IE APPELLATE COURT OF COOK COUNTY, ILL. 
 
 RENDERS A SWEEPING OPINION ON 
 
 fhe Closed Shop 
 
 CALLS IT 
 
 A TRUST,” IN RESTRAINT OF TRADE, AND AN 
 ILLEGAL MONOPOLY. 
 
 CONTRACTS TO HIRE, ONLY UNION LABOR 
 ARE, CRIMINAL COMPACTS, MAKING 
 EMPLOYERS AS WELL AS EMPLOYES 
 LIABLE, TO IMPRISONMENT - THE, 
 FREEDOM OF NONUNION MEN 
 IS UPHELD. 
 
Hits Closed Shop, 
 
 Union labor’s restrictions excluding the nonunion work¬ 
 man from “unionized” factories, stores or workshops 
 have been branded as outlaw regulations in an epoch- 
 making opinion handed down last week in the appellate 
 court of Cook county. In the opinion, which was written 
 by Judge Adams, with Judges Windes and Ball con¬ 
 curring, the “open shop” for which employers have been 
 contending is vindicated and upheld, while its antithesis 
 and “rival,” the “closed shop,” enforced by the unions, 
 is permanently put outside the breastworks of legality, 
 as contravening and abridging the contract rights guaran- 
 teed by common law and the laws and constitution of the 
 state of Illinois. 
 
 In the important matter of contract rights the decision 
 is the most sweeping imaginable. It holds that the 
 “closed shop” agreements exacted from employers by 
 labor unions constitute an illegal infringement of con¬ 
 tract rights, and that the provision in such agreements 
 binding an employer to hire none but members of a labor 
 : union is an illegal abridgement of liberty, discriminating 
 in favor 6f one class of working people and excluding 
 all others. 
 
 A startling phase of the decision is that it puts into the 
 hands of the nonunion man, should he care to avail him¬ 
 self of the privilege, one of the most powerful weapons 
 in the law’s great armory. This formidable weapon is 
 found in the taint of “criminality” which the decision at¬ 
 tributes to the conduct of the parties contracting to main¬ 
 tain or establish the “closed shop.” 
 
 The employer who signs the closed-shop contract, as 
 
2 
 
 well w «af Jtfje febor union which procures his signature by 
 ** *, threats lib Strikes* or in other ways, is in this opinion 
 V -JteTd‘ to { be;^fc^rifible to the criminal laws for conspiring 
 tojqj Wreathe, property rights 5 ' of a workman in his labor. 
 
 ^Jjtc'in th.e future any employer signs a closed-shop 
 • agreement^wiilf union or non-union workers," said one 
 of fth^;-lading lawyers in the case, “such employer will 
 NoSo with the full knowledge that he is laying himself 
 liable to the criminal as well as the civil code, and that 
 any nonunion or union workman excluded under the 
 signed agreement has a double-edged weapon of the law 
 with which to enforce his right to be free from the handi¬ 
 cap of a conspiracy of discrimination when he seeks em¬ 
 ployment in any workshop, store, factory or other place 
 of business." 
 
 It will even be a crime to submit a closed-shop agree¬ 
 ment in the future to an employer for his signature. For 
 it is itself a crime to ask anybody to commit a crime. 
 
 IS CLOSED SHOP CRIMINAL? 
 
 From this point of view the decision may be regarded 
 as putting the ban of criminality as well as illegality upon 
 all the closed-shop agreements actually obtained or vainly 
 demanded by members of labor unions from their employ- 
 * ers. Should the employer be able to show that he signed 
 the closed-shop contract under the compulsion of a threat¬ 
 ened strike he may be able to escape liability. But in 
 every case where he enters into the exclusive agreement 
 voluntarily the employer is likely to be adjudged equally 
 as guilty under the law as the labor union members or 
 officials at whose solicitation he executes the illegal con¬ 
 tract. 
 
 Contracts or agreements for the maintenance of the 
 “closed shop" are therefore merely so much worthless 
 paper. From the point of view of law and constitutional 
 guarantees they are even worse than worthless. It might 
 be that the very act of circulating them would be con¬ 
 strued to be a crime, and it certainly could not be a very 
 
3 
 
 safe or comfortable thing for a walking delegate or other 
 labor leader to be caught with a supply of them in his 
 pockets. Mere possession of them might not be deemed 
 a crime, but should any of the documents have a bona 
 fide signature a good deal of trouble might follow at the 
 hands of anybody who should care to put the machinery 
 of the courts in motion. 
 
