dissenting:
We are unable to concur in the reasoning and conclusion of the majority of the court in this cause. Wage earners have a clear right to organize for the purpose of promoting their common welfare, and so long as they seek that end by lawful means they are to be protected. They have likewise the right to strike for the purpose of securing increased compensation, shorter hours of labor or other amelioration of their condition. For the purpose of making the strike effect-' ive and inducing their former employers to comply with their demands they may seek, by persuasion, to induce others to leave, or refrain from entering, the service of their late master.
The employers of the printers had organized an association in Chicago, the Chicago Typothetse, to enable them to act as an organized body against the workmen, and the law wisely permits the workmen to meet organization with organization, as well as to form organizations for their own purposes in the first instance.
The legislature of our State, the body which makes the law by which courts, as well as the citizens, are to be controlled and governed, has enacted statutes declaring what, shall be deemed to be unlawful in the matter of strikes. These statutory enactments are to be enforced by the courts to the end that the provisions, thereof shall govern and protect both employer and employee.
The statutory enactments referred to are sections 158, 159 and 160 of the Criminal Code. Section 158 declares it shall be unlawful to combine for the purpose of depriving the owner or possessor of property of its lawful use and management, or of preventing, by threats, suggestions of danger of any unlawful means, any person from being employed by or obtaining employment from any such owner or possessor of property, on such terms as the parties concerned may agree upon. Section 159 declares it to be unlawful to seek to prevent any other person from working or from obtaining work at any lawful business, by threats, intimidation or unlawful interference. ’ Section 160 makes it unlawful for another to enter the coal bank, mine, shaft, manufactory, building or premises of another with intent to commit any injury thereto, or by means of threats, intimidation or riotous or other unlawful doings to cause any person employed therein to leave his employment.
The laboring class has no truer or more powerful friend 'than public opinion when in its favor, and violations of the public statutes and laws of the State operate to alienate this friendship and to deprive the laboring man of the sympathy of the public. The sentiment which goes out heartily to the cause of the workmen and is disposed to regard a strike as a laudable effort on the part of men who toil to ameliorate their condition is the honest sentiment of men who love the law and who are friends of peace and good order, and who are rudely shocked and their sympathy and support lost by violence or riotous- and unlawful conduct on the part of the strikers. Lawlessness and violence are condemned by all good citizens.
The injunction in this cause restrains the defendants, among other things, from inducing by unlawful persuasion any of the employees of the complainants to leave the service of the complainants, and from attempting to prevent others by unlawful persuasion from.freely entering the service or continuing in the service of the complainants. The term “unlawful persuasion” has no established meaning in the law. Appellees contend that all persuasion is unlawful. If such was the view of the chancellor who granted the writ, the word “unlawful” should have been omitted; while if, in his view, there is persuasion of two kinds, namely, lawful and unlawful, the injunction should have more specifically described the persuasion from which the defendants must refrain, so that it would not have been left to each to determine for himself, at his own peril, what was lawful and what was unlawful. The purpose of the injunction is to advise the defendants what particular acts the court has decided they may not lawfully do. It would seem upon reason, however, that when the argument addressed by the striker to a workman for the purpose of inducing him to leave or refrain from entering a certain employment becomes unlawful, it passes from the domain of persuasion into that of coercion, threat or intimidation.
Having this right of persuasion, it was proper for the strikers to -exercise it by accosting in a respectful manner the person whom they desired to address, and they might peaceably, by explanation, argument, entreaty and reason, seek to persuade such person to leave the employment in question, and the strikers might lawfully do this in the public highway or street so long as they did not obstruct public travel, or,at the home of the person they sought to interview, or at any other place where they would have a right to talk with that person about any other legitimate business.
In the case of Doremus v. Hennessy, 176 Ill. 608, there was no question before the court in reference to the right of a striker to induce another to leave or refuse to enter the service of an employer, and what is there said in reference to persuasion is for that reason inapplicable in this cause.
The principle governing such cases as the Doremus case, in which interference with contract relations has been held unlawful, stands upon a peculiar ground and does not obtain here. 18 Am. & Eng. Ency. of Law, (2d ed.) 87.
