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Argument for Appellants.

196 U.S.

they will end their transit, after purchase, in another State, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a constantly recurring course, it constitutes interstate commerce and the purchase of the cattle is an incident

of such commerce. A bill in equity, and the demurrer thereto, are neither of them to be read

and construed strictly as an indictment but are to be taken to mean what they fairly convey to a dispassionate reader by a fairly exact use of English speech.

The facts are stated in the opinion.


Mr. John S. Miller, with whom Mr. Merritt Starr was on the brief, for appellants:

The charges in each of the paragraphs or counts of the bill or petition of alleged violations of the Sherman Act are, respectively, mere statements of legal conclusions. Each is bad on demurrer for that reason.

These charges would be bad on that ground, even in an indictment under this act. In re Greene, 52 Fed. Rep. 104;

. United States v. Cruikshank, 92 U. S. 542, 563; United States v. Simmons, 96 U. S. 360; United States v. Carll, 105 U. S. 611; United States v. Britton, 107 U. S. 655; Hazard v. Griswold, 21 Fed. Rep. 178. And a fortiori are they bad in a bill or petition in equity, which is required to state the facts essential to the cause of action. Lawson v. Hewell, 118 California, 613; Wright v. Dame, 22 Pick. 59; Ambler v. Choteau, 107 U. S. 586; Van Weel v. Winston, 115 U. S. 228, 237; 1 Foster Fed. Prac. $ 67.

The facts alleged are looked at and not adjectives or adverbs or epithets. Magniac v. Thompson, 2 Wall. Jr. 209; Price v. Coleman, 21 Fed. Rep. 357; Van Weel v. Winston, and Ambler v. Choteau, supra.

The importance of applying this rule with strictness here is more marked because answer by the defendants under oath is called for. This point is properly raised by demurrer. 1 Daniel Ch. Pr. 372. It was so raised in Van Weel v. Winston, supra.

The decree complained of, which is merely one of injunction, is erroneous on like grounds of indefiniteness. Laurie v.

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196 U. S.

Argument for Appellants.

Laurie, 9 Paige, 234, 235; Robinson v. Clapp, 65 Connecticut, 365; Whipple v. Hutchinson, 4 Blatchf. 190.

It makes clear the misconception of the Sherman Act and of Federal power to regulate commerce upon which the bill and decree proceed. They appear to go upon the theory that under the act of Congress the Federal courts are to regulate commerce, and the decree enjoins, not specific acts, but violations of the statute in terms as general as the act of Congress itself. A defendant cannot know from its terms what he may or may not do without making himself liable as in contempt.

This makes the insufficiency of the bill more obvious, as no valid decree could have been entered upon its allegations.

The provisions of the Sherman Act do not contemplate such a general proceeding or decree to interfere in advance with future dealings, as interstate commerce, which may be interstate trade or may be domestic trade according to the future and changeable intention of the dealers. United States v. E. C. Knight Co., 156 U. S. 1, 15.

The business of defendants of purchasing live stock and of selling fresh meats produced therefrom, as described in the bill, is not, upon the allegations of fact in the bill, interstate or foreign commerce.

The purchase of cattle as alleged and described in the first paragraph of the bill is not alleged or shown to be interstate commerce.

The business of defendants of selling such fresh meats, at the several places where they are so prepared, as described in the second paragraph, is not, under the facts there alleged, interstate trade or commerce. The sales and deliveries, although to dealers in other States and Territories, are there alleged to be made at the places where the meats are prepared by defendants, and are domestic sales.

The deliveries by defendants to the carriers, who are agents of the purchasers in that respect, under the allegations of the bill, are deliveries to the purchasers in the State where the sale is made; and the sales and deliveries are there fully completed.

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Argument for Appellants.

196 U.S.

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Merchant v. Chapman, 4 Allen, 362; Orcutt v. Nelson, 1 Gray, 543; Waldron v. Romaine, 22 N. Y. 368; Ramsey & Gore Co. v. Kelsea, 55 N. J. L. 320; Cotte v. Harden, 4 East. 211; Brown v. Hodgson, 2 Camp. 86; Groning v. Needham, 5 Maule & S. 189; 2 Kent. Com. 499; Crossman v. Lurman, 192 U. S. 189, 198.

The sellers' act in delivering the merchandise to the common carrier, or carrying the merchandise to the carrier's depot (if that is taken to be in effect alleged), is not any part of the interstate transportation, and does not make the goods the subject of interstate commerce. Coe v. Errol, 116 U. S. 517, 528.

The fact that the sale is made with a view to the goods being transported by the buyer's agent to another State after the sale and delivery is fully completed, does not make the sale interstate commerce.

