[226 U.S. 525, 527] Former Solicitor General Lehmann and Solicitor General Bullitt for plaintiff in error.
[226 U.S. 525, 531] Messrs. George P. Merrick, Henry Wollman, William E. Church for defendant in error. [226 U.S. 525, 532] Messrs. John C. Spooner, Joseph P. Colton, Jr., and George Rublee for defendants in error.
Mr. Justice Van Devanter delivered the opinion of the court:
This is a criminal prosecution under the anti-trust act of July 2, 1980 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), the indictment being in eight counts. In the circuit court demurrers to the third, fourth, seventh, and eighth counts were sustained and those counts dismissed (187 Fed. 664); whereupon the government sued out this writ of error under the criminal appeals act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564). The case has been twice orally argued. At the second argument the government expressly abandoned the third and fourth counts and challenged only the ruling upon counts seven and eight. Thus, the [226 U.S. 525, 535] propriety of the ruling upon the first two need not be considered.
In passing upon the demurrers, the circuit court proceeded first to construe the counts; that is, to ascertain with what acts the defendants are charged, and next, to consider whether those acts are denounced as criminal by the anti-trust act, the conclusion being that they are not.
The limitations upon our jurisdiction under the criminal appeals act1 are such that we must accept the circuit court's construction of the counts, and consider only whether its decision that the acts charged are not condemned as criminal by the anti-trust act is based upon an erroneous construction of that statute.
At the outset we are confronted with the contention that the decision is not based upon a construction of the statute. But to this we cannot assent. The court could not have decided, as it did, that the acts charged are not within the condemnation of the statute, without first ascertaining what it does condemn; which, of course, involved its construction. Indeed, it seems a solecism to say that the decision that the acts charged are not within the statute is not based upon a construction of it.
Each of the counts in question charges the defendants and others with engaging in a conspiracy 'in restraint of, and to restrain,' by the method therein described, 'trade and commerce among the several states' in the supply of cotton available during the year ending September 1, 1910, such supply consisting of all the cotton grown in the [226 U.S. 525, 536] Southern states in that year and the cotton left over from prior years. The counts are long, and the acts which the circuit court treated as charged in them are indicated by the following excerpt from its opinion, the footnotes being ours:
___ continuous throughout all portions of each crop year; that in the ordinary course of business said spinners and manufacturers have bought little or no cotton beyond that required by them for their immediate needs; that such cotton has been extensively bought and sold upon the Cotton Exchange in said city of New York for future delivery in the United States during current crop years; so much so that cotton bought and sold elsewhere in the United States than on that exchange has customarily been bought and sold at prices corresponding to the prices prevailing upon said exchange; that although, as the grand jurors aforesaid, upon their oath aforesaid charge the fact to be, the rules of said Cotton Exchange at New York city have required that all sellers and purchasers of cotton upon that exchange for future delivery should contemplate the actual delivery and receipt of cotton sold and purchased by them there, it has been possible for more cotton to be sold at a given time or at given times upon said exchange for future delivery at a given time or given times during a current crop year by speculators, that is to say, persons not having any cotton in their possession, than would be in existence at such future time or times and available to such speculators for acquisition and delivery to the purchasers thereof; that under such circumstances it has been necessary for such sellers of cotton upon said exchange for such future delivery to make settlements with purchasers in cash or its equivalent, at the prices prevailing upon said exchange at the time or times such settlements have been made, as to whatever cotton such sellers were unable to acquire and deliver to such purchasers when such delivery was due; that the artificial condition produced by such excessive purchases, when made, has invariably created such an abnormal demand for cotton on the part of such sellers that very excessive prices therefor have prevailed upon said exchange, and upon all other exchanges and in all cotton markets, until after such settlements have been made, so that bona fide purchasers of cotton for consumption in spinning and manufacturing have been compelled for a time to pay the same excessive prices in order to obtain cotton for their needs; that the cotton crop for the crop year beginning September 1, 1909, and ending September 1, 1910, approximated 10,500,000 bales; that about 265, 000 bales of cotton were left over and available at the beginning of said crop year of the crops of prior crop years; that the foregoing allegations of this paragraph of this count of this indictment apply to the cotton of said crop year and to that of prior crop years; and that each of said conspirators, when so conspiring, as in this count of this indictment set forth, well knew all the premises in this count aforesaid.' [226 U.S. 525, 538] straining the trade and commerce.' It is alleged, at the outset, that the conspirators were to restrain trade and commerce by doing 'what is commonly called running a corner in cotton.' Averments then follow showing how the corner was to be brought about and its effect, which may be thus analyzed:
Although ruling that there was no allegation of a specific intent to obstruct interstate trade or commerce, and that the raising of prices in markets other than the Cotton Exchange in New York was 'in itself no part of the scheme,' the court assumed that the conspirators intended 'the necessary and unavoidable consequences of their acts,' and observed that 'prices of cotton are so correlated that it may be said that the direct result of the acts of the conspirators was to be the raising of the price of cotton throughout the country.'
