Argument for Defendant in Error.

195 U.S.

Mr. James G. Flanders, with whom Mr. LaFayette M. Sturdevant, Attorney General of the State of Wisconsin, was on the brief, for defendant in error in Nos. 3, 4. Submitted by Mr. Sturdevant, for defendant in error in No. 5:

As construed by the state court the statute is merely declaratory of the common law. Hawkins's Pleas of the Crown, ch. 27, § 2; Rex v. Eccles, 1 Leach, 274; Chitty Cr. Law, 1139; Archibold Criminal Practice and Pleading, 1829; Queen v. Kendrick, 5 Q. B. D. 49. Authorities in this country to the same effect might be multiplied indefinitely. For example, see Crump v. Commonwealth, 84 Virginia, 927; State v. Stewart, 59 Vermont, 273; State v. Donnelson, 32 N. J. L. 151, 156; State v. Glidden, 55 Connecticut, 46; People v. Petheram, 64 Michigan, 252; State v. Burnham, 15 N. H. 403; Commonwealth v. Carlisle, Brightly, 36; State v. Buchanan, 5 Harris & Johnson, 317; Farmers' L. & T. Co. v. Nor. Pac. R. R. Co., 60 Fed. Rep. 803, 817; Arthur v. Oakes, 63 Fed. Rep. 310.

It was not necessary, even at common law, to make a combination formed for the purpose of injuring the business of another illegal that such purpose should be the sole or ultimate object of the combination. It was sufficient if there were a direct and immediate purpose to injure others, even though the ultimate object were to benefit the parties to the combination. Doremus v. Henney, 176 Illinois, 608; Barr v. Trades Councils, (N. J. Chan.) 30 Atl. Rep. 881; Hilton v. Eckersley, 6 El. & Bl. 47, 74; Steamship Co. v. McKenna, 30 Fed. Rep. 48; Casey v. Typographical Union, 45 Fed. Rep. 138; Callan v. Wilson, 127 U. S. 547; Mogul S. S. Co. v. McGregor, 23 Q. B. D. 598; A. C. 25; Continental Ins. Co. v. Board of Underwriters, 67 Fed. Rep. 319; Temperton v. Russell, 1 Q. B. D. 715; Walker v. Cronin, 107 Massachusetts, 555; Graham v. St. Charles Str. Ry. Co., 27 R. L. A. 416; Hopkins v. Oxley Stave Co., 83 Fed. Rep. 918; Quinn v. Leathem, L. R. App. Cas. (1901), 515, overruling Allen v. Flood, H. L. Appeal Cases (1898), 1.

Motive or intent with which an act is done is not an element

of the cause of action, is not generally applicable to civil actions of conspiracy, and is not applicable at all to conspiracy in its criminal aspects any more than to any other criminal offense. 6 Am. & Eng. Ency. of Law, 2d ed. 872; Bishop on Non-Contract Law, § 592; Clifford v. Brandon, 2 Campbell, 358; Boutwell v. Marr, 71 Vermont, 6.

Of the many cases that might be cited illustrative of the limitations upon the scope of the Federal Constitution to abridge the powers of the State to regulate its internal affairs affecting the peace, order and general welfare of the community, see Allgeyer v. Louisiana, 165 U. S. 589; Munn v. Illinois, 94 U. S. 113, 124; Slaughter-House Cases, 16 Wall. 62; Barbier v. Conway, 113 U. S. 31; Soon Hing v. Crowley, 113 U. S. 709. See also Wisconsin General Statutes, § 1747c, and for other statutes, see § 168, Penal Code, New York; People v. Sheldon, 139 N. Y. 251; Matter of Davies, 168 N. Y. 89, 101; Rev. Stat. Illinois, § 130; Burns's Statutes of Indiana, § 2302; Iowa General Statutes, § 5059; Minnesota Statutes of 1894, § 6423; New Hampshire Pub. Stat. of 1891, ch. 266, § 12; Rhode Island General Laws, 1896, ch. 279, § 45.

MR. JUSTICE HOLMES delivered the opinion of the court.

