In a dual sense an employee may be regarded as a competitor; that is, with other employees as well as with his employer.3 It will be seen hereafter that there is considerable diversity of opin Id. 253, 345, 428 (1907) by Jeremiah Smith. On the other hand, in Barr v. Essex Trades Council, 53 N. J. Eq. 101, 124; 30 Atl. 881, 889 (1894), where an injunction was allowed against a boycott of a newspaper by a number of labor unions, affiliated in a society or representative body known as the "Essex Trades Council" (the members of only one of which had any grievance against the complainant, the action of the others being sympathetic), against the objection that the Council was a business institution, and that what it had done had been in prosecution of its business, the court, after expressly distinguishing Mogul S. S. Co. v. McGregor (see § 31) as a case of competition between parties engaged in the same character of business, said: "Neither does the claim of the Essex Trades Council that it is a business institution stand on any firmer ground. The only element of business which it is engaged in, would appear from the facts to be the furnishing to tradesmen of printed cards certifying that they are proper persons for the members of trades unions to deal with, suitable to be displayed in conspicuous places in such tradesmen's places of business. This was supplemented by the issue, under date of March 31, 1894, of the small pocket pamphlet entitled 'The Fair List of Newark, N. J.,' containing the names and addresses of tradesmen and persons in business in Newark, with items of information and advice. Why this is called a business does not appear. It is not stated that any compensation is either required or received by the trades council from the trades people for granting or continuing those indorsements; but whether this is so or not, it is in no sense a competing business with the publication of a daily newspaper." Similarly in, George Jonas Glass Co. v. Glass Bottle Blowers' Assoc., 66 Atl. 953 (Ct. Ch. N. J., 1907), in allowing relief against picketing conducted in furtherance of strike instituted for purpose of compelling employment of union labor only, was disallowed the claim that those engaged in picketing were "competitors of the complainant in the labor market, and, being such, had the right to take from it all laborers that they can persuade to leave it, or refrain from entering its employ." To like effect, Barnes v. Typographical Union, 232 Ill. 424, 431; 83 N. E. 940, 943; 14 L. R. A. N. S. 1018, 1021 (1908). In nearly every State statutory provision is made for the arbitration of disputes between employer and employee. For decisions thereunder, see § 36. 3 Such distinction was noted in Berry v. Donovan, 188 Mass. 353; 74 N. E. 603; 5 L. R. A. N. S. 899; 108 Am. St. Rep. 499 (1905), where procuring the discharge of an employee because of his refusal to become a member of a trade union was held unjustifiable in either view. ion as to when acts are the natural incident or outgrowth of the relation of employee, thus notably when a strike or a boycott with intent to procure the discharge of an employee is justified as the natural incident or outgrowth of such relation. § 46. Solidarity of interest as justifying injury by employee. -Conceding, however, that the relation of employee justifies an injury done by him to his immediate employer, how far does it justify one done, not to such employer, but to an employer of those having what we may call "solidarity of interest" with him, thus, where they are engaged in the same general occupation or are members of the same organization. For instance, the employees in an iron mill engage in a dispute with their employer, and lawfully, as we here assume, employ the boycott as a weapon. Is it likewise lawful for other members of a union, say of all employees in iron mills throughout the country, to intervene in this particular dispute and boycott this particular employer, though, apart from their relation as members of this union, having no dispute with this employer or any other employer? Thus far it would seem that the judicial mind has not risen to the point of regarding this solidarity of interest as sufficient to justify an injury by an employee. It would seem, however, that the subject deserves a fuller examination before the law on this subject is allowed to be settled in the lines thus 4 That, however, there is a tendency in that direction appears from Allen v. Flood, App. Cas. (1898) 1, where the court said (p. 132): "The object which the defendant and those whom he represented had in view throughout was what they believed to be the interest of the class to which they belonged; the step taken was a means to that end." See also p. 163. See also, as to the solidarity of interest of employees, the vigorous argument of Caldwell, J., dissenting in Hopkins v. Oxley Stave Co., 83 Fed. 912, 935; 28 C. C. A. 99, 122 (8th C., 1897). 