The only case prior to the present one in a court of appellate jurisdiction in this State where the question of persuasion has been squarely before the court was the case of Beaton v. Tarrant, 102 111. App. 124, where the right of striking workmen to use the streets and highways in a manner not inconsistent with public travel, for the purpose of inducing others, by entreaty, argument and peaceable persuasion, in good faith, to leave or refrain from entering the service of the late employer of the strikers is expressly recognized. To the same effect are the following authorities: 18 Am. & Eng. Ency. of Law, (2d ed.) 87; American Steel and W. Co. v. W. D. Union, 90 Fed. Rep. 608; C. G. Manf. Co. v. G. B. Ass. 59 N. J. Eq. 49; Krebs v. Rosenstein, 66 N. Y. Sup. 42; Rogers v. Evarts, 17 id. 264; People v. Kostka, 4 N. Y. Crim. 453; Master B. Ass. v. Damascio, 63 Pac. Rep. 782; Reynolds v. Everett, 144 N. Y. 189; Arthur v. Oakes, 63 Fed. Rep. 310; United States v. Kane, 23 id. 748; Union Pacific Railway Co. v. Ruef, 120 id. 102; Allis-Chalmers Co. v. Lodge, 111 id. 264. Nor does the fact that the strikers’ organization offers to pay the employee whom they desire to have leave the employment for the time he may be out of work render the persuasion wrongful. C. G. Manf. Co. v. G. B. Ass. supra; Rogers v. Evarts, supra; Levy v. Rosenstein, 66 N. Y. Sup. 101.
It is urged by appellees, however, that persuasion necessarily and inevitably leads to disagreements, quarrels, force, violence and general disorder, and should therefore be enjoined. Affidavits filed by appellees themselves in this cause show that this statement of fact is not accurate, and their conclusion does not follow. The question is not whether persuasion leads to acts of lawlessness, but whether persuasion, in itself, is unlawful. A man should not be enjoined from doing an act merely because that act may lead to the doing of some wrongful act. If such an argument be followed to its logical conclusion, it would be proper to enjoin the strikers from leaving their homes while the strike continues, because if they are kept at home no violent encounters will take place between them and those who are in the employment in question, while if they are permitted to go upon the streets affrays may occur. The law will be satisfied if the striker be punished when he does a wrongful act. It is not just to punish him for doing an act rightful in itself merely because that act may lead to something wrongful.
Appellees misapprehend the effect of the case of London Guarantee Co. v. Horn, 206 Ill. 493. The precise question determined in that cause is shown by the conclusion of the court which appears in the opinion on pages 507 and 508. In that case, however, the statement from the opinion in Quinn v. Leathem, App. Cas. of 1901, p. 495, to the effect that “it is a violation of a legal right to interfere with contractual relations recognized by law, if there be no sufficient justification for the interference,” was quoted, and this court said in reference thereto: “We are of opinion that the contention of the appellant in the case at bar, to the effect that competition in trade, employment or business is such a justification, is in accord with the authorities.” In the case now before us, the purpose of the strikers was to rid themselves of competition in employment by causing those who worked in the places they had left, to leave the employment, that the strikers might be re-employed under more favorable conditions than those formerly obtaining.
In our judgment the evidence in this record does not show that Franklin Union No. 4, as a corporation, violated the injunction. The bill charges the defendants with criminal conspiracy against the complainants, and appellees contend that the evidence shows a like conspiracy after the issuance of the writ for the purpose of violating the -injunction.
Persons and corporations may combine to bring about lawful results or ends without each being held liable for the unlawful acts of others of the combination, though such unlawful acts were intended by their authors to secure the lawful end desired to be accomplished. That is to say, if the combination is for a lawful purpose to be attained by lawful means, those only who employ unlawful means to bring it about are liable as violators of the law. If the combination is in violation of a law, all are guilty in forming the combination and all are answerable for the unlawful acts of each conspirator. • •
It being lawful for the union to join in encouraging and inaugurating the strike, it cannot be deemed guilty because of the unlawful criminal acts of others, unless the union aided, counseled or advised the commission of such unlawful acts.
In the recent case of People v. Sullivan, 218 Ill. 419, it is said (p. 437) : “The rule in Illinois, except as modified by statute in actions of slander or libel, is, that when a criminal offense is charged in the pleadings and must be established either to sustain the cause'of action or maintain the defense, the presumption of innocence arises, and the crime charged must be proven by evidence which removes every reasonable doubt of guilt.—Crandall v. Dawson, 1 Gilm. 556; McConnel v. Delaware Mutual Ins. Co. 18 Ill. 228; Harbison v. Shook, 41 id. 141; Sprague v. Dodge,- 48 id. 142; Germania Fire Ins. Co. v. Klewer, 129 id. 599.”
An order punishing Franklin Union No. 4 should not have been entered, therefore, unless the evidence offered was sufficient to establish its guilt beyond a reasonable doubt. The complainants sought to sustain their contention almost entirely by affidavits. Some of these affidavits contained direct and positive averments of wrongs done by certain of the strikers, but many of them contained conclusions of the affiants, statements on information and belief and statements made upon hearsay, so intermingled with such statements of material fact as were found in the affidavits as to make it impossible to separate that which was legitimate evidence from that which should not be considered. Ex parte affidavits, such as these, are the weakest and most unsatisfactory evidence. Pittsburg Appeal, 79 Pa. St. 317; State v. Mickle, 70 Pac. Rep. 856; Fullenweider v. Swing, 30 Kan. 15; Hat Sweat Manf. Co. v. Davis Sewing Machine Co. 32 Fed. Rep. 401; Vaughn v. Hann, 6 B. Mon. 338.