 Another remarkable feature of the ruling is that under 
 its terms all the closed-shop contracts wrung from em¬ 
 ployers under duress or threats of strikes and other trou¬ 
 bles, are obviously rendered null and void. Employers 
 cannot be held by them to the maintenance of the closed 
 shops promised. The agreements have no binding force 
 in law, the employer incurs no legal obligation under 
 them, the performance of none of the restrictive regula¬ 
 tions will be enforced by a court and the members of the 
 labor unions secure no legal rights or advantage from 
 the employer’s signature. 
 
 UNIONS WORSE OFF THAN BEFORE. 
 
 What is more, it even seems that union workers who 
 have wrung a closed-shop agreement from an employer 
 are really worse off for having obtained it. For in the 
 event that they strike to enforce its terms they incur 
 an additional responsibility under the criminal laws—an 
 additional responsibility that would not exist if the ille¬ 
 gal contract had not been obtained. 
 
 It is likely, therefore, that this momentous decision 
 will be of more far-reaching effect than is yet dreamed 
 of either by the union workers or the employers. How 
 it can fail to influence the employers is not an easy thing 
 to reason out. Almost without a doubt it will “stiffen 
 their backbones” in the fight they have been making for 
 “the open shop.” But what is even more significant is 
 that the decision—should it be upheld, as seems certain, 
 in the supreme tribunals of the state or nation—is prac¬ 
 tically certain to result in the complete abrogation of the 
 “closed-shop” contracts between employers and employes, 
 as neither of the traditional parties to such contracts will 
 
4 
 
 care to place themselves in the power of the criminal pros¬ 
 ecutors. 
 
 In the true and literal sense the death knell of the 
 closed shop has, therefore, been sounded in Illinois. In¬ 
 dictment and criminal trials and convictions of the parties 
 to such agreements, whether employers or employes, 
 might be sought and obtained at any time in the local 
 courts, and it is hardly probable that any reckless risk of 
 that sort will be invited. 
 
 ’On the broad and high ground of the public good the 
 closed shop is condemned by the appellate court. The 
 system is declared to be in restraint of trade and against 
 sound public policy. In this sense the ruling may have 
 an important bearing on that most momentous issue of 
 the times—the problem of curbing and regulating the 
 great industrial trusts or monopolies. Judge Adams 
 places “the union labor trust” on the same plane with 
 the industrial trusts as an agency whose inevitable ten¬ 
 dency is to restrain trade. His opinion on this interest¬ 
 ing point is emphatic and leaves not a single loophole of 
 escape for the labor union system placed under the ban. 
 
 It is one of the first great judicial opinions, if not the 
 very first, in which union labor is pronounced a “trust 
 in restraint of trade.” With inexorable logic the jurist 
 shows how the closed-shop agreement demanded by union 
 labor is in its essence a trust and tends to create an illegal 
 monopoly in favor of one class of workmen—the members 
 of labor unions. 
 
 WHY THE CLOSED-SHOP CONTRACT FAILS. 
 
 Inasmuch as no citizen may lawfully bind himself by 
 contract never to do any work of any kind during his 
 lifetime, neither can he contract or conspire to keep oth¬ 
 ers idle for all time unless they do a certain thing to please 
 him—join a labor union. He may individually deny 
 work to nonunion working people, but he cannot legally 
 contract to deny work to any particular worker or class 
 of workers. Should he do anything of the sort he would 
 be guilty of an unlawful conspiracy—a conspiracy in re- 
 
5 
 
 straint of trade and subversive of sound public policy — 
 and he is liable to be punished as one of a despotic band 
 of conspirators and ostracisers. 
 
 Eminent lawyers in practice at the local bar have held 
 for some time that the “closed shop” contract of the labor 
 unions was a violation of the common law and the civil 
 code as well as the criminal statutes. It was so held in 
 a sensational opinion delivered some months ago by the 
 law firm of Moran, Mayer & Meyer to the Illinois Manu¬ 
 facturers' association. It was so maintained in the brief 
 of Tenney, Coffeen & Harding, Allen & Wesemann and 
 James H. Wilkerson submitted to the appellate court in 
 the famous Kellogg strike case—that case that has just 
 been decided against the “dosed shop” in the opinion 
 of Judge Adams. « 
 
 All the law of the subject has been presented in the 
 great argument compiled by Attorneys Tenney and Wil¬ 
 kerson. The appeal was from the injunction granted by 
 Judge Holdom against the strikers at the plant of the 
 Kellogg Switchboard Company. 
 
