It appears by findings that are uncontrovertibly established by reason of the unanimous affirmance of the special term by the appellate division that it was not the intent and purpose of the defendants in this case to injure the good will or business of the plaintiffs as individuals or of nonunion manufacturers generally. In refusing to work on nonunion made material, they were conserving their interests as individuals and as members of the brotherhood, and in so doing necessarily interfered to some extent with nonunion manufacturers. Such interference necessarily resulted to some extent also in the National Protective Association case, and such fact did not prevent the court sustaining the action of the defendants therein.

At this point many of the findings of fact by the court below are quoted in support of the proposition that the motive of the union was the furtherance of its own ends rather than the destruction of the plaintiff's business. Judge Chase then went on as follows:

The trial court also found:

"That said brotherhood has adopted and sought to enforce, and in many instances has enforced, rules which forbid and prevent its members from working for any employer who employs any so-called nonunion carpenters and from working on or in connection with any building where materials are used which are purchased from any employer who employs any nonunion carpenters."

In considering this finding of the court we must keep in mind the fact that the action of the brotherhood did not interfere with any contract between employer and employee. Its action was open and clearly defined, and its enforcement was not designed to and did not include any force, fraud, threat, or defamation. Its action was voluntary and concerned labor competition in which the association and its members are vitally interested.

An association of individuals may determine that its members shall not work for specified employers of labor. The question ever is as to its purpose in reaching such determination. If the determination is reached in good faith for the purpose of bettering the condition of its members and not through malice or otherwise to injure an employer, the fact that such action may result in incidental injury to the employer does not constitute a justification for issuing an injunction against enforcing such action.

Reference was then made to the decision of the United States Supreme Court in the case of Paine Lumber Co. v. Neal (see p. 176) as supporting the position taken. Continuing, the court said:

Upon all of the findings before us the statement in the finding that there was a "combination to organize all the nonunion mills of Brooklyn" simply means that the brotherhood determined to carry out the provisions of its constitution relating to nonunionmade material by insisting upon its enforcement and by imposing the penalties provided thereby in case of failure of any of its members to comply therewith. The further statement as to the "orders of the business agents" simply means that the representatives of the brotherhood called the attention of the union carpenters employed on buildings where nonunion material was being erected to the con

sequences to them as members of the brotherhood in case they continued such employment.

It is now unanimously found that the defendants did not have a primary intent to injure the plaintiffs.

The conclusions of law of the court below are quoted, after which the opinion continues as follows:

By reading the opinion of the court at the special term, adopted at the appellate division, with the findings and conclusions of law, it appears that it was the intention of the court to hold that the facts found would not justify a judgment in favor of the plaintiffs except so far as the defendants discriminated against the plaintiff's mill and refused to handle the plaintiffs' material while at the same time continuing to handle material from other nonunion mills.

We do not think that the conclusion of the court is sustained by the findings of fact in the case.

The second paragraph [of the judgment entered] adjudges that the defendants shall not direct, require, or compel any person, by by-law, rule, or regulation or any act thereunder, to cease working for another because they use material purchased from nonunion shops. And the third paragraph thereof enjoins the defendants from inducing any workmen in their trades to quit work on any building because nonunion carpenters are there employed to install material which comes from nonunion shops. All of the acts enjoined are under the findings of fact in this case lawful acts done for lawful purposes.

We think that the rules laid down by this court in the National Protective Association case require a reversal of the judgment in favor of the plaintiff upon the findings before us. When it is determined that a labor organization can control the body of its members for the purpose of securing to them higher wages, shorter hours of labor, and better relations with their employers, and as a part of such control may refuse to allow its members to work under conditions unfavorable to it, or with workingmen not in accord with the sentiments of the labor union, the right to refuse to allow them to install nonunion-made material follows as a matter of course, subject to there being no malice, fraud, violence, coercion, intimidation, or defamation in carrying out their resolutions and orders.

