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Argument for Appellants.
of listed wholesale dealers in selling direct to consumers, tended to prevent members of the association from dealing with the listed dealers referred to in the report, and to directly and unreasonably restrain trade by preventing it with such listed dealers, and was within the prohibitions of the Sherman Law.
While a retail dealer may unquestionably stop dealing with a wholesaler for any reason sufficient to himself, he and other dealers may not combine and agree that none of them will deal with such wholesaler without, in case interstate commerce is involved, violating the Sherman Law.
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An act, harmless when done by one person, may become a public wrong when done by many acting in concert in pursuance of a conspiracy. Grenada Lumber Co. v. Mississippi, 217 U. S. 433. 201 Fed. Rep. 581, affirmed.
THE facts, which involve the determination of whether an arrangement between certain retail lumbermen's associations in regard to their relations with wholesale dealers amounted to a combination and conspiracy in restraint of trade within the prohibitions of the Sherman Act, are stated in the opinion.
Mr. Alfred B. Cruikshank for appellants in No. 511, and Mr. Howard Taylor, with whom Mr. Charles E. Morgan, Mr. C. E. Morgan, 3d, and Mr. Charles B. Brophy were on the brief, for appellants in No. 550:
The Sherman Act prohibits undue limitations on competitive conditions.
The combination, or concerted action, of these defendants in distributing circulars stating the true position of lumbermen in the trade, was not a combination which unduly restrained competition.
The true question under the English and American authorities is whether the circulation of the "Official Lists" is a reasonable defensive measure or is an unreasonable, offensive and malicious means to eliminate competition.
There was no combination or concert of action among defendants to boycott those whose names appeared on the "Official Reports."
Argument for Appellants.
The evidence concerning past occurrences, if relevant at all, tends to establish that the defendants' present intent is right and law abiding.
These present appellants are not responsible for the actions of individuals in other local associations.
There was no confederation among the various local associations, except with respect to the circulation of the "Official Reports."
No absurdities were contemplated by the Sherman Act. In support of these contentions, see Aikens v. Wisconsin, 195 U. S. 194; Allan v. Flood, App. Cas. 1898, 1; Bohn Mfg. Co. v. Hollis, 54 Minnesota, 223; Carew v. Rutherford, 106 Massachusetts, 1, 14; Central Lumber Co. v. South Dakota, 226 U. S. 157; Collins v. American News Co., 34 Misc. 260; S. C., aff'd, 68 App. Div. 639; Continental Ins. Co. v. Underwriters, 67 Fed. Rep. 310, 320; Cooke on Combinations (2d ed.), c. V; Cooley on Torts (2d ed.), 328; Dueber Watch Co. v. Howard, 55 Fed. Rep. 851, 854; S. C., 66 Fed. Rep. 637, 645; Ertz v. Produce Exchange, 79 Minnesota, 140, 144; Gompers v. Bucks Stove Co., 221 U. S. 418, 436; Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 441; Lawlor v. Loewe, 187 Fed. Rep. 522, 526; Loewe v. Lawlor, 208 U. S. 274, 291; Macauley Bros. v. Tierney, 19 R. I. 255, 259; Mills v. United States Printing Co., 99 App. Div. (N. Y.) 605; Mogul Steamship Co., App. Cas. 1892, 25; S. C., L. R. 23, Q. B. 598, 614; Montgomery Ward Co. v. South Dakota Retail Ass'n, 150 Fed. Rep. 413; Nash v. United States, 229 U. S. 373; National Protective Ass'n v. Cuming, 170 N. Y. 315; Quinn v. Lathem, App. Cas. 1901, 495, 512; Standard Oil Co. v. United States, 221 U. S. 1, 58; State v. Adams Lumber Co., 81 Nebraska, 392, 412; Toledo &c. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 738; United States v. Trans-Missouri Association, 166 U. S. 290, 337; United States v. Kissel, 218 U. S. 601; United States v. Amer. Tobacco Co., 221 U. S. 106, 177; United States v. St. Louis Terminal, 224 U. S. 383,
Argument for the United States.
394; United States v. Reading Co., 226 U. S. 324; United States v. Un. Pac. R. R. Co., 226 U. S. 61, 84; Wabash R. R. Co. v. Hannahan, 121 Fed. Rep. 563, 569; Walker v. Cronin, 107 Massachusetts, 555, 564.
Mr. Assistant to the Attorney General Todd for the United States:
The evidence establishes an agreement or combination between the defendant retailers to prevent wholesalers from selling directly to consumers by refusing to buy from (boycotting) them if they do. This is shown by the declared purpose of the defendant associations as disclosed by their constitutions and by-laws; the compilation and circulation of the so-called "official reports" or blacklists; the actual course of conduct of defendants in concertedly withdrawing their patronage from listed wholesalers; admissions of members of defendant associations, and other testimony showing general recognition of and obedience to a tacit or moral obligation upon members so to withdraw their patronage. The inference of an agreement to boycott is confirmed by the decisions of other courts in conspiracy cases. Commonwealth v. McLean, 2 Pars. (Pa.) 367; 3 Greenleaf on Ev., § 93; Patnode v. Westenhaver, 114 Wisconsin, 460; Regina v. Murphy, 8 C. & P. 397; Reilley v. United States, 106 Fed. Rep. 896; State v. Adams Lumber Co., 81 Nebraska, 392; United States v. Sacia, 2 Fed. Rep. 754; Webb v. Drake, 26 So. Rep. (La.) 791; 2 Wharton, Criminal Law, § 1398.
