>l Uw 1 ^^ I • 
 
 NebraekQ— board 
 of transpo.rtation 
 
 report...
 
 
 TO THE 
 
 ARD OF Transportation 
 
 UPON THK 
 
 MATTKE OF THE STRIKE OK THE HROTHERHOOnS OK LOCOMOTIVE ENGINEE-RS 
 
 AND FIKEMEX OF THE BURLINGTON & MISSOKRI RIVKK 
 
 KAILKOAn IN XKHRASKA. 
 
 By 0. P. MASON, Skckbtary. 
 
 LINCOLN, NEB.: 
 STATE JOURNAL CO., PRINTERS. 
 
 188H.
 
 :e^e:fo:e^t 
 
 TO THE 
 
 r\ 
 
 F Transportation 
 
 IPON THK 
 
 MATTER OF THE STRIKE OF THE BROTHERHOODS OF LOCOMOTIVE ENGINEERS 
 
 AND FIREMEN OF THE BURLINGTON & MISSOURI RIVER 
 
 RAILROAD IN NEBRASKA. 
 
 By 0. P. MASON, Shcki-faky. 
 
 LINCOLN, NEB.: 
 STATE JOURNAL CO., PRINTERS. 
 
 188H.
 
 ^"^\ '^^ 
 
 J r 
 
 REPORT, 
 
 To the Board of Transportation : 
 
 It seems strange that in a free country such as ours, so much con- 
 fusion should exist in respect to the rights of employes to strike, and 
 leave the work of their employers, and to attempt to coerce their action 
 in respect to employing otiiers in their places. In this country it is 
 lawful, and it may be added, commendable, for any body of men to 
 associate themselves together for the purpose of bettering their con- 
 dition in any respect, financially or socially. The genius of our free 
 institutions invites them to higher levels, and better fortunes, and 
 they may dictate their own wages, choose their own em[)loyers, and 
 serve God or Mammon according to the dictates of their own con- 
 sciences; but while the law accords this liberty to one and all of 
 them, it accords a like liberty to every other one, and all are bound 
 to so use and enjoy their liberties as not to interfere with those of 
 their neighbors. 
 
 All legislation, in P^nglaud and America, has been progressively 
 in the direction of according to laborers the enjoyment of equal rights 
 with others. The early English statutes, beginning with the middle 
 of the fourteenth century, are to be read in the light of the civiliza- 
 tion of tliat day, and their provisions, to us of the nineteenth century, 
 harsh, illiberal, and tyrannical, were but the reflex of the prevailing 
 opinions and class distinctions that shajied and guided the social and 
 political polity of those days. From time to time, however, down 
 to 1888, this legislation has been liberalized and christianized, and 
 to-day in England, as here, workmen stand upon the same broad 
 level of equality before the law with all other avocations, professions, 
 or classes whatsoever, respecting the disposition of their labor, and the 
 advancement of their associated interests.
 
 (4) 
 
 At the present time, that evils exist in the relations of capital to 
 labor, and that workmen have grievances that oftentimes call for re- 
 lief, are facts that observing men cannot deny. With such questions, 
 the state and nation has to do at the present time, but the courts, as 
 such, have no functions to discharge further than to say that the 
 remedy cannot be found in the boycott or the strike. 
 
 In England, as here, it is unlawful for employers wrongfully to 
 coerce, intimidate, or hinder the free choice of workmen in the dis- 
 posal of their time and talents. There, as here, it is unlawful for 
 workmen, to wrongfully coerce, intimidate, or hinder employers in 
 the selection of such workmen as they choose to employ. There, as 
 here, no employer can say to a workman he must not work for 
 another employer, nor can a workman say to an employer he cannot 
 employ the services of another workman. 
 
 By the law of the land, the Brotherhood of Locomotive Engineers 
 has the most unqualified right to work for whom they please, and at 
 such prices as they may please. By the law of the land, the Burling- 
 ton & Missouri River Railroad in Nebraska has the same right, be- 
 ing responsible to the public for the employment of competent 
 men in their respective callings. By the same law, the Burlington & 
 Missouri River Railroad in Nebraska has the right to employ 
 Brotherhood engineers on such terms as may be mutually agreed 
 upon, without let, hindrance, or dictation from any man or body of 
 men whatever. They have the same right to employ other engineers 
 to conduct their business, being responsible in each case to the public 
 for the competency and efficiency of the men so employed by them, 
 in their respective vocations. 
 