58. See as to sympathetic strikes, § There may have been a failure to sufficiently recognize the doctrine of solidarity of interest in Reinecke Coal Mining Co. v. Wood, 112 Fed. 477 (C. C. Ky., 1901), where though acts or threatened acts of violence seem a sufficient ground for the relief granted, the court seem to have been somewhat influenced by the circumstance that such were acts of members of a labor organization, who, for the purpose of maintaining their own wages according to a certain scale, sought by the acts thus held illegal, to compel certain em far tentatively established, especially as in somewhat analogous cases solidarity of interest has been recognized as constituting such a sufficient basis.5 6 § 47. Refusal to enter or continue in employment. Of course, it hardly needs stating that as a rule there is nothing illegal in refusing to enter the employment of another. And the right of a single individual, apart from contractual relations, to quit his employment, that is, to discontinue working for a particular employer, seems never to have been seriously questioned." Whether this right to quit equally exists in case of a combination to so quit will hereafter be considered. ployees employed in a distant region and by other employers to join such organization and thereafter to strike for wages according to such scale. In Foster v. Retail Clerks' Protective Assoc., 39 Misc. 48, 55; 78 N. Y. Suppl. 860, 866 (Supm. Ct., Sp. T., 1902), where there was held to be nothing illegal in a mere boycott instituted because of the refusal of employers to conform to certain requirements as to wages and working hours, those instituting it were said not to have sufficient interest in the result to justify their act if it required justification, they being neither employees of such employer nor members of the same union with their employees (a "retail clerks'" union), though members of another (a "boot and shoe workers' union") and obviously "engaged in a different occupation." In the English Trade Disputes Act of 1906, by which certain acts done "in contemplation or furtherance of a trade dispute," are not actionable, it is thus provided: "In this act and in the Conspiracy and Protection of Property Act, 1875, the expression 'trade dispute' means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person, and the expression 'workmen' means all persons employed in trade or industry, whether or not in the employment of the employer, with whom a trade dispute arises." See on the general subject, article in 20 Harv. Law. Rev. 253, 345, 428 (1907) by Jeremiah Smith. 5 Thus, the interest of a number of tradesmen to protect themselves against delinquent debtors, and the interest of a number of employers in a contest with employees. See §§ 21, 43. • See § 48. 7 See Barr v. Essex Trades Council, 53 N. J. Eq. 101, 114; 30 Atl. 881, 885 (1894); Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 761; 53 Atl. 230, 231 (1902); Clemmitt v. Watson, 14 Ind. App. 38; 42 N. E. 367 (1895); National Protective Assoc. v. Cumming, 170 N. Y. 315, 320; 63 N. E. 369; 58 L. R. A. 135, 138; 88 Am. St. Rep. 648 (1902). The provisions of Ill. R. S. (Starr § 48. Quitting employment in violation of contract relation.-Of course, the quitting of employment may be illegal as in violation of an express contract of employment for a specified period. Furthermore, the idea has been advanced that the na-7 & Curtis' Ed., 1896), p. 3297, §§ 129, 130, against obstructing and impeding railroad business, are by § 131 not to be "construed to apply to cases of persons voluntarily quitting the employment of any railroad company, or such other corporation, firm or individual, whether by concert of action or otherwise, except as is provided in § 128" (as to which see § 48); Kan. G. S. (Dassler's Ed., 1905), §§ 2480–3, are the same as §§ 129-131, supra, respectively. To similar effect, Ky. Stat. (1903), c. 32, § 802; Miss. Code (1906), § 1345. 8 See Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 130; 38 Am. Dec. 346, 355 (1842); Reynolds v. Davis, 198 Mass. 294; 84 N. E. 457; 17 L. R. A. N. S. 162 (1908); Eden v. Silberberg, 89 App. D. 259; 85 N. Y. Suppl. 