|
The monopoly and restraint
denounced by the act of July 2, 1890, c. 647, 26 Stat. 209, "to
protect trade and commerce against unlawful restraints and monopolies,"
are a monopoly in interstate and international trade or commerce, and
not a monopoly in the manufacture of a necessary of life.
The American Sugar Refining Company, a corporation existing under the
laws of the State of New Jersey, being in control of a large majority of
the manufactories of refined sugar in the United States, acquired,
through the purchase of stock in four Philadelphia refineries, such
disposition over those manufactories throughout the United States as
gave it a practical monopoly of the business. Held, that the
result of the transaction was the creation of a monopoly in the
manufacture of a necessary of life, which could not be suppressed under
the provisions of the act of July 2, 1890, c. 647, 26 Stat. 209, "to
protect trade and commerce against unlawful restraints and monopolies,"
in the mode attempted in this suit, and that the acquisition of
Philadelphia refineries by a New Jersey corporation, and the business of
sugar refining in Pennsylvania, bear no direct relation to commerce
between the States or with foreign nations.
This was a bill filed by the United States against E. C. Knight Company
and others, in the Circuit Court of the United States for the Eastern
District of Pennsylvania, charging that the defendants had violated the
provisions of an act of Congress approved July 2, 1890, c. 64, entitled
"An act to protect trade and commerce against unlawful restraints
and monopolies," 26 Stat. 209,
providing that every contract, combination in the form of trust, or
otherwise, or conspiracy in restraint of trade and commerce among the
several States is illegal, and that persons who shall monopolize or
shall attempt to monopolize, or combine or conspire with other persons
to monopolize trade and commerce among the several States, shall be
guilty of a misdemeanor.
The bill alleged that the defendant, the American Sugar Refining
Company, was incorporated under and by virtue of the laws of New Jersey,
whose certificate of incorporation named the places in New Jersey and
New York at which its principal business was to be transacted and
several other States in which it proposed to carry on operations, and
stated that the objects for which said company was formed were "the
purchase, manufacture, refining, and sale of sugar, molasses, and
melads, and all lawful business incidental thereto;" that the
defendant, E. C. Knight Company, was incorporated under the laws of
Pennsylvania "for the purpose of importing, manufacturing, refining
and dealing in sugars and molasses," at the city of Philadelphia;
that the defendant, the Franklin Sugar Company, was incorporated under
the laws of Pennsylvania "for the purpose of the manufacture of
sugar and the purchase of raw material for that purpose," at
Philadelphia; that the defendant, Spreckels Sugar Refining Company, was
incorporated under the laws of Pennsylvania
for the purpose of refining sugar, which will involve the buying of the
raw material therefor and selling the manufactured product, and of doing
whatever else shall be incidental to the said business of refining,
at the city of Philadelphia; that the defendant, the Delaware Sugar
House, was incorporated under the laws of Pennsylvania
for the purpose of the manufacture of sugar and syrups, and preparing
the same for market, and the transaction of such work or business as may
be necessary or proper for the proper management of the business of
manufacture.
It was further averred that the four defendants last named were
independently engaged in the manufacture and sale of sugar until on or
about March 4, 1892; that the product of their refineries amounted to
thirty-three percent of the sugar refined in the United States; that
they were competitors with the American Sugar Refining Company; that the
products of their several refineries were distributed among the several
States of the United States, and that all the companies were engaged in
trade or commerce with the several States and with foreign nations; that
the American Sugar Refining Company had, on or prior to March 4, 1892
obtained the control of all the sugar refineries of the United States
with the exception of the Revere of Boston, and the refineries of the
four defendants above mentioned; that the Revere produced annually about
two percent of the total amount of sugar refined.
The bill then alleged that, in order that the American Sugar Refining
Company might obtain complete control of the price of sugar in the
United States, that company, and John E. Searles, Jr., acting for it,
entered into an unlawful and fraudulent scheme to purchase the took,
machinery, and real estate of the other four corporations defendant, by
which they attempted to control all the sugar refineries for the purpose
of restraining the trade thereof with other States as theretofore
carried on independently by said defendants; that, in pursuance of this
scheme, on or about March 4, 1892, Searles entered into a contract with
the defendant Knight Company and individual stockholders named for the
purchase of all the stock of that company, and subsequently delivered to
the defendants therefor in exchange shares of the American Sugar
Refining Company; that, on or about the same date, Searles entered into
a similar contract with the Spreckels Company and individual
stockholders, and with the Franklin Company and stockholders, and with
the Delaware Sugar House and stockholders. It was further averred that
the American Sugar Refining Company monopolized the manufacture and sale
of refined sugar in the United States, and controlled the price of
sugar; that, in making the contracts, Searles and the American Sugar
Refining Company combined and conspired with the other defendants to
restrain trade and commerce in refined sugar among the several States
and foreign nations, and that the said contracts were made with the
intent to enable the American Sugar Refining Company to restrain the
sale of refined sugar in Pennsylvania and among the several States, and
to increase the regular price at which refined sugar was sold, and
thereby to exact and secure large sums of money from the State of
Pennsylvania, and from the other States of the United States, and from
all other purchasers, and that the same was unlawful and contrary to the
said act.
The bill called for answers under oath, and prayed --
1. That all and each of the said unlawful agreements made and entered
into by and between the said defendants, on or about the fourth day of
March, 1892, shall be delivered up, cancelled, and declared to be void,
and that the said defendants, the American Sugar Refining Company and
John E. Searles, Jr., be ordered to deliver to the other said defendants
respectively the shares of stock received by them in performance of the
said contracts, and that the other said defendants be ordered to deliver
to the said defendants, the American Sugar Refining Company and John E.
Searles, Jr., the shares of stock received by them respectively in
performance of the said contracts.
2. That an injunction issue preliminary until the final determination
of this cause, and perpetual thereafter, preventing and restraining the
said defendants from the further performance of the terms and conditions
of the said unlawful agreements.
3. That an injunction may issue preventing and restraining the said
defendants from further and continued violations of the said act of
Congress, approved July 2, 1890.
4. Such other and further relief as equity and justice may require in
the premises.
Answers were filed and evidence taken, which was thus sufficiently
summarized by Judge Butler in his opinion in the Circuit Court:
The material facts proved are that the American Sugar Refining Co., one
of the defendants, is incorporated under the laws of New Jersey, and has
authority to purchase, refine, and sell sugar; that the Franklin Sugar
Refinery, the E. C. Knight Co., the Spreckels Sugar Refinery, and the
Delaware Sugar House, were incorporated under the laws of Pennsylvania
and authorized to purchase, refine, and sell sugar; that the four latter
Pennsylvania companies were located in Philadelphia, and, prior to
March, 1892, produced about thirty-three percent of the total amount of
sugar refined in the United States, and were in active competition with
the American Sugar Refining Co., and with each other, selling their
product wherever demand was found for it throughout the United States;
that, prior to March, 1892, the American Sugar Refining Co. had obtained
control of all refineries in the United States excepting the four
located in Philadelphia, and that of the Revere Co. in Boston, the
latter producing about two percent of the amount refined in this
country; that, in March, 1892, the American Sugar Refining Co. entered
into contracts (on different dates) with the stockholders of each of the
Philadelphia corporations named, whereby it purchased their stock,
paying therefor by transfers of stock in its company; that the American
Sugar Refining Co. thus obtained possession of the Philadelphia
refineries and their business; that each of the purchases was made
subject to the American Sugar Refining Co.'s obtaining authority to
increase its stock $5,000,000; that this assent was subsequently
obtained, and the increase made; that there was no understanding or
concert of action between the stockholders of the several Philadelphia
companies respecting the sales, but that those of each company acted
independently of those of the others, and in ignorance of what was being
done by such others; that the stockholders of each company acted in
concert with each other, understanding and intending that all the stock
and property of the company should be sold; that the contract of sale in
each instance left the sellers free to establish other refineries and
continue the business if they should see fit to do so, and contained no
provision respecting trade or commerce in sugar, and that no arrangement
or provision on this subject has been made since; that, since the
purchase, the Delaware Sugar House Refinery has been operated in
conjunction with the Spreckels Refinery, and the E. C. Knight Refinery
in connection with the Franklin, this combination being made apparently
for reasons of economy in conducting the business; that the amount of
sugar refined in Philadelphia has been increased since the purchases;
that the price has been slightly advanced since that event, but is still
lower than it had been for some years before and up to within a few
months of the sales; that about ten percent of the sugar refined and
sold in the United States is refined in other refineries than those
controlled by the American Sugar Refining Co.; that some additional
sugar is produced in Louisiana and some is brought from Europe, but the
amount is not large in either instance.
The object in purchasing the Philadelphia refineries was to obtain a
greater influence or more perfect control over the business of refining
and selling sugar in this country.
The Circuit Court held that the facts did not show a contract,
combination, or conspiracy to restrain or monopolize trade or commerce "among
the several States or with foreign nations," and dismissed the
bill. 60 Fed.Rep. 306. The cause was taken to the Circuit Court of
Appeals for the Third Circuit, and the decree affirmed. 60 Fed.Rep. 934.
This appeal was then prosecuted. The act of Congress of July 2, 1890, o.
647, is as follows:
An act to protect trade and commerce against unlawful restraints and
monopolies.
SEC. 1. Every contract, combination in the form of trust or otherwise,
or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is hereby declared to be illegal. Every
person who shall make any such contract or engage in any such
combination or conspiracy shall be deemed guilty of a misdemeanor, and,
on conviction thereof, shall be punished by a fine not exceeding five
thousand dollars, or by imprisonment not exceeding one year, or by both
said punishments, in the discretion of the court.
