, not only to adjudge a forfeiture wholly or in part, but to add a fine by way of penalty.

since the city, in granting the franchise, acted, as the agent of the state and for the whole public, so that the state could interfere when conditions in which the public were interested were not complied with; and that quo warranto was the proper form of proceeding to reach the end aimed at.

So, in State er rel. Little v. Regents of University, 55 Kan. 389, 29 L. R. A. 378, 40 Pac. 656, supra, II., in answer to the contention that individual students had an adequate remedy by injunction, and that the attorney general could not use the name of the state merely for the purpose of protecting their private interests, the court heid that, whether or not the

students were so united in interest that they

could join in an action to restrain the collection

of the fee, the conduct of the university being

a matter of state concern, and the legislature

having undertaken to open the way of higher education to the poorest of the youth of the state, that, whenever the board of regents placed an unwarranted obstacle in the way of the accomplishment of that end, they affected and opposed the public interest, so as to warrant an action against them in the nature of quo warranto.

ex

An information in the nature of quo warranto will be dismissed if other proceedings to obtain relief from the same illegal charge are being prosecuted at the same time. Atty. Gen. v. Chicago & N. W. R. Co. 35 Wis. 425. In this case it appears that at the time proceedings to obtain writs of injunction to restrain the defendant railroad companies from acting tolls for the carriage of passengers or freight in excess of the maximum rates established by statutes were commenced there were pending in the same court informations in the nature of quo warranto to have a forfeiture of the railroad companies' charters adjudged for their alleged violations of the same act in exacting tolls higher than were therein authorized. It was held that, while either remedy was proper, the attorney general could not have both at once, but must elect; and if he proceeded by injunction, which the court in an exhaustive opinion showed was a more desirable remedy in the present instance than the harsher and more dangerous experiment of forfeiture. that he must dismiss the informations in quo warranto. The judge writing the opinion in this case apparently holds the view that quo warranto may not be had merely to restrain a corporation from the imposition of illegal charges, that such relief may be obtained only

3 Bl. Com. 263; Rex v. Leigh, 4 Burr. 2143; People ex rel. Judson v. Thacher, 55 N. Y. 528, 14 Am. Rep. 312; Rex v. Francis, 2 T. R. 484; Gunton v. Ingle, 4 Cranch C. C. 440, Fed. Cas. No. 5,870; State ex rel. Fox v. Alt, 26 Mo. App. 673; State ex rel. Hequembourg v. Lawrence, 38 Mo. 535; State ex rel. Norton v. Lupton, 64 Mo. 415, 27 Am. Rep. 253; State ex rel. Brison v. Lingo, 26 Mo. 496; State ex rel. Mcllhany v. Stewart, 32 Mo. 379; Ames v. Kansas, 111 U. S. 449, 28 L. ed. 482, 4 Sup. Ct. Rep. 437.

The information is now the proper remedy where a corporation has forfeited its charter, or where a de facto corporation as

by injunction; and that the only use to which quo warranto may be put is to punish the corporation by penal remedies, or to forfeit its charter.

IV. Extent of judgment rendered.

In State ca rel. Sheets v. Toledo R. & Light Co. 23 Ohio C. C. 603, supra, II., in regard to the extent of the relief that might be granted, it was said that the court need go no farther than would be necessary to require the company to desist from charging and collecting fares in excess of the original maximum rates.

And in State ex rel. Little v. Regents of Uni

versity, 55 Kan. 389, 29 L. R. A. 378, 40 Pac. 656, supra, II., judgment was rendered merely ousting the regents from the imposition of the fee in question.

nati, W. & B. R. Co. 47 Ohio St. 130, 7 L. R. A. 319, 23 N. E. 928, supra, II., judgment was rendered ousting the defendants from the illegal discrimination in its charges, complained of.

Likewise, in State er rel. Kohler v. Cincin

But the court, in Atty. Gen. v. Chicago & N. W. R. Co. 35 Wis. 425, supra, III., is apparently of the opinion that injunction is the proper remedy to restrain the imposition of an illegal charge, and that quo warranto may be used only as a penal remedy, or to forfelt a franchise or charter.

V. Conclusions.

From the somewhat uncertain and dissimilar doctrines of the few decisions upon the point in question, it is difficult to evolve any welldefined principles; but the following general statement may, perhaps, be justified, as the rule controlling in the absence of any specific regulation by state statute: Quo warranto will not lie against a corporation making an illegal charge, in the interests of an individual injured thereby, especially when, as it usually does, an ordinary private remedy exists; but, if the state or public at large is affected by the imposition of the illegal charge or fee, the fact that individuals also are aggrieved, and may proceed by private remedy, presents no obstacle to the state's availing itself of the extraordinary remedy by quo warranto, and, according to the trend of the modern practice, obtaining a judgment ousting the corporation 'rom the imposition of the charge complained of, but not necessarily extending to a forfeiture and seizure of its entire charter. M. M. M.