 For the strikers Attorney Clarence S. Darrow sub¬ 
 mitted a brief which the court has quoted “as illustrative 
 of their view of the case,” as follows: 
 
 “How do picketing, patrolling or even slugging affect 
 property rights except in the most fantastic sense? In¬ 
 jury to business has no independent existence whatever, 
 because business has no tangible existence to be injured 
 in the true and unperverted sense.” 
 
 But the court very promptly rejects and scouts Mr. 
 Darrow's fantastic interpretation of the law, citing against 
 counsel as “elementary principles” that “a man's business 
 is his property” and “that the freedom of business action 
 lies at the foundation of all commercial and business en¬ 
 terprises.” 
 
 TEXT OF THE OPINION. 
 
 The gist of Judge Adams' opinion is contained in the 
 following synopsis copied from the records of the ap¬ 
 pellate court: 
 
6 
 
 "In the present case we think the petitions amply suf¬ 
 ficient; that it is not necessary that one shall be a party 
 to the bill or officially served with the writ in order for 
 him to be bound by the injunction, but only that he shall 
 have actual notice of it. It is contended that the con¬ 
 tempts are criminal and appellants should have been dis¬ 
 charged on their answers. The relief sought is a per¬ 
 manent injunction and preliminary thereto a temporary 
 one of the same character as the permanent one prayed. 
 Manifestly the preliminary injunction is for the benefit 
 of the complainant and therefore its enforcement is for 
 its benefit. 
 
 "The injunction and its enforcement, being for the 
 complainant’s benefit, the proceedings must be regarded 
 as civil. Appellant’s counsel object to the overruling by 
 the court of motions for bills of particulars and to a hear¬ 
 ing on affidavits instead of calling witnesses and examin¬ 
 ing them in open court. It was clearly a matter # within 
 the discretion of the court as to whether or not a bill of 
 particulars should be ordered. And we are of the opin¬ 
 ion that bills of particulars were unnecessary to enable 
 appellants to prepare their defense, as the affidavits set¬ 
 ting forth the facts are made a part of the informations. 
 Defendants admitted that they were picketing complain¬ 
 ant’s place of business and interferng with ks employes 
 and with persons seeking employment with it, notifying 
 them of the strike and persuading the former to leave its 
 employ and the latter not to enter it. 
 
 "Appellants deny that they used force, threats or in¬ 
 timidation of any sort and say they were peaceable and 
 mildly persuasive. But the very presence of a large num¬ 
 ber of pickets, with the avowed purpose of preventing 
 plaintiff’s employes from remaining in its employ and of 
 preventing those seeking employment from entering it 
 was in itself intimidation. When a thousand laborers 
 gather around a railroad track and say to those who seek 
 employment they had better not, and that advice is sup¬ 
 plemented every little while by a terrible assault upon 
 one who disregards it, everyone knows something more 
 
7 
 
 than advice is intended. It is coercion, force; it is the 
 effort of many by the mere weight of numbers to compel 
 the one to do their bidding. 
 
 SLUGGING AND THREATS BY PICKETS. 
 
 “The affidavits show that defendants picketed and pa¬ 
 trolled around and about complainant’s place of business, 
 watching the streets, alleys and approaches thereto, daily 
 shifting their positions; that they so stationed themselves 
 that the complainant’s employes were obliged to pass 
 through their picket line; that their attitude was ugly and 
 menacing such as to cause fear in the mind of an ordi¬ 
 nary person. Complainant’s employes and persons seek¬ 
 ing employment were waylaid on their way to and from 
 the factory; they were insulted and threatened and in 
 numerous instances assaulted and beaten by the strikers, 
 pickets and patrollers, and complainant’s business was 
 seriously and injuriously interrupted. All teaming and 
 hauling of merchandise to. and from complainant’s fac¬ 
 tory was stopped. 
 
 “The purpose of the strike by complainant’s employes 
 and their prosecution of it, as described, was to compel 
 the complainant to execute the agreements referred to 
 and made a part of the bill. The drafts of agreements, 
 three in number, purport to be with the different unions 
 whose members were in complainant’s employ. The 
 draft of agreement with the Metal Polishers, Buffers, 
 Platers, Brass Molders and Brass Workers’ International 
 Union of North America, International Union of Steam 
 Engineers and International Brotherhood of Stationary 
 Firemen contain the following: 
 
 “Article 1. The party of the first part hereby agrees to em¬ 
 ploy none but members of the aforesaid organizations or those 
 who carry the regular working card of the said organizations, 
 provided the various crafts will furnish such competent help as 
 may be required by the party of the first part within twenty- 
 four hours after notification. 
 