SEC. 2. Every person who shall monopolize, or attempt to monopolize, or
combine or conspire with any other person or persons, to monopolize any
part of the trade or commerce among the several States, or with foreign
nations, shall be deemed guilty of a misdemeanor, and, on conviction
thereof, shall be punished by fine not exceeding five thousand dollars,
or by imprisonment not exceeding one year, or by both said punishments,
in the discretion of the court.
SEC. 3. Every contract, combination in form of trust or otherwise, or
conspiracy, in restraint of trade or commerce in any Territory of the
United States or of the District of Columbia, or in restraint of trade
or commerce between any such Territory and another, or between any such
Territory or Territories and any State or States or the District of
Columbia, or with foreign nations, or between the District of Columbia
and any State or States or foreign nations, is hereby declared illegal.
Every person who shall make any such contract or engage in any such
combination or conspiracy shall be deemed guilty of a misdemeanor, and,
on conviction thereof, shall be punished by a fine not exceeding five
thousand dollars, or by imprisonment not exceeding one year, or by both
said punishments, in the discretion of the court.
SEC. 4. The several Circuit Courts of the United States are hereby
invested with jurisdiction to prevent and restrain violations of this
act, and it shall be the duty of the several district attorneys of the
United States, in their respective districts, under the direction of the
Attorney General, to institute proceedings in equity to prevent and
restrain such violations. Such proceedings may be by way of petition
setting forth the case and praying that such violation shall be enjoined
or otherwise prohibited. When the parties complained of shall have been
duly notified of such petition, the court shall proceed, as soon as may
be, to the hearing and determination of the case, and pending such
petition and before final decree, the court may at any time make such
temporary restraining order or prohibition as shall be deemed just in
the premises.
SEC. 5. Whenever it shall appear to the court before which any
proceeding under section four of this act may be pending that the ends
of justice require that other parties should be brought before the
court, the court may cause them to be summoned, whether they reside in
the district in which the court is held or not, and subpoenas to that
end may be served in any district by the marshal thereof.
SEC. 6. Any property owned under any contract or by any combination, or
pursuant to any conspiracy (and being the subject thereof) mentioned in
section one of this act, and being in the course of transportation from
one State to another, or to a foreign country, shall be forfeited to the
United States, and may be seized and condemned by like proceedings as
those provided by law for the forfeiture, seizure, and condemnation of
property imported into the United States contrary to law.
SEC. 7. Any person who shall be injured in his business or property by
any other person or corporation by reason of anything forbidden or
declared to be unlawful by this act may sue therefor in any Circuit
Court of the United States in the district in which the defendant
resides or is found, without respect to the amount in controversy, and
shall recover threefold the damages by him sustained, and the costs of
suit, including a reasonable attorney's fee.
SEC. 8. That the word "person," or "persons,"
wherever used in this act, shall be deemed to include corporations and
associations existing under or authorized by the laws of either the
United States, the laws of any of the Territories, the laws of any
State, or the laws of any foreign country.
26 Stat. 209, c. 647. [p*9] | |
|
MR.
CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of
the court.
By the purchase of the stock of the four Philadelphia refineries, with
shares of its own stock, the American Sugar Refining Company acquired
nearly complete control of the manufacture of refined sugar within the
United States. The bill charged that the contracts under which these
purchases were made constituted combinations in restraint of trade, and
that, in entering into them, the defendants combined and conspired to
restrain the trade and commerce in refined sugar among the several
States and with foreign nations, contrary to the act of Congress of July
2, 1890.
The relief sought was the cancellation of the agreements under which
the stock was transferred; the redelivery of the stock to the parties
respectively, and an injunction against the further performance of the
agreements and further violations of the act. As usual, there was a
prayer for general relief, but only such relief could be afforded under
that prayer as would be agreeable to the case made by the bill and
consistent with that specifically prayed. And as to the injunction
asked, that relief was ancillary to and in aid of the primary equity, or
ground of suit, and, if that failed, would fall with it. That ground
here was the existence of contracts to monopolize interstate or
international trade or commerce, and to restrain such trade or commerce,
which, by the provisions of the act, could be rescinded, or operations
thereunder arrested.
In commenting upon the statute, 21 Jac. 1, c. 3, at the commencement of
chapter 85 of the third Institute, entitled " Against Monopolists,
Propounders, and Projectors," Lord Coke, in language often quoted,
said:
It appeareth by the preamble of this act (as a judgment in Parliament)
that all grants of monopolies are against the ancient and fundamentall
laws of this Kingdome. And therefore it is necessary to define what a
monopoly is.
A monopoly is an institution, or allowance by the King by his grant,
commission, or otherwise to any person or persons, bodies politique, or
corporate, of or for the sole buying, selling, making, working, or using
of anything, whereby any person or persons, bodies politique, or
corporate, are sought to be restrained of any freedome or liberty that
they had before, or hindred in their lawfull trade.
For the word monopoly, dictur [Greek phrase] (i. solo)
[Greek phrase] (i. vendere) quod est cum unus solus aliquod
genus mercaturae universum vendit, ut solus vendat, pretium ad suum
libitum statuens: hereof you may read more at large in that case.
Trin. 44 Eliz.Lib. 11, f. 84, 8; le case de monopolies.
3 Inst. 181.
Counsel contend that this definition, as explained by the derivation of
the word, may be applied to all cases in which "one person sells
alone the whole of any kind of marketable thing, so that only he can
continue to sell it, fixing the price at his own pleasure," whether
by virtue of legislative grant or agreement; that the monopolization
referred to in the act of Congress is not confined to the common law
sense of the term, as implying an exclusive control, by authority, of
one branch of industry without legal right of any other person to
interfere therewith by competition or otherwise, but that it includes
engrossing as well, and covers controlling the market by contracts
securing the advantage of selling alone or exclusively all, or some
considerable portion, of a particular kind of merchandise or commodity
to the detriment of the public, and that such contracts amount to that
restraint of trade or commerce declared to be illegal. But the monopoly
and restraint denounced by the act are the monopoly and restraint of
interstate and international trade or commerce, while the conclusion to
be assumed on this record is that the result of the transaction
complained of was the creation of a monopoly in the manufacture of a
necessary of life.
In the view which we take of the case, we need not discuss whether,
because the tentacles which drew the outlying refineries into the
dominant corporation were separately put out, therefore there was no
combination to monopolize; or, because, according to political
economists, aggregations of capital may reduce prices, therefore the
objection to concentration of power is relieved; or, because others were
theoretically left free to go into the business of refining sugar, and
the original stockholders of the Philadelphia refineries, after becoming
stockholders of the American Company, might go into competition with
themselves, or, parting with that stock, might set up again for
themselves, therefore no objectionable restraint was imposed.
The fundamental question is whether, conceding that the existence of a
monopoly in manufacture is established by the evidence, that monopoly
can be directly suppressed under the act of Congress in the mode
attempted by this bill.
It cannot be denied that the power of a State to protect the lives,
health, and property of its citizens, and to preserve good order and the
public morals, "the power to govern men and things within the
limits of its dominion," is a power originally and always belonging
to the States, not surrendered by them to the general government nor
directly restrained by the Constitution of the United States, and
essentially exclusive. The relief of the citizens of each State from the
burden of monopoly and the evils resulting from the restraint of trade
among such citizens was left with the States to deal with, and this
court has recognized their possession of that power even to the extent
of holding that an employment or business carried on by private
individuals, when it becomes a matter of such public interest and
importance as to create a common charge or burden upon the citizen -- in
other words, when it becomes a practical monopoly to which the citizen
is compelled to resort and by means of which a tribute can be exacted
from the community -- is subject to regulation by state legislative
power. On the other hand, the power of Congress to regulate commerce
among the several States is also exclusive. The Constitution does not
provide that interstate commerce shall be free, but, by the grant of
this exclusive power to regulate it, it was left free except as Congress
might impose restraints. Therefore it has been determined that the
failure of Congress to exercise this exclusive power in any case is an
expression of its will that the subject shall be free from restrictions
or impositions upon it by the several States, and if a law passed by a
State in the exercise of its acknowledged powers comes into conflict
with that will, the Congress and the State cannot occupy the position of
equal opposing sovereignties, because the Constitution declares its
supremacy and that of the laws passed in pursuance thereof, and that
which is not supreme must yield to that which is supreme. "Commerce,
undoubtedly, is traffic," said Chief Justice Marshall,
but it is something more; it is intercourse. It describes the
commercial intercourse between nations and parts of nations in all its
branches, and is regulated by prescribing rules for carrying on that
intercourse.
That which belongs to commerce is within the jurisdiction of the United
States, but that which does not belong to commerce is within the
jurisdiction of the police power of the State. Gibbons v. Ogden,
9 Wheat. 1 , 189, 210; Brown v. Maryland, 12 Wheat. 419, 448;
The License Cases, 5 How. 504, 599; Mobile v. Kimball,
102 U.S. 691; Bowman v. Chicago & N.W. Railway, 125 U.S.
465; Leisy v. Hardin, 135 U.S. 100; In re Rahrer, 140
U.S. 545, 555.
The argument is that the power to control the manufacture of refined
sugar is a monopoly over a necessary of life, to the enjoyment of which
by a large part of the population of the United States interstate
commerce is indispensable, and that, therefore, the general government,
in the exercise of the power to regulate commerce, may repress such
monopoly directly and set aside the instruments which have created it.