 Suppose the farmers of Nebraska should combine and declare that 
 no farmer should employ an Irishman or a German to assist him in 
 his labors, unless he was a member of their association, under the 
 penalty of being dubbed a "scab," and having his name paraded in 
 the public press as unworthy of recognition among his brother farmers, 
 and himself brought into hatred, envy, and contempt, would it be 
 called an innocent intermeddling with the rights of a prescribed class 
 under the law? The proposition has only to be stated to disclose its
 
 (5) 
 
 utter inconsistency with every principle of justice which permeates the 
 law under which we live. 
 
 If such conspiracies are to be tolerated as innocent, then every 
 farmer in Nebraska, now resting in the confidence that he may era- 
 ploy such assistance in carrying on his farm as he thinks he can aflfbrd 
 to hire, is exjiosed to the operation of some secret code of law, in the 
 framing of which he had no voice, and upon the terms of which he 
 has no veto; and every manufacturer is handicapped by a system 
 that portends certain destruction to his industry. If our agricultural 
 and manufacUiring industries are sleeping upon the fires of a volcano, 
 liable to eruption at any moment, it is high time our people knew it. 
 But hapj)ily such is not the law among English speaking people, and 
 never has been the law. 
 
 The reports of England and America are full of illustrations of the 
 doctrine that a combination of two or more persons to eifect an illegal 
 purpose, either by legal or illegal means, whether such jnirpose be 
 illegal at common or statute law; or to effect a legal purpose by ille- 
 gal means, whether such means be illegal at common law or by stat- 
 ute, is a common law conspiracy. Such combinations are equally 
 illegal, whether they promote objects or adopt means that are joerse in- 
 dictable, or promote objects or adopt means that are per se oppressive, 
 immoral, or wrongful to the rights of others. If they seek to restrain 
 trade or tend to the destruction of the material })rosperity of the 
 country, they work injury to the whole public, and such, doubtless, 
 was the practical result of the strike of the Brotherhood engineers. 
 
 These principles are the clear deductions of cases decided, and 
 breath a spirit of equality and justice that must commend itself to 
 every intelligent man. Vide 59 Vermont, 273. 
 
 The Vermont court say, " The principle upon which the cases, 
 American and English, proceed, is, that every man has a right to 
 employ his own talents, industry, and capital as he pleases, free 
 from the dictation of others; and if two or more persons combine 
 to coerce his choice in this behalf, it is a criminal conspiracy. The 
 labor and skill of a workman, be it of high or low degiee, the plant 
 of the manufacturer, the equipment of the farm, and the invest-
 
 (6) 
 
 meiits of commerce, are all, in au equal sense, property. If a man, 
 by overt acts of violence, destroy either, he is guilty of a crime. The 
 anathemas of a secret organization of men combined for the purpose 
 of controlling the industries of others by a species of intimidation 
 that works upon the mind rather than the body are quite as danger- 
 ous, and generally more effective than acts of violence. And while 
 such conspiracies may give to the individual directly affected by them 
 a private right of action for damages, they at the same time lay a 
 basis for an indictment on the ground that the state itself is directly 
 concerned in the protection of all legitimate industries, and the de- 
 velopment of all its resources, and owes a duty to the protection of 
 its citizens in the exercise of their callings. The good order, peace, 
 and general prosperity of the state are directly involved in the ques- 
 tion." 
 
 We may add another observation of the court, "And the expo- 
 sure of the legitimate business to the control of an association that can 
 order away its employes, and frighten away others that it may seek 
 to employ, and thus be compelled to cease the further prosecution of 
 its work, is a condition of things utterly at war with every principle 
 of justice and with every safeguard of protection that citizens under our 
 form of government are entitled to enjoy. The practical tendency of 
 such intimidation is to establish over labor, and over all industries, a 
 control that is unknown to the law, and that is exerted by a secret 
 association of conspirators, that is guided solely by personal consid- 
 erations, and whose plans, carried into execution, usually result in 
 violence and the destruction of property." 
 
 Equally strong and vigorous is the language of Judge Carpenter, 
 in State vs. Glidden, reported in 8th Atlantic Reporter, 890. "It 
 seems strange," he says, "that in this day and in this free country, 
 in which the law interferes so little with the liberty of the individual, 
 that it should be necessary to announce from the bench that every 
 man may carry on his own business as he pleases, and may do what 
 he will with his own so long as he does nothing unlawful, and acts 
 with due regard to the rights of others; and that the occasion of such 
 an announcement should be, not an attempt by the government to in-
 
 (7) 
 
 teref'ere with the rights of the citizen, nor by the rich and powerful 
 to oppress the poor, but an attempt by a large body of workiugmen 
 to control by means little, if any, better than violence the action of 
 their employers." 
 
