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196 U. S.

Argument for Appellants.

State v.

Again, this point is settled by the ruling in the Knight Case, 156 U. S.1,16, that the restraint of trade, if any, which a combination by defendants to raise or lower their own prices would tend to effect would be an indirect result, and such result would not necessarily determine the object of the contract, combination or conspiracy.

As to the ninth paragraph we contend: The allegation is of a conclusion of law. The cartage as there described is not, under the allegations of the bill, interstate commerce. Knight, 192 U.S.1,21;Detroit &c. Ry. v. Interstate Comm. Com., 74 Fed. Rep. 803, 808; Hopkins v. United States, 171 U. S. 578, 592. The charge is not of a conspiracy either to do a criminal or unlawful act, or to do by unlawful means the lawful act of fixing their own charges for cartage. Nothing here charged has the direct, immediate or necessary effect to restrain interstate commerce.

As to the tenth paragraph we maintain: The allegation is of a legal conclusion. It also is too indefinite and general. Sufficient facts are not alleged. United States v. Hanley, 71 Fed. Rep. 672.

A contract or combination among manufacturers or producers of an article which is intended to become the subject of interstate commerce, to raise, lower and fix prices of such article, is not necessarily a contract, combination or conspiracy in restraint of interstate trade or an attempt to monopolize that trade under the Sherman Act. United States v. Nelson, 52 Fed. Rep. 646; In re Greene, 52 Fed. Rep. 104; United States v. E.C. Knight Co., 156 U. S. 1, 16; Gibbs v. McNeeley, 102 Fed. Rep. 504. See also Distillery Co. v. People, 156 Illinois, 468; Glucose Company v. Harding, 182 Illinois, 551.

There was no jurisdiction herein of this charge. No common contract, combination or conspiracy of the defendants with each other is alleged. The allegation that “all and each” have made agreements for less than lawful transportation rates is that they did so acting separately. That was not unlawful on

Argument for the United States.

196 U.S.

the part of the defendants; much less was it any violation of the Sherman Anti Trust Act. There is here no sufficient showing of an attempt to monopolize either the interstate transportation of live stock or fresh meats or interstate trade in live stock or fresh meats. The paragraph is multifarious, and there is therein a misjoinder of causes and parties.

As to the eleventh paragraph we submit that it is too general and insufficient to require argument. It is disposed of by what has been urged as to previous paragraphs.

Prior rulings by this court in cases arising under the Sherman Act do not sustain the Government's case here.

With respect to the supposed limitations of the Sherman Act upon the right of private contract, that act is to be interpreted in the light of the principles of the common law. United States v. Wong Kim Ark, 169 U. S. 649; Moore v. United States, 91 U. S. 270, 274; Minor v. Happersett, 21 Wall. 162; Ex' parte Wilson, 114 U. S. 417, 422; Boyd v. United States, 116 U. S. 616, 624; Smith v. Alabama, 124 U. S. 465.

The bill of complaint is multifarious; and there is therein a misjoinder of causes and of parties. Walker v. Powers, 104 U.S. 251; Brown v. Guarantee Trust Company, 128 U. S. 403; Zeigler v. Lake Street Railway, 76 Fed. Rep. 662.

The bill is too general and indefinite to require answer. It does not sufficiently set forth definite or specific facts.

The demurrers to so much of the bill as prays for answer under oath, and to so much thereof as prays discovery of de fendants' books, papers, etc., are well taken.

Rights protected by the Fourth and Fifth Amendments are thereby infringed. United States v. Saline Bank, 1 Pet. 100; Boyd v. United States, 116 U. S. 616; Counselman v. Hitchcock, 142 U. S. 547; Livingston v. Tompkins, 4 Johns. Ch. 415, 432; Entick v. Carrington, 19 Howell's St. Tr. 1029; S. C., 2 Wils. 275; Huckle v. Money, 2 Wils. 206; Mitford & Tyler's Eq. Pldg. 289.

Mr. Attorney General Moody, with whom Mr. William A.

196 U. S.

Argument for the United States.

Day, Assistant to the Attorney General, was on the brief, for the United States:

The facts show a combination which restrains or monopolizes trade or commerce and operates upon and directly affects interstate or foreign trade or commerce.

The combinationer or conspiracy which the Government is seeking to destroy and which it was the aim of the petition in this case to set forth is one between all the principal American producers or packers of fresh meats for the purpose of jointly controlling the market for those products throughout the entire United States so as to maintain uniform prices therefor and destroy competition in the sale thereof to dealers and consumers.