But this argument cannot be confined to necessaries of life merely, and
must include all articles of general consumption. Doubtless the power to
control the manufacture of a given thing involves in a certain sense the
control of its disposition, but this is a secondary, and not the
primary, sense, and although the exercise of that power may result in
bringing the operation of commerce into play, it does not control it,
and affects it only incidentally and indirectly. Commerce
succeeds to manufacture, and is not a part of it. The power to regulate
commerce is the power to prescribe the rule by which commerce shall be
governed, and is a power independent of the power to suppress monopoly.
But it may operate in repression of monopoly whenever that comes within
the rules by which commerce is governed or whenever the transaction is
itself a monopoly of commerce.
It is vital that the independence of the commercial power and of the
police power, and the delimitation between them, however sometimes
perplexing, should always be recognized and observed, for while the one
furnishes the strongest bond of union, the other is essential to the
preservation of the autonomy of the States, as required by our dual form
of government, and acknowledged evils, however grave and urgent they may
appear to be, had better be borne than the risk be run, in the effort to
suppress them, of more serious consequences by resort to expedients of
even doubtful constitutionality.
It will be perceived how far-reaching the proposition is that the power
of dealing with a monopoly directly may be exercised by the general
government whenever interstate or international commerce may be
ultimately affected. The regulation of commerce applies to the subjects
of commerce, and not to matters of internal police. Contracts to buy,
sell, or exchange goods to be transported among the several States, the
transportation and its instrumentalities, and articles bought, sold, or
exchanged for the purposes of such transit among the States, or put in
the way of transit, may be regulated, but this is because they form part
of interstate trade or commerce. The fact that an article is
manufactured for export to another State does not, of itself, make it an
article of interstate commerce, and the intent of the manufacturer does
not determine the time when the article or product passes from the
control of the State and belongs to commerce. This was so ruled in Coe
v. Errol, 116 U.S. 517, 525, in which the question before the court
was whether certain logs cut at a place in New Hampshire and hauled to a
river town for the purpose of transportation to the State of Maine were
liable to be taxed like other property in the State of New Hampshire.
Mr. Justice Bradley, delivering the opinion of the court, said:
Does the owner's state of mind in relation to the goods, that is, his
intent to export them, and his partial preparation to do so, exempt them
from taxation? This is the precise question for solution. . . . There
must be a point of time when they cease to be governed exclusively by
the domestic law and begin to be governed and protected by the national
law of commercial regulation, and that moment seems to us to be a
legitimate one for this purpose, in which they commence their final
movement from the State of their origin to that of their destination.
And again, in Kidd v. Pearson, 198 U.S. 1, 20, 21, 22, where
the question was discussed whether the right of a State to enact a
statute prohibiting within its limits the manufacture of intoxicating
liquors, except for certain purposes, could be overthrown by the fact
that the manufacturer intended to export the liquors when made, it was
held that the intent of the manufacturer did not determine the time when
the article or product passed from the control of the State and belonged
to commerce, and that, therefore, the statute, in omitting to except
from its operation the manufacture of intoxicating liquors within the
limits of the State for export, did not constitute an unauthorized
interference with the right of Congress to regulate commerce. And Mr.
Justice Lamar remarked:
No distinction is more popular to the common mind, or more clearly
expressed in economic and political literature, than that between
manufacture and commerce. Manufacture is transformation -- the
fashioning of raw materials into a change of form for use. The functions
of commerce are different. The buying and selling and the transportation
incidental thereto constitute commerce, and the regulation of commerce
in the constitutional sense embraces the regulation at least of such
transportation. . . . If it be held that the term includes the
regulation of all such manufactures as are intended to be the subject of
commercial transactions in the future, it is impossible to deny that it
would also include all productive industries that contemplate the same
thing. The result would be that Congress would be invested, to the
exclusion of the States, with the power to regulate not only
manufactures, but also agriculture, horticulture, stock raising,
domestic fisheries, mining -- in short, every branch of human industry.
For is there one of them that does not contemplate, more or less
clearly, an interstate or foreign market? Does not the wheat grower of
the Northwest or the cotton planter of the South, plant, cultivate, and
harvest his crop with an eye on the prices at Liverpool, New York, and
Chicago? The power being vested in Congress and denied to the States, it
would follow as an inevitable result that the duty would devolve on
Congress to regulate all of these delicate, multiform and vital
interests -- interests which in their nature are and must be local in
all the details of their successful management. . . . The demands of
such a supervision would require not uniform legislation generally
applicable throughout the United States, but a swarm of statutes only
locally applicable and utterly inconsistent. Any movement toward the
establishment of rules of production in this vast country, with its many
different climates and opportunities, could only be at the sacrifice of
the peculiar advantages of a large part of the localities in it, if not
of every one of them. On the other hand, any movement toward the local,
detailed and incongruous legislation required by such interpretation
would be about the widest possible departure from the declared object of
the clause in question. or this alone. Even in the exercise of the
power contended for, Congress would be confined to the regulation not of
certain branches of industry, however numerous, but to those instances
in each and every branch where the producer contemplated an interstate
market. These instances would be almost infinite, as we have seen; but
still there would always remain the possibility, and often it would be
the case, that the producer contemplated a domestic market. In that
case, the supervisory power must be executed by the State, and the
interminable trouble would be presented that whether the one power or
the other should exercise the authority in question would be determined
not by any general or intelligible rule, but by the secret and
changeable intention of the producer in each and every act of
production. A situation more paralyzing to the state governments, and
more provocative of conflicts between the general government and the
States, and less likely to have been what the framers of the
Constitution intended it would be difficult to imagine.
And see Veaie v. Moor, 14 How. 568, 574.
In Gibbons v. Ogden, Brown v. Maryland, and other cases
often cited, the state laws, which were held inoperative, were instances
of direct interference with, or regulations of, interstate or
international commerce; yet, in Kidd v. Pearson, the refusal of
a State to allow articles to be manufactured within her borders even for
export was held not to directly affect external commerce, and state
legislation which, in a great variety of ways, affected interstate
commerce and persons engaged in it has been frequently sustained because
the interference was not direct.
Contracts, combinations, or conspiracies to control domestic enterprise
in manufacture, agriculture, mining, production in all its forms, or to
raise or lower prices or wages might unquestionably tend to restrain
external as well as domestic trade, but the restraint would be an
indirect result, however inevitable and whatever its extent, and such
result would not necessarily determine the object of the contract,
combination, or conspiracy.
Again, all the authorities agree that, in order to vitiate a contract
or combination, it is not essential that its result should be a complete
monopoly; it is sufficient if it really tends to that end, and to
deprive the public of the advantages which flow from free competition.
Slight reflection will show that, if the national power extends to all
contracts and combinations in manufacture, agriculture, mining, and
other productive industries whose ultimate result may affect external
commerce, comparatively little of business operations and affairs would
be left for state control.
It was in the light of well settled principles that the act of July 2,
1890, was framed. Congress did not attempt thereby to assert the power
to deal with monopoly directly as such, or to limit and restrict the
rights of corporations created by the States or the citizens of the
States in the acquisition, control, or disposition of property, or to
regulate or prescribe the price or prices at which such property or the
products thereof should be sold, or to make criminal the acts of persons
in the acquisition and control of property which the States of their
residence or creation sanctioned or permitted. Aside from the provisions
applicable where Congress might exercise municipal power, what the law
struck at was combinations, contracts, and conspiracies to monopolize
trade and commerce among the several States or with foreign nations; but
the contracts and acts of the defendants related exclusively to the
acquisition of the Philadelphia refineries and the business of sugar
refining in Pennsylvania, and bore no direct relation to commerce
between the States or with foreign nations. The object was manifestly
private gain in the manufacture of the commodity, but not through the
control of interstate or foreign commerce. It is true that the bill
alleged that the products of these refineries were sold and distributed
among the several States, and that all the companies were engaged in
trade or commerce with the several States and with foreign nations; but
this was no more than to say that trade and commerce served manufacture
to fulfil its function. Sugar was refined for sale, and sales were
probably made at Philadelphia for consumption, and undoubtedly for
resale by the first purchasers throughout Pennsylvania and other States,
and refined sugar was also forwarded by the companies to other States
for sale. Nevertheless it does not follow that an attempt to monopolize,
or the actual monopoly of, the manufacture was an attempt, whether
executory or consummated, to monopolize commerce, even though, in order
to dispose of the product, the instrumentality of commerce was
necessarily invoked. There was nothing in the proofs to indicate any
intention to put a restraint upon trade or commerce, and the fact, as we
have seen, that trade or commerce might be indirectly affected was not
enough to entitle complainants to a decree. The subject matter of the
sale was shares of manufacturing stock, and the relief sought was the
surrender of property which had already passed and the suppression of
the alleged monopoly in manufacture by the restoration of the status
quo before the transfers; yet the act of Congress only authorized
the Circuit Courts to proceed by way of preventing and restraining
violations of the act in respect of contracts, combinations, or
conspiracies in restraint of interstate or international trade or
commerce.
The Circuit Court declined, upon the pleadings and proofs, to grant the
relief prayed, and dismissed the bill, and we are of opinion that the
Circuit Court of Appeals did not err in affirming that decree.
Decree affirmed. | |
|
MR.
JUSTICE HARLAN dissenting.