 “Art. 7. There shall be a steward for each craft in each fac¬ 
 tory appointed by the organization, whose duty it shall be to see 
 that the men working in said factory belong to the organizations. 
 
8 
 
 “Art. 8. It is hereby agreed by the party of the first part that 
 the business agent of the party of the second part shall have the 
 privilege of interviewing any member of the party of the second 
 part in the offices of the party of the first part during business 
 hours. 
 
 “Art. 10. A sympathetic strike to protect union principles 
 shall not be considered a violation of this agreement. 
 
 “Art. 11. All the apprentices shall belong to the union and 
 carry the working card of the organization. 
 
 “Art. 12. The number of apprentices not to exceed one for 
 ten men or less of the different crafts.” 
 
 “That the purpose of the strike was to compel the 
 execution of the drafts of agreement is clear. It is 
 averred in the sworn bill and deposed to in the affidavits 
 of De Wolf, complainant’s president; Kellogg, its secre¬ 
 tary and treasurer, and Edwards, its superintendent, that 
 business agents of the different unions called on com¬ 
 plainant and insisted on its executing the agreements and 
 that, when complainant’s president refused, on the ground 
 that the proposed agreements were unreasonable, it was 
 threatened by one of said business agents that unless 
 complainant would sign the agreements a strike would 
 be called and that said business agents called a strike, 
 in response to which about 500 of complainant’s em¬ 
 ployes quit its employ. Appellant’s counsel admit in their 
 brief the purpose of the strike is to bring about the ex¬ 
 ecution of the contracts, and at least three of the appel¬ 
 lants so admit in their answers. It is unlawful to compel 
 one to execute any contract. A contract executed under 
 duress is voidable, and duress is present where a party 
 ‘is constrained, under circumstances which deprive him 
 of the exercise of free will, to agree or to perform the 
 act sought to be avoided.’ 
 
 “Duress exists when a person is induced to perform 
 an act to avoid a threatened and impending calamity. 
 Especially was the purpose to compel complainant to ex¬ 
 ecute the agreements in question an unlawful purpose. 
 Article 1 of the agreement strikes at the right of contract 
 and provides that complainant shall employ none but 
 members of the several unions, thus discriminating in 
 favor of one class of men and excluding all others. In 
 
9 
 
 Matthews vs. The People, 202 Ill., 389, the court, dis¬ 
 cussing the constitutionality of the free employment 
 agency act, says (page 401) : 'An employer whose work¬ 
 men have left him and gone on a strike, particularly^ when 
 they have done so withdut any justifiable caus^J iS entitled 
 to contract with other laborers or Worftrfryn to "fill the 
 places of those who have left him. Any 1 Workman, seek¬ 
 ing work has a right to make a contract with such’ em¬ 
 ployer to work for him in the place of any tfn’e of the men 
 who have left him to go out upon a strike.:' Hier/forc, 
 the prohibition contained in section 8 strikes at rig'^t of 
 contract, both on the part of the laborer and of the em¬ 
 ployer. It is now well settled that the privilege of con¬ 
 tracting is both a liberty and a property right. Liberty 
 includes the right to make and enforce contracts, because 
 the right to make and enforce contracts is included in the 
 right to acquire property. Labor is property. To de¬ 
 prive the laborer and the employer of this right to con¬ 
 tract with one another is to violate section 2 of article 2 
 of the constitution of Illinois, which provides that 'no 
 person shall be deprived of life, liberty or property with¬ 
 out due process of law/ It is equally a violation of the 
 fifth and fourteenth amendments of the constitution of 
 the United States. The provision embodied in section 
 8 'is a discrimination between different classes of citizens 
 founded on no justifiable ground and an attempt to exer¬ 
 cise legislative power in behalf of certain classes and 
 against other classes, whether laborers seeking work or 
 employers. It falls under the condemnation of the con¬ 
 stitution/ 
 
 "The agreement in question would, if executed, tend to 
 create a monopoly in favor of the members of the differ¬ 
 ent unions, to the exclusion of workmen not members of 
 such unions, and are, in this respect, unlawful. Contracts 
 tending to create a monopoly are void. 
 
 "The legislature of the state cannot create a monopoly. 
 
 ft 
 
 A 
 
IO 
 
 VIOLATED CRIMINAL CODE. 
 
 “The purpose of the strikers is in violation of the 
 criminal code, which provides as follows: 
 
 Purpose to Enforce Closed Shop. 
 