 " In this case," the court say, "the defendants and their associates 
 said to the Carriugton Publishing Company, 'you shall discharge 
 the men you now have in your employ, and you shall hereafter erai- 
 ploy only such men as we shall name. It is true we have no inter- 
 est in your business — we have no capital invested therein — we are in 
 no wise responsible for its losses and failures, and we are not directly 
 benefited by its success, and we do not participate in its profits, yet 
 we have a right to control its management and compel you to submit 
 to our dictation.' The bare as-sertion of such a right is startling. 
 The two alleged rights cannot possibly co-exist. One or the other 
 must yield, li' the defendants have the right which they claim, then 
 all business interests are alike subjtct to their dictation. No one is 
 safe in engaging in business, for no one knows whether his business 
 affairs are to be directed by intelligence or ignorance — whether law 
 and justice will protect the busiue.-s, or brute force, regardless of law, 
 will control it; for it must be remembered the exercise of this power, 
 if conceded, will be by no means confined to the mode of employing 
 help. Upon the same princi])les, and for the same reasons, the right 
 to determine what business others shall engage in, when and where 
 it shall be carried on, etc., will be demanded and must be conceded. 
 The principle, if it once obtains a foothold, is aggressive and is not 
 easily checked. It thrives on what it feeds, and is insatiate in its 
 demands. More requires more. If a large body of irresponsible 
 men demand and receive power outside of the law, and over and 
 above the law, it is not to be expected that they will be satisfied with a 
 moderate antl reasonable use of it. The exercise of irresponsible 
 power by men, like a taste of human blood by tigers, creates an un- 
 appeasable appetite for more. The business men have a general 
 understanding of their riglits under the law, and have some degree 
 of confidence that the government, through its courts, will be able to 
 protect their right«. Thi.< confidence is the corner-stone of all busi-
 
 (8) 
 
 uess ; but if their rights lare such only as a secret and irresponsible 
 organization is willing to concede to them, and will receive only such 
 protection as such an organization is willing to give, where is that 
 confidence which is essential to the prosperity of the country?" 
 
 Space alone forbids from further quotations from this strong opin- 
 ion, and I must now content myself with referring to the reported 
 decisions. It and the preceding cases cited are the two leading cases 
 in this country upon criminal conspiracy where the boycott and 
 strike have been used, and the able author, after a thorough examin- 
 ation of the subject, concludes as follows: "Workingmen may com- 
 bine lawfully for their own protection and common benefit ; for 
 the advancement of their own interests and for the development of 
 skill in their trade, or to prevent overcrowding, or for the encourage- 
 ment of those belonging to their trade or to any other calling, or for 
 the purpose of raising their wages or securing a benefit which they 
 can by law, but the moment, however, that they proceed by threats, 
 intimidation, violence, obstruction, or molestation to secure their 
 ends; or where their object is to impoverish other persons or extort 
 money from their employers, or to ruin their business, or to encourage 
 strikes or the breaches of contracts among others, or to restrict 
 others, or for the purpose of compelling employers to conform to 
 their views, or to attempt to enforce rules upon those not members 
 of their association, they render themselves liable to indictment." 
 30th Federal Reporter, 48. 
 
 " The science of law, like every other science, is steadily receiving 
 new terms indicative of additions and alterations, and these are often 
 originated and developed by unexpected circumstances, and it is a 
 mooted question whether conspiracy is of common law origin or of 
 statutory enactment and creation." 
 
 Wright, in his monograph on criminal conspiracies, thinks it had 
 its origin in the Statute of 33d Edward I. In an early American case, 
 that of the State against Buchanan, 5th Harris & Johnson (Mary- 
 land), 17, decided in 1821, the judge, in an able opinion, arrives at 
 the conclusion that it is of common law origin, and a similar view 
 was also taken by Judge Johnson in State vs. Edway, 2d Hugh
 
 • (9) • 
 
 (S. C), 282. In 1831, CLief Justice , in delivering an opin- 
 ion in the House of Lords, said that it was first made an oifence 
 under the common law, and that it was first created by the statute of 
 33d Edward I. But be this as it may, there is no evidence of any 
 convictions previous to the enactment of the statute, and for nine 
 centuries after that the recorded cases are indeed very few. As given 
 by Wright, from 1350 to 1800 there were but sixty-seven cases, and 
 from 1800 to 1872, he reports the trial of 137 cases in the English 
 courts. The American courts are more prolific, and have furnished 
 at least 250 cases in this century upon the general subject. 
 