Prior to the 4th day of March, 1892, the American
Sugar Refining Company, a corporation organized under a general statute
of New Jersey for the purpose of buying, manufacturing, refining, and
selling sugar in different parts of the country, had obtained
the control of all the sugar refineries in the United States except
five, of which four were owned and operated by Pennsylvania corporations
-- the E. C. Knight Company, the Franklin Sugar Refining Company,
Spreckels' Sugar Refining Company, and the Delaware Sugar House -- and
the other, by the Revere Sugar Refinery of Boston. These five
corporations were all in active competition with the American Sugar
Refining Company and with each other. The product of the Pennsylvania
companies was about thirty-three percent, and that of the Boston company
about two percent, of the entire quantity of sugar refined in the United
States.
In March, 1899, by means of contracts or
arrangements with stockholders of the four Pennsylvania companies, the
New Jersey corporation -- using for that purpose its own stock --
purchased the stock of those companies, and thus obtained absolute
control of the entire business of sugar refining in the United States
except that done by the Boston company, which is too small in amount to
be regarded in this discussion.
"The object," the court below said,
in purchasing the Philadelphia refineries was to
obtain a greater influence or more perfect control over the
business of refining and selling sugar in this country.
This characterization of the object for which
this stupendous combination was formed is properly accepted in the
opinion of the court as justified by the proof. I need not therefore
analyze the evidence upon this point. In its consideration of the
important constitutional question presented, this court assumes on the
record before us that the result of the transactions disclosed by the
pleadings and proof was the creation of a monopoly in the manufacture of
a necessary of life. If this combination, so far as its operations
necessarily or directly affect interstate commerce, cannot be restrained
or suppressed under some power granted to Congress, it will be cause for
regret that the patriotic statesmen who framed the Constitution did not
foresee the necessity of investing the national government with power to
deal with gigantic monopolies holding in their grasp, and injuriously
controlling in their own interest, the entire trade among the States
in food products that are essential to the comfort of every household in
the land.
The court holds it to be vital in our system of
government to recognize and give effect to both the commercial power of
the nation and the police powers of the States, to the end that the
Union be strengthened and the autonomy of the States preserved. In this
view I entirely concur. Undoubtedly, the preservation of the just
authority of the States is an object of deep concern to every lover of
his country. No greater calamity could befall our free institutions than
the destruction of that authority, by whatever means such a result might
be accomplished. "Without the States in union," this court has
said "there could be no such political body as the United States."
Lane County v. Oregon, 7 Wall. 71, 76. But it is equally true
that the preservation of the just authority of the General Government is
essential as well to the safety of the States as to the attainment of
the important ends for which that government was ordained by the People
of the United States, and the destruction of that authority would be
fatal to the peace and wellbeing of the American people. The
Constitution which enumerates the powers committed to the nation for
objects of interest to the people of all the States should not,
therefore, be subjected to an interpretation so rigid, technical, and
narrow that those objects cannot be accomplished. Learned counsel in
Gibbons v. Ogden, 9 Wheat. 1 , 187, having suggested that the
Constitution should be strictly construed, this court, speaking by Chief
Justice Marshall, said that, when the original States
converted their league into a government, when
they converted their Congress of Ambassadors, deputed to deliberate on
their common concerns, and to recommend measures of general utility,
into a legislature empowered to enact laws on the most interesting
subjects, the whole character in which the States appear underwent a
change, the extent of which must be determined by a fair consideration
of the instrument by which that change was effected. . . . What do
gentlemen mean,
the court inquired,
by a strict construction? If they contend only
against that enlarged construction which would extend words beyond their
natural and obvious import, one might question the application of the
term, but should not controvert the principle. If they contend for that
narrow construction which, in support of some theory not to be found in
the Constitution, would deny to the government those powers which the
words of the grant, as usually understood, import, and which are
consistent with the general views and objects of the instrument -- for
that narrow construction, which would cripple the government, and render
it unequal to the objects for which it is declared to be instituted, and
to which the powers given, as fairly understood, render it competent --
then we cannot perceive the propriety of this strict construction, nor
adopt it as the rule by which the Constitution is to be expounded.
P. 188. On the same occasion, the principle was announced that the
objects for which a power was granted to Congress, especially when those
objects are expressed in the Constitution itself, should have great
influence in determining the extent of any given power.
Congress is invested with power to regulate
commerce with foreign nations and among the several States. The power to
regulate is the power to prescribe the rule by which the subject
regulated is to be governed. It is one that must be exercised whenever
necessary throughout the territorial limits of the several States. Cohens
v. Virginia, 6 Wheat. 264 , 413. The power to make these regulations
is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations other than are prescribed
in the Constitution.
It is plenary because vested in Congress
as absolutely as it would be in a single
government having in its constitution the same restrictions on the
exercise of the power as are found in the Constitution of the United
States.
It may be exercised "whenever the subject
exists." Gibbons v. Ogden, 9 Wheat. 1 , 195, 196.
In his concurring opinion in that case, Mr.
Justice Johnson observed that the grant to Congress of the power to
regulate commerce carried with it the whole subject, leaving nothing for
the State to act upon, and that,
if there was anyone object riding over every
other in the adoption of the Constitution, it was to keep commercial
intercourse among the States free from all invidious and partial
restraints.
P. 231. "In all commercial regulations, we
are one and the same people." Mr. Justice Bradley, speaking for
this court, said that the United States are but one country, and are and
must be subject to one system of regulations in respect to interstate
Commerce. Robbins v. Shelby Taxing District, 120 U.S.
489, 494.
What is commerce among the States? The decisions
of this court fully answer the question. "Commerce, undoubtedly, is
traffic, but it is something more: it is intercourse." It does not
embrace the completely interior traffic of the respective States -- that
which is "carried on between man and man in a State, or between
different parts of the same State and which does not extend to or affect
other States" -- but it does embrace "every species of
commercial intercourse" between the United States and foreign
nations and among the States, and therefore it includes such traffic or
trade, buying, selling, and interchange of commodities as directly
affects or necessarily involves the interests of the People of the
United States. "Commerce, as the word is used in the Constitution,
is a unit," and
cannot stop at the external boundary line of each
State, but may be introduced into the interior. . . . . The genius and
character of the whole government seem to be that its action is to be
applied to all the external concerns of the nation, and to those
internal concerns which affect the States generally.
These principles were announced in Gibbons v. Ogden, and have
often been approved. It is the settled doctrine
of this court that interstate commerce embraces something more than the
mere physical transportation of articles of property, and the vehicles
or vessels by which such transportation is effected. In County
of Mobile v. Kimball, 102 U.S. 691, 702, it was said that
commerce with foreign countries and among the
States, strictly considered, consists in intercourse and traffic,
including, in these terms, navigation and the transportation and transit
of persons and property, as well as the purchase, sale, and exchange of
commodities.
In Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 203, the
language of the court was:
Commerce among the States consists of intercourse
and traffic between their citizens, and includes the transportation of
persons and property, and the navigation of public waters for that
purpose, as well as the purchase, sale, and exchange of commodities. The
power to regulate that commerce, as well as commerce with foreign
nations, vested in Congress, is the power to prescribe the rules by
which it shall be governed, that is, the conditions upon which it shall
be conducted; to determine when it shall be free, and when subject to
duties or other exactions.
In Kidd v. Pearson, 128 U.S. 1, 20, it was said that
"the buying and selling, and the
transportation incidental thereto constitute commerce." Interstate
commerce does not, therefore, consist in transportation simply. It
includes the purchase and sale of articles that are intended to be
transported from one State to another -- every species of commercial
intercourse among the States and with foreign nations.
In the light of these principles, determining as
well the scope of the power to regulate commerce among the States as the
nature of such commerce, we are to inquire whether the act of Congress
of July 2, 1890, c. 647, entitled "An act to protect trade and
commerce against unlawful restraints and monopolies," 26 Stat. 209,
is repugnant to the Constitution.
By that act
every contract, combination in the form of trust
or otherwise, or conspiracy, in restraint of trade or commerce among the
several States or with foreign nations,
is declared to be illegal, and every person
making any such contract, or engaging in any such combination or
conspiracy, is to be deemed guilty of a misdemeanor, and punishable, on
conviction, by a fine not exceeding five thousand dollars, or by
imprisonment not exceeding one year, or by both said punishments in the
discretion of the court. § 1. It is also made a misdemeanor,
punishable in like manner, for any person to
monopolize, or attempt to monopolize, or combine
or conspire with any other person or persons to monopolize, any part of
the trade or commerce among the several States or with foreign nations.
§ 2. The act also declares illegal
every contract, combination in form of trust or
otherwise, or conspiracy, in restraint of trade or commerce in any
Territory of the United States or of the District of Columbia, or in
restraint of trade or commerce between any such Territory and another,
or between any such Territory or Territories or any State or States or
the District of Columbia, or with foreign nations, or between the
District of Columbia and any State or States or foreign nations,
and prescribes the same punishments for every
person making any such contract or engaging in any such combination or
conspiracy. § 3.
The fourth section of the act is in these words:
Sec. 4. The several Circuit Courts of the United
States are hereby invested with jurisdiction to prevent and restrain
violations of this act, and it shall be the duty of the several district
attorneys of the United States, in their respective districts, under the
direction of the Attorney General, to institute proceedings in equity to
prevent and restrain such violations. Such proceedings may be by
way of petition setting forth the case and praying that such violation
shall be enjoined or otherwise prohibited. When the parties complained
of shall have been duly notified of such petition the court shall
proceed, as soon as may be, to the hearing and determination of the
case, and pending such petition and before final decree, the court may
at any time make such temporary restraining order or prohibition as
shall be deemed just in the premises.