Upon the second argument the defendants contended, and counsel for the government expressly conceded, that 'running a corner' consists, broadly speaking, in acquiring control of all or the dominant portion of a commodity, with the purpose of artificially enhancing the price; 'one of the important features of which,' to use the [226 U.S. 525, 540] language of the government's brief, 'is the purchase for future delivery, coupled with a withholding from sale for a limited time;' and as this definition is in substantial accord with that given by lexicographers and juridical writers, we accept it for present purposes, although observing that not improbably in actual usage the expression includes modified modes of attaining substantially the same end.
Whilst thus agreeing upon what constitutes running a corner, the parties widely differ as to whether what is so styled in this instance contained the elements necessary to make it operative. The point of difference is the presence or absence of an adequate allegation that the purchasing for future delivery was to be coupled with a withholding from sale, without which, it is conceded by both parties, the market could not be cornered. But the solution of the point turns upon the right construction of the counts, and that, as has been indicated, is not within our province on this writ of error. We must assume that the counts adequately allege whatever the circuit court treated them as alleging. Its opinion, given at the time, although not containing any express ruling upon the point of difference, shows that the counts were treated as alleging an operative scheme,-one by which the market could be cornered. The court spoke of it as 'contrary to public policy,' as 'arbitrarily controlling the price of a commodity,' and as 'positively unlawful in any state having a statute against corners.' Evidently, it was assumed that every element of running a corner was present. We accordingly indulge that assumption, but leave the parties free to present the question to the district court for its decision in the course of such further proceedings as may be had in that court.
We come, then, to the question whether a conspiracy to run a corner in the available supply of a staple commodity, such as cotton, normally a subject of trade and commerce among the states, and thereby to enhance [226 U.S. 525, 541] artificially its price throughout the country, and to compel all who have occasion to obtain it to pay the enhanced price or else to leave their needs unsatisfied, is within the terms of 1 of the antitrust act, which makes it a criminal offense to 'engage in' a 'conspiracy in restraint of trade or commerce among the several states.' The circuit court, as we have seen, answered the question in the negative; and this, although accepting as an allegation of fact, rather than as a mere economic theory of the pleader, the statement in the counts that interstate trade and commerce would necessarily be obstructed by the operation of the conspiracy. The reasons assigned for the ruling, and now pressed upon our attention, are ( 1) that the conspiracy does not belong to the class in which the members are engaged in interstate trade or commerce, and agree to suppress competition among themselves, (2) that running a corner, instead of restraining competition, tends, temporarily at least, to stimulate it, and ( 3) that the obstruction of interstate trade and commerce resulting from the operation of the conspiracy, even although a necessary result, would be so indirect as not be to a restraint in the sense of the statute.
Upon careful reflection we are constrained to hold that the reasons given do not sustain the ruling, and that the answer to the question must be in the affirmative.