 Wright thinks, on a review of all the decisions, there is a great 
 preponderance in favor of the proposition that as a rule combination 
 is not criminal unless it be for acts or omissions which are unlawful, 
 or as a means to an end which would be criminal. 
 
 This theory of Wright's does not seem to be the prevailing one. 
 The definition most commonly found in American cases is that given 
 by Chief Justice Shaw in the Hunt case, 4th Metcalf (Mass.), Ill, 
 decided in 1842. He says, " Without attempting to review or recon- 
 cile all of the cases, we are of the opinion, that, as a general descrip- 
 tion, though perhaps not a precise and general definition, a conspiracy 
 must be a combination of two or more persons, by concerted action, 
 to accomplish some purpose not in itself criminal or unlawlul, by 
 criminal or unlawful means. We use the terms criminal and unlaw- 
 ful because it is manifest that many acts are unlawful which are not 
 punishable by indictment or other public prosecution, and yet we 
 think there is no doubt that a combination by numbers to do them 
 would be an unlawful conspiracy, and punishable by indictment." 
 " Yet it is clear that it is not every combination to do unlawful acts 
 to the prejudice of another by concerted action, which is j)unishable 
 as a conspiracy." 
 
 Parsons says that this definition has been very generally adopted. 
 
 In an early New Jersey decision, and in the later decisions of 
 Massachusetts, Vermont, New York, Michigan, Kentucky, and 
 Iowa, it has been held that a conspiracy, to become the subject of an 
 indictment, must be a conspiracy to accomplish either an unlawful or
 
 (10) • 
 
 criminal purpose by legal means, or a purpof^e not unlawful by crim- 
 inal or unlawful means. State vs. Rickey, 4th Halstead (N. J.), 292. 
 Commonwealth vs. Werd, 7 Cush. (Mass.), 473. Commonwealth 
 vs. Dobbs, 2 Mass., 566. Commonwealth vs. Jndd, 2 Mass., 329. 
 Commonwealth vs. Eastman, 1 Cush. (Mass.), 189. Commonwealth 
 vs. Shedd, 7 Cush. (Mass.), 514. Commonwealth vs. Wallace, 16 
 Gray (Mass.), 222, Alderman vs. People, 4 Michigan, 414. Peo- 
 ple vs. Clark, 10 Michigan, . State vs. Stevenson, 30 Iowa, 392. 
 
 State vs. Keash, 40 Vermont, 113. State vs. Hewett, 31 Maine, 
 396. State vs. Early, 12 Conn., 101. Lambet vs. People, 9 Cowan 
 (N. Y.) 579. 
 
 In a later New Jersey decision, and in those of Illinois, Pennsyl- 
 vania, South Carolina, Maryland, and New Hampshire, it has been 
 held that conspiracies are indictable where neither the object nor the 
 means are criminal, but where mischief to the public is involved. 
 State V. Buchanan, 5th Harris & J. (Maryland), 317. State v. Burn- 
 ham, 15th N. H., 396. State v. Parker, 43d N. H., 83. State v. 
 Glidden, 3d Zab. (N. J.), 33. State v. Coe, 10th Broome, 327. 
 Smith V. People, 25th 111., 17. Anderson v. Commonwealth, 5th 
 Rand. (Va.), 627. State v. Cardoza, 11 S. C, 195. 
 
 The courts of New Jersey, North Carolina, Texas, and New 
 Hampshire have held that conspiracies are indictable where neither 
 the objects nor means are criminal, but where injury results to indi- 
 viduals. Commonwealth V. , Brightley's Reports, 36 ; State 
 
 V. Donnels, 3d Broome (Va.), 151. State v. Young, 1st Dev. (N. C), 
 357. State v. Earwood, 75 N. S., 210. Lowrey v. State, 30th 
 Texas, 402. Coal Company v. Coal Company, 68 Penn. St., 173. 
 Twitchell v. Commonwealth, 9th Penn. St., 211. State v. Storr, 
 42d N. H., 392. 
 
 These later definitions relating to the indictability of conspirators, 
 contain the general rule adopted in the objection to all strikes and 
 boycotts, and the fact of conspiring is the gist of the offense. The 
 crime is not the effect of the conspiracy but in the conspiracy itself. 
 People V. Fisher, 14 Wendell (N. Y.), 9. See the Anarchist case, 
 12th North-eastern Reporter, 867.
 