It would seem to be indisputable that no
combination of corporations or individuals can, of right,
impose unlawful restraints upon interstate trade, whether upon
transportation or upon such interstate intercourse and traffic as
precede transportation, any more than it can, of right, impose
unreasonable restraints upon the completely internal traffic of a State.
The supposition cannot be indulged that this general proposition will be
disputed. If it be true that a combination of corporations or
individuals may, so far as the power of Congress is concerned, subject
interstate trade, in any of its stages, to unlawful restraints, the
conclusion is inevitable that the Constitution has failed to accomplish
one primary object of the Union, which was to place commerce among
the States under the control of the common government of all the
people, and thereby relieve or protect it against burdens or
restrictions imposed, by whatever authority, for the benefit of
particular localities or special interests.
The fundamental inquiry in this case is what, in
a legal sense, is an unlawful restraint of trade.
Sir William Erle, formerly Chief Justice of the Common Pleas, in his
essay on the Law Relating to Trade Unions, well said that "restraint
of trade, according to a general principle of the common law, is
unlawful; " that,
at common law, every person has individually, and the public also
have collectively, a right to require that the course of trade
should be kept free from unreasonable obstruction;
and that
the right to a free course for trade is of great importance to commerce
and productive industry, and has been carefully maintained by those who
have administered the common law.
Pp. 6, 7, 8.
There is a partial restraint of trade which, in certain circumstances,
is tolerated by the law. The rule upon that subject is stated in Oregon
Steam Nav. Co. v. Winsor, 20 Wall. 64, 66, where it was said that
an agreement in general restraint of trade is illegal and void; but an
agreement which operates merely in partial restraint of trade is good,
provided it be not unreasonable and there be a consideration to support
it. In order that it may not be unreasonable, the restraint imposed must
not be larger than is required for the necessary protection of the party
with whom the contract is made. Horner v. Graves, 7 Bing. 735,
743. A contract, even on good consideration, not to use a trade anywhere
in England is held void in that country as being too general a restraint
of trade.
But a general restraint of trade has often
resulted from combinations formed for the purpose of controlling
prices by destroying the opportunity of buyers and sellers to deal with
each other upon the basis of fair open, free competition. Combinations
of this character have frequently been the subject of judicial scrutiny,
and have always been condemned as illegal because of their necessary
tendency to restrain trade. Such combinations are against common right,
and are crimes against the public. To some of the cases of that
character it will be well to refer. In Morris
Run Coal Co. v. Barclay Coal Co., 68 Penn.St. 173, 184, 186, 187,
the principal question was as to the validity of a contract made between
five coal corporations of Pennsylvania by which they divided between
themselves two coal regions of which they had the control. The referee
in the case found that those companies acquired under their arrangement
the power to control the entire market for bituminous coal in the
northern part of the State, and their combination was therefore a
restraint upon trade, and against public policy. In response to the
suggestion that the real purpose of the combination was to lessen
expenses, to advance the quality of coal, and to deliver it in the
markets intended to be supplied in the best order to the consumer, the
Supreme Court of Pennsylvania said:
This is denied by the defendants, but it seems to
us it is immaterial whether these positions are sustained or not.
Admitting their correctness, it does not follow that these advantages
redeem the contract from the obnoxious effects so strikingly presented
by the referee. The important fact is that these companies control this
immense coal field; that it is the great source of supply of bituminous
coal to the State of New York and large territories westward; that, by
this contract, they control the price of coal in this extensive market,
and make it bring sums it would not command if left to the natural laws
of trade; that it concerns an article of prime necessity for many uses;
that its operation is general in this large region, and affects all who
use coal as a fuel, and this is accomplished by a combination of all the
companies engaged in this branch of business in the large region where
they operate. The combination is wide in scope, general in its
influence, and injurious in effects. These being its features, the
contract is against public policy, illegal, and therefore void.
Again, in the same case:
The effects produced on the public interests lead
to the consideration of another feature of great weight in determining
the illegality of the contract, to-wit, the combination resorted to by
these five companies. Singly, each might have suspended deliveries and
sales of coal to suit its own interests, and might have raised the
price, even though this might have been detrimental to the public
interest. There is a certain freedom which must be allowed to every one
in the management of his own affairs. When competition is left free,
individual error or folly will generally find a correction in the
conduct of others. But here is a combination of all the companies
operating in the Blossburg and Barclay mining regions, and controlling
their entire productions. They have combined together to govern the
supply and the price of coal in all the markets from the Hudson to the
Mississippi rivers, and from Pennsylvania to the lakes. This combination
has a power in its confederated form which no individual action can
confer. The public interest must succumb to it, for it has left no
competition free to correct its baleful influence. When the supply of
coal is suspended, the demand for it becomes importunate, and prices
must rise. Or if the supply goes forward, the price fixed by the
confederates must accompany it. The domestic hearth, the furnaces of the
iron master, and the fires of the manufacturer, all feel the restraint,
while many dependent hands are paralyzed and hungry mouths are stinted.
The influence of a lack of supply or a rise in the price of an article
of such prime necessity cannot be measured. It permeates the entire mass
of community, and leaves few of its members untouched by its withering
blight. Such a combination is more than a contract; it is an offence.
"I take it," said Gibson, J.,
a combination is criminal whenever the act to be done has a necessary
tendency to prejudice the public or to oppress individuals, by unjustly
subjecting them to the power of the confederates and giving effect to
the purpose of the latter, whether of extortion or of mischief.
Commonwealth v. Carlisle, Brightly (Penn.,) 40. In all such
combinations where the purpose is injurious or unlawful, the gist of the
offence is the conspiracy. Men can often do by the combination of many
what severally no one could accomplish, and even what when done by one
would be innocent.. . . . There is a potency in numbers, when combined,
which the law cannot overlook where injury is the consequence.
This case in the Supreme Court of Pennsylvania was cited with approval
in Arnot v. Pittston & Elmira Coal Co., 68 N.Y. 558, 565,
which involved the validity of a contract between two coal companies the
object and effect of which was to give one of them the monopoly of the
trade in coal in a particular region by which the price of that
commodity could be artificially enhanced. The Court of Appeals of New
York held that
a combination to effect such a purpose is inimical to the interests of
the public, and that all contracts designed to effect such an end are
contrary to public policy, and therefore illegal. . . . If they should
be sustained, the prices of articles of pure necessity, such as coal,
flour, and other indispensable commodities, might be artificially raised
to a ruinous extent far exceeding any naturally resulting from the
proportion between supply and demand. No illustration of the mischief of
such contracts is perhaps more apt than a monopoly of anthracite coal,
the region of the production of which is known to be limited.
See also Hooker v. Vandewater, 4 Denio 351, 352; Stanton v.
Allen, 5 Denio 434; Saratoga Bank v. King, 44 N.Y. 87.
In Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666, 672, the
principal question was as to the legality of an association of
substantially all the manufacturers of salt in a large salt producing
territory. After adverting to the rule that contracts in general
restraint of trade are against public policy, and to the agreement there
in question, it was said:
Public policy unquestionably favors competition in trade to the end
that its commodities may be afforded to the consumer as cheaply as
possible, and is opposed to monopolies, which tend to advance market
prices to the injury of the general public. . . . The clear tendency of
such an agreement is to establish a monopoly, and to destroy competition
in trade, and, for that reason, on grounds of public policy, the courts
will not aid in its enforcement. It is no answer to say that competition
in the salt trade was not, in fact, destroyed, or that the price of the
commodity was not unreasonably advanced. Courts will not stop to inquire
as to the degree of injury inflicted upon the public; it is enough to
know that the inevitable tendency of such contracts is injurious to the
public.
In Craft v. McConoughy, 79 Illinois 346, 349, 350, which
related to a combination between all the grain dealers of a particular
town to stifle competition and to obtain control of the price of grain,
the Supreme Court of Illinois said:
While the argument, upon its face, would seem to indicate that the
parties had formed a copartnership for the purpose of trading in grain,
yet, from the terms of the contract and the other proof in the record,
it is apparent that the true object was to form a secret combination
which would stifle all competition and enable the parties, by secret and
fraudulent means, to control the price of grain, cost of storage, and
expense of shipment. In other words, the four firms, by a shrewd,
deep-laid, secret combination, attempted to control and monopolize the
entire grain trade of the town and surrounding country. That the effect
of this contract was to restrain the trade and commerce of the country
is a proposition that cannot be successfully denied. We understand it to
be a well settled rule of law that an agreement in general restraint of
trade is contrary to public policy, illegal and void, but an agreement
in partial or particular restraint upon trade has been held good where
the restraint was only partial, consideration adequate, and the
restriction reasonable. . . . While these parties were in business, in
competition with each other, they had the undoubted right to establish
their own rates for grain stored and commissions for shipment and sale.
They could pay as high or low a price for grain as they saw proper, and
as they could make contracts with the producer. So long as competition
was free, the interest of the public was safe. The laws of trade, in
connection with the right of competition,were all the guaranty the
public required, but the secret combination created by the contract
destroyed all competition and created a monopoly against which the
public interest had no protection.
These principles were applied in People v. Chicago Gas Trust Co.,
130 Illinois 269, 292, 297, which involved the validity of a corporation
formed for the purpose of operating gas works, and of manufacturing and
selling gas, and which, for the purpose of destroying competition,
acquired the stock of four other gas companies, and thereby obtained a
monopoly in the business of furnishing illuminating gas to the city of
Chicago and its inhabitants. The court, in declaring the organization of
the company to be illegal, said:
The fact that the appellee, almost immediately after its organization,
bought up a majority of the shares of stock of each of these companies,
shows that it was not making a mere investment of surplus funds, but
that it designed and intended to bring the four companies under its
control, and by crushing out competition to monopolize the gas business
in Chicago. . . . Of what avail,
said the court,
is it that any number of gas companies may be formed under the general
incorporation law, if a giant trust company can be clothed with the
power of buying up and holding the stock and property of such companies,
and, through the control thereby attained, can direct all their
operations and weld them into one huge combination?
