Page:The Green Bag (1889–1914), Volume 17.pdf/228

 THE OPEN MARKET "A large part of what is most valuable in modern life seems to depend more or less directly upon ' probable expectancies.' When they fail, civilization, as at present organized, may go down. As social and industrial life develops and grows more complex these 'probable expectancies' are bound to in crease. It would seem to be inevitable that courts of law, as our system of jurispru dence is evolved to meet the growing wants of an increasingly complex social order, will discover, define, and protect from undue interference more of these 'probable expec tancies.' It will probably be found in the end, I think, that the natural expectancy of employers in relation to the labor market and the natural expectancy of merchants in respect to the merchandise market must be recognized to the same extent by courts of law and courts of equity and protected by substantially the same rules. It is freedom in the market, freedom in the purchase and sale of all things, including both goods and labor, that our modern law is endeavoring to insure to every dealer on either side of the market. The merchant, with his fortune invested in goods and with perfect freedom to sell, might be ruined if his customers were deprived of their freedom to buy." As to the grounds upon which justifica tion may rest, they are many. For the present purpose it is enough that fair com petition is an accepted excuse. But if the motive or the method be bad, the justifica tion properly fails. All this is shown in Doremus v. Hennessy, 176 Ill. 608, 52. This action was on the case for damages upon the ground that the members of an organization known as the Chicago Laundrymen's Association had fixed a scale of prices for laundry work, and had conspired to injure the plaintiff in her good name and credit, and to destroy her business, because she would not charge prices in accordance with such scale, and they were proceeding to carry out the conspiracy. It was held actionable. The court by Mr. Justice Phillips said:

211

"A combination by them to induce others not to deal with appellee or enter into con tracts with her, or to do any further work for her, was an actionable wrong. Every man has a right, under the law, as between himself and others, to full and free disposi tion of his own labor and capital according to his own free will, and any one who in vades that right without lawful cause or justification commits a legal wrong, and, if followed by an injury caused in consequence thereof, the one whose right is thus invaded has a legal ground of action for such wrong. An intent to do a wrongful harm and in jury is unlawful, and if a wrongful act is done, to the detriment of the right of an other, it is malicious; and an act maliciously done with the intent and purpose of injur ing another is not lawful competition." The principal point to carry forward from this is the idea that to compete as one wills is not an absolute right in our law, but that competition is only a permission granted by the law when its operation is upon the whole for the best interests of es tablished society, forbidden if it is carried on in a way prejudicial to the industrial order. It cannot be said, therefore, at the outset of a discussion of competition by combinations such as this is to be, that as one man has an absolute right to compete as he chooses, therefore fifty men acting to gether have the same right to compete as they choose. The theory that has just been developed cuts in back of all this by deny ing even to single men the justification of competition whenever their actions seem op posed to sound policy; and by the same law, whenever the operations of a combina tion in the course of competition are proved to be detrimental to the best interests of society, its members may be held to be tort-feasors by reason of what they have done. For what is to be held fair in com petition, and what unfair, is by this analysis all a question of public policy, which may well be different in the case of concerted action and in the case of indivdual action.