An agreement or combination by retailers to refuse to buy from (boycott) wholesalers who sell directly to consumers interferes with the free and normal flow of trade and therefore violates the Anti-trust Act. Bailey v. Master Plumbers' Ass'n, 103 Tennessee, 99; Beck y. Railway Teamsters' Union, 42 L. R. A. 407; Bohn Mfg. Co. v. Hollis, 54 Minnesota, 223; Boutwell v. Marr, 71 Vermont, 1; Brown v. Jacobs Phar. Co., 115 Georgia, 429; Casey v.
Opinion of the Court.
Cincinnati Typographical Union, 45 Fed. Rep. 135; Doremus v. Hennesy, 176 Illinois, 608; Ellis v. Inman, 131 Fed. Rep. 183; Gompers v. Bucks Stove Co., 221 U. S. 418; Same v. Same, 33 App. D. C. 83; Grenada Lumber Co. v. Mississippi, 217 U. S. 433; Hawarden v. Youghiogheny Coal Co., 111 Wisconsin, 545; Hopkins v. Oxley Stave Co., 83 Fed. Rep. 912; Jackson v. Stanfield, 137 Indiana, 592; Klingel's Pharmacy v. Sharp, 104 Maryland, 218; Loewe v. Lawlor, 208 U. S. 274; Lucke v. Clothing Cutters Ass'n, 77 Maryland, 396; Macauley Bros. v. Tierney, 19 R. I. 255; Montgomery Ward & Co. v. So. Dak. Merchants' Ass'n, 150 Fed. Rep. 413; Montague v. Lowry, 193 U. S. 38; Olive v. Van Patten, 7 Tex. Civ. App. 630; Purington v. Hinchliff, 219 Illinois, 159; Retail Dealers' Ass'n v. State, 48 So. Rep. (Miss.) 1021; State v. Adams Lumber Co., 81 Nebraska, 393; Steers v. United States, 192 Fed. Rep. 1; Thomas v. C., N. O. & T. P. R. Co., 62 Fed. Rep. 803; Webb v. Drake, 26 So. Rep. (La.) 791.
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Viewing the agreement or combination between the defendants merely as one to circulate amongst themselves lists of wholesalers who sell directly to consumers, it unreasonably restricts competition between wholesalers and retailers in selling to consumers and therefore violates the Anti-trust Act. Am. Tobacco Co. v. United States, 221 U.S. 106; Nash v. United States, 229 U. S. 373; Quinn v. Leatham (1901), A. C. 495; Standard Oil Co. Case, 221 U. S. 1.
The plea that this combination was a reasonable and necessary measure to defend the position of retailers in the trade is irrelevant in law and unfounded in fact. Ches. & Ohio Fuel Co. v. United States, 115 Fed. Rep. 610; Grenada Lumber Co. v. Mississippi, 217 U. S. 433; Loewe v. Lawlor, 187 Fed. Rep. 522.
MR. JUSTICE DAY delivered the opinion of the court.
These are appeals from a decree of the District Court of the United States for the Southern District of New York
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Opinion of the Court.
in an action brought by the United States under the Sherman Anti-Trust Act (July 2, 1890, c. 647, 26 Stat. 209), having for its object an injunction against certain alleged combinations of retail lumber dealers, which, it was averred, had entered into a conspiracy to prevent wholesale dealers from selling directly to consumers of lumber. The defendants are various lumber associations composed largely of retail lumber dealers in New York, New Jersey, Pennsylvania, Connecticut, Massachusetts, Rhode Island, Maryland and the District of Columbia, and the officers and directors of the associations. The record is very voluminous, but the facts essential to a consideration of the decree of the District Court are in comparatively narrow compass. While the record also concerns practices which are said to have been abandoned, the decree entered, declaring the defendants named to be in a combination or conspiracy to restrict and restrain competition, depends solely upon the method adopted and being used by the defendants in the distribution of the information contained in a certain document known as the "Official Report," the form of which, set forth in the decree, is as follows:
"(Name of the Particular Association Circulating it.) "STATEMENT TO MEMBERS (WITH THE Date).
"You are reminded that it is because you are members of our Association and have an interest in common with your fellow members in the information contained in this statement; that they communicate it to you; and that they communicate it to you in strictest confidence and with the understanding that you are to receive it and treat it in the same way.
"The following are reported as having solicited, quoted or as having sold direct to the consumers:
"(Here follows a list of the names and addresses of various wholesale dealers.)