Section 1 of the act, upon which the counts are founded, is not confined to voluntary restraints, as where persons engaged in interstate trade or commerce agree to suppress competition among themselves, but includes as well involuntary restraints; as where persons not so engaged conspire to compel action by others, or to create artificial conditions, which necessarily impede or burden the due course of such trade or commerce, or restrict the common liberty to engage therein. Loewe v. Lawlor, 208 U.S. 274, 293 , 301 S. 52 L. ed. 488, 496, 502, 28 Sup. Ct. Rep. 301. As was said of this section in Standard Oil Co. v. United States, 221 U.S. 1, 59 , 55 S. L. ed. 619, 644, 34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734: [226 U.S. 525, 542] 'The context manifests that the statute was drawn in the light of the existing practical conception of the law of restraint of trade, because it groups as within that class, not only contracts which were in restraint of trade in the subjective sense, but all contracts or acts which theoretically were attempts to monopolize, yet which in practice have come to be considered as in restraint of trade in a broad sense.'
It well may be that running a corner tends for a time to stimulate competition; but this does not prevent it from being a forbidden restraint, for it also operates to thwart the usual operation of the laws of supply and demand, to withdraw the commodity from the normal current of trade, to enhance the price artificially, to hamper users and consumers in satisfying their needs, and to produce practically the same evils as does the suppression of competition.
Of course, the statute does not apply where the trade or commerce affected is purely intrastate. Neither does it apply, as this court often has held, where the trade or commerce affected is interstate, unless the effect thereon is direct, not merely indirect. But no difficulty is encountered in applying these tests in the present case when its salient features are kept in view.
It was a conspiracy to run a corner in the market. The commodity to be cornered was cotton,-a product of the Southern states, largely used and consumed in the Northern states. It was a subject of interstate trade and commerce, and through that channel it was obtained from time to time by the many manufacturers of cotton fabrics in the Northern states. The corner was to be conducted on the Cotton Exchange in New York city, but by means which would enable the conspirators to obtain control of the available supply and to enhance the price to all buyers in every market of the country. This control and the enhancement of the price were features of the conspiracy [226 U.S. 525, 543] upon the attainment of which it is conceded its success depended. Upon the corner becoming effective, there could be no trading in the commodity save at the will of the conspirators and at such price as their interests might prompt them to exact. And so, the conspiracy was to reach and to bring within its dominating influence the entire cotton trade of the country.
Bearing in mind that such was the nature, object, and scope of the conspiracy, we regard it as altogether plain that, by its necessary operation, it would directly and materially impede, and burden the due course of trade and commerce among the states, and therefore inflict upon the public the injuries which the anti-trust act is designed to prevent. See Swift & Co. v. United States, 196 U.S. 375 , 396-400, 49 L. ed. 518, 524-526, 25 Sup. Ct. Rep. 276; Loewe v. Lawlor, 208 U.S. 274 , 52 L. ed. 488, 28 Sup. Ct. Rep. 301, 13 Ann. Cas. 815, Standard Oil Co. v. United States, 221 U.S. 1 , 55 L. ed. 619, 34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734; United States v. American Tobacco Co. 212 U.S. 106 , 55 L. ed. 663, 31 Sup. Ct. Rep. 632. And that there is no allegation of a specific intent to restrain such trade or commerce does not make against this conclusion, for, as is shown by prior decisions of this court, the conspirators must be held to have intended the necessary and direct consequences of their acts, and cannot be heard to say the contrary. In other words, by purposely engaging in a conspiracy which necessarily and directly produces the result which the statute is designed to prevent, they are, in legal contemplation, chargeable with intending that result. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 243 , 44 S. L. ed. 136, 148, 20 Sup. Ct. Rep. 96; United States v. Reading Co. 226 U.S. 324 , 370. 57 L. ed. --, 33 Sup. Ct. Rep. 90.
