Argument for Plaintiff in Error.

234 U. S.

INTERNATIONAL HARVESTER COMPANY OF AMERICA v. COMMONWEALTH OF KENTUCKY.

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.

Nos. 276, 291, 292. Argued April 23, 24, 1914. Decided June 8, 1914.

An anti-trust criminal law may not necessarily be unconstitutional merely because it throws upon men the risk of rightly estimating what is an undue restraint of trade, but to compel a man to guess what the fair market value of commodities manufactured or sold by him would be under other than existing conditions is beyond constitutional limits.

The anti-trust provision of the constitution of 1891 and of the acts of 1900 and 1906 of Kentucky, as construed by the highest court of that State, are unconstitutional under the Fourteenth Amendment as offering no standard of conduct that it is possible to know in advance and comply with.

147 Kentucky, 564; Id. 795; 148 Kentucky, 572, reversed.

THE facts, which involve the constitutionality of antitrust provisions of the constitution and laws of Kentucky, are stated in the opinion.

Mr. Alexander Pope Humphrey and Mr. Edgar A. Bancroft, with whom Mr. Victor A. Remy was on the brief, for plaintiff in error:

The construction placed on the anti-trust statutes by the instructions of the lower court violated the Fourteenth Amendment.

The anti-trust statutes as construed are void for indefiniteness. See act of May 20, 1890, §§ 3915 and 3917, Ky. Stat.; § 198, Kentucky Const.; Ky. Stat., p. 145;

234 U.S.

Argument for Plaintiff in Error.

acts of March 21, 1906, p. 429 (Ky. Stat., § 3941a), and March 13, 1908, p. 38 (Ky. Stat., § 3941a).

The Kentucky anti-trust law, as construed and enforced, denies equal protection of the law contrary to the Fourteenth Amendment.

The instructions of the lower court placed a construction on the Kentucky anti-trust law which conflicts with the Fourteenth Amendment. They, in effect, require superior articles to be sold at the same prices as inferior ones.

The Kentucky anti-trust statutes as construed by the Court of Appeals are so indefinite that they are void as criminal laws.

The Kentucky anti-trust statutes as construed and enforced deny equal protection of the law.

The history of the laws and the decisions show the above is true.

The fact that Kentucky is an agricultural State and the "Night Riding" movement tend to show the purpose of the acts.

The construction given the conflicting statutes gave only an apparent equality to manufacturers and merchants as compared to farmers.

As a matter of fact, the laws as construed and enforced, deny manufacturers and dealers equal protection.

The law itself must save the rights of parties, and they cannot be left to the discretion of the courts.

In support of these contentions, see Am. Tobacco Co. v. Commonwealth, 115 S. W. Rep. 754; Collins v. Commonwealth, 141 Kentucky, 565; Commonwealth v. Bavarian Brewing Co., 112 Kentucky, 925, 928; Commonwealth v. Grinstead, 108 Kentucky, 59, 67, 76; Commonwealth v. Hodges, 137 Kentucky, 233; Commonwealth v. Int. Harvester Co., 131 Kentucky, 551; Commonwealth v. Int. Harvester Co., 131 Kentucky, 768; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560; Cotting v. Kansas City Stock Yards Co., 183 U. S. 79; Equitable Society v. Common

Argument for Defendant in Error.

234 U.S.

wealth, 113 Kentucky, 126; Ex parte Virginia, 100 U. S. 339, 346; Henderson v. Mayor, 92 U. S. 259, 268; Int. Harvester Co. v. Commonwealth, 124 Kentucky, 543; 137 Kentucky, 668; 144 Kentucky, 403, 410; 147 Kentucky, 564; 147 Kentucky, 795; 148 Kentucky, 572; L., H. & St. L. Ry. Co. v. Roberts, 144 Kentucky, 820, 824; Louisville Ry. Co. v. Stock Yards Co., 212 U. S. 133, 143; Malone v. Commonwealth, 141 Kentucky, 570; Nash v. United States, 229 U. S. 373, 377; O'Bannion v. Commonwealth, 113 S. W. Rep. 907; Owen County Society v. Brumback, 128 Kentucky, 137; Robinson v. Van Houser, 196 Fed. Rep. 620; Steers v. United States, 192 Fed. Rep. 1, 3, 6; United States v. Brewer, 139 U. S. 278, 288; United States v. Sharp, Peters' C. C. R. 118; Yick Wo v. Hopkins, 118 U. S. 356, 373.

