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Argument for Swift & Co.

REVIEW of orders of the Supreme Court of the District of Columbia, overruling motions of Swift & Company and other defendants seeking to vacate a decree which had been entered by consent in a suit brought by the Government under the Anti-Trust Law. The matter went first, by appeal, to the Court of Appeals of the District of Columbia and became lodged in this Court by an order calling up the entire record after that court had certified certain questions concerning it.

Mr. Charles E. Hughes, with whom Messrs. Charles A. Douglas, Conrad H. Syme, Henry Veeder, and Charles J. Faulkner, Jr., were on the brief, for Swift & Company et al.

The motions to vacate are independent proceedings. Stevirmac Co. v. Dittman, 245 U. S. 210. The order of May 1, 1925, of the Supreme Court of the District of Columbia is final. This appeal was properly prosecuted to the Court of Appeals of the District of Columbia.

The decree contains no provisions which constitute a determination that the defendants had committed any acts which constituted a violation of law. Under what possible theory could any court without having found that there had ever been a violation of the anti-trust laws or any attempt to do the acts forbidden by the statute have enjoined the defendants, corporate or individual, or both, from pursuing the lawful occupations of life. This Court has held that no such thing could legally be done. United States v. U. S. Steel Corp., 251 U. S. 417; United States v. Coffee Exchange, 263 U. S. 611; HamburgAmerican case, 239 U. S. 475.

Can the Government possibly go into court with no violation of law, with no contract, combination or conspiracy in restraint of trade existing, with no monoply or attempt to monopolize existing, and with the stipula

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tion that none of these things should be found or considered to exist, and secure an injunction to prevent corporations and individuals from exercising their inherent right in present and future to pursue the lawful occupation of buying, selling and transporting in interstate and foreign commerce, and from engaging in vocations which were not even the subject of such commerce, as was done in this case, upon the mere "expectation" that the law, which had not been violated or attempted to be violated, might be violated in the future?

The theory that the Government can legally control, regulate and restrain the business activities of its citizens. beyond the limits fixed by law, through the means of decrees of the federal courts secured by consent of the parties, amounts to the proposition that consent of the parties can confer jurisdiction upon the federal courts, and is fraught with serious consequences.

The decree is void for want of factual basis. The jurisdictional facts necessary to give an equity court jurisdiction were not established. United States v. Swift, 188 Fed. 92; United States v. Patterson, 201 Fed. 697; Palmer v. Fleming, 1 App. D. C. 528; United States v. Reading Co., 183 Fed. 427. See also United States v. Whiting, 212 Fed. 466; Alldredge v. Aldredge, 151 Pac. 311; 15 R. C. L. 896.

Consent cannot confer jurisdiction to act outside the judicial power. Swift & Co. v. Memphis Cold Storage Co., 158 S. W. 480; T. St. L. & N. O. R. R. Co. v. R. R. Co., 208 Ill. 623; Pittsburgh, C. & St. L. Ry. Co. v. Ramsey, 22 Wall. 322.

Proof or admission of facts supporting the charges or attempted charges in the petition which were specifically denied in the answers was not made, and cannot be presumed in the face of the conditions (expressed in the stipulation and in the decree itself) upon which the parties consented that the decree should be entered. Every

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judgment or decree must be supported by facts necessary to its validity. Wood v. Cox, 113 Atl. 501; Black v. Keiley, 23 N. J. Eq. 538; Grob v. Cushman, 45 Ill. 119.

There was no proof of any threatened violations. All allegations of threatened violations were denied. The stipulation is the only basis of the decree and the decree negatives any determination of any violation. What is a threatened violation of the Sherman Act? It is nothing more nor less than an attempt; and attempts to do the acts forbidden by the statute are themselves violations of the law. Facts disclosing such attempts must be charged and proved or admitted, and must be adjudicated to be violations of law before the court can enter its judgment. United States v. Coffee Exchange, 263 U. S. 611; United States v. U. S. Steel Corp'n, 251 U. S. 417; United States v. Hamburg Amerikanische Co., 239 U. S. 466; United States v. Quaker Oats Co., 232 Fed. 499; In re Greene, 52 Fed. 104.

The injunction orders contained in paragraphs 1 and 9 are void, being merely general injunctions against all possible breaches of the Anti-Trust Laws, and beyond the power of the court. Swift & Co. v. United States, 196 U. S. 375.