The defendants place some reliance upon Ware v. Mobile County, 209 U.S. 405 , 52 L. ed. 855, 28 Sup. Ct. Rep. 526, 14 Ann. Cas. 1031, as showing that the operation of the conspiracy did not involve interstate trade or commerce; but we think the case does not go so far and is not in point. It presented only the question of the effect upon interstate trade or commerce merce of the taxing by a state of the business of a broker who was dealing [226 U.S. 525, 544] in contracts for the future delivery of cotton, where there was no obligation to ship from one state to another; while here we are concerned with a conspiracy which was to reach and bring within its dominating influence the entire cotton trade of the country, and which was to be executed, in part only, through contracts for future delivery. It hardly needs statement that the character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole. W. W. Montague & Co. v. Lowry, 193 U.S. 38, 45 , 46 S., 48, L. ed. 608, 611, 612, 24 Sup. Ct. Rep. 307; Swift & Co. v. United States, 196 U.S. 375, 386 , 387 S., 49 L. ed. 518, 521, 522, 25 Sup. Ct. Rep. 276.
As we are of opinion that the statute does embrace the conspiracy which the circuit court treated as charged in counts seven and eight, as construed by it, its judgment upon those counts is reversed and the case is remanded for further proceedings in conformity with this opinion.
Reversed in part.
Mr. Justice Lurton, dissenting:
The majority seem to base a judgment of reversal upon the assumption that the court below interpreted the counts in question as charging all the elements essential to a technical 'corner.' To this view of the opinion of the court below I do not assent. As I interpret that opinion, the court held the count bad because it did not charge a 'corner.' Thus interpreted there was no error in quashing the count. I am authorized to say that the Chief Justice concurs in this dissent.
Mr. Justice Holmes also dissents.
[ Footnote 1 ] The act is set forth in full in 211 U. S. at page 398, 53 L. ed. 244, 29 Sup. Ct. Rep. 132, and rulings thereunder are found in United States v. Bitty, 208 U.S. 393, 399 , 52 S. L. ed. 543, 545, 28 Sup. Ct. Rep. 396: United States v. Keitel, 211 U.S. 370, 398 , 53 S. L. ed. 230, 244, 29 Sup. Ct. Rep. 123; United States v. Biggs, 211 U.S. 507, 518 , 53 S. L. ed. 305, 309, 29 Sup. Ct. Rep. 181; United States v. Mason, 213 U.S. 115, 122 , 53 S. L. ed. 725, 727, 29 Sup. Ct. Rep. 480; United States v. Mescal, 215 U.S. 26, 31 , 54 S. L. ed. 77, 79, 30 Sup. Ct. Rep. 19; United States v. Stevenson, 215 U.S. 190, 195 , 54 S. L. ed. 153, 155, 30 Sup. Ct. Rep. 35; United States v. Heinze, 218 U.S. 532, 540 , 54 S. L. ed. 1139, 1143, 31 Sup. Ct. Rep. 98, 21 Ann. Cas. 884; United States v. Heinze, 218 U.S. 547, 550 , 54 S. L. ed. 1145, 1146, 31 Sup. Ct. Rep. 102; United States v. Kissel, 218 U.S. 601, 606 , 54 S. L. ed. 1168, 1178, 31 Sup. Ct. Rep. 124; United States v. Miller, 223 U.S. 599, 602 , 56 S. L. ed. 568, 569, 32 Sup. Ct. Rep. 323.
[ Footnote 2 ] One count contained a statement of overt acts, while the other contained no such statement,-a difference not here material.
[ Footnote 3 ] In order that the brief summary and analysis of the third part may be better understood, the second part is here reproduced:
Description of trade and commerce to be restrained.
[ Footnote 4 ] The language of the charge is: 'They were to make purchases from day to day upon said Cotton Exchange at New York city, from speculators, of quantities of cotton for future delivery at different times during said crop year, greatly in excess of the amount of cotton which would be in existence and available for delivery to them by the sellers thereof when such deliveries were due, reference being had to the usages and requirements of said trade and commerce, which are in this count above set forth.'
[ Footnote 5 ] Of these allegations the court said in its opinion: 'We must also assume that the alleghations of the results to follow the conspiracy are more than the conclusions or economic theories of the pleader, and amount to allegations of fact.'