 - t See, 158. If; • two or more persons shall combine for the 
 purpose of depriving the owner or possessor of property of its 
 lawful ,use And management, or of preventing, by threats, sug¬ 
 gestions‘of dagger, or by any unlawful means, any person from 
 being employed by or obtaining emplpyment from any such owner 
 or possessor of property, on such terms as the parties concerned 
 ma^ragree upon, such persons so offending shall be fined not ex¬ 
 ceeding $500 or confined in the county jail not exceeding six 
 months. 
 
 Sec. 159. If any person shall, by threat, intimidation or un¬ 
 lawful interference, seek to prevent any other person from work¬ 
 ing or from obtaining work at any lawful business, on any terms 
 that he may see fit, such person so offending shall be fined not 
 exceeding $200. 
 
 Not only was the purpose of the strike unlawful but 
 the means used to achieve the unlawful purpose were un¬ 
 lawful. The means used were the acts heretofore men¬ 
 tioned, and thereby injury to the complainant’s business. 
 The appellants and their associates intended to stop the 
 business of the complainant so far as they possibly could, 
 and the evidence shows that they did stop it in great 
 part to complainant’s injury. The following is contained 
 in the brief of appellant’s counsel, which we quote as il¬ 
 lustrative of their view of the cause: 'How do picketing, 
 patrolling, persuading or even slugging affect property 
 rights, except in the most fantastic sense? Injury to 
 business has no independent existence whatever, because 
 business has no tangible existence to be injured in the 
 true and unperverted sense.’ 
 
 BOOMERANG FOR ATTORNEY DARROW. 
 
 “In the case of the Union Pacific Railway Company vs. 
 Ruef, cited by counsel for appellants, the court says: 
 'And that one’s business is his or its property is likewise 
 elementary and is conceded by all.’ 
 
“A man's business is his property. The freedom of 
 business action lies at the foundation of all commercial 
 and industrial enterprises.' 
 
 "We know of no well considered case, or, indeed, of 
 any case, holding that a combination of persons to injure 
 the business of another is not unlawful. That the ap¬ 
 pellants, and others associated with them, acted in con¬ 
 cert, in unlawfully endeavoring to injure, and, in fact, in¬ 
 juring complainant's business for an unlawful purpose, 
 is fully sustained by the evidence. They conspired, 
 banded together, to effect the unlawful purpose, and by 
 overt acts did all they possibly could to that end. It is not 
 necessary to prove an express agreement between the 
 appellants and those associated with them. It may be 
 proved by circumstantial evidence. 
 
 "Each conspirator is responsible for the acts and declar¬ 
 ations of every other conspirator in furtherance of the 
 common purpose. The conspiracy originated simultane¬ 
 ously with the calling of the strike and continued until 
 the filing of the last petition, July 14, 1902. It was a 
 single conspiracy. And the court on the hearing of each 
 of the second and third petitions did not err in hearing 
 the prior evidence. The evidence was competent as trac¬ 
 ing and showing the character of the conspiracy. It is 
 an indispensable condition of the enjoyment by each citi¬ 
 zen of the liberty and rights guaranteed by the constitu¬ 
 tion and laws that he shall respect and not unlawfully in¬ 
 fringe upon the liberty or rights of any other citizen. 
 This cannot be done with impunity." 
 
 Jail sentences and fines imposed by Judge Holdom on 
 twenty-three of the strikers are upheld in the opinion. 
 But in the case of one defendant, Mashek, the length of 
 the jail sentence is reduced. 
 
 "Mashek was sentenced to the county jail for sixty 
 days," says the opinion, "while Christensen was sentenced 
 to be committed for only thirty days. 
 
 "We cannot find in the evidence any reason for this 
 discrimination. Mashek is not shown to have been more 
 guilty than Christensen. On the contrary, we think if 
 
12 
 
 there was any difference in the guilt of the two Mashek 
 was the less guilty. The judgment, therefore, in Mashek 
 vs. The People, will be reversed and judgment will be 
 entered here that Mashek be committed to the county 
 jail, there to remain for thirty days, unless sooner legally 
 discharged. In each of the other appeals, the judgment 
 is affirmed.” 
 
 It is likely that the case will go to the supreme court 
 of Illinois on further appeal. But there is no chance for 
 it to reach the highest tribunal of the nation, the United 
 States supreme court, as no question of interstate com¬ 
 merce is involved. 
 
