used by the defendants to advance their interests consistent with the social interest? Approaching this problem, we immediately observe that here again the labor union men did not want the plaintiffs' positions; that they made no criticism of the character or quality of the work done by the plaintiffs, and made no objection to associating with the latter because of their race, religion or color. The benefit which the defendants hoped to obtain by compelling the plaintiffs to give up a right entirely separate from their employment was again an indirect benefit, their ultimate object or purpose being to compel the non-union men to join the union for the purpose of increasing its strength for future contest, just as the purpose of the Mason and Builders' Association had been to compel the plaintiff to join its association for the purpose of making it stronger for future contest. Following then the same process of weighing interests which was followed in the three prior cases would manifestly result then in a like conclusion, namely, that the social interest in the right and freedom of the plaintiff was much greater than in the right of the defendant to increase its power by the method suggested. In other words, the conclusion reached by Mr. Justice Cartwright, and concurred in by Mr. Justice Dunn and Mr. Justice Hand in their dissenting opinion, was manifestly correct.31

If we are correct thus far, have we not discovered a guide-post which may be of assistance in other future analogous cases? Namely: Social interest will not ordinarly justify A in threatening to deprive B of a legal right, by pressure through C, for the purpose of compelling B to give up some other independent legal right, the relinquishment of which may benefit A.

In Oscar Carlson, Appellee v. Carpenter Contractors' Association of Chicago et al. and John Carlson, Appellee v. Carpenter Contractors' Association of Chicago et al.,32 though the legal principles presented in these two cases are entirely distinct, the facts affecting liability were largely identical, and are fully set out in the opinion of the court. Very briefly stated they were these:

John Carlson was a carpenter and a member of the Carpenters' Union. Representatives of the union of which John was a member had signed a working agreement with defendant Carpenter Contractors' Association which did not expire until 1921. This agreement, among other things, provided that there should be no strikes

31. For cases in accord with minority opinion see Plant v. Woods 176 Mass. 492, Erdman v. Mitchell 207 Pa. 79, Curran v. Galen 152 N. Y. 33, Lucke v. Clothing Cutters 77 Md. 396.

32. 305 I11. 331.

or lockouts without the sanction of the Joint Conference Board composed of members of the contracting parties, and that the minimum rate of wages should be eighty cents per hour until May 31, 1921. Notwithstanding this agreement, the representative of the carpenters, in June, 1919, presented a demand for a minimum wage of one dollar an hour. This demand being denied, on July 9, 1919, a general strike was called in violation of the working agreement. Those contractors or members of the public who were willing to pay one dollar an hour to carpenters were allowed by the Carpenters' Union to proceed with their work without molestation. B, a contractor, agreed to pay John one dollar an hour, and John continued in his employ.

Oscar Carlson, the plaintiff in the other case, was engaged in erecting a building for himself. He was not a carpenter nor a carpenter contractor. After the strike was called he continued to employ union carpenters and paid them the wages demanded. Some time after the strike was called the Carpenter Contractors' Association and the Building Construction Employers' Association declared a lockout of all union workmen in the building trades throughout Lake and Cook counties, but this lockout had little, if any, effect on the situation, because the building industry had been largely paralyzed by the carpenters' strike. In order to make the lockout effective, the associated contractors called a meeting with the dealers in building material, and represented to them that in view of the fact that about eighty per cent of their business had already been destroyed by the carpenters' strike it was to their interest, as well as to the contractors', to cease selling and delivering material to any person employing union carpenters. The material men entered into no contract to cease dealing, but orally agreed to cease so long as they conceived that their individual interests would be advanced by so doing. As a result of the refusal of the material men to sell material, B was forced to discharge John Carlson, and Oscar Carlson was not able to complete his building.

The Oscar Carlson case. Oscar's declaration neither charged the defendants (i. e., material men and contractors) with any malevolence toward Oscar, nor did the evidence tend to show such a feeling. The crux of defendants' misconduct, according to the allegations of Oscar's declaration and according to the evidence, was this: That the defendant material men had refused to sell material to Oscar "for the sole purpose of preventing plaintiff (i. e., Oscar) from giving employment to the carpenters."

The principal interest of this case, so far as this article is concerned, lies in the rather clear demonstration which it would seem to offer of the fact that an approach of a problem from an erroneous point of view or direction may be expected to result in an erroneous decision.

The court here approaches the problem from the point of view of the rights of the plaintiff only, frankly saying:

"Defendants' rights are not in any respect involved in this litigation and need not be considered except when necessary to a determination of plaintiffs' rights. The apparent confusion that exists in the law as declared in adjudicated cases in the different jurisdictions is due largely to a faulty mode of approach." "That to discuss the rights of the defendant would be simply to confuse rather than clarify the issue, and that the court should first determine whether plaintiff has a legal right which it is the duty of the defendant to respect, and then proceed from that point to determine the controversy."

Having now as it were closed its eyes to the claim of the defendant, and having concentrated its attention upon the "rights of the plaintiff," it proceeds by the following reasoning to its conclusion: (1) "He (i. e., Oscar) had the right to a free and open market in which to purchase materials with which to complete his building"; (2) "These rights being clear, any one who invades them without lawful cause or justification commits a legal wrong, and the wrong being followed by an injury in consequence thereof, the plaintiffs have a right of action for such wrong"; (3) "No persons, individually or by combination, have a right to directly or indirectly interfere with or disturb another in his lawful business or occupation or for the sake of compelling him to do some act which in his own judgment his own interest does not require."

