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Argument for Swift & Co.

judgment or decree must be supported by facts necessary to its validity. Wood v. Cox, 113 Atl. 501; Black v. Keiley, 23 N. J. Eq. 538; Grob v. Cushman, 45 Ill. 119. There was no proof of any threatened violations. All ΑΠ allegations of threatened violations were denied. The stipulation is the only basis of the decree and the decree negatives any determination of any violation. What is a threatened violation of the Sherman Act? It is nothing more nor less than an attempt; and attempts to do the acts forbidden by the statute are themselves violations of the law. Facts disclosing such attempts must be charged and proved or admitted, and must be adjudicated to be violations of law before the court can enter its judgment. United States v. Coffee Exchange, 263 U. S. 611; United States v. U. S. Steel Corp'n, 251 U. S. 417; United States v. Hamburg Amerikanische Co., 239 U. S. 466; United States v. Quaker Oats Co., 232 Fed. 499; In re Greene, 52 Fed. 104.

The injunction orders contained in paragraphs 1 and 9 are void, being merely general injunctions against all possible breaches of the Anti-Trust Laws, and beyond the power of the court. Swift & Co. v. United States, 196 U. S. 375.

The injunction orders contained in paragraphs 2 to 8, inclusive, are void because they enjoin the defendants not merely from engaging in unlawful acts, but also from severally following lawful occupations in a lawful manner and are, therefore, a usurpation by the judicial branch of the Government of the function of the legislative branch. United States v. Coffee Exchange, 263 U. S. 611; Daniel v. Portland Gold Mining Co., 202 Fed. 637; American Federation of Labor v. Buck's Stove Co., 33 App. D. C. 83; 219 U. S. 58.

See also Geddes v. Anaconda Copper Co., 254 U. S. 590, where it is said: "It is now the settled law that the remedies provided by the Anti-Trust Act of July 2,

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276 U.S.

1890,

exclusive."

for enforcing the rights created by it are

No department of the Government may invade the province of the others. Massachusetts v. Mellon, 262 U. S. 447.

The decree is void because it is not confined to interstate commerce, but enjoins defendants from doing acts and things which are exclusively intrastate commerce or which may be limited to intrastate commerce. Kidd v. Pearson, 128 U. S. 1; Hammer v. Dagenhart, 247 U. S. 251; Delaware, L. & W. R. Co. v. Yurkonis, 220 Fed. 429. The decree is void because by it defendants are obliged to go out of certain businesses and not to enter others in the United States, forever, which is violative of both the common law and the Anti-Trust statutes.

or

The decree is void because there was no "case controversy " before the court within the meaning of § 2 of Article III of the Constitution. Osborn v. United States Bank, 9 Wheat. 737; Smith v. Adams, 130 U. S. 167; Story on the Constitution, 4th Ed., § 1646; In re Pacific Ry. Comm., 32 Fed. 241.

It is elementary that " the controversy, in a suit, is the one actually presented by the pleadings, and not what it might have been." Vulcan Detinning Co. v. American Can Co., 130 Fed. 635.

Consent could not confer jurisdiction where there was no case or controversy," within the meaning of the Federal Constitution. Little v. Bowers, 134 U. S. 547; California v. San Pablo R. Co., 149 U. S. 308; Muskrat v. United States, 219 U. S. 346; Torrence v. Shedd, 144 U. S. 527; Liberty Warehouse Co. v. Grannis, 273 U. S. 70.

The Attorney General was without power to consent to the decree. The Attorney General has not only no authority to impose decrees upon citizens which are not authorized by law, but it is the duty of the courts to set

311

Argument for the United States.

aside any such decree, imposed either by consent or otherwise. Even where a court has jurisdiction over the parties and the subject-matter, yet if it makes a decree which transcends the limits of its authority, such decree is not merely erroneous, but void. Freeman on Judgments, 4th Ed. § 116. See also Black on Judgments, 2d Ed. § 171; Windsor v. McVeigh, 93 U. S. 274; United States v. Walker, 109 U. S. 258; United States v. American Tobacco Co., 191 Fed. 371; Reynolds v. Stockton, 140 U. S. 254; 33 C. J. 1076; 15 R. C. L. "Judgments," §§ 316 and 144; 2 High on Injunctions, 4th Ed. Par. 1425; Pyeatt v. Estes, 4 A. L. R. 1570; Sache v. Gillette, 11 L. R. A. (N. S.) 803; Glover v. Brown, 184 Pac. 649; Munday v. Vail, 43 N. J. L., 418; Black on Judgments, 2d Ed. § 242; Johnson v. McKinnon, 13 L. R. A. (N. S.) 874; American Mortgage Co. v. Thomas, 47 Fed. 550.