The injunction orders contained in paragraphs 2 to 8, inclusive, are void because they enjoin the defendants not merely from engaging in unlawful acts, but also from severally following lawful occupations in a lawful manner and are, therefore, a usurpation by the judicial branch of the Government of the function of the legislative branch. United States v. Coffee Exchange, 263 U. S. 611; Daniel v. Portland Gold Mining Co., 202 Fed. 637; American Federation of Labor v. Buck's Stove Co., 33 App. D. C. 83; 219 U. S. 58.

See also Geddes v. Anaconda Copper Co., 254 U. S. 590, where it is said: "It is now the settled law that the remedies provided by the Anti-Trust Act of July 2,

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1890,

exclusive."

for enforcing the rights created by it are

No department of the Government may invade the province of the others. Massachusetts v. Mellon, 262 U. S. 447.

The decree is void because it is not confined to interstate commerce, but enjoins defendants from doing acts and things which are exclusively intrastate commerce or which may be limited to intrastate commerce. Kidd v. Pearson, 128 U. S. 1; Hammer v. Dagenhart, 247 U. S. 251; Delaware, L. & W. R. Co. v. Yurkonis, 220 Fed. 429. The decree is void because by it defendants are obliged to go out of certain businesses and not to enter others in the United States, forever, which is violative of both the common law and the Anti-Trust statutes.

66

The decree is void because there was no "case or controversy " before the court within the meaning of § 2 of Article III of the Constitution. Osborn v. United States Bank, 9 Wheat. 737; Smith v. Adams, 130 U. S. 167; Story on the Constitution, 4th Ed., § 1646; In re Pacific Ry. Comm., 32 Fed. 241.

It is elementary that "the controversy, in a suit, is the one actually presented by the pleadings, and not what it might have been." Vulcan Detinning Co. v. American Can Co., 130 Fed. 635.

no

Consent could not confer jurisdiction where there was 'case" or controversy," within the meaning of the Federal Constitution. Little v. Bowers, 134 U. S. 547; California v. San Pablo R. Co., 149 U. S. 308; Muskrat v. United States, 219 U. S. 346; Torrence v. Shedd, 144 U. S. 527; Liberty Warehouse Co. v. Grannis, 273 U. S. 70.

The Attorney General was without power to consent to the decree. The Attorney General has not only no authority to impose decrees upon citizens which are not authorized by law, but it is the duty of the courts to set

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Argument for the United States.

aside any such decree, imposed either by consent or otherwise. Even where a court has jurisdiction over the parties and the subject-matter, yet if it makes a decree which transcends the limits of its authority, such decree is not merely erroneous, but void. Freeman on Judgments, 4th Ed. § 116. See also Black on Judgments, 2d Ed. § 171; Windsor v. McVeigh, 93 U. S. 274; United States v. Walker, 109 U. S. 258; United States v. American Tobacco Co., 191 Fed. 371; Reynolds v. Stockton, 140 U. S. 254; 33 C. J. 1076; 15 R. C. L. "Judgments," §§ 316 and 144; 2 High on Injunctions, 4th Ed. Par. 1425; Pyeatt v. Estes, 4 A. L. R. 1570; Sache v. Gillette, 11 L. R. A. (N. S.) 803; Glover v. Brown, 184 Pac. 649; Munday v. Vail, 43 N. J. L., 418; Black on Judgments, 2d Ed. § 242; Johnson v. McKinnon, 13 L. R. A. (N. S.) 874; American Mortgage Co. v. Thomas, 47 Fed. 550.

A motion to vacate filed in the court which rendered the decree is the proper procedure to have a void decree vacated. 21 C. J. 718. See also Grant v. Harrell, 109 N. C. 78; Aronson v. Sire, 85 App. Div. (N. Y.) 607; Freeman on Judgments, 5th Ed., §§ 228, 273, 307 and 382.

Assistant to the Attorney General Donovan, with whom Solictor General Mitchell and Mr. H. B. Teegarden, Special Assistant to the Attorney General, were on the brief, for the United States.

It is suggested that the judgment refusing to grant the motion to vacate the decree was a decree in a suit under the Sherman Act, within the meaning of the Expediting Act, and the appeal should have been direct to this Court; that the Act providing for transfer of cases from Circuit Courts of Appeals, literally construed, did not allow transfer from the Court of Appeals of the District of Columbia, but liberally construed did; that unless this Court concludes that appeal was properly taken to the