The validity of the agreement binding members of a union does not ordinarily become of direct importance. Unions have other ways of making their members comply with what they undertook on becoming members, than by bringing actions at law. But indirectly the question is of great importance. Many statutes now make contracts in restraint of trade a tort or a crime. If indeed a statute confines its prohibition to combinations restraining trade in "commodities," 92 a trade union is not obnoxious to it. Labor is certainly not a "commodity"; but it is equally true that the invalidity of contracts in restraint of trade does not relate exclusively or even primarily to commodities. The typical cases on which the law on the subject has been built relate to contracts restricting the right to labor; and if a statute simply refers to contracts or combinations in restraint of trade, the phrase should naturally and properly be held to include such contracts and agreements as the common law held invalid for that reason. Such has been the construction of the Sherman Act.93 It would seem, therefore, that labor unions would come within the prohibition of such a statute. In another way it becomes of indirect importance to decide whether the agreement between members of a trade union is an unreasonable restraint of trade. Contracts, e. g., for the erection of buildings or for manufacture of goods, often provide that union labor only shall be employed, though neither party is a member of the union, but merely desires to avoid boycotts and other troubles. The Alabama court properly held on demurrer to a complaint on such a contract .that it could not take judicial notice of the nature of a union, and that perhaps union men were desired because they were more efficient,94 but if evidence were introduced showing that a union was a combination in unreasonable restraint of trade and that the provision regarding union labor in the contract was due to the success of the purposes of the combination, and that enforcement of the provision involved a furtherance of those purposes, it seems that the provision should be held invalid.95
92 As in Iowa, see - .Rohlf v. Kasem-eier, 140 la. 182, 118 N. W. 276, 23 L. R. A. (N. S.) 1284, 132 Am. St. Rep. 261.
93See infra, Sec.1658. In Loewe v. Lawlor, 206 U. S. 274, 52 L. Ed. 488, 28 S. Ct. 301 (on demurrer), 235 U. S. 522, 59 L. Ed. 341, 35 S. Ct. 170 (after trial on the facte), the Supreme Court held a union of hatters liable under the Sherman Act. It is true that the language of the court does not intimate that the union would have been obnoxious to the Act if its purposes and acts had been confined to an agreement of all to refuse to work if a certain scale of wages was not paid. There was evidence of endeavoring to boycott and to induce others to boycott the plaintiff's goods. Presumably, however, this weapon is part of the regular armory of all powerful unions. See also Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492, 34 L. R. A. (N. S,) 874. The illegality under the Sherman Act, of an association of grocers, members of which agreed with one another not to sell to certain persons was decided in United States v. Southern Wholesale Grocers' Assoc, 207 Fed. 434. The Clayton Act subsequently has nullified the Sherman Act, so far as labor unions are concerned. See infra, Sec. 1658; but the principles of the decision may well be applicable to oases arising under state statutes.
In the absence, however, of evidence of by-laws or practices contemplating tortious means by which a labor union was seeking to attain its ends, it is unlikely that this view would be taken, if the union was organized for the ordinary objects of a labor union. An agreement by an employer with a union to give all his work to members of the union has been held a valid agreement; 96 at least unless the agreement involved a monopolizing of all employment of the kind in the community.97 The inquiry might also sometimes be pertinent whether the employer had entered into the contract under duress.98 On the other hand, an employer may lawfully make it a term of his contract with his employees that they shall not join a union while the employment continues and such a provision will be enforced.99
94Birmingham Paint, etc., Co. v. Crampton (Ala.), 39 So. 1020.
95 In Adams v. Brenan, 177 111. 194, 52 N. E. 314, 42 L. R. A. 718, 09 Am. St. Rep. 222, it was held that a school board has no authority to insert such a provision in a building contract, and that for this reason the provision was invalid. In Holden v. Alton, 179 HI. 318, 53 N. E. 556; Fiske v. People, 188 111. 206, 58 N. E. 985, 52 L. R. A. 291, it was held that an ordinance requiring the insertion of such a provision in contracts for public works was invalid and unconstitutional.
96 Smith v. Bowen, 232 Mass. 106, 121 N. E. 814; Shinsky v. CNeil, 232 Mass. 99, 121 N. E. 790; Jacobs v. Cohen, 183 N. Y. 207, 76 N. E. 5, 2 L. R. A. (N. S.) 292, 111 Am. St. Rep. 730; Hitchman Coal & Coke Co. 0. Mitchell, 245 U. 8. 229, 271, 62 L. Ed. 260, 38 S. Ct. Rep. 65, Ann. Cas. 1918 B. 461.
97 See supra, Sec. 1655, n. 86.
98 See Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 250, 62 L. Ed. 260, 38 S. Ct. Rep. 65 Ann. Cas. 1918 B. 461.
99 In Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 62 L. Ed. 260,