781 (1903). It was indeed said in Delaware, L. & W. R. Co. v. Switchmen's Union, 158 Fed. 541 (C. C. N. Y., 1907), to have been "held" that "workmen may strike or quit their employment ad libitum singly or in concert, even though it be in violation of their service contract." But this seems to have been said with reference to the question of an injunction being a proper remedy in such case. In Arthur v. Oakes, 63 Fed. 310, 317; 11 C. C. A. 209, 216; 25 L. R. A. 414, 424 (7th Cir., 1894), it was intimated that, in case of a breach by an employee of his contract of employment, he might be liable, "in some states of case, to criminal prosecution for loss of life or limb by passengers or others, directly resulting from his abandoning his post at a time when care and watchfulness were required upon his part in the discharge of a duty he had undertaken to perform." Such liability has indeed, in some cases been declared by statute. Thus, by N. Y. Penal Code, § 673, it is a crime to "wilfully and maliciously, either alone or in combination with others, break a contract of service or hiring, knowing, or having reasonable cause to believe, that the probable consequence of his so doing will be to endanger human life, or to cause grievous bodily injury, or to expose valuable property to destruction or serious injury." In Adair v. U. S., 208 U. S. 161, 175, 28 Supm. 277, 281; 52 L. Ed. 436 (1908), it was regarded unnecessary to determine whether "in the case of a labor contract between an employer engaged in interstate commerce and his employee, Congress could make it a crime for either party without sufficient or just excuse or notice to disregard the terms of such contract or to refuse to perform it." In several instances it is made a crime for a railroad employee to abandon a locomotive engine elsewhere than at the regular destination. Thus in Ill. R. S. (Starr & Curtis' Ed., 1896), c. 114, § 128; Kan. G. S. (Dasslers' Ed., 1905), § 2480. So by Del. R. S. (1893), p. 928; N. J. L. 1903, c. 257, § 62; Pa. 2 P. & L. Dig., p. 3954. So by ture of the employment may create an implied agreement not to quit, at least, without reasonable notice, but this exception to the doctrine remains to become generally established. Conn. G. S. (1902), § 1293, to "unlawfully, maliciously and in violation of one's duty or contract, unnecessarily abandon any locomotive, car, or train of cars, or street railway car." To similar effect, Me. R. S. (1903), c. 124, §§ 6, 7. By La. R. S. (Wolff's Ed., 1904), p. 993, it is a crime to "wilfully violate a contract of labor upon the faith of which money or goods have been advanced, and without first tendering to the person from whom said money or goods was obtained, the amount of money or value of the goods"; also to entice away a laborer under such contract. To similar effect, S. C. Crim. Code (1902), § 357. See also, Ala. Crim. Code (1907), § 6845, and L. 1901, c. 483, which was held unconstitutional in the Peonage Cases, 123 Fed. 671, 684 (D. C. Ala., 1903); Toney v. State, 141 Ala. 120; 37 So. 332; 67 L. R. A. 286; 109 Am. St. Rep. 23 (1904). See Tiedeman's State & Federal Control of Persons & Property, § 104. 9 This doctrine was applied in Toledo, Ann Arbor, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. 746, 752; 19 L. R. A. 395, 399 (C. C. Ohio, 1893), where it was said of railroad employees (in this particular case, a locomotive engineer), after referring to their presumed knowledge of the duty of their employers, both under the Interstate Commerce Law and an order of the court, to receive and haul interstate freight: "An implied obligation was therefore assumed by the employees, upon accepting service un der such conditions, that they would perform their duties in such manner as to enable it not only to discharge its obligations faithfully, but also to protect it against irreparable losses and injuries and excessive damages by any acts of omission on their part. One of these implied conditions on their behalf was that they would not leave its service or refuse to perform their duties under circumstances when such neglect on their part would imperil lives committed to its care, or the destruction of property involving irreparable loss and injury, or visit upon it severe penalties. In ordinary conditions, as between employer and employee, the privilege of the latter to quit the former's service at his option cannot be prevented by restraint or force. The remedy for breach of contract may follow to the employer, but the employee has it in his power to arbitrarily terminate the relations and abide the consequences. But these relative rights and powers may become quite different in the case of the employees of a great public corporation charged by the law with certain great trusts and duties to the public." See also Arthur v. Oakes, 63 Fed. 310, 318; 11 C. C. A. 209, 218; 25 L. R. A. 414, 426 (7th C., 1894). As to statutes imposing obligation upon employer to give notice of intention to discharge in case of obligation resting upon employee to give notice of intention to quit employment, see § 37. |