The combination set forth in the bill is in restraint of trade for if in the entire field of the law concerning monopolies and restraints of trade there is a single proposition to which all courts now yield assent, it is that a combination, conspiracy, or agreement between independent manufacturers or producers of a necessary of life to fix and maintain uniform prices for their products, or otherwise to suppress competition with each other, is an unlawful restraint upon trade. United States v. E. C. Knight Co., 156 U. S. 1, 16; United States v. Trans-Missouri Freight Association, 166 U. S. 290; United States v. Joint Traffic Association, 171 U. S. 505; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; Northern Securities Co. v. United States, 193 U. S. 197; Chesapeake & Ohio Fuel Co. v. United States, 115 Fed. Rep. 610; judgments of Lord Bramwell and Lord Hannen in Mogul S. S. Co. v. McGregor, L. R. App. Cas. (1892) 46, 58; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 155, 173; . Nester et al. v. Continental Brewing Co., 161 Pa. St. 473; Salt Co. v. Guthrie, 35 Ohio St. 166; People v. Sheldon, 139 N. Y. 251 ; Cummings v. Union Blue Stone Co., 164 N. Y.405; Trenton Potteries Co. v. Olyphant, 58 N. J. Eq. 507; Craft v. McConoughby, 79 Illinois, 346; Noyes on Intercorporate Relations, p. 513, note 1, and see the cases collected; and necessarily the means agreed upon to effect the unlawful object of the com


Argument for the United States.

196 U. 8.

bination of conspiracy are inseparable parts of the combination or conspiracy itself, and along with it fall within the condemnation of the law.

The combination or conspiracy in controversy operates upon interstate or foreign commerce, and its operations are not confined to commerce carried on wholly within state lines.

The sales of live stock to the defendants and the sales by them of the prepared meats are interstate and not intrastate transactions.

As to what is interstate commerce, see Gibbons v. Ogden, 9 Wheat. 1, 194; Northern Securities Co. v. United States, 193 U. S. 197, 337. If interstate commerce is commerce which concerns more States than one, and if a combination of independent producers to suppress competition between its members is a restraint upon commerce, it must follow that a combination of independent producers to fix and control prices and suppress competition between each other in an area covering more States than one is in restraint of interstate commerce and the petition in this case discloses such a combination. · It is impossible to say with even a color of reason that the facts stated in the bill, which cannot be denied, do not show a combination between the defendants to suppress competition between themselves in an area embracing more States than one and it is immaterial to inquire whether the particular purchases and sales made by the defendants are, technically, interstate or intrastate transactions. There is nothing unreasonable or novel in the conclusion that a combination may restrain interstate commerce, although the individual transactions. of its members might, standing alone and viewed separate and apart from the purpose and necessary effect of the whole combination, be intrastate in character. Montague & Co. v. Lowry, 193 U.S. 38. The character of a combination --that is, whether or not it is interstate in its operation-is decided, not by the nature of the particular transactions of its individual members, but by the extent of the territory in which it operates, in which it controls prices and sales and

196 U. S.

Argument for the United States.

suppresses competition. If that territory embraces more States than one the combination restrains interstate commerce. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 240.

Whether a combination in restraint of trade operates upon interstate or only intrastate commerce does not depend upon whether the individual transactions of its members, standing alone and viewed separate and apart from the purpose and necessary effect of the whole combination, are interstate or intrastate in character, and the petition here discloses a combination which operates upon interstate commerce; for whatever may be the character of the individual transactions of its several members, it is also true in this case that the individual transactions of the members of the combination do fall within the jurisdiction conferred upon Congress by the commerce clause of the Constitution. These transactions consist of the defendants' purchases of live stock; the sales and shipments of fresh meats made directly by the defendants to dealers and consumers in the several States, and the sales of fresh meats to dealers and consumers in the several States by agents of the defendants located in those States.

From all over the stock-raising section, embracing many. different States, cattle, sheep and hogs are habitually shipped to the great live-stock markets at Chicago, Omaha, Sioux City, St. Joseph, Kansas City, East St. Louis and St. Paul for sale, to those, the defendants chief among them, engaged in the business of converting live stock into fresh meats for human consumption. The shipments are made with the express and sole purpose of sale as soon as market conditions will permit, and the sales are made while the cattle yet remain in first hands, that is, in the hands of the owners or their agents, and in the ordinary form or condition in which cattle are shipped from one country or State to another, which is analogous to the form or condition of the original package in the case of merchandise.

Austin v. Tennessee, 179 U. S. 343,


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