(10 Sup.Ct.) *446 was exerted. On the contrary, the only attempt at a fixation of prices was, as already said, through an appeal to and confederation with competitors, and the record shows besides that when competition occurred it was not in pretense, and the corporation, declined in productive powers--the competitors growing either against or in consequence of the competition. If against the competition we have an instance of movement against what the government insists was an irresistible force; if in consequence of competition, we have an illustration of the adage that "com *445 tion should be of, not what the corporation but gave effect to the greater weight of the had power to do or did, but what it has now evidence. It is certain that no such power power to do and is doing, and what judgment shall be now pronounced-whether its dissolution, as the government prays, or the dismissal of the suit, as the corporation insists. [1, 2] The alternatives are perplexing, involve conflicting considerations, which, regarded in isolation, have diverse tendencies. We have seen, that the judges of the District Court unanimously concurred in the view that the corporation did not achieve monopoly, and such is our deduction, and it is against monopoly that the statute is directed; not against an expectation of it, but against its realization, and it is certain that it was not realized. The opposing conditions were un-petition is the life of trade" and is not easily derestimated. The power attained was much repressed. The power of monopoly in the corgreater than that possessed by any one com- poration under either illustration is an unpetitor—it was not greater than that possesstenable accusation. ed by all of them. Monopoly, therefore, was not achieved, and competitors had to be persuaded by pools, associations, trade meetings, and through the social form of dinners, all of them