These are three writs of error to the Supreme Court of Wisconsin, brought to set aside convictions and sentences of the plaintiffs in error, the defendants below, upon informations filed by the District Attorney. 113 Wisconsin, 419. The ground of the writs is that the proceedings violated the rights of the plaintiffs in error under the Fourteenth Amendment of the Constitution of the United States. The informations were brought under the Wisconsin statutes of 1898, § 4466a, which impose imprisonment or fine on "any two or more persons who shall combine for the purpose of wilfully or maliciously injuring another in his reputation, trade, business or profession by any means whatever," etc. The plaintiffs in error were severally charged with unlawfully combining to

gether with the intent of willfully and maliciously injuring The Journal Company, a corporation, and certain persons named, stockholders and officers of the company, in their trade and business. It was alleged that the company was publisher of a newspaper in Milwaukee and had notified an increase of about twenty-five per cent in its charges for advertising, and that thereupon the plaintiffs in error, who were managers of other newspapers in the same place, in pursuance of their combination and with the intent of willfully, maliciously and unlawfully injuring The Journal Company and the others named, agreed as follows: If any person should agree to pay the increased rate to The Journal Company, then he should not be permitted to advertise in any of the other three newspapers except at a corresponding increase of rate; but if he should refuse to pay The Journal Company the increased rate, then he should be allowed to advertise in any of the other three papers at the rate previously charged. It was alleged that this conspiracy was carried out and that much damage to the business of The Journal Company ensued.

The defendant Hoyt demurred to this information, setting up the Fourteenth Amendment. Aikens and Huegin filed pleas which admitted the combination and intent of injuring The Journal Company and the resulting damage but alleged that the combination was entered into in trade competition and that the parties had the right to make it under the Fourteenth Amendment. The State demurred to the pleas. The demurrer of Hoyt was overruled; those of the State were sustained. The defendants were sentenced and the judgment of the trial court was affirmed by the Supreme Court of the State on the authority of an earlier decision between the same parties, reported in 110 Wisconsin, 189.

The statute, it will be observed, punishes combining for the purpose of willfully or maliciously injuring another in his business. If it should be construed literally, the word "willfully" would embrace all injuries intended to follow from the parties' acts, although they were intended only as the necessary means

to ulterior gain for the parties themselves. Taken in that way the word would hit making a new partnership, if it was intended thereby to hurt some one else's business by competition. We shall not consider whether that branch of the statute, so construed, could be sustained and express no opinion about it. The Supreme Court of Wisconsin has intimated that a narrower interpretation will be adopted, and in the present case we have to deal only with the other branch, depending on the word "maliciously," as we shall explain in a moment. The last quoted word we must take as intended to add something to the word "willfully," and we can do so only by taking it in its true sense. We interpret "maliciously injuring" to import doing a harm malevolently for the sake of the harm as an end in itself, and not merely as a means to some further end legitimately desired. Otherwise the phrase would be tautologous, since a willful injury is malicious in the sense familiar to declarations and indictments, where indeed the word means no more than foreseen, or even less than that. A death is caused of malice aforethought if, under the circumstances known to the actor, the probability of its ensuing from the act done is great and manifest according to common experience. Commonwealth v. Pierce, 138 Massachusetts, 165, 178; 1 East P. C. 262. See also Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 613.

The informations alleged a combination for the purpose of willfully and maliciously injuring others, and therefore brought the case within the latter branch of the statute, if there are two and if "or" in the act is not taken to mean "and." It is true that the plan is set forth, and some argument was spent on whether that plan might or might not be an instrument of ultimate gain. But while that question may have been open when the state court was discussing the evidence warranting a commitment, in 110 Wisconsin, 189, none such is open here. The malevolent purpose is alleged, it is admitted by the demurrer, it is not sufficiently denied by the pleas, whatever we may conjecture would have been done if counsel had had this

decision before them. A purely malevolent act may be done even in trade competition.

We come then to the question whether there is any constitutional objection to so much of the act as applies to this case. It has been thought by other courts as well as the Supreme Court of Wisconsin that such a combination followed by damage would be actionable even at common law. It has been considered that, prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape. Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 613; S. C., [1892] A. C. 25. If this is the correct mode of approach it is obvious that justifications may vary in extent according to the principle of policy upon which they are founded, and that while some, for instance, at common law, those affecting the use of land, are absolute, Bradford v. Pickens, [1895] A. C. 587, others may depend upon the end for which the act is done. Moran v. Dunphy, 177 Massachusetts, 485, 487; Plant v. Woods, 176 Massachusetts, 492; Squires v. Wason Manuf. Co., 182 Massachusetts, 137, 140, 141. See cases cited in 62 L. R. A. 673. It is no sufficient answer to this line of thought that motives are not actionable and that the standards of the law are external. That is true in determining what a man is bound to foresee, but not necessarily in determining the extent to which he can justify harm which he has foreseen. Quinn v. Leathem, [1901] A. C. 495, 524.

Whether, at common law, combinations would make conduct actionable which would be lawful in a single person it is unnecessary to consider. Quinn v. Leathem, [1901] A. C. 495. We are aware too that a prevailing opinion in England makes motives immaterial, although it is probable that in Allen v. Flood, [1898] A. C. 1, 94, the jury were instructed, as in Temperton v. Russell, [1893] 1 Q. B. 715, 719, in such a way that their finding of malice meant no more than that the defendant had acted with foresight of the harm which he would inflict,