In Becker v. Quigg, 54 Ill. 390, it is said (p. 394) : “One serious objection to the admission of ex parte affidavits is, that the opposing party is denied the privilege of cross-examination. This is a most efficacious test for the discovery of truth, and should never be departed from except from actual necessity. A witness subjected to this test cannot easily impose on the court or fabricate falsehood.”
Again, such affidavits are frequently in the language of the draughtsman rather than in that of the witness, and for this reason it is impossible to know from the affidavit precisely what the witness intended to say.
In our judgment, in cases of this kind the better practice requires that the defendants be confronted by the witnesses for complainants in open court, where cross-examination may be had, and that the same course be pursued with reference to those witnesses who speak in behalf of defendants.
In addition to the affidavits, it appears from the testimony of John M. Shea, who was financial secretary and treasurer of Franklin Union No. 4, called by the complainants and who was the only witness who testified in open court on their behalf, that the difficulty between the union and the typothetae originated from the fact that the contract which existed between the members of the Chicago Typothetae and Franklin Union had not been signed by the members of the typothetae; that on February 27, 1903, twelve days before the bill herein was filed, Franklin Union held a meeting, (a copy of the minutes of which is set out in the majority opinion herein;) that in fact the union never did call a strike, but that the controversy ensued upon the men being locked out by their employers. Be that as it may, however, it appears from his testimony that strike benefits were paid to the members who were out of work, by virtue of the authority given at the meeting last mentioned; that Shea paid the strike benefits and had disbursed in that way $5000 or $6000, and that persons who had theretofore been tried for contempt of court in violating the injunction had been defended by Mr. Bloomingston, general counsel for the union, but who retained him so to do does not appear. These facts, taken with those portions of the affidavits which can be seen to be material and competent, are not sufficient to warrant the finding of the superior court.
There is no evidence of any corporate action on the part of the union aside from the minutes of the meeting above referred to. There is evidence by affidavits that persons belonging to the union had violated the injunction in a flagrant manner. There is no evidence that the union, as a corporation, approved or acquiesced in any such violations, or that any executive or controlling committee, or other like power in the union, did so. Proceedings were begun against Shea, the secretary and treasurer, and Woerner, the president of Franklin Union, for violation of the injunction. They were included as defendants in the petition filed against Franklin Union No. 4, which is now under consideration, but the petition as to them was dismissed by the appellees, from which it would appear that no acts done by them were regarded as violative of the writ. The record of the meeting in question does not show that the union did any wrongful act or pursued any wrongful method, or that the union contemplated anything but lawful acts and lawful methods; but even if it were otherwise, it could not be contended that anything done on September 27 afforded evidence of the violation of an injunction issued twelve days later, when it could not be foreseen on September 27 that a bill would be file$ or an injunction awarded.
It further appears from the testimony of Woerner and Shea, who are the only persons testifying on the subject, the latter of whom was giving evidence on behalf of the complainants, that the strike committee appointed by the president at the meeting of September 27 never acted, for the reason that the men were locked out before they were prepared to strike.
The strike headquarters was near the establishments of the typothetas, but in the place which had long been used and which was then being used as the place of business of the union, and consequently had not been selected because it was in the vicinity of the places of business of members of the typothetie.
Franklin Union No. 4 has 1800 members; but 200 of them were involved in the strike. It would seem that the remaining 1690, at least, should not be punished by a fine inflicted upon, the union to which they belong when they have never in any way, by the union or by any executive or other controlling body or officer thereof, countenanced or shown approval of any acts in violation of the writ.
We are also of the opinion that the order, in reserving for determination, after the fine should be collected, the question of paying the amount, or a part thereof, to the complainants for their costs and expenses, was erroneous, first, because there is no statute in Illinois' that affords any warrant for collecting damages and expenses in this way in this suit, and fines for contempt can be so applied only when authorized by statute in cases of this character; and second, because an order punishing for contempt must be specific, certain and final. People v. Pirfenbrink, 96 Ill. 68; State v. Voss, 80 Iowa, 467.
The evidence does not show that Franklin Union No. 4, in its corporate capacity, entered into a combination with any other person or persons to do an unlawful act or to do a lawful act by unlawful means or that it did anything in violation of the commands of the writ, and for this reason the judgment as to Franklin Union No. 4 should be reversed.