 (11) 
 
 The crime is eiiected the moment the agreement is complete, 
 though nothing be done in pursuance of the conspiracy. Hazen v. 
 Common wealtli, 11 Harris (Pa.), 362. 
 
 In order to render the crime complete, there is no occasion that 
 any act should be done, or that anything should be developed in pur- 
 suance or in consequence of the unlawful agreement. Heames v. 
 Commonwealth, 11 Norris (Pa.), 148. Alderman v. People, 4th 
 Mich., 414. State v. Burnham, 15th N. H., 396. Isaacs v. State, 
 48th Miss., 234. People v. Greigher, 49th Cal., 643. State v. 
 Staring, 34th Iowa, 443. 
 
 CIVIL LIABILITY AT LAW. 
 
 As a general rule, in all instances where an indictment will lie, an 
 action for damages can be sustained. The principle of the decisions 
 heretofore referred to will be found applicable in a large degree in 
 such actions. In the case of the Old Dominion Steamship Co. against 
 McKenna, 30th Federal Reporter, 48, United States circuit court, 
 southern district of New York, is one of the most recent decisions on 
 the subject. Here it was held that an interference with the lawful busi- 
 ness of an employer whose workmen are engaged upon just and satis- 
 tactory wages, by procuring them to quit work in a body, from pro- 
 curement of persons not in the employ of the same employers, for 
 the purpose of injuring his business, until he shall accede to demands 
 which he is under no obligation to grant, is actionable. So in ob- 
 taining or attempting to enforce a strike or boycott for the purpose of 
 coercing a compliance with such demands. Brown, justice, said: "I 
 have carefully considered the elaborate argument of counsel, and ex- 
 amined the numerous authorities cited. For lack of time, I can only 
 state my conclusions." 
 
 Tiie plaintiff was engaged in the legal calling of a common carrier, 
 owning vessels, lighters, and other craft used in its busine&s, and in 
 the employment of which numerous workmen were necessary, and 
 who, as the complaint alleges, were employed upon terms as to wages 
 which were just and satisfactory. The defendants, not being in the 
 employ of the plaintiff, without any legal justification, so far as it
 
 (12) 
 
 appears — a mere dispute about wages, the merits of which are not 
 stated; not being any legal justification — procured plaintiff's work- 
 men in this city and in southern ports to quit work in a body, for the 
 purftose of inflicting injury and damage upon the plaintiff until it 
 should accede to the defendant's demands and pay the southern 
 negroes the same wages as the longsliore men, which the |)laintiff was 
 under no obligation to grant; and such procurement of workmen to 
 quit work, being designed to inflict injury upon the plaintiff, and not 
 being justified, constitutes, under the law, a malicious and illegal in- 
 terference with the plaintiff's business, which is actionable. 
 
 After the plaintiff's workmen, through the defendant's procure- 
 ment, had quit work, the defendants, for the further unlawful purpose 
 of compelling the plaintiff to pay such rate of wages as they might 
 demand, declared a boycott of the plaintiff's business, and attempted 
 to prevent the plaintiff from carrying on any business as a common 
 carrier, and from using or employing its vessels, lighters, etc., in 
 that business, and endeavored to stop all dealings of other persons 
 with the plaintiff, by sending threatening notices and messages lo its 
 various customers and patrons, and to the agents of various steamship 
 lines and to the wharfingers and warehouse men usually dealing with 
 the plaintiff, designed to intimidate them from having any dealings 
 with it, and through threats of loss and expense in case they dealt 
 with tiie plaintiff, by receiving, storing, and transmitting its goods, 
 or otherwise; and various persons were deterred from dealing with 
 the plaintiff in consequence of such intimidations, and refused to per- 
 form existing contracts and withheld their former customary busi- 
 ness, greatly to the ])laintiff"'s damage. 
 
 These acts last mentioned were not only illegal, and render them 
 liable in damages, but were also misdemeanors at common law. 
 