A motion to vacate filed in the court which rendered the decree is the proper procedure to have a void decree vacated. 21 C. J. 718. See also Grant v. Harrell, 109 N. C. 78; Aronson v. Sire, 85 App. Div. (N. Y.) 607; Freeman on Judgments, 5th Ed., §§ 228, 273, 307 and 382.

Assistant to the Attorney General Donovan, with whom Solictor General Mitchell and Mr. H. B. Teegarden, Special Assistant to the Attorney General, were on the brief, for the United States.

It is suggested that the judgment refusing to grant the motion to vacate the decree was a decree in a suit under the Sherman Act, within the meaning of the Expediting Act, and the appeal should have been direct to this Court; that the Act providing for transfer of cases from Circuit Courts of Appeals, literally construed, did not allow transfer from the Court of Appeals of the District of Columbia, but liberally construed did; that unless this Court concludes that appeal was properly taken to the

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276 U.S.

Court of Appeals of the District, or, if not so taken, that the cause was thereupon transferable to this Court, it has not, by ordering the whole record up after certificate, acquired jurisdiction to consider the merits.

The Government admits the full force of the clause in the decree's preamble as a refusal to adjudicate any past violations of law, but answers that it does not touch the factual basis necessary to support the decree; the decree rests upon a threatened or impending future violation of the Anti-Trust Law; the finding of a state of facts to support it is conclusively presumed by the entry of the decree upon the parties' consents, and is not denied by any language of the decree. The Government denies that any of the provisions of the decree are beyond the jurisdictional power of the court to enter. The bill placed before the court a controversy upon a subject matter within its jurisdiction; the parties voluntarily submitted themselves to the jurisdiction; the relief granted was of a nature (injunctive) within the court's equity powers to grant, and its provisions are all within the scope of the case made by the bill; the parties consented to the decree, thereby adopting its language as their own, conceding its appropriateness to the situation complained of, and waiving any errors of substance or form.

Mr. William C. Breed, with whom Messrs. Sumner Ford and Edward A. Craighill, Jr., were on the brief, for the National Wholesale Grocers Association.

Mr. Edgar Watkins, with whom Mr. Mac Asbill was on the brief, for the American Wholesale Grocers Association at the first hearing only.

MR. JUSTICE BRANDEIS delivered the opinion of the Court.

This case presents the question whether the consent decree entered February 27, 1920, with a view to prevent

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Opinion of the Court.

ing a long feared monopoly in meat and other food products is void.1

On that day the United States filed in the Supreme Court of the District of Columbia, sitting in equity, a petition under § 4 of the Sherman Anti-Trust Act, July 2, 1890, c. 647, 26 Stat. 209, to enjoin violations of that statute and of the Clayton Act, October 15, 1914, c. 323, 38 Stat. 730, 736. It named as defendants the five leading packers; namely, Swift & Company, Armour & Company, Morris & Company, Wilson & Company (Inc.), and the Cudahy Packing Company. And it joined with them 80 other corporations and 50 individuals, all but four of whom were associated with some one of the five defendants above named. The petition charged the defendants with attempting to monopolize a large proportion of the food supply of the nation and with attempting to extend the monopoly by methods set forth. It stated that the purpose of the suit was to put an end to the monopoly described and to deprive the defendants of the instrumentalities by which they were perfecting their attempts to monopolize. It sought a comprehensive injunction and also the divestiture of the instrumentalities described.

1 See Swift & Co. v. United States, 196 U. S. 375; United States v. Armour & Co., 142 Fed. 808; Stafford v. Wallace, 258 U. S. 495; Report of the Select Committee on the Transportation and Sale of Meat Products, 51st Cong., 1st Sess., Sen. Rep. No. 829; Report of the Commissioner of Corporations on the Beef Industry, 58th Cong., 3d Sess., H. R. Doc. No. 382; Message from the President of the United States transmitting Summary of Report of the Federal Trade Commission on the Meat Packing Industry, 65th Cong., 2d Sess., H. R. Doc. 1297; Report of the Federal Trade Commission on the Meat Packing Industry, 1918-1920; Report of the Federal Trade Commission on Private Car Lines, 1919. See also Hearings before the Committee on Agriculture of the House of Representatives, 66th Cong., 2d Sess., pp. 2309-2357; Letter from the Attorney General, 68th Cong., 1st Sess., Sen. Doc. No. 61; Letter from the Chairman of the Federal Trade Commission, 68th Cong., 2d Sess., Sen. Doc. No. 219.