So, in India Bagging Association v. Kock, 14 La.Ann. 168, where
the court passed upon the legality of an association of various
commercial firms in New Orleans that were engaged in the sale of India
bagging, it was said:
The agreement between the parties was palpably and unequivocably a
combination in restraint of trade, and to enhance the price in the
market of an article of primary necessity to cotton planters. Such
combinations are contrary to public order, and cannot be enforced in a
court of justice.
In Santa Clara Mill & Lumber Co. v. Hayes, 76 California
387, 390, which related to a combination, the result of certain
contracts among certain manufacturers, the court found that the object,
purpose, and consideration of those contracts was to form a combination
among all the manufacturers of lumber at or near a particular place, for
the sole purpose of increasing the price of that article, limiting the
amount to be manufactured, and giving certain parties the control of all
lumber manufactured near that place for the year 1881, and of the supply
for that year in specified counties. It held the combination to be
illegal, observing that
among the contracts illegal under the common law, because opposed to
public policy, were contracts in general restraint of trade; contracts
between individuals to prevent competition and keep up the price of
articles of utility.
It further said that, while the courts had nothing to do with the
results naturally flowing from the laws of demand and supply, they would
not respect agreements made for the purpose of "taking trade out of
the realm of competition, and thereby enhancing or depressing prices of
commodities."
A leading case on the question as to what combinations are illegal as
being in general restraint of trade is Richardson v. Buhl, 77
Michigan 632, 635, 657, 660, which related to certain agreements
connected with the business and operations of the Diamond Match Company.
From the report of the case, it appears that that company was organized
under the laws of Connecticut for the purpose of uniting in one
corporation all the match manufactories in the United States, and to
monopolize and control the business of making all the friction matches
in the country and establish the price thereof. To that end, it became
necessary, among other things, to buy many plants that had become
established or were about to be established, as well as the property
used in connection therewith. Chief Justice Sherwood of the Supreme
Court of Michigan said:
The sole object of the corporation is to make money by having it in its
power to raise the price of the article, or diminish the quantity to be
made and used, at its pleasure. Thus, both the supply of the article and
the price thereof are made to depend upon the action of a half dozen
individuals, more or less, to satisfy their cupidity and avarice, who
may happen to have the controlling interest in this corporation -- an
artificial person, governed by a single motive or purpose, which is to
accumulate money regardless of the wants or necessities of over
60,000,000 people. The article thus completely under their control for
the last fifty years has come to be regarded as one of necessity not
only in every household in the land, but one of daily use by almost
every individual in the country. It is difficult to conceive of a
monopoly which can affect a greater number of people, or one more
extensive in its effect on the country, than that of the Diamond Match
Company. It was to aid that company in its purposes and in carrying out
its object that the contract in this case was made between those parties
which we are now asked to aid in enforcing. Monopoly in trade, or in any
kind of business in this country, is odious to our form of government.
It is sometimes permitted to aid the government in carrying on a great
public enterprise or public work under governmental control in the
interest of the public. Its tendency is, however, destructive of free
institutions and repugnant to the instincts of a free people, and
contrary to the whole scope and spirit of the Federal Constitution, and
is not allowed to exist under express provisions in several of our state
constitutions. . . . All combinations among persons or corporations for
the purpose of raising or controlling the prices of merchandise, or any
of the necessaries of life, are monopolies and intolerable, and ought to
receive the condemnation of all courts.
In the same case, Mr. Justice Champlin, with whom Mr. Justice Campbell
concurred, said:
There is no doubt that all the parties to this suit were active
participants in perfecting the combination called "The Diamond
Match Company," and that the present dispute grows out of that
transaction and is the fruit of the scheme by which all competition in
the manufacture of matches was stifled, opposition in the business
crushed, and the whole business of the country in that line engrossed by
the Diamond Match Company. Such a vast combination as has been entered
into under the above name is a menace to the public. Its object and
direct tendency is to prevent free and fair competition, and control
prices throughout the national domain. It is no answer to say that this
monopoly has, in fact, reduced the price of friction matches. That
policy may have been necessary to crush competition. The fact exists
that it rests in the discretion of this company at any time to raise the
price to an exorbitant degree. Such combinations have frequently been
condemned by courts as unlawful and against public policy.
See also Raymond v. Leavitt, 46 Michigan 44, and Texas
Standard Oil Co. v. Adoue, 83 Texas 650.
This extended reference to adjudged cases
relating to unlawful restraints upon the interior traffic of a State has
been made for the purpose of showing that a combination such as that
organized under the name of the American Sugar Refining Company has been
uniformly held by the courts of the States to be against public policy
and illegal because of its necessary tendency to impose improper
restraints upon trade. And such, I take it, would be the judgment of any
Circuit Court of the United States in a case between parties in which it
became necessary to determine the question. The judgments of the state
courts rest upon general principles of law, and not necessarily upon
statutory provisions expressly condemning restraints of trade imposed by
or resulting from combinations. Of course, in view of the authorities,
it will not be doubted that it would be competent for a State, under the
power to regulate its domestic commerce and for the purpose of
protecting its people against fraud and injustice, to make it a public
offence punishable by fine and imprisonment for individuals or
corporations to make contracts, form combinations, or engage in
conspiracies, which unduly restrain trade or commerce carried on within
its limits, and also to authorize the institution of proceedings for the
purpose of annulling contracts of that character, as well as of
preventing or restraining such combinations and conspiracies.
But there is a trade among the several States
which is distinct from that carried on within the territorial limits of
a State. The regulation and control of the former is committed by the
national Constitution to Congress. Commerce among the States, as this
court has declared, is a unit, and, in respect of that commerce, this is
one country and we are one people. It may be regulated by rules
applicable to every part of the United States, and state lines and state
jurisdiction cannot interfere with the enforcement of such rules. The
jurisdiction of the general government extends over every foot of
territory within the United States. Under the power with which it is
invested, Congress may remove unlawful obstructions, of whatever kind,
to the free course of trade among the States. In so doing, it would not
interfere with the " autonomy of the States," because the
power thus to protect interstate commerce is expressly given by the
people of all the States. Interstate intercourse, trade, and
traffic is absolutely free except as such intercourse, trade, or traffic
may be incidentally or indirectly affected by the exercise by the States
of their reserved police powers. Sherlock v. Alling, 93 U.S. 99,
103. It is the Constitution, the supreme law of
the land, which invests Congress with power to protect commerce among
the States against burdens and exactions arising from unlawful
restraints by whatever authority imposed. Surely a right secured or
granted by that instrument is under the protection of the government
which that instrument creates. Any combination, therefore, that disturbs
or unreasonably obstructs freedom in buying and selling articles
manufactured to be sold to persons in other States or to be carried to
other States -- a freedom that cannot exist if the right to buy and sell
is fettered by unlawful restraints that crush out competition --
affects, not incidentally, but directly, the people of all the States,
and the remedy for such an evil is found only in the exercise of powers
confided to a government which, this court has said, was the government
of all, exercising powers delegated by all, representing all, acting for
all. McCulloch v. Maryland, 4 Wheat. 316 , 405.
It has been argued that a combination between
corporations of different States, or between the stockholders of such
corporations, with the object and effect of controlling not simply the
manufacture, but the price, of refined sugar throughout the whole of the
United States -- which is the case now before us -- cannot be held to be
in restraint of "commerce among the States" and amenable to
national authority without conceding that the general government has
authority to say what shall and what shall not be manufactured
in the several States. Kidd v. Pearson, 128 U.S. 1, was cited in
argument as supporting that view. In that case, the sole question was
whether the State of Iowa could forbid the manufacture within
its limits of ardent spirits intended for sale ultimately in other
States. This court held that the manufacture of intoxicating liquors in
a State is none the less a business within the State subject to state
control because the manufacturer may intend, at his convenience, to
export such liquors to foreign countries or to other States. The
authority of the States over the manufacture of strong drinks within
their respective jurisdictions was referred to their plenary power,
never surrendered to the national government, of providing for the
health, morals, and safety of their people.
That case presented no question as to a combination
to monopolize the sale of ardent spirits manufactured in Iowa to be sold
in other States -- no question as to combinations in restraint of trade
as involved in the buying and selling of articles that are intended to
go, and do go, and will always go into commerce throughout the entire
country, and are used by the people of all the States, and the making or
manufacturing of which no State could forbid consistently with the
liberty that everyone has of pursuing, without undue restrictions, the
ordinary callings of life. There is no dispute here as to the lawfulness
of the business of refining sugar, apart from the undue restraint which
the promoters of such business, who have combined to control prices,
seek to put upon the freedom of interstate traffic in that article.
It may be admitted that an act which did nothing
more than forbid, and which had no other object than to forbid, the mere
refining of sugar in any State would be in excess of any power granted
to Congress. But the act of 1890 is not of that character. It does not
strike at the manufacture simply of articles that are legitimate or
recognized subjects of commerce, but at combinations that unduly
restrain, because they monopolize, the buying and selling of
articles which are to go into interstate commerce. In State
v. Stewart, 9 Vermont 273, 286, it was said that, if a combination
of persons "seek to restrain trade, or tend to the destruction of
the material property of the country, they work injury to the whole
people." And in State v. Glidden, 55 Connecticut, 46, 75,
the court said:
Any one man, or any one of several men acting independently, is
powerless; but when several combine and direct their united energies to
the accomplishment of a bad purpose, the combination is formidable. Its
power for evil increases as its numbers increase. . . . The combination
becomes dangerous and subversive of the rights of others, and the law
wisely says it is a crime.
