such circumstances without lawful excuse and malicious? We think not. Labor unions are recognized by the Clayton Act as legal when instituted for mutual help and lawfully carrying out their legitimate objects. They have long been thus recognized by the courts. They were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and unfair treatment. Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert influence upon him and to leave him in a body in order by this inconvenience to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has in many years not been denied by any court. The strike became a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital. To render this combination at all effective, employees must make their combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because in the competition between employers they are bound to be affected by the standard. of wages of their trade in the neighborhood. Therefore, they may use all lawful propaganda to enlarge their membership and especially among those whose labor at lower wages will injure their whole guild. It is impossible to hold such persuasion and propaganda without more, to be without excuse and malicious. The principle of the unlawfulness of maliciously enticing laborers still remains and action may be maintained therefor in proper cases,

Opinion of the Court.

257 U.S.

but to make it applicable to local labor unions, in such a case as this, seems to us to be unreasonable.

The elements essential to sustain actions for persuading employees to leave an employer are first, the malice or absence of lawful excuse, and, second, the actual injury. The effect of cases cited as authority must be determined by an examination of the pleadings and facts to see how the malice or lack of lawful excuse was established, and whether there was not illegality present in the means used. Thus Walker v. Cronin, 107 Mass. 555, and Thacker Coal Co. v. Burke, 59 W. Va. 253, suits by an employer against members of a labor union in which the right of action for persuading was sustained, were heard on demurrer to the complaint. The element of malice was supplied by averment of the complaint, and was, of course, admitted by the demurrer. There are other cases in which the persuasion was accompanied by the intent to secure a breach of contract, or was part of a secondary boycott or had elements of fraud, misrepresentation or intimidation in it. Perkins v. Pendleton, 90 Me. 166, was a case of the latter kind. In Lucke v. Clothing Cutters, 77 Md. 396, it was held unlawful in a labor union to seek to compel an employer to discharge the plaintiff by intimidation, and it was said that the state law authorizing formation of trade unions to secure most favorable conditions for labor of their members was not a warrant for making war upon the non-union man or for illegal interference with his rights and privileges. A suit by an employee who seeks to hold a labor union liable for seeking his discharge by threatening to strike unless his employer discharges him, stands on a different footing from a mere effort by a labor union to persuade employees to leave their employment. There are in such a combination against an employee the suggestions of coercion, attempted monopoly, deprivation of livelihood and remoteness of the legal purpose of the union to better its mem

bers' condition, not present in a case like the present. Without entering into a discussion of those cases which include Brennan v. United Hatters of North America, 73 N. J. L. 729; Curran v. Galen, 152 N. Y. 33; Berry v. Donovan, 188 Mass. 354, and Plant v. Woods, 176 Mass. 492, it is sufficient to say they do not apply here.

The counsel for the Steel Foundries rely on two cases in this court to support their contention. The first is that of Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229. The principle followed in the Hitchman Case can not be invoked here. There the action was by a coal mining company of West Virginia against the officers of an International Labor Union and others to enjoin them from carrying out a plan to bring the employees of the complainant company and all the West Virginia mining companies into the International Union, so that the Union could control, through the union employees, the production and sale of coal in West Virginia, in competition with the mines of Ohio and other States. The plan thus projected was carried out in the case of the complainant company by the use of deception and misrepresentation with its non-union employees, by seeking to induce such employees to become members of the Union contrary to the express term of their contract of employment that they would not remain in complainant's employ if union men, and after enough such employees had been secretly secured, suddenly to declare a strike against complainant and to leave it in a helpless situation in which it would have to consent to be unionized. This court held that the purpose was not lawful, and that the means were not lawful and that the defendants were thus engaged in an unlawful conspiracy which should be enjoined. The unlawful and deceitful means used were quite enough to sustain the decision of the court without more. The statement of the purpose of the plan is sufficient to show the remoteness of the benefit ultimately to be derived by

6267°-22-19

Opinion of the Court.

257 U.S. the members of the International Union from its success and the formidable country-wide and dangerous character of the control of interstate commerce sought. The circumstances of the case make it no authority for the contention here.

Duplex Printing Press Co. v. Deering, 254 U. S. 443, also cited, can have no bearing here. In that case, the International Association of Machinists, an unincorporated association, having a membership of more than 60,000, united in a combination to compel the complainant to unionize its factory, enforce the closed shop, the eighthour day and the union scale of wages by boycotting the interstate trade of that company. They conducted in the City of New York a campaign of threatening the customers of the Printing Press Company, the trucking companies that carried its presses, and those who were engaged in the work of setting up such presses, with injury to them in their business, if they continued to deal with the Duplex Company or its presses. It was a palpable effort on the part of the International Association of Machinists to institute a secondary boycott, that is, by coercion, to use the right of trade of persons having nothing to do with the controversy between the Duplex Company and the Machinist's Union, and having no interest in it, to injure the Duplex Company in its interstate trade. This was decided not to be within § 20 of the Clayton Act, but was held, following the case of Loewe v. Lawlor, 208 U. S. 274, to be an unlawful combination in restraint of interstate trade. The Hitchman Case was cited in the Duplex Case, but there is nothing in the ratio decidendi of either which limits our conclusion here or which requires us to hold that the members of a local labor union and the union itself do not have sufficient interest in the wages paid to the employees of any employer in the community to justify their use of lawful and peaceable persuasion to induce those employees to refuse to accept such reduced wages

and to quit their employment. For this reason, we think that the restraint from persuasion included within the injunction of the District Court was improper, and in that regard the decree must also be modified. In this we agree with the Circuit Court of Appeals.

The decree of the Circuit Court of Appeals is reversed in part and affirmed in part and the case is remanded to the District Court for modification of its decree in conformity with this opinion.

MR. JUSTICE BRANDEIS concurs in substance in the opinion and the judgment of the court.

MR. JUSTICE CLARKE dissents.

ROBERT MITCHELL FURNITURE COMPANY v. SELDEN BRECK CONSTRUCTION COMPANY.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.

No. 56. Argued November 7, 1921-Decided December 5, 1921. 1. A judgment of the District Court dismissing an action upon the ground that the process served was void and gave no jurisdiction over the defendant's person, is reviewable directly here. P. 214. 2. The purpose of a state law requiring foreign corporations to appoint local agents upon whom process may be served is primarily to secure local jurisdiction in respect of business transacted within the State, and the scope of the agency should not be extended further by implication unless so construed by the state Supreme Court. P. 215.

3. In an action in Ohio by an Ohio corporation against a Missouri corporation, upon a contract to be performed in Michigan, negotiated by correspondence and consummated (it seems) in Illinois, it appeared that the defendant had appointed an agent in Ohio, upon whom process might be served (Ohio Gen. Code, § 179) and was engaged in building operations there when the contract was made, but, before the suit, had ceased such operations and withdrawn its property and men and thereafter it merely filed an