"I am not here establishing any new rule. It is the doctrine to be deduced from all the cases, taken together, and it harmonizes with them all. Thus construed, there is no conflict among the authorities, so far as the points adjudicated are concerned, although many dicta may, no doubt, be found, which are more or less inconsistent with the view here taken."
1 Ross v. Sadgbeer, 21 Wend. 166.
§ 684. Another class of contracts has been held in England to be in restraint of trade, and therefore illegal at common law, namely, contracts among employers in different establishments as to the wages of their men, the time and hours of their labor, and the discipline and management of their business; and, by inference, contracts arising by combinations among workmen for the purpose of raising their wages. Contracts for such purposes, if not punishable criminally, are nevertheless incapable of being enforced against the respective parties to them.1
1 Hilton v. Eckersley, 6 El. & B. 47, 66 (1855-56); 32 Eng. Law & Eq. 198; 34 ib. 224. Alderson, B., said: "This was an action by which the plaintiff sought to enforce a bond against the defendant. The condition of the bond recited that the defendant and seventeen other obligors, being respectively owners and occupiers of mills and other premises in Wigan and the neighborhood, carried on their business of spinners and weavers of cotton yarn and cloth, and employed many work-people and servants; and that certain societies or combinations subsisted in the neighborhood amongst divers persons, whereby persons willing to be employed were deterred by a reasonable fear of social persecution and other injuries from hiring themselves to work at the said establishments; and that thereby the legal control of the obligors over their property and establishments was injuriously interfered with; and that these combinations were sustained by funds arbitrarily levied and extracted from the workmen employed by the obligors and receiving wages from them; and that it was necessary to take measures for vindicating their legal rights to the control and management of their own property, which would best sustain the rights of the laborer to the free disposal of his skill and industry; and that, to effect this, the obligors had agreed to carry on their works in regard to the amount of wages to the laborer to be employed therein, and the times and periods of the engagements of work-people, and the hours of work, and the suspending of work, and the general discipline of their works and establishments (in conformity to law) for the period of twelve months from the date of the bond, in conformity with the resolutions of a majority of the said obligors present at any meeting to be convened as therein mentioned; and that, for that purpose, they had entered into the bond; and the condition of the bond was therein stated to be that, if the several obligors and their partners should so carry on their works for twelve months in conformity with the resolutions of such majority, the bond as to £500, in which each was to be bound, should be void; otherwise to be in full effect. The plea concluded with an averment that, save as aforesaid, there was no consideration for execution of the bond by defendant; and that the bond was in restriction of trade, and illegal and void.
"To this plea there was a demurrer. And, on its being argued before the judges of the Court of Queen's Bench, the majority of that court gave
§ 685. There is another class of contracts of an analogous character, whereby a person is restricted from dealing with judgment in favor of the plea. We are of opinion that the judgment was right, and ought to be affirmed.
"The question is, whether this is a bond in restraint of trade: and we think it is so. Primd facie, it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and. choice. If the law has in any matter regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion. Now here the obligors to this bond have clearly put themselves into a situation of restraint.
"First, each of them is prevented from paying any amount of wages except such as the majority may fix, whatever may be the circumstances of the work to be done and his own opinion thereon. Secondly, they can only employ persons for such times and periods as the majority may fix on, however much the minority may deem it for their own interest to do otherwise. The hours of work, the suspending of work, partially or altogether, the discipline and management of their establishments, is to be regulated by others forming a majority, and taken from every individual member. And all this for a fixed period of twelve months. All these are surely regulations restraining each man's power of carrying on his trade according to his discretion, for his own best advantage, and therefore are restraints on trade not capable of being legally enforced.
"We do not mean to say that they are illegal, in the sense of being criminal and punishable. The case does not require us; and we think we ought not to express any opinion on that point.
" But then it is said that these regulations, otherwise illegal, are prevented from being so considered by the circumstances against which they were intended to operate. It appears that a counter combination existed on the part of certain workmen, and that the alleged object of this bond was to counteract this, and to set the willing and industrious workmen free from its powers. But, supposing this to be the object, and that we may even consider it as laudable, we cannot agree that it is laudable or right to use such means of counteraction. The maxim injuria non excusat injuriam is a sound one, both in common sense and at common law. This is only to put one wrong as counterbalancing another wrong, to place the industrious workman in the fearful situation of being oppressed by a majority of masters in order to prevent him from being oppressed by a majority of his fellow-workmen. And besides, here it is to be observed that the masters1 combination is not limited to the duration of the suggested combination of the workmen. It is to last for twelve months absolutely: so that, if the combinations assigned as the excuse for it broke up, as they almost always do, in a short period, this restraint upon the obligors would still continue in force after the object against which it seems to have been directed had long ceased to exist.