give effect to the judgment of the Court of Appeals by enforcing the rights of the parties upon the principles settled by it in its first decision and that the attempt to inject Federal questions into the record by amended pleadings after the case was remanded did not seasonably raise Federal questions reviewable by the Court of Appeals, the case would be ruled by Union Mutual Life Ins. Co. v. Kirchoff, 169 U. S. 103, in which this court held that such attempts to raise Federal questions came too late to lay the foundation for review here. See also Yazoo & Mississippi Valley Ry. Co. v. Adams, 180 U. S. 1; Bonner v. Gorman, 213 U. S. 86.

The Court of Appeals of Kentucky in the opinion delivered in the second case did affirm the principle of the binding character of its first decision, but as it gave consideration to the offered amended answers in their Federal aspect and ruled concerning them, we have concluded not to sustain the motion to dismiss, but to regard the Federal questions as so far passed upon by the Court of Appeals as to present a case reviewable here. Miedreich v. Lauenstein, 232 U. S. 236, 243.

Looking to the opinion of the Court of Appeals in the second case, as we may properly do, to determine the nature of its ruling concerning the offered amended answers, we find that it held that the first part of the first amended answer was simply an elaboration of the defense presented by the second paragraph of the original answer, and that on the former appeal it had held that those facts did not present a defense to the action and that the former opinion was the law of the case and further consideration of that matter was unnecessary. Coming then to consider the conclusion of the averment of the first amended answer that a rate of four dollars per car would be below the cost of the service and therefore confiscatory, it did not pass upon the effect of that charge if required of the Railroad Company against its will, but held that its rates as fixed

by its own tariffs, interpreted by its conduct, as held in the first opinion of the Court of Appeals, had made that rate applicable to the shipments requested by Higdon and that therefore the requirement of performing the service at four dollars per car was not imposed upon the plaintiff in error except because of its own tariff rate which it might itself change at any time, but which while it was in force should affect all shippers alike, including Higdon. A reference to the former opinion of the court shows that the question whether the published tariffs of the Railroad Company applied to such service as Higdon required was elaborately considered, and it was held that it did so apply, and that as the Railroad Company was performing that service for other shippers similarly situated, to avoid discrimination, which the Constitution and laws of Kentucky inhibited, it was required to give the same rate to Higdon. It therefore results that in the so-called denial of the Federal right set up in the first amended answer the court in effect held that the facts upon which it was based had been concluded by the former decision, which was the law of the case, and to permit the Railroad Company to relitigate these facts because the result reached was alleged to violate constitutional provisions would permit it to relitigate that which the court held had been settled against it by the first decision of the Court of Appeals in which no infraction of Federal right was duly set up as required to lay the foundation for review.

As to the matter set up in the second amended answer the court held that it made no defense within the interstate commerce clause of the Constitution of the United States, because all the court had done was to make a decision which required the carrier to obey the state constitution and laws which prevented discrimination as to purely intrastate shipments. We think the court was right in this conclusion. The State had full authority over shipments purely intrastate, and the facts set up in the

second amended answer that the requirement made at Henderson might be made at other points in the State and would result in an unnecessary and unreasonable burden upon interstate commerce, only avers an indirect effect upon such commerce of the exercise of a right clearly within the authority of the State; and being only of that indirect and consequential character it does not deprive the Railroad Company of rights secured by the commerce clause of the Constitution of the United States.

We conclude that the rulings made in the Court of Appeals of Kentucky concerning the first and second amended answers which were not permitted to be filed in the court of original jurisdiction did not deprive the Railroad Company of rights secured by the Federal Constitution.

Affirmed.

EASTERN STATES RETAIL LUMBER DEALERS' ASSOCIATION v. UNITED STATES.

MCBRIDE, INDIVIDUALLY AND AS PRESIDENT OF THE RETAIL LUMBERMEN'S ASSOCIATION OF PHILADELPHIA, v. THE UNITED STATES.

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Nos. 511, 550. Argued October 24, 27, 1913.-Decided June 22, 1914. Conspiracies are seldom capable of proof by direct testimony and a conspiracy to accomplish that which is their natural consequence may be inferred from the things actually done.

The Sherman Law, as construed by this court in the Standard Oil Case, while not reaching normal and usual contracts incident to lawful purposes and in furtherance of legitimate trade, does broadly condemn all combinations and conspiracies which restrain the free and natural flow of trade in the channels of interstate commerce. Held in this case that the circulation of a so-called official report among members of an association of retail dealers calling attention to actions

234 U. S.

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.

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.

234 U.S.

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,