 Associations have no more right to inflict injury upon others than 
 individuals have, and all associations or combinations designed to co- 
 erce workmen to become members of, or to interfere with, obstruct, 
 vex, or annoy them in working or obtaining work because they are 
 not members, or to induce them to become members; or to prevent 
 employers from making a just discrimination in the rate of wages
 
 (13) 
 
 paid to tlie skillful and the unskillful, to the diligent and to the lazy, 
 to the efficient and to the inefficient; and all associations designed to 
 . interfere with the perfect freedom of eni]>loyers in the proper man- 
 agement and control of their lawful business, or to dictate in any par- 
 ticular the terras uj)on which their l)usiness shall be conducted — by 
 means of threats of injury or loss, by interference with their j)rop- 
 erty or traffic, or with their lawful employment of" other persons, or 
 designed to abridge any of these rights — are pro tanto illegal combi- 
 nations or associations, and all acts done in furtherance of such inten- 
 tions, by such means, and accompanied by damage, are actionable. 
 See People vs. Fisher, 14th Wendell (N. Y.), 9. Tareta vs. MiGal- 
 lagher, — Peek, 105. Rai)hael vs. Everett, 2 W. Blackstone, 1055. 
 Lumley vs. Gye, 2 E. L. & B., 206. Brown vs. 11 ill. Crocker 
 
 vs. Buck & Co., M. & G., 205. Gasher vs. Astor, 4 T. B. Moiu-oe, 
 12. 107 Mass., 555. Carew vs. Putherford, 106 Mass., 1. State 
 vs. Dona, 32 N. J. L., 1511. Johnson vs. Mienhart. 61 How. Prac, 
 168. 16 Wallace, 36-116. 70 K C, 601. S. C, 16 Am. Rep., 
 780. 
 
 In Town vs. R. R. Co., 13 Tenn., 531, it was held that the defendants, 
 by means of threats and intimidation, had driven away the plaintiff's 
 customers, thus destroying his trade, and they liad injured him by an 
 unlawful act, and were liable to him in damages, whether they did it 
 wickedly or maliciously, or not, for it is unlawful to intimidate or 
 threaten one's customers, and a loss of trade is the natural and 
 approximate result of such acts. 
 
 In ^raj)sirick vs. Ramge, 9lh Nebraska, 390, where eighteen de- 
 fendants, journeymen tailors, working by tiie piece, by conspiracy, 
 stopped working simultaneously, and returned their work to the 
 plaintiff unfinished and in an unfinished condition, it was held that 
 an action for damages w^ould lie. 
 
 Upon this point see fuither: Jones vs. J3aker, 7 Cow. (N. Y.), 
 
 455. Hewitt vs. , 75 Maine, 225. Jones vs. Gater, 43 
 
 Georgia, 331, Bixby vs. Dunlap, 56 N. H., 475. Baughman vs. 
 Richmond, in Richmond, Virginia, Circuit Court, 1877. Corey vs. 
 McGarigle, 34 N. W. Rep., 522. People vs. Parker, 34 N. W. Rep., 
 720. 22 Cent. Law Jour., 23.
 
 (14) 
 
 Time and space forbids a discussion of the civil liability on the 
 equity side of the court. So far we have expressed no opinion of our 
 own, but simply quoted from the decisions of the courts of last resor^; 
 of established reputation and integrity. Tried by the standard estab- 
 lished by these decisions, the evidence taken in the matter of the 
 strike of the Brotherhood of Engineers, and the conduct of many of 
 them since the strike, it is obnoxious to the principles of law here 
 laid down. 
 
 From the foregoing citations of adjudicated cases the crime of con" 
 spiracy has been known and recognized by the English common law 
 from time immemorial. Reg. vs. Parnell, 14th Co. & Cr. Cases, 508 
 and 516. Its limits are boundless, and may be made to cover almost 
 every conceivable agreement to do an unlawful or wrongful act, or a 
 lawful act by unlawful means. 
 
 Chief Justice Caton, in Smith vs. People, 25th III., 17, which was 
 an action for conspiracy to seduce a maiden, stated the rule, and the 
 general spirit of the American law, as follo\^s: "Conspiracies to ac- 
 complish purposes which are not by law punishable as crimes, but 
 which are unlawful as violations of the rights of individuals, have in 
 numerous instances been sustained as common law offences. The 
 law does not punish criminally every unlawful act, although it may 
 be a grievous offense to society, and in determining what sort of con- 
 spiracies may or may not be entered into without committing an offense 
 punishable by the law, regard must be had to the influence which the 
 act, if done, would actually have upon society, without confining the 
 inquiry to the question whether the act might itself subject the of- 
 fender criminal punishment." 
 
 The question whether in this state it is a crime for employes to 
 conspire to raise their wages and otherwise better their condition has 
 never come before our supreme court, although the same question has 
 come before the courts of other states in a number of nisi pj'ius cases, 
 and in a few cases before the state courts of last resort, and has been 
 finally settled in many of the states by statute. 
 