 "It is impossible to exaggerate the importance of this 
 decision/' said Horace K. Tenney, in an interview. 
 “Judge Adams is one of the most eminent jurists on 
 the bench, and I am confident his decision will be sus¬ 
 tained in the state supreme court, to which the cases are 
 likely to go on another appeal. Briefly, the grounds of 
 the decision may be said to be that the closed-shop con¬ 
 tracts are opposed to sound public policy, as well as the 
 statutory and common law and the constitution of the 
 state of Illinois. Why they are opposed to public policy 
 is because they are agreements in restraint of trade. The 
 reasoning and the law upon that point are clear and un¬ 
 mistakable. The strike was called to enforce the con¬ 
 tracts submitted by the union for the closed shop. The 
 union's representatives called upon the president of the 
 company and produced the contract, demanding that he 
 sign it on penalty of having a strike put in force in his 
 establishment. He refused to sign and the strike was 
 called. Thus the issue of the closed shop—excluding 
 all but union men from the privilege of work in the Kel¬ 
 logg plant—was squarely presented to the court. And 
 the court has squarely decided in favor of the open shop, 
 which is the open door of trade and commerce in the 
 nation. The closed shop is simply a boycott of work¬ 
 men, and no court in this country has yet decided that 
 before a man is eligible for work in a factory or store he 
 must have a permit or union labor card from the officials 
 
13 
 
 of certain organizations whose decrees have no binding 
 force tin law. 
 
 “A remarkable feature of the case was that Judge 
 Adams held the closed shop contract to be a violation of 
 the criminal as well as the civil code of the state of Illi¬ 
 nois. On this point the decision is significant in that i' 
 provides the employers with a powerful weapon in future 
 negotiations with labor leaders. It is now clear that by 
 the very fact a labor leader or delegation of members 
 from a union present a copy of a closed shop agreement 
 for an employer’s signature the person or persons doing 
 such a thing are amenable to the criminal code and may 
 be given a term in the county jail for the mere act of 
 demanding or asking the employer’s signature. It is, 
 therefore, likely that no more will be heard of the pres¬ 
 entation of agreements for closed shops, especially if 
 Judge Adams’ decision is affirmed in the court of last re¬ 
 sort in Illinois.” 
 
 EMPLOYERS’ WEAPON OF DEFENSE. 
 
 “It is one of the most important decisions ever rendered 
 in the courts of Illinois,” said Attorney M. L. Coffieen. 
 “It points out clearly wherein the operations of labor un¬ 
 ions enter the domain of the criminal. It will be an un¬ 
 assailable barrier and protection for employers, as the 
 terrorism of labor unions is directly rebuked by Judge 
 Adams. It is not likely that the contract agreements for 
 the ‘closed shop’ can survive this decision. The court 
 holds that the closed shop is a crime. So 1 the employer 
 will have unanswerable reasons in future for refusing to 
 become particeps criminis with labor union leaders in any 
 agreement, oral, written or implied, for the maintenance 
 of the closed shop anywhere in Illinois. It is no exag¬ 
 geration to say that the opinion means’ the legal death 
 of the closed shop and the triumph of the nonunion man’s 
 right to an open shop, where he may have an equal chance 
 with the union worker to obtain and retain employment.” 
 
 John M. Glenn, secretary of the Illinois Manufacturers’ 
 association, said: “It is an epoch-making decision and 
 
14 
 
 may prove the most momentous ever delivered on an in¬ 
 dustrial question in any court .of this country/’ 
 
 Attorney Azel F. Hatch, who recently won encomiums 
 from a distinguished audience by a paper entitled “The 
 Rights of the Nonunion Man,” which he read before the 
 Literary Society, discussed the decision as follows: 
 
 “The agreement which was submitted by the unions 
 to the Kellogg Switchboard and Supply Company and 
 which is commented upon in the opinion of Judge Adams 
 in the case of Christensen vs. The People would have 
 created a closed shop. This decision accordingly passes 
 upon the legality of the closed shop and states very 
 plainly and forcibly the law in relation to the closed shop. 
 
 “This decision not only is based upon the highest au¬ 
 thority but it commends itself to the reason of every dis¬ 
 passionate and fair-minded person. The closed shop is 
 simply an attempt to establish a local monopoly by ex¬ 
 cluding from the shop all persons not members of the 
 union or unions there employed. It is clearly an illegal 
 combination for the purpose of wrong and injury to oth¬ 
 ers for the benefit of the members of the conspiracy, 
 and is properly held to be unlawful and criminal. It fol¬ 
 lows as a natural consequence that any party to such 
 a conspiracy, either as an employer or as an employe, 
 is liable to criminal prosecution and punishment. 
 
 “The promulgation and enforcement of the principles 
 laid down in this decision will be wholesome in many 
 ways and will tend to put a stop to the violence and as¬ 
 saults upon nonunionists who are satisfied to labor upon 
 the terms offered by the employers. 
 
