
    People ex rel. John E. Gill, App’lts, v. Thomas P. Walsh et al., Resp’ts.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 2, 1888.)
    
    Criminal law—Conspiracy—What constitutes.
    A determination by workmen that an objectionable person, a "scab,”so called, shall be driven away and prevented from working, within a district large or small, is a conspiracy pronounced by law to be criminal, and punishable by imprisonment.
    
      Appeal from order dismissing writ of habeas corpus upon commitment for a conspiracy against Obder M., Hartt. Two cases.
    
      Louis F. Post, for app’lts ; John D. Lindsay, deputy district-attorney.
    
      
       See People ex rel. Gill v. Smith, 10 N. Y. State Rep., 730.
    
   Brady, J.

The examination given in the record demonstrates the propriety of the order made from which the appeal was taken. No doubt exists of the right of the workman to seek, by all peaceable means, an increase of wages, and all meetings and combinations having that object in view, which are not distinguished by violence or threats, and are lawful therefore, cannot be reasonably condemned or justly interfered with. And so all' combinations and meetings designed to prevent an increase of wages, which are not characterized by violence or threats, by resort to unlawful means or accessories, are lawful, and cannot be justly condemned or interfered with. Employer and employee stand upon the same plane precisely in this respect, and neither, legally, has the advantage of the other. It follows that when either is engaged in a persecution of the other, simply because of the exercise of this right, he is within the pale of just condemnation, and especially when resort is made to menace, threat, violence or other unlawful pretense. Here the proof shows that the complainant is designated by workmen as a scab, disorganizer, and chiefly because he essays, as they aver, to reduce wages. Assuming that to be so, it should not invoke the disasters of a strike, which puts his employer entirely, for the time being, at the mercy of the workmen, who are often hastily led away, not only to their great detriment but that of the employer, and sometimes the public at large. But if this must be done to perfect .an organization, or to hold it together firmly, it should end there and not resolve itself into what the law condemns, namely, a determination that the objectionable person, the “scab,” so called, shall be driven away and prevented from working, even for the support of his family, within a district large or small. This is a conspiracy pronounced, and justly so, to be criminal, and is punishable by imprisonment. The testimony given on the complaint of Hartt, herein made, as Justice Barrett has stated, a prima facie case in this respect against the appellant, and when that is done it becomes the duty of the magistrate conducting the proceeding to commit the offender. These observations may not be necessary in contemplation of the opinion of Justice Barrett, which amply covers the whole case and which is adopted as a clear and concise exposition of the law governing such offenses as here charged. The subject, however, is attractive, and one upon which much may be said, as well for master as for workman, whose interests áre mutual though different in pecuniary results, because of the difference between capital and labor. It should be the object of the workmen to further the interests of his employer with a view to his own advantage and advancement, and of the employer to foster and cherish his workmen, who contribute to the successful use of his capital or the prosperous continuance of his business. It may be difficult to reconcile these relations to suit the numerous demands of the different classes of laborers, but that affords no justification for violence, which amounts to banishment. The vilest criminal, when at large, has the right to labor if he can procure the employment, and in that respect he is entitled to the fullest protection. Indeed, it is in this way only that he can be reformed, and not by ostracism, which drives him to dishonesty. This is preventive of the exercise of a lawful calling, which the statute denounces.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., concurs; Daniels, J., concurs in the result.  