The sales alleged in the third paragraph of the bill, by agents of the owners in other States and Territories to whom the owners of the fresh meats have shipped the same for sale there by such agents on the ground, are not incidents of interstate commerce. Coe v. Errol, 116 U. S. 517, 525; Kidd v. Pearson, 128 U. S. 1, 23; United States v. E. C. Knight Co., 156 U.S. 1, 13, 17; Austin v. Tennessee, 179 U. S. 343; Crossman v. Lurman, 192 U. S. 189, 198; Am. Harrow Co. v. Shaffer, 68 Fed. Rep. 750; Stevens v. Ohio, 93 Fed. Rep. 793.

Under the allegations here in question, it is to be taken that the meats, before the sales here referred to are made, have come to their place of rest and are at rest for an indefinite time awaiting sale at their place of destination, and are a commodity in the market where the sales are made; and that the sales are not in the "original packages"; and that the meats, at the time of the sales, have become a part of the general property in the State where sold, and are there handled and sold as such. Southern Coal Co. v. Bates, 156 U. S. 577, 588; Brown v. Houston, 114 U. S. 623, 632; Emert v. Missouri, 156 U. S. 296, 310; Singer Mfg. Co. v. Wright, 97 Georgia, 123.

The point here made is entirely consistent with the rulings

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196 U.S.

Argument for Appellants.

in many cases, that the owner of merchandise, who transports it from one State to another for sale, has a right (which cannot be interfered with by state or municipal laws) to sell it as an article of interstate commerce. He also has a right to make such article part of the general property of the State into which it is taken, and he then has the right to sell and others have the right to purchase it as an article of domestic commerce, which cannot be interfered with by Federal law. The Sherman Act does not seek to and could not interfere with that right. United States v. E.C. Knight Co., 156 U. S. 1, 15, and Kidd v. Pearson and Veazie v. Moor, there cited. But this bill here does seek to interfere with that right. Again, the point here made is not touched by the line of decisions holding that state or municipal laws are invalid, which, by taxation or other regulations, discriminate against merchandise brought from another State, or seek to prevent interstate commerce therein, -such as Welton v. Missouri, 91 U. S. 465; Walling v. Michigan, 116 U. S. 446; Minnesota v. Barber, 136 U. S. 313; Brimmer v. Rebman, 138 U. S. 78, and Schollenberger v. Pennsylvania, 171 U. S. 1, 24, 25.

The bill of complaint does not show any contract, combination or conspiracy in restraint of interstate trade or commerce within the meaning of the Sherman Act.

It does not allege any acts of defendants monopolizing or attempting to monopolize or combining or conspiring to monopolize such trade or commerce.

If the act in question be given a construction which would sustain this bill of complaint, the statute would be unconstitutional.

The alleged offenses complained of are set forth in the sixth, seventh, eighth, ninth, tenth and eleventh paragraphs of the bill. As to the sixth and seventh paragraphs we maintain: The allegations of combination and conspiracy here are of mere legal conclusions. That the purchases of live stock referred to in the sixth and seventh paragraphs, as therein alleged, are not interstate commerce.

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The first paragraph of the bill in which the business of purchasing live stock for slaughter is set forth and described, does not allege or show that the business is interstate commerce.

The description of the live stock in the sixth paragraph, as live stock produced and owned principally in other States and Territories, and shipped by the owners to the places where sold, for sale to persons engaged in producing and dealing in fresh meat, does not show that the sales of the live stock are interstate commerce. The live stock, when offered for sale in the pens of the stock yards, are, under the allegations of fact in the bill, to be considered as having become part of the general mass of property of the State where offered for sale. The defendants purchasing the live stock have the right so to treat and deal therewith. Brown v. Houston, 114 U. S. 622, 632; Pittsburgh Coal Co. v. Bates, 156 U. S. 577, 588, 589; Emert v. Missouri, 120 U. S. 489, 497. When purchased, the live stock is, under the allegations of this bill, at rest for an indefinite time, awaiting sale at its place of destination. Diamond Match Co. v. Ontonagon, 188 U. S. 82, 92.

The defendants have as much right, then, to treat and deal with and purchase such live stock as an article of domestic commerce as the State has so to treat it for the purposes of taxation or regulation. This bill seeks to interfere with that right under the Sherman Act.

If the sworn allegations of the bill in this respect were to be supplemented by other facts, as matters of common knowledge, with respect to the situation of the live stock when sold, such as appeared in the Hopkins and Anderson cases, the case of the Government would be no better. It would then appear that the cattle and other live stock are shipped to commission merchants at the stock yards; are then placed in the pens of the stock yards companies, and there held, cared for and fed by the stock yards company for the account of the commission merchants, and under the allegations here it must be taken that their bulk is broken up; they are divided into lots and sold and delivered by the commission merchant as the principal or

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