 “Any combination of individuals for the purpose of in¬ 
 juring others or depriving them of their lawful right to 
 contract or to engage in employment ceases to be an 
 organization protected by the law and becomes a con¬ 
 spiracy as criminal as the Molly Maguires or Ku Klux 
 Klan. The sooner such organizations are rooted out the 
 better for the peace and security of the community.” 
 
i5 
 
 CLOSED SHOP A CRIME, SAYS MR. MAYER. 
 
 “The exhaustive and able opinion of the appellate 
 court, just rendered by Judge Adams, the presiding jus¬ 
 tice, should prove epoch-making/’ said Levy Mayer. “The 
 opinion is a thorough and rugged review, both upon prin¬ 
 ciple and authority, of one of the most important ques¬ 
 tions that have ever confronted the employer. It is the 
 first opinion rendered in this state upon the question of 
 the legality of a contract by which the employer agrees 
 not to employ nonunion labor. 
 
 “All other economic and legal questions aside, it now 
 becomes in this state a complete answer to the demand 
 of the closed shop that the law stamps such an arrange¬ 
 ment as a criminal conspiracy. It is elementary that the 
 crime of conspiracy consists of a combination of two or 
 more persons to effect an illegal purpose, either by legal 
 or illegal means. The dispute has always been as to 
 whether a contract not to employ nonunion labor is an 
 agreement to effect an illegal purpose. It has been as¬ 
 serted over and over again by those advocating the 
 closed shop that an agreement to employ only union labor 
 is perfectly legal and binding. 
 
 “The courts have frequently heretofore held illegal an 
 agreement among members of an association to withdraw 
 their patronage from anyone who sold to one who was 
 not a member of the association or an agreement which 
 permitted members of an association to make purchases 
 only from such as sell exclusively to members of the as¬ 
 sociation. I have never been able to appreciate the dis¬ 
 tinctions which some courts have endeavored to make be¬ 
 tween cases of the kind I have indicated and cases where 
 the right to employ nonunion labor was involved. There 
 is no doubt that persons may combine for legitimate pur¬ 
 poses and that an individual may refuse to deal with any 
 particular person or class of persons and base such re¬ 
 fusal upon mere whim or caprice, but it has been my opin¬ 
 ion, and I am more than gratified to find it sustained by 
 the appellate court, that a number of persons cannot com¬ 
 bine with the object of compelling the adoption of a con- 
 
i6 
 
 tract which prohibits the employer from employing non¬ 
 union labor. 
 
 CONTRACT IS A CRIMINAL CONSPIRACY. 
 
 “If such a contract is entered into it is illegal and 
 under the decision of the appellate court constitutes a 
 criminal conspiracy, to which not only the union but the 
 employer becomes a party and for which not only the 
 employe but the employer is- subject to fine or imprison¬ 
 ment in the penitentiary, or both, under our criminal 
 statutes. There are a vast number of manufacturing 
 concerns in this state that have written contracts with 
 labor unions which prohibit the employment of nonunion 
 labor. Under this decision of the appellate court many 
 hundreds, if not thousands, of employers, as well as 
 many thousands of employes, have thus deliberately be¬ 
 come parties to a criminal conspiracy of which the con¬ 
 tracts furnish the written and unanswerable proof. 
 Where such arrangements exist the crime cannot be wiped 
 out by the cancellation of the contracts, but a continued 
 recognition of the binding force of such contracts, in 
 the light of the recent decision of the appellate court, may 
 create trouble of a kind little dreamed of by those who 
 have permitted themselves to be forced or lulled into 
 them. 
 
 “The fact that laborers have the right to refuse to 
 work for a man who does not employ union labor, or in 
 order to better their condition or advance their wages, 
 does not authorize the making of a contract under which 
 the employer is compelled to employ only union labor and 
 to discharge nonunion labor. The rights of the employer 
 and employe are, and should be, synonymous, but 
 employes cannot, by combination or union, without 
 committing the crime of conspiracy, force employers to 
 agree to employ only union labor. When employers do 
 become parties to such an agreement they are equally 
 guilty of conspiracy. 
 
 “The opinion of the appellate court should be studied 
 at once by every employer of labor in this state and when 
 
17 
 
 the employer, awakes to the situation that he is a party to 
 a criminal conspiracy the floodgates will open and non¬ 
 union labor will, I think, receive the protection that all of 
 the injunctions and processes of the courts have hereto¬ 
 fore been unable to give them.” 
 
Closed Shop Unlawful and Criminal. 
 