We may venture to suggest that the propositions above advanced have some of the objectionable features of high indefiniteness. All have some elements of truth in them, while none, as it seems to us, is entirely correct unless materially qualified, while such qualifications if made would seem to render them entirely valueless as further guides to a correct decision upon the facts here present. Now let us approach the question from the point of view of the social interest in the problem presented and see if this is not true.

What does the court mean by the term "free and open market" as set forth under the first proposition? Manifestly it must mean that any one has a legal right, providing only that he has the price, to buy anything from any merchant, because if any other meaning were intended, the mere injury of the purchaser because of such

refusal would not create a prima facie liability on the part of the vendor, thereby requiring a legal justification from him. Now this is not the law, as we understand the cases, or at least was not the law prior to this decision. We are here no longer in an uncharted field, but in one which our court, as well as other courts, has charted by marking and defining therein the respective rights of the vendor and vendee, whether of labor or material. The courts have thus held that individuals, singly or in unison, may strike (i. e., refuse to sell their services), and merchants, singly or in unison, may refuse to sell their wares, without in either event becoming liable for any injury that may arise from such refusal, providing only that their intent in so refusing was not purely malevolent toward the plaintiff, and in the case of merchants, that their intent and motive was neither one to create a monopoly nor to raise prices.33 Therefore the mere refusal to sell has not heretofore either created a prima facie liability on the part of the person refusing or required any justification therefor, as stated in proposition No. 2, supra.

It appears then the defendants were not liable to Oscar merely because they disturbed him in his business or because they compelled him to do some act which in his own judgment his own interests did not require, as stated in proposition No. 3, supra. Indeed, neither of such circumstances could of itself create a legal liability because thereby a host of new legal obligations would be created never heretofore conceived to create a tort. In fact every union man striking for higher wages not justified in the opinion of his employer in so doing would under this definition be liable for the injury inflicted upon the latter. Inasmuch, therefore, as Oscar's declaration did not show that the purpose of the defendants in refusing to sell material was either malevolent toward him or was for the purpose of creating a monopoly or raising prices, and inas

33. See Livestock Commission Co. v. Livestock Exchange 143 Ill. 210, 234, 235, Harding v. American Glucose Co. 182 Ill. 588, Chicago, Wilmington & Vermilion Coal Co. v. People 214 Ill. 441, 114 Ill. App. 112, 113, 116, Sanford v. People 121 Ill. App. 619, 620, 643, 646, Klingel Pharmacy v. Sharpe 64 Atl. Rep. 1031, Insurance Co. v. Commonwealth 106 Ky. 876, 888, 889, Brown v. Jacobs Pharmacy 41 S. E. Rep. 556.

Indeed where the proof has failed to show an intention to create a monopoly or stifle competition the courts have quite uniformly held that no liability arises by virtue of a refusal to sell: Schulten v. Bavarian Brewing Co. 96 Ky. 224, Ulery v. Chicago Livestock Exchange 54 Ill. App. 233, Cote v. Murphy 28 Atl. Rep. 187, Buchanan v. Kerr 28 Atl. Rep. 190, Brewster v. Miller 41 S. W. Rep. 301, 303.

The Supreme Court has held that contracts which merely incidentally restrain competition or trade are not within the purview of the Anti-Trust Act: Southern Fire Brick Co. v. Sand Co. 223 Ill. 616-625, Superior Coal Co. v. Lumber Co. 236 Ill. 84, 85. To the same effect see State v. VirginiaCarolina Chemical Co. 51 S. E. Rep. 455.

much further as the uncontroverted evidence did not tend to establish the existence of either of the above conditions, it would seem that unless prior decisions are to be disregarded the judgment should have been in defendants' favor.

John Carlson's case. The essence of John's complaint was that the defendants had refused to sell material to his employer, for the purpose of preventing the latter from giving him employment, to his injury.

We have already called attention to the general propositions by which the court arrived at its conclusion in favor of both John and Oscar in these cases. If now, in John's case, the claims of both plaintiff and defendant had been weighed and balanced from the point of view of the social interest, a number of considerations, which the court apparently overlooked entirely, would have immediately pressed forward for attention. Defendants were not here threatening Hill to cause him to discharge John unless the latter would give up some right disconnected with his employment, nor were defendants in fact acting on the offensive in any way. They refused to sell at all, and in justification of such refusal they point to the uncontradicted evidence showing that the strike of the carpenters, in breach of the contract made by their union, had already resulted in the loss of eighty per cent of their business; that the continued employment of the carpenters directly contributed to a continuance of the strike, as each carpenter was paying a portion of his wages to his union for such purpose; that the purpose of the carpenters was to compel employers, and through employers, the public to pay an arbitrary wage demanded by them; that the refusal to sell on the part of the material men affected only such incidental members of the public as could be persuaded to pay the arbitrary price demanded, for the action of the carpenters themselves had practically paralyzed the building industry before the material men decided to refuse to sell.

A consideration of the social interest would have led the court at least to carefully weigh and analyze all of these considerations, not for the purpose indicated by the court of justifying one wrong by another, but for the purpose of ascertaining whether or not the defendants were guilty of a legal wrong in the conduct complained of.

We have seen that by virtue of the exercise by our court of the function of a law-giver and as a result of the majority opinion in the Kemp case, a minority group in the community may, in order to increase its power for future contest, compel members of the