 The earliest case, Commonwealth vs. Pallas (or the trial of the 
 Journeymen Boot and Shoe Makers of Philadelphia, tried in Jan-
 
 (15) 
 
 tiary Sessions of the Mayor's Court of Pliiladolphia, 1806, reported 
 by Y. Llovd. See also Carson on Consj)iracy, 145.) In this (;ase 
 the defendants were found guiUy of a conspiracy to raise their wages, 
 and this case was followed by that of the Twenty-four Journeyman 
 Tailors, with the same result. 
 
 Of the ?»".s/ prius cases, the most thoroughly considered is that of 
 Commonwealth vs. Carlisle, 2d Brightly, 36, tried betore Judge 
 Gibson of Pennsylvania. In that case, the defendants were master 
 shoemakers, and they had agreed not to employ journeymen who 
 would not work under certain wages. They were arrested and a 
 writ of habeas corpus was sued out before Judge Gibson to discharge 
 them on the ground that a combination to regulate wages was no of- 
 fense in Pennsylvania. Judge Gibson, in the opinion rendered in that 
 case, said, "A combination is criminal whenever the act to be done 
 has a necessary tendency to prejudice the public, or to oppress indi- 
 viduals by unjustly subjecting them to the power of the confederates 
 and giving effect to the purposes of the latter, whether of extortion or 
 mischief." The defendants were remanded. 
 
 In The Commonwealth vs. Currin, one of the defendants, an in- 
 competent man, was discharged from a colliery, whereupon the em- 
 ployes struck and did not return to work until he was reinstated, a 
 period of three weeks or more. 
 
 In the course of Judge Byron's charge to the jury he stated, '* that 
 while a laborer had the right to work when, where, for whom, and 
 for such time as he may choose, still he has no right to dictate whom 
 the employer shall hire. If none but persons indicated can be em- 
 ployed, the employers are deprived of the right of ordinary compe- 
 tition, which not only tends to oppress individuals, but also to 
 prejudice the public, and hence is criminal." The defendants were 
 found guilty of a conspiracy and a new trial was denied. 68 Penn. 
 St., 173. 15 Phil., 356. 
 
 In 1872 and 1876 statutes were passed in Pennsylvania abrogat- 
 ing this scope of the common law in that state. 
 
 But enough has been shown to clearly establish the fact that the 
 strike of the Brotherhood engineers on the 27tli day of February
 
 (16) 
 
 last, and their attempt to dictate who the railroad company should 
 employ, was clearly illegal. The evidence of one of the striking 
 Brotherhood engirieers at McCook, shows that he went upon the 
 engine of the Burlington & Missouri River Kailroad in Nebraska, 
 which was being operated by an engineer hired to take the place of a 
 striking engineer, and oifered the engineer in charge of the engine 
 one hundred dollars to quit work, aa.d when he declined so to do, 
 threw him oif the engine. That this was one of the methods adopted 
 by the striking engineers, and he was acting for and on behalf of the 
 striking engineers, and the association known as the " Brotherhood 
 of Locomotive Engineers" furnished the money with M-hich to induce 
 the workmen who took the places of the striking Brotherhood to 
 quit the employ of the company. If this be so, then a criminal con- 
 spiracy existed on the part of the Brotherhood engineers, and they 
 rendered themselves liable for conspiracy, and liable for the damages 
 occasioned thereby. It would seem that there was culpable neglect 
 of duty at McCook on the part of the civil authorities in protecting 
 the property of the Burlington & Missouri River Railroad in Ne- 
 braska and preventing interference by the strikers with the men hired 
 to take their places. This was more apparent at McCook than at 
 Red Cloud or Wymore, although at each of these points the Broth- 
 erhood engineers and strikers carried matters to extremes, and over- 
 stepped the bounds of propriety. 
 
 In reply to the question, " Has the Burlington & Missouri River 
 Railroad in Nebraska employed incompetent engineers to run its trains 
 since the strike of February 27, 1888 ?" This question must be an- 
 swered in the affirmative. The strike of" that date was along the whole 
 line of the B. & M. system in Nebraska, including 2,000 miles of rail- 
 way, and without notice to the company or its officers. In a single day 
 all the Brotherhood engineers and firemen left its employ and stop- 
 ped the wheels of commerce, freight and passenger traffic. The rail- 
 road must either accede to the demands of the strikers or suspend 
 business, or make the best effort to operate its freight and passenger 
 trains, by employing such men and help as it could get. Its officials 
 chose the latter course, and in the exigency created by the strike, ii>
 
 (17) 
 
 many instances, employed men oi' little praetioal knowlLH.lge or expe- 
 rience to operate its locomotives, or in the management and control of 
 trains. These men were superseded by competent men at the earli- 
 est moment possible, and at the present time, May 15th, it is believed 
 the operating force on the Burlington & Missouri River Railroad in 
 Nebraska are as competent and capable as the force which struck on 
 ^the 27th of February last. 
 