 Of all the court decisions affecting the right of contract 
 none is of such vital importance to employers and em¬ 
 ployes as the one recently handed down by the appellate 
 court of Cook county concerning what is known as the 
 “closed shop” contract, for it goes to the very heart of the 
 question out of which arises the chief contention between 
 labor unions and employers. 
 
 The decision of the appellate court specifically declares 
 that the parties to such contracts, if compulsion be used, 
 are guilty of an unlawful act, and if entered into volun¬ 
 tarily are guilty of a criminal conspiracy. These declara¬ 
 tions are based upon the accepted principles of common 
 law, the guarantees of the state and the national constitu¬ 
 tion and the specific language of the criminal statutes. • 
 
 Under the law of contracts it is not only unlawful to 
 compel one to execute a contract, but a contract executed 
 under duress is voidable. Such is the nature of most of 
 the “closed shop” contracts, for, although the employer 
 apparently may exercise free will, the fact remains that 
 the majority of closed shop contracts are executed to avoid 
 a strike or to end one already existing, and the court de¬ 
 clares that “duress' exists when a person is induced to per¬ 
 form an act to avoid a threatened and impending calam- 
 ity.” 
 
 The “closed shop” contract is in itself a denial of free¬ 
 dom of contract both to employers and to nonunion work¬ 
 men and therefore a violation of fundamental law. Free¬ 
 dom of contract has been defined by the supreme court 
 of the state as both a liberty and a property right. Labor 
 is declared to be property, and, therefore, to deprive the 
 laborer and employer of this right to contract with one 
 
19 
 
 another is held to be a violation of section 2, article 2, of 
 the constitution of Illinois, which provides that “no person 
 shall be deprived of life, liberty or property without due 
 process of law.” The labor unionists have the same free¬ 
 dom of contract as any other persons, but when they enter 
 upon a contract for a “closed shop” they attempt to de¬ 
 prive all who may not be members of unions of the same 
 right, and therefore are guilty of an unlawful act. 
 
 The “closed shop” contract, according to the supreme 
 court decision to which the appellate judges refer, is 
 equally a violation of the provisions of the constitution 
 of the United States guaranteeing “life, liberty and prop¬ 
 erty,” as in the Illinois constitution, together with the 
 further guarantee that the privileges shall never be 
 abridged, and prohibiting discriminations between citi¬ 
 zens. 
 
 As the legislature of the state is powerless under the 
 constitution to create a monopoly, it must be apparent that 
 the labor unions cannot exercise such power, and there¬ 
 fore the declaration of the appellate court that the closed 
 shop agreements tend to create a monopoly in favor of 
 union labor, and hence are unlawful and void, impresses 
 one as obviously true and legally sound. 
 
 The constitutional provisions and general principles of 
 law enunciated in the foregoing have to do with the un¬ 
 lawful acts of the parties to the closed shop contract and 
 the illegality and invalidity of such an agreement. The 
 criminal statute governing the offense is not less explicit. 
 Where two or more persons combine by unlawful means 
 to .prevent any person from obtaining employment section 
 158 of the criminal code provides both a fine and impris¬ 
 onment. 
 
 Under this law, as interpreted by the decision, employ¬ 
 ers and labor unionists who have entered into an agree¬ 
 ment for a “closed shop” are guilty of an unlawful act, 
 which, if voluntarily performed, constitutes a criminal 
 conspiracy. Neither employers nor labor unionists who 
 hereafter enter into agreements for a “closed shop” can 
 plead ignorance of their legal rights in palliation. If the 
 
20 
 
 employer be coerced he is nevertheless guilty of an un¬ 
 lawful act for which there are ample remedies at law; if 
 he voluntarily enters into such a contract he can be prose¬ 
 cuted under the criminal statutes. 
 
 The “closed shop” is the crux of the whole labor union 
 situation. It is not a subject for legislation to be made 
 the shuttlecock of vociferous demagogues, but one to be 
 dealt with by the dispassionate judgment of the courts. 
 The beginning made by the appellate court of Cook 
 county is an indication that the question will be deter¬ 
 mined in accordance with the established principles of jus¬ 
 tice and right. There is every reason to believe that the 
 supreme court will take the same view of “closed shop” 
 contracts as that held by Judges Adams, Windes and Ball 
 of the appellate court, for the latter are all men of long 
 judicial experience and of able and temperate judgment. 
 
 Moreover, the decision of the appellate court rests in 
 part upon a decision of the supreme court and there is no 
 utterance of the appellate court at variance with that de¬ 
 cision. 
 
 [From the Chicago Chronicle] 
 
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