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196 U.S.

Argument for Appellants.

owner thereof, and so are not purchased as articles of interstate commerce.

But if these purchases of live stock are interstate commerce, the acts alleged in the sixth and seventh paragraphs are not violations of the Sherman Act. Hopkins v. United States, 171 U. S. 591; Anderson v. United States, 171 U. S. 604. They are the exercise of a constitutional right of defendants to control their own business.

There is nothing in the bill to show the proportion of the entire number of head of live stock offered for sale at the markets in question, which is bought by the defendants for the purposes of the production of fresh meat; and so there is nothing to show anything like monopoly or attempt at monopoly of the live stock purchases by the defendants.

There is nothing in the bill to show any attempt on the part of the defendants to control or affect the purchases or business in the purchases of live stock of any other persons than themselves. The alleged combinations by defendants in the sixth and seventh paragraphs charged have to do merely with their own business conduct in themselves buying live stock, or determining how much they shall buy, at private sale for consumption in their own private business.

The combination charged in the sixth paragraph, for directing their respective purchasing agents “to refrain from bidding against each other, except perfunctorily, and without good faith,” does not allege a combination to restrain trade; or even a combination to refrain from bidding. A perfunctory bid, made without good faith, is one which the seller could accept and enforce.

The alleged combination in the seventh paragraph, "for bidding up, through their respective purchasing agents, the prices of live stock for a few days at a time at the said stock yards and open markets,” does not charge a combination to restrain trade.

These alleged combinations do not have the direct and immediate effect of restraining interstate commerce, but their

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Argument for Appellants.

196 U.S.

effect, if any, upon interstate trade in live stock is indirect and incidental, within the meaning of the decisions of this court. The effect is not near so direct or immediate as the mutual agreement of the traders who were members of the Traders Exchange in the Anderson case.

Obviously the supply of live stock for fresh meat greatly varies in the market at different seasons and times, while the demand for fresh meats for human consumption, for which defendants purchase such live stock, is comparatively constant and uniform.

It is a public benefit and not a public evil that defendants should always be able to supply such constant demand for their fresh meats, and that at the same time they should not overstock the market with their perishable meats. This makes it proper that they should act with some concert and common understanding in their purchases of live stock for that purpose.

As to the eighth paragraph we contend: The allegation of combination and conspiracy is of a mere legal conclusion, and insufficient. The sales of fresh meats by agents of defendants, as there described, under the facts alleged, are not interstate commerce. But if it be interstate commerce, no violation of the Sherman Act is thereby shown.

No criminal conspiracy is alleged. The charge there is not of a combination or conspiracy to restrain trade (which the statute forbids), but is of a combination or conspiracy to do a lawful act, the exercise of a constitutional right, viz: to raise, lower, fix and maintain their own prices, for their own property, in private sales thereof by themselves. The doing that is not prohibited or made criminal by the Act of Congress.

A criminal conspiracy is an agreement of two or more, either to do an act criminal or unlawful in itself, or to do a lawful act by means which are criminal or unlawful. Pettibone v. United States, 148 U. S. 203; Commonwealth v. Shedd, 7 Cush. 514. Here neither the act nor the means alleged are criminal or unlawful. The allegation of intent is immaterial. Stevenson v. Newham, 13 C. B. 285; Allen v. Flood, App. Cas. 1.


196 U.S.

Argument for Appellants.

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. State v. 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 defendants' 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.

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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 combination 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


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