LABOR ORGANIZATIONS-CONSPIRACY-INJUNCTION-RESTRAINT OF TRADE-George J. Grant Construction Co. v. St. Paul Building Trades Council et al., Supreme Court of Minnesota (Feb. 23, 1917), 161 Northwestern Reporter, page 520.-This case related to a trade dispute between the plaintiff company, engaged in business as a builder and contractor in St. Paul, and the council, composed of delegates from local unions in the building trades. The company petitioned for an injunction, which was denied by the district court of Ramsey County, and this position was approved by the supreme court. The supreme court called attention to the allegations in the complaint, as to a conspiracy to injure the company's business and

the means taken and threatened to be used to accomplish that purpose. Since the decision in the lower court was for the union, it is pointed out that the facts put in dispute by the complaint and answer must be supposed to have been found favorable to that organization. Judge Hallam, who delivered the opinion, then said:

On the argument in this court, counsel for the plaintiff admitted that no single act done was claimed to be unlawful; his claim was that the entire set of acts, taken together and in connection with the purpose with which they were done, were unlawful on the theory that they constituted what he termed "organized economic oppression." The restraining power of courts of equity has usually been invoked to enjoin some tangible or specific acts. Badger Brass Mfg. Co. v. Daly, 137 Wis. 601, 119 N. W. 328. It is not easy to frame an injunction to restrain "organized economic oppression." It is not easy to forbid a course of conduct based upon acts, lawful when taken alone, on the theory that they are unlawful when taken as a whole. Some courts have held that an act lawful if done by one person may be unlawful if cooperated in by many, but we are not aware that it has ever been held that many lawful acts done by the same person or body of persons can constitute an unlawful whole.

Coming to the established facts we find the situation little more or less than this: A labor dispute exists between plaintiff and the defendant unions and their members. Defendants are not employees of plaintiff. The dispute has arisen mainly from the fact that plaintiff runs what is termed an "open shop," that is, it employs nonunion men and it is claimed plaintiff has at some times dealt unfairly with union men and has in some cases refused them employment. It would seem to be a bona fide dispute on both sides. With the merits of it we are not further concerned.

The unions of building trades and their members have agreed among themselves that until these controversies are adjusted they will not work for plaintiff or for any subcontractor on any contract plaintiff may have on hand. We think the lawfulness of this conduct is the one question before the court.

It is not easy to define the point beyond which labor in combination can not go. It is, perhaps, not best that we try to do so. We will do well to confine ourselves to the facts of this case and determine only the rights of the parties arising from those facts. The determination of the questions here involved is not difficult. Plaintiff may employ whom it pleases. It may maintain an open shop if it pleases. It should not be coerced into doing otherwise. Defendants have the right to work for whom they please. It is best that we give to both employer and employee a broad field of action. As said by Judge Cooley:

"It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern." Cooley on Torts (2d ed.) 328.

Defendants may, if no contract is involved, refuse to work in an "open shop." They may agree among themselves not to do so. [Cases cited.]

May they, because planitiff employs nonunion labor in construction of a building, agree not to work for a subcontractor of part of the work who does employ only union men? It seems to us this question was answered yes by this court in Gray v. Building Trades Council, 91 Minn. 171, 97 N. W. 663 [Bul. No. 53, p. 955]. There, as here, the controversy arose out of the effort of the defendant unions to compel the plaintiffs to employ only union labor. It was held that the defendants had acted within their rights and that they might for the purpose of strengthening their unions either singly or collectively refuse to work in places or on buildings on which nonunion labor was employed. We adhere to this decision.

In denying a petition for reargument, Judge Hallam took up the question of restraint of trade, not considered in the previous opinion. As reported on page 1055 of 161 N. W., he said as to this:

In disposing of this appeal the court did not mention the contention that the acts of defendants were contrary to sections 8595 and 8973 of the General Statutes of 1913. Section 8595 makes unlawful any conspiracy to commit an act injurious to trade or commerce, and section 8973 forbids any combination in restraint of trade.