Chief Justice Gibson well said in Commonwealth v. Carlisle,
Brightly (Penn.) 36, 41:
There is between the different parts of the body
politic a reciprocity of action on each other which, like the action of
antagonizing muscles in the natural body, not only prescribes to each
its appropriate state and action, but regulates the motion of the whole.
The effort of an individual to disturb this equilibrium can never be
perceptible, nor carry the operation of his interest or that of any
other individual beyond the limits of fair competition; but the increase
of power by combination of means, being in geometrical proportion to the
number concerned, an association may be able to give an impulse not only
oppressive to individuals, but mischievous to the public at large, and
it is the employment of an engine so powerful and dangerous that gives
criminality to an act that would be perfectly innocent, at least in a
legal view, when done by an individual.
These principles underlie the act of Congress,
which has for its sole object the protection of such trade and commerce
as the Constitution confides to national control, and the
question is presented whether the combination assailed by this
suit is an unlawful restraint upon interstate trade in a necessary
article of food which, as every one knows, has always entered, now
enters, and must continue to enter, in vast quantities into commerce
among the States.
In Kidd v. Pearson, we recognized, as had been done in previous
cases, the distinction between the mere transportation of articles of
interstate commerce and the purchasing and selling that
precede transportation. It is said that
manufacture precedes commerce, and is not a part of it. But it is
equally true that, when manufacture ends, that which has been
manufactured becomes a subject of commerce; that buying and selling
succeed manufacture, come into existence after the process of
manufacture is completed, precede transportation, and are as much
commercial intercourse, where articles are bought to be carried from one
State to another, as is the manual transportation of such articles
after they have been so purchased. The distinction was recognized
by this court in Gibbons v. Ogden, where the principal question
was whether commerce included navigation. Both the court and counsel
recognized buying and selling or barter as included in commerce.
Chief Justice Marshall said that the mind can scarcely conceive a system
for regulating commerce, which was "confined to prescribing
rules for the conduct of individuals in the actual employment of buying
and selling, or of barter." Pp. 189, 190.
The power of Congress covers and protects the
absolute freedom of such intercourse and trade among the States as may
or must succeed manufacture and precede transportation from the place of
purchase. This would seem to be conceded, for the court in the present
case expressly declare that
contracts to buy, sell, or exchange goods
to be transported among the several States, the transportation
and its instrumentalities, and articles bought, sold, or exchanged for
the purpose of such transit among the States, or put in the way of
transit, may be regulated, but this is because they form
part of interstate trade or commerce.
Here is a direct admission -- one which the
settled doctrines of this court justify -- that contracts to buy and the
purchasing of goods to be transported from one State to another,
and transportation, with its instrumentalities, are all parts of
interstate trade or commerce. Each part of such trade is then under the
protection of Congress. And yet, by the opinion and judgment in this
case, if I do not misapprehend them, Congress is without power to
protect the commercial intercourse that such purchasing necessarily
involves against the restraints and burdens arising from the existence
of combinations that meet purchasers, from whatever State they come,
with the threat -- for it is nothing more nor less than a threat -- that
they shall not purchase what they desire to purchase, except
at the prices fixed by such combinations. A citizen of
Missouri has the right to go in person, or send orders, to Pennsylvania
and New Jersey for the purpose of purchasing refined sugar. But of what
value is that right if he is confronted in those States by a vast combination
which absolutely controls the price of that article by reason of its
having acquired all the sugar refineries in the United States in order
that they may fix prices in their own interest exclusively?
In my judgment, the citizens of the several
States composing the Union are entitled, of right, to buy goods in the
State where they are manufactured, or in any other State, without being
confronted by an illegal combination whose business extends throughout
the whole country, which by the law everywhere is an enemy to the public
interests, and which prevents such buying, except at prices arbitrarily
fixed by it. I insist that the free course of trade among the States
cannot coexist with such combinations. When I speak of trade, I mean the
buying and selling of articles of every kind that are recognized
articles of interstate commerce. Whatever improperly obstructs the free
course of interstate intercourse and trade, as involved in the buying
and selling of articles to be carried from one State to another, may be
reached by Congress under its authority to regulate commerce among the
States. The exercise of that authority so as to make trade among the
States in all recognized articles of commerce absolutely free from
unreasonable or illegal restrictions imposed by combinations is
justified by an express grant of power to Congress, and would redound to
the welfare of the whole country. I am unable to perceive that any such
result would imperil the autonomy of the States, especially as that
result cannot be attained through the action of any one State.
Undue restrictions or burdens upon the purchasing of goods, in the
market for sale, to be transported to other States cannot be imposed
even by a State without violating the freedom of commercial intercourse
guaranteed by the Constitution. But if a State within whose limits the
business of refining sugar is exclusively carried on may not
constitutionally impose burdens upon purchases of sugar to be
transported to other States, how comes it that combinations of
corporations or individuals, within the same State, may not be prevented
by the national government from putting unlawful restraints upon the
purchasing of that article to be carried from the State in which
such purchases are made? If the national power is competent to
repress State action in restraint of interstate trade as it may be
involved in purchases of refined sugar to be transported from one State
to another State, surely it ought to be deemed sufficient to prevent
unlawful restraints attempted to be imposed by combinations of
corporations or individuals upon those identical purchases; otherwise,
illegal combinations of corporations or individuals may -- so far as
national power and interstate commerce are concerned -- do with impunity
what no State can do.
Suppose that a suit were brought in one of the courts of the United
States -- jurisdiction being based, it may be, alone upon the diverse
citizenship of the parties -- to enforce the stipulations of a written
agreement which had for its object to acquire the possession of all the
sugar refineries in the United States in order that those engaged in the
combination might obtain the entire control of the business of refining
and selling sugar throughout the country, and thereby to increase or
diminish prices as the particular interests of the combination might
require. I take it that the court, upon recognized principles of law
common to the jurisprudence of this country and of Great Britain, would
deny the relief asked and dismiss the suit upon the ground that the
necessary tendency of such an agreement and combination was to restrain
not simply trade that was completely internal to the State in which the
parties resided, but trade and commerce among all the States, and was
therefore against public policy and illegal. If I am right in this view,
it would seem to follow necessarily that Congress could enact a statute
forbidding such combinations so far as they affected interstate
commerce, and provide for their suppression as well through civil
proceedings instituted for that purpose as by penalties against those
engaged in them.
In committing to Congress the control of commerce
with foreign nations and among the several States, the Constitution did
not define the means that may be employed to protect the freedom of
commercial intercourse and traffic established for the benefit of all
the people of the Union. It wisely forbore to impose any limitations
upon the exercise of that power except those arising from the general
nature of the government, or such as are embodied in the fundamental
guarantees of liberty and property. It gives to Congress, in express
words, authority to enact all laws necessary and proper for carrying
into execution the power to regulate commerce, and whether an act af
Congress, passed to accomplish an object to which the general government
is competent, is within the power granted must be determined by the rule
announced through Chief Justice Marshall three-quarters of a century
ago, and which has been repeatedly affirmed by this court. That rule
is:
The sound construction of the Constitution must
allow to the national legislature the discretion with respect to the
means by which the powers it confers are to be carried into execution,
which will enable that body to perform the high duties assigned to it in
the manner most beneficial to the people. Let the end be legitimate, let
it be within the scope of the Constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not
prohibited, but consistent with the letter and spirit of the
Constitution, are constitutional.
McCulloch v. Maryland, 4 Wheat. 316 , 421. The
end proposed to be accomplished by the act of 1890 is the protection of
trade and commerce among the States against unlawful restraints. Who can
say that that end is not legitimate or is not within the scope of the
Constitution? The means employed are the suppression, by legal
proceedings, of combinations, conspiracies, and monopolies which, by
their inevitable and admitted tendency, improperly restrain trade and
commerce among the States. Who can say that such means are not
appropriate to attain the end of freeing commercial intercourse among
the States from burdens and exactions imposed upon it by combinations
which, under principles long recognized in this country as well as at
the common law, are illegal and dangerous to the public welfare? What
clause of the Constitution can be referred to which prohibits the means
thus prescribed in the act of Congress?
It may be that the means employed by Congress to
suppress combinations that restrain interstate trade and commerce are
not all or the best that could have been devised. But Congress, under
the delegation of authority to enact laws necessary and proper to carry
into effect a power granted, is not restricted to the employment of
those means "without which the end would be entirely unattainable."
"To have prescribed the means," this court has said,
by which government should, in all future time,
execute its powers would have been to change entirely the character of
that instrument, and give it the properties of a legal code. It would
have been an unwise attempt to provide by immutable rules for exigencies
which, if foreseen at all, must have been seen dimly, and which can be
best provided for as they occur. To have declared that the best means
shall not be used, but those alone without which the power given would
be nugatory, would have been to deprive the legislature of the capacity
to avail itself of experience, to exercise its reason, and to
accommodate its legislation to circumstances.
Again:
Where the law is not prohibited, and is really calculated to effect any
of the objects entrusted to the government, to undertake here to inquire
into the degree of its necessity would be to pass the line which
circumscribes the judicial department and to tread on legislative
ground.
