That he has such right there can, in our opinion, be no question, providing he conducts himself in a peaceful, orderly manner, disturbs no one, and commits no overt act. In this case, according to the testimony of the officer who made the arrest, he arrested the defendant for the purpose of preventing him from doing "picket duty," which, as explained by the court, consisted in requesting men not to take the places of strikers. In the case of Marx & Haas Jeans Clothing Co. v. Watson (168 Mo. 133, 67 S. W. 391 [Bulletin No. 44, p. 157]) Judge Sherwood, speaking for the court, said: "If these defendants are not permitted to tell the story of their wrongs, or, if you please, their supposed wrongs, by word of mouth, or with pen or print, and to endeavor to persuade others to aid them by all peaceable means, in securing redress of such wrongs, what becomes of free speech, and what of personal liberty? The fact that in exercising that freedom they thereby do plaintiff an actionable injury, such fact does not go a hair towards a diminution of their right of free speech, etc., for the exercise of which, if resulting in such injury, the constitution makes them expressly responsible. In Beaton v. Tarrant (102 Ill. App. 124) it was held that workmen may use the streets and highways in a manner not inconsistent with public travel, for the purpose of entreaty, inducement, and peaceable persuasion in good faith.

Our conclusion is that the ordinance is unconstitutional and invalid, because it infringes upon the right of personal liberty, and is unreasonable and oppressive.

DECISIONS UNDER COMMON LAW.

LABOR ORGANIZATIONS BENEFITS CONSTRUCTION OF BY-LAWSDonavan v. Friendly Society of Engravers, Supreme Court of Rhode Island, 69 Atlantic Reporter, page 554.-John F. Donavan was a member of the above-named (incorporated) society, and had been discharged from employment on account of serving on a committee of the organization to confer with his employer. A by-law of the union provided that where members were discharged for such cause, they would be paid, from the funds of the union, "their full wages as received by them at the date of such discharge, until they shall again obtain steady employment." Subsequent to his discharge, Donavan secured employment, but not as an engraver, and in an action to recover the amount of his wages, judgment was given him for full wages as an engraver, without reference to the amount received by him in his new employment. The society took an appeal to the superior court of Providence County, which directed a new trial to be had unless Donavan should remit all but $100 of the sum awarded. On his appeal to the supreme court, the judgment of the superior court was affirmed, as is shown by the following extract from the opinion of the court:

We think the construction placed upon the words "steady employment" by the superior court was correct. There is no express limitation in the by-law to employment in the trade of an engraver, and it is not necessary to imply such a limitation in order to carry

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out the object of the provision. The design was evidently to give aid to a member while he should be unable to provide for his own support. The necessity for such aid ceases when he accepts steady employment in any occupation. The construction urged by the plaintiff would require the defendant to pay him $20 a week indefinitely, though he might be earning a larger amount if it were not earned as an engraver, which seems to us a greater burden than the defendant can be presumed to have intended to assume.

LABOR ORGANIZATIONS-BOYCOTT-INJUNCTION-CONSPIRACYFREEDOM OF SPEECH-REMEDIES-Lindsay & Company v. Montana Federation of Labor et al., Supreme Court of Montana, 96 Pacific Reporter, page 127.-An injunction had been secured by the company named in the district court of Yellowstone County, which was on hearing modified and continued. From the order denying dissolution the Federation appealed, securing a reversal as appears in the following opinion of the court, which was delivered by Judge Holloway, and which is reproduced practically in full:

As modified, the injunction is as follows: "You are hereby restrained and enjoined, until the further order of this court, or the judge thereof, from in any manner, directly or indirectly, interfering with or obstructing the business of plaintiff in the city of Billings and the town of Bear Creek, or in any manner interfering with any of the patrons of the plaintiff from trading or dealing with the plaintiff, or by threats, abuse, intimidation, or other means calculated or intended to interfere with the said business of the plaintiff; from declaring the plaintiff unfair, or from boycotting the plaintiff or from printing, publishing, circulating, posting, or distributing any circulars, posters, handbills, or other written or printed matter containing opprobrious or injurious epithets against said plaintiff or its business; from interfering with, intimidating, boycotting, molesting, or threatening in any manner the patrons or customers of the plaintiff, or any other person or persons, with the purpose of inducing them not to deal with or do business with the plaintiff, and from giving any directions or orders to committees, associations, unions, or any of their officers or members, or otherwise for the performance of any act in this complaint mentioned, or in any manner obstructing or interfering with the regular operations and the conduct of the business of the plaintiff and from in any way or manner threatening, intimidating or interfering with the plaintiff or any of its officers, agents, or employees in the conduct of the plaintiff's business, or in the discharge of the duties of any such officers, agents, or employees.' From the order refusing to dissolve the injunction, this appeal was taken.