 A strike of large numbers of workmen who occupy a (/ttai'i public 
 position in respect to their employment, who in fact serve the 
 public while receiving their wages Irom a railway corporation is, to 
 to the public, a calamity. The public at large suffer most, and the 
 damage and injury to the people at large is not to be measured by the 
 damage to the railroad corporation or the striking workmen. 
 
 Stopping the wheels of commerce suddenly and without notice on 
 a great line of railway means great damage to the public at large, and 
 may mean death and starvation to those who are dependent upon the 
 movement of the railway trains for their fuel in mid-winter, or their 
 daily food, and the idea that such a power is to be placed in the 
 hands of a combination of engineers and firemen of a railroad is 
 not to be tolerated in a free government, where each, in a measure, is 
 dependent upon the other performing his social duties to society. 
 
 The injury to the public, resulting from such conduct, cannot be 
 estimated, and it is respectfully submitted that the power to dictate a 
 strike, or inaugurate a strike, by the committee of control, or the cen- 
 tral head of these labor organizations, is an unmitigated evil to the 
 individual members of the organization, by depriving them, and those 
 dependent upon them, of the means of support, and in many instances, 
 compelling individual members to quit their jobs, through fear, when 
 their judgment and interests forbids them to do so. 
 
 The committee of control, or central head, exerciees and wields the 
 power of a tvrant with a despotic energy which not only stops the 
 wheels of commerce and paralyzes the business of the country, but 
 carries destitution and want to the homes of the members (»f the 
 organization which it claims to protect. Any arrangement, agree- 
 ment or organization which surrenders individual liberty of action,
 
 (18) 
 
 and the free exercise of individual judgment to one or many, is a 
 dangerous device for free men to subscribe to, who are seeking to 
 better their condition financially and socially, and the genius of free 
 government is opposed to such a })olicy. 
 
 By the submission to such a power, the laborer and employe in 
 advance submits to a species of slave power exercised by the committee 
 of control, or central head, and puts fetters of iron upon his ankles and 
 manacles of iron upon his wrists which binds him to the pace of the 
 slowest, aud removes afar off the day when he shall be an employer 
 and not an employe. 
 
 This power of the committee of control, or central head, to direct 
 a strike among laborers of any class is wrong and dangerous. 
 Every laborer should retain and hold more sacred than life itself, 
 his individual liberty of action. By so doing, he retains in his own 
 hands the ability and power to reach higher levels and a better for- 
 tune, and to dictate and control his own wages. It is a wronar — a 
 self-inflicted wrong — which the laborer imj>oses upon himself, when 
 he submits to a power other than his own judgment, to say when he 
 shall work, and when he shall remain idle. 
 
 If a laborer loses a day's work, it is gone forever, never to return. 
 Not so with capital ; the man who has aud holds the accumulated 
 wealth, may lay his dollar or dollars on the shelf or in the bank 
 vault, and go there at any future day and find it again, but a day's 
 labor lost, is forever lost, and the loss is absolute. 
 
 Capital, in the establishment of great trusts or combinations by 
 which each individual industry of a particular kind is brought un- 
 der control of the central head, has set an example dangerous to free 
 government and individual liberty, by the submission of each partic- 
 ular industry of that kind to the control of the central head, aud it 
 cannot too soon recede from this position and abandon its wrongful 
 effort to control prices in this manner. 
 
 Another great wrong and evil has been brought to the attention of 
 the board — not by evidence in this particular case — but in cases 
 A\'hich have come to their knowledge. 
 
 The habit or practice of great railroad corporations of blacklisting
 
 (19) 
 
 employes who had oll'eudecl the managers, and of noti lying other 
 railroad companies, and these companies placing the names of such 
 employes on the " black list," and refusing them employment. This 
 is a conspiracy, and is condemned by the law, and in many of the 
 cases cited in this report, and deserves the severest condemnation, and 
 legislation, making such conduct a penal offense, must receive the 
 sanction of all right-minded men. 
 
 O. P. MASON, 
 Sec^y State Board of Transportation.
 
 Ip
 
 Gaylord Bros., Inc. 
 
 Makers 
 Syracuse, N. Y. 
 
 PH. JAH 21, t90e
 
 UNivERsrry of illinois-urbana 
 
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