Mr. James Garnett, Attorney General of the Commonwealth of Kentucky, and Mr. Charles Carroll, with whom Mr. Frank E. Daugherty, Mr. J. Robert Layman and Mr. J. R. Mallory were on the brief, for defendant in error:

This court cannot review the evidence. Dower v. Richard, 151 U. S. 663, 664.

Weight must be given to construction of statutes and constitution, in state courts of last resort, by this court. National Cotton Oil Co. v. Texas, 197 U. S. 130; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 73.

As to the construction of constitution and acts by Kentucky's highest court, see Commonwealth v. Int. Harvester Co., 131 Kentucky, 551; Commonwealth v. Hodges, 137 Kentucky, 233.

The standard adopted for determining whether or not there has been a violation of the Kentucky anti-trust law is fixed and certain. Int. Harvester Co. v. Commonwealth, 131 Kentucky, 576; 137 Kentucky, 677; 144 Kentucky, 410; 147 Kentucky, 564.

If the policy adopted by the Kentucky courts is reason

able, this court will not review it. Otis v. Parker, 187 U. S. 47; C., B. & Q. R. R. v. McGuire, 219 U. S. 547; McLean v. Arkansas, 211 U. S. 539; Hunter v. Pittsburg, 207 U. S. 176. See Report of Committee of Senate of Kentucky, Feb. 21, 1910; § 198, Const. Kentucky.

The question as to instruction to jury was not raised in the Kentucky courts, and hence cannot avail here. Dewey v. Des Moines, 173 U. S. 199; Bollin v. Nebraska, 176 U. S. 90.

The Kentucky anti-trust statutes, as construed by the Court of Appeals, are not so indefinite as to render them void as criminal laws; nor do such statutes, as construed and enforced, deny the equal protection of the law. Ex parte Virginia, 100 U. S. 339, and Yick Wo v. Hopkins, 118 U. S. 356; L. & N. R. R. Co. v. Central Stock Yards Co., 212 U. S. 133 have no application to this case.

MR. JUSTICE HOLMES delivered the opinion of the court.

The plaintiff in error was prosecuted, convicted and fined in three different counties for having entered into an agreement with other named companies for the purpose of controlling the price of harvesters, &c. manufactured by them and of enhancing it above their real value; and for having so fixed and enhanced the price, and for having sold their harvesters, &c. at a price in excess of their real value, in pursuance of the agreement alleged. The judgments were affirmed by the Court of Appeals. 147 Kentucky, 564. Id. 795. 148 Kentucky, 572. The plaintiff in error saved its rights under the Fourteenth Amendment and brought the cases here.

The law of Kentucky in its present form is the result of the construction of several statutes somewhat far apart in time and of seemingly contradictory import. It was argued that construction could not take the place of express language in a statute and Louisville & Nashville

Opinion of the Court.

234 U. S.

R. R. Co. v. Central Stock Yards Co., 212 U. S. 132, 144, was cited for the proposition. But the case gives no sanction to it. The point there was that a defect in a law could not be cured by precautions in a judgment, not that what seemed a defect could not be cured by the construction given to the words by the court having final authority to declare their intent. We follow the Kentucky Court of Appeals in taking what they derive from the legislation of the State as if it were embodied in a single act.

The history in brief is this: By an act of May 20, 1890, agreements for the purpose of fixing or limiting the amount or quantity of any article of merchandise to be produced or manufactured, mined, bought or sold; as also combinations by corporations with others to put the business of the combination under control with intent to limit, fix or change the price of articles of commerce or in any way to diminish the output of such articles, were made punishable by fine, imprisonment, or both. Carroll's Kentucky Statutes, §§ 3915, 3916, 3917. In 1891 a new constitution was adopted by the State, by § 198 of which it was made the duty of the General Assembly "from time to time, as necessity may require, to enact such laws as may be necessary to prevent all trusts from combining

to depreciate below its real value any article, or to enhance the cost of any article above its real value." (This was held not to repeal the earlier statute. Commonwealth v. International Harvester Co., 131 Kentucky, 551, 566.) But Kentucky grows tobacco and the farmers were dissatisfied with the prices that they were able to get, being oppressed as they alleged by a combination of buyers. So, on March 21, 1906, a statute was enacted that made it lawful for any number of persons to combine the crops of wheat, tobacco, corn, oats, hay, or other farm products raised by them, for the purpose of obtaining a higher price than they could get by selling them separately. Session Laws, 1906, c. 117, p. 429. And later, by an act of