McCulloch v. Maryland, 4 Wheat. 316 , 415, 423.
By the act of 1890, Congress subjected to
forfeiture
any property owned under any contract or by any
combination, or pursuant to any conspiracy (and being the subject
thereof) mentioned in section one of this act and being in the course of
transportation from one State to another, or to a foreign country.
It was not deemed wise to subject such property
to forfeiture before transportation began or after it ended. If it be
suggested that Congress might have prohibited the transportation from
the State in which they are manufactured of any articles, by whomsoever
at the time owned, that had been manufactured by combinations formed to
monopolize some designated part of trade or commerce among the States,
my answer is that it is not within the functions of the judiciary to
adjudge that Congress shall employ particular means in execution of a
given power simply because such means are, in the judgment of the
courts, best conducive to the end sought to be accomplished. Congress,
in the exercise of its discretion as to choice of means conducive to an
end to which it was competent, determined to reach that end through
civil proceedings instituted to prevent or restrain these obnoxious
combinations in their attempts to burden interstate commerce by
obstructions that interfere in advance of transportation with
the free course of trade between the people of the States. In other
words, Congress sought to prevent the coming into existence of
combinations the purpose or tendency of which was to impose unlawful
restraints upon interstate commerce.
There is nothing in conflict with these views in Coe v. Errol,
116 U.S. 517, 529. There, the question was whether certain logs cut in
New Hampshire and hauled to a river that they might be transported to
another State were liable to be taxed in the former State before actual
transportation to the latter State began. The court held that the logs
might be taxed while they remained in the State of their origin as part
of the general mass of property there; that "for this purpose"
-- taxation -- the property did not pass from the jurisdiction of the
State in which it was until transportation began. The scope of the
decision is clearly indicated by the following clause in the opinion of
Mr Justice Bradley:
How can property thus situated, to-wit, deposited or stored at the
place of entrepot for future exportation, be taxed in the regular way as
part of the property of the State? The answer is plain. It can be taxed
as all other property is taxed, in the place where it is found, if taxed
or assessed for taxation in the usual manner in which such property is
taxed, and not singled out to be assessed by itself in an unusual and
exceptional manner because of its situation. As we have now no question
as to the taxation of articles manufactured by one of the combinations
condemned by the act of Congress, and as no one has suggested that the
State in which they may be manufactured could not tax them as
property so long as they remained within its limits, and before
transportation of them to other States began, I am at a loss to
understand how the case before us can be affected by a decision that
personal property, while it remains in the State of its origin, although
it is to be sent at a future time to another State, is within the
jurisdiction of the former State for purposes of taxation.
The question here relates to restraints upon the
freedom of interstate trade and commerce imposed by illegal
combinations. After the fullest consideration I have been able to bestow
upon this important question, I find it impossible to refuse my assent
to this proposition: whatever a State may do to protect its completely
interior traffic or trade against unlawful restraints, the general
government is empowered to do for the protection of the people of all
the States -- for this purpose, one people -- against unlawful
restraints imposed upon interstate traffic or trade in articles that are
to enter into commerce among the several States. If, as already shown, a
State may prevent or suppress a combination, the effect of which
is to subject its domestic trade to the restraints necessarily arising
from their obtaining the absolute control of the sale of a particular
article in general use by the community, there ought to be no hesitation
in allowing to Congress the right to suppress a similar combination that
imposes a like unlawful restraint upon interstate trade and traffic in
that article. While the States retain, because they have never
surrendered, full control of their completely internal traffic, it was
not intended by the framers of the Constitution that any part of
interstate commerce should be excluded from the control of Congress.
Each State can reach and suppress combinations so far as they unlawfully
restrain its interior trade, while the national government may reach and
suppress them so far as they unlawfully restrain trade among the States.
While the opinion of the court in this case does
not declare the act of 1890 to be unconstitutional, it defeats the main
object for which it was passed. For it is, in effect, held that the
statute would be unconstitutional if interpreted as embracing such
unlawful restraints upon the purchasing of goods in one State to be
carried to another State as necessarily arise from the existence
of combinations formed for the purpose and with the effect not only of
monopolizing the ownership of all such goods in every part of the
country, but of controlling the prices for them in all the States. This
view of the scope of the act leaves the public, so far as national power
is concerned, entirely at the mercy of combinations which arbitrarily
control the prices of articles purchased to be transported from one
State to another State. I cannot assent to that view. In my judgment,
the general government is not placed by the Constitution in such a
condition of helplessness that it must fold its arms and remain inactive
while capital combines, under the name of a corporation, to destroy
competition not in one State only, but throughout the entire country, in
the buying and selling of articles -- especially the necessaries of life
-- that go into commerce among the States. The doctrine of the autonomy
of the States cannot properly be invoked to justify a denial of power in
the national government to meet such an emergency, involving as it does
that freedom of commercial intercourse among the States which the
Constitution sought to attain.
It is said that there are no proofs in the record
which indicate an intention upon the part of the American Sugar
Refining Company and its associates to put a restraint upon trade or
commerce. Was it necessary that formal proof be made that the persons
engaged in this combination admitted, in words, that they intended to
restrain trade or commerce? Did anyone expect to find in the written
agreements which resulted in the formation of this combination a
distinct expression of a purpose to restrain interstate trade or
commerce? Men who form and control these combinations are too cautious
and wary to make such admissions orally or in writing. Why, it is
conceded that the object of this combination was to obtain control of
the business of making and selling refined sugar throughout the entire
country. Those interested in its operations will be satisfied with
nothing less than to have the whole population of America pay tribute to
them. That object is disclosed upon the very face of the transactions
described in the bill. And it is proved -- indeed, is conceded -- that
that object has been accomplished to the extent that the American Sugar
Refining Company now controls ninety-eight percent of all the sugar
refining business in the country, and therefore controls the price of
that article everywhere. Now the mere existence of a combination
having such an object and possessing such extraordinary power is itself,
under settled principles of law -- there being no adjudged case to the
contrary in this country -- a direct restraint of trade in the article
for the control of the sales of which in this country that combination
was organized. And that restraint is felt in all the States for the
reason, known to all, that the article in question goes, was intended to
go, and must always go, into commerce among the several States, and into
the homes of people in every condition of life.
A decree recognizing the freedom of commercial
intercourse as embracing the right to buy goods to be transported from
one State to another, without buyers being burdened by unlawful
restraints imposed by combinations of corporations or individuals, so
far from disturbing or endangering, would tend to preserve the autonomy
of the States, and protect the people of all the States against dangers
so portentous as to excite apprehension for the safety of our liberties.
If this be not a sound interpretation of the Constitution, it is easy to
perceive that interstate traffic, so far as it involves the price to be
paid for articles necessary to the comfort and wellbeing of the people
in all the States, may pass under the absolute control of overshadowing
combinations having financial resources without limit and an audacity in
the accomplishment of their objects that recognizes none of the
restraints of moral obligations controlling the action of individuals;
combinations governed entirely by the law of greed and selfishness -- so
powerful that no single State is able to overthrow them and give the
required protection to the whole country, and so all-pervading that they
threaten the integrity of our institutions.
We have before us the case of a combination which
absolutely controls, or may, at its discretion, control the price of all
refined sugar in this country. Suppose another combination,
organized for private gain and to control prices, should obtain
possession of all the large flour mills in the United States; another,
of all the grain elevators; another, of all the oil territory; another,
of all the salt-producing regions; another, of all the cotton mills, and
another, of all the great establishments for slaughtering animals and
the preparation of meats. What power is competent to protect the people
of the United States against such dangers except a national power -- one
that is capable of exerting its sovereign authority throughout every
part of the territory and over all the people of the nation?
To the general government has been committed the
control of commercial intercourse among the States, to the end that it
may be free at all times from any restraints except such as Congress may
impose or permit for the benefit of the whole country. The common
government of all the people is the only one that can adequately deal
with a matter which directly and injuriously affects the entire Commerce
of the country, which concerns equally all the people of the Union, and
which, it must be confessed, cannot be adequately controlled by any one
State. Its authority should not be so weakened by construction that it
cannot reach and eradicate evils that, beyond all question, tend to
defeat an object which that government is entitled, by the Constitution,
to accomplish. "Powerful and ingenious minds," this court has
said,
taking as postulates that the powers expressly
granted to the government of the Union are to be contracted by
construction into the narrowest possible compass, and that the original
powers of the States are retained if any possible construction will
retain them, may, by a course of well digested but refined and
metaphysical reasoning founded on these premises, explain away the
Constitution of our country and leave it a magnificent structure indeed
to look at, but totally unfit for use. They may so entangle and perplex
the understanding as to obscure principles which were before thought
quite plain, and induce doubts where, if the mind were to pursue its own
course, none would be perceived.
Gibbons v. Ogden, 9 Wheat. 1 , 222.
While a decree annulling the contracts under
which the combination in question was formed may not, in view of the
facts disclosed, be effectual to accomplish the object of the act of
1890, I perceive no difficulty in the way of the court's passing a
decree declaring that that combination imposes an unlawful restraint
upon trade and commerce among the States and perpetually enjoining it
from further prosecuting any business pursuant to the unlawful
agreements under which it was formed or by which it was created. Such a
decree would be within the scope of the bill, and is appropriate to the
end which Congress intended to accomplish, namely, to protect the
freedom of commercial intercourse among the States against combinations
and conspiracies which impose unlawful restraints upon such intercourse.
For the reasons stated, I dissent from the
opinion and judgment of the court. | |