We do not say that the acts of members of labor unions may not be such as to violate either or both of these statutes, but we are of the opinion that the acts which the original opinion considers as established do not violate either. [Cases cited.]

It seems clear that neither of these statutes was intended to prohibit combinations to strike for the purpose of increasing or maintaining wages. It is expressly provided that the conspiracy statute does not. Section 8596. No decision has ever construed a statute like our antitrust statute as containing any such inhibition.

We are of the further opinion that it was not the intent of either of the statutes mentioned to prohibit members of labor unions who have a bona fide dispute with a building contractor from cooperating to withhold their services from such contractor or his subcontractors until the dispute is settled. [Cases cited.]

We may further add that in the original decision we had no intention of holding that the legislature may not prohibit one or many acts which, in the absence of statute, would be lawful, as held in Aikens v. Wisconsin, 195 U. S. 194, 25 Sup. Ct. 3 [Bul. No. 57, p. 678], and Swift & Co. v. United States, 196 U. S. 375, 25 Sup. Ct. 276, nor even that an act, ordinarily lawful if taken alone, may not become unlawful when it is part and parcel of an unlawful plot which is "an act in itself," the usually lawful act in such case being likened by Justice Holmes to "voluntary muscular contraction," which "derives all its character from the consequences which will follow it under the circumstances in which it was done." Aikens v. Wisconsin, supra.

LABOR ORGANIZATIONS-CONSPIRACY-MURDER-EVIDENCE-People v. Schmidt, District Court of Appeals, Second District, California (June 14, 1917), 165 Pacific Reporter, page 555.-M. A. Schmidt was charged with the murder of Charles Hagerty in the Los Angeles Times Building on October 1, 1910, at which time 21 persons were

killed by an explosion and the fire which succeeded it. He escaped apprehension and trial until 1915, when he was convicted, sentenced to imprisonment for life in the State penitentiary of California, and his motion for a new trial denied. The decision in the present appeal was an affirmance of the judgment and order of the court below. Judge James delivered the opinion, and first detailed at some length the facts of the crime as the testimony for the prosecution tended to prove them. It was shown that J. J. McNamara was secretary and treasurer of the International Association of Bridge and Structural Iron Workers, which in 1905 declared a general strike against the American Bridge Co., one of the objects being to unionize that company's plant. McNamara, apparently without authority from the union, set on foot the destruction of bridges and other work where nonunion labor was employed. Trouble having arisen in California, he sent his brother, J. B. McNamara, to that State in response to a request from an officer of an ironworkers' union for assistance. The McNamaras had devised an infernal machine. using alarm clocks and dynamite in the construction. The Los Angeles Times and the Merchants' Association of Los Angeles were advocates of the open-shop plan. Schmidt became an assistant to McNamara in advertising for a launch and purchasing dynamite. as appeared from testimony offered. In addition to the Times explosion, infernal machines exploded or were found near the residences of the president of the Times Co. and of the secretary of the Merchants' Association, showing by their construction and the make of the dynamite that they were the work of the same parties.

The court then states that the evidence is ample to prove the connection of the defendant with the crime. One contention was that the defendant's constitutional rights had been violated because an ex post facto law had been applied, the law in question taking away the ground of bias or prejudice of grand jurors as a foundation for a motion to set aside the indictment. This was disposed of as not a right material to the defense, but as relating to procedure merely. Other technical matters unsuccessfully urged as grounds for a new trial related to the proceedings before the grand jury and the selection of the trial jury.

The concluding portion of the opinion, relating to the conspiracy and the evidence introduced in proof of the crime, is, with some omissions, as follows:

It is a fundamental rule long settled by decisions that in proving a conspiracy it is not necessary that proof be made that the parties met and actually agreed to undertake the performance of the unlawful act, and that a conspiracy may be shown by proof of facts and circumstances sufficient to satisfy the jury of the existence of the conspiracy, leaving the weight and sufficiency of the evidence to the triers of the questions of fact. [Cases cited.] It is not denied