For the purpose of this decision the allegations of the complaint need not be referred to at length. We are not called upon to determine the propriety of issuing the injunction in the first instance. The question for our decision is: Should the injunction have been continued in force after the hearing on the motion to dissolve was had? And the answer to this must depend upon the facts disclosed at such hearing. Stripped of all useless verbiage, these facts appeared: That some time prior to October, 1907, Lindsay & Co. had

been declared unfair by the Miners' Union and Trades Assembly in Helena, and this action had been indorsed by the Montana Federation of Labor, and circulars announcing the fact had been sent to labor organizations throughout the State. On October 25, 1907, the Yellowstone Trades and Labor Assembly, upon information received of the action taken in Helena, passed a resolution which declared Lindsay & Co. unfair, and referred the matter to the grievance committee of that organization to advise the public of the action taken. Acting upon the authority thus given, the grievance committee caused to be published and circulated among the business houses and elsewhere in Billings circulars, of which the following is a

copy:

'UNFAIR.

'All laboring men and those in sympathy with organized labor are requested not to patronize Lindsay & Co. who are engaged in the wholesale fruit business, also distributers for cigars and vegetables of all kinds in Billings and vicinity, as they are unfair. We urge the retail merchants, laboring men, and all who are in sympathy with organized labor to place themselves in position to patronize friendly wholesalers. We further desire to call attention to the fact that Lindsay & Co. are operating peddling wagons throughout this city, and we ask the people to guard against patronizing these wagons. We ask this for your own protection and the protection of organized labor.

"[Signed] YELLOWSTONE TRADES AND LABOR ASSEMBLY."

That immediately after the adoption of the resolution and the publication of this circular a large number of retail dealers in Billings, who had theretofore purchased goods from the plaintiff company, ceased to do business with the concern, with the result that the business of the company at Billings was practically paralyzed, and great financial loss resulted. As stated by the witness Vaughan for plaintiff: "We have lost patronage from these merchants on account of being unfair. A circular printed and sent around. There is no other cause.' Another witness for the plaintiff testified that at a meeting of the Clerks' Union in Billings early in November, 1907, the defendant Fairgrieve made the statement that "they had Lindsay & Co. on the unfair list, and they had him where they wanted him, and he believed it was a good thing to leave him there." Fairgrieve testified that he did not remember making any such statement. However, this is immaterial to a consideration of the matter before us. From these facts we are to determine the question: Should the injunction have been dissolved? It is to be observed that only two acts of any consequence are shown to have been committed by the defendants: (1) They declared Lindsay & Co. unfair, or, in the language of respondent, boycotted the company; and (2) they published the circular set forth above, that is, they caused it to be printed and circulated. The injunction, as modified, is very sweeping in its terms, and in that form could not be justified by any possible state of facts; but assuming that it was continued for the purpose of preventing the continuance in force of the boycott, and for the purpose of preventing a repetition of the publication of the circular or a similar one, although there is not any evidence of any threat or purpose on the part of the defendants or any of them to repeat that act,

we may consider the question presented to us by reference to these two principal acts mentioned.

1. Does the continuance in force of the resolution of October 25, 1907, amount to such an invasion of plaintiff's rights as will warrant the interposition of a court of equity by injunction?

It is insisted by the respondent company that the defendants organized a boycott of plaintiff's business by agreeing among themselves and with other members of organized labor to withhold their patronage from the plaintiff company, and that they undertook by coercion to compel the retail dealers of Billings and others to likewise withdraw their patronage; that the resolution of October 25, 1907, was intended and understood by the defendants to express the object of their preconcerted design; and that the publication of the circular was for the purpose of intimidating the retail dealers and others. We think it may fairly be said to have been shown by the evidence that upon the adoption of the resolution of October 25th, and upon the intelligence of that action becoming general among the union men there, it was understood among those men that they would not patronize Lindsay & Co. while the interdict was in force, and would not patronize any one who did patronize that company, and that they expected that all retailers and others in sympathy with their organizations would cease trading with the plaintiff company. Whether the acts done by the defendants constituted a boycott, of course, depends entirely upon the definition of that term which may be adopted. We are of the opinion that the evidence shows that these defendants inaugurated a boycott on Lindsay & Co., and that it was still in effect at the date of the hearing. We adopt the language of the Supreme Court of New York in Mills v. United States Printing Co. (Sup.) 91 N. Y. Supp. 185, in which the court, speaking through Justice Jenks, said: "I think that the verb 'to boycott' does not necessarily signify that the doers employ violence, intimidation, or other unlawful coercive means; but that it may be correctly used in the sense of the act of a combination, in refusing to have business dealings with another until he removes or ameliorates conditions which are deemed inimical to the welfare of the members of the combination, or some of them, or grants concessions which are deemed to make for that purpose." In Ulery v. Chicago Live Stock Exchange, 54 Ill. App. 233, it is said: "A person, with or without reason, may refuse to trade with another; so may 10 or 50 persons refuse. An individual may advise his neighbor or friend not to trade with another neighbor. He may even command when the command amounts only to earnest advice."

But what is there unlawful in the act of the union workingmen of Billings in withdrawing their patronage from the plaintiff? Certainly it can not be said that Lindsay & Co. had a property right in the trade of any particular person. In this country patronage depends upon good will, and we do not think that it will be contended by any one that it was wrongful or unlawful, or violated any right of the plaintiff company, for any particular individual in Billings to withdraw his patronage from Lindsay & Co., or from any other concern which might be doing business with that company, and that, too, without regard to his reason for doing so. But there can be found running through our legal literature many remarkable statements that an act perfectly lawful when done by one person becomes by some sort of legerdemain criminal when done by two or

more persons acting in concert, and this upon the theory that the concerted action amounts to a conspiracy. But with this doctrine we do not agree. If an individual is clothed with a right when acting alone, he does not lose such right merely by acting with others, each of whom is clothed with the same right. If the act done is lawful, the combination of several persons to commit it does not render it unlawful. In other words, the mere combination of action is not an element which gives character to the act. It is the illegality of the purpose to be accomplished, or the illegal means used in furtherance of the purpose, which makes the act illegal. (18 Ency. Law (2d Ed.) 82; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 119.) "A conspiracy is a combination of two or more persons by some concerted action to accomplish a criminal or unlawful purpose or to accomplish a purpose, not in itself criminal or unlawful, by criminal or unlawful means." (Anderson's Law Dictionary, 234.) Chief Justice Parker, in speaking for the Court of Appeals in National Protective Ass'n v. Cumming, 170 N. Y. 315, 63 N. E. 369 [Bulletin No. 42, p. 1118], said: "Whatever one man may do alone, he may do in combination with others, provided they have no unlawful object in view. Mere numbers do not ordinarily affect the quality

of the act."

If, then, these defendants and their associates did not violate any legal right of the plaintiff in withdrawing their patronage from the company, or in agreeing to withdraw their patronage from any one who might patronize Lindsay & Co., they can not be enjoined from continuing the boycott in force, so long as the means employed to make the boycott effective are not illegal. The evidence shows that the only means used in this instance was the publication of the circular in question, and this brings us to a consideration of the second proposition involved.

2. (a) May a court of equity enjoin the publication by an individual of a circular of this character; (b) if not, may it enjoin such publication when made by a number of individuals acting collectively?

(a) Article 3 of our constitution is entitled: "A declaration of rights of the people of the State of Montana," and section 10 of that article, so far as applicable here, reads as follows: "No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty." The language here employed seems too clear to admit of doubt or argument. The one fundamental idea conveyed by this section is penalty for a violation of the privilege, not prevention of its abuse. The language of the section is not susceptible of any other meaning than this: That the individual citizen of Montana can not be prevented from speaking, writing, or publishing whatever he will on any subject. If, however, what he writes or publishes constitutes a criminal libel, he may be held responsible for the abuse of the liberty in a criminal prosecution (Pen. Code, c. 8), or, if what he speaks, writes, or publishes wrongfully infringes the rights of others, he may be held responsible for the abuse in a civil action for damages. If this is not the meaning of the section, it is because the framers employed language which is impotent as a vehicle for conveying their idea.

But it is suggested by counsel for respondent company that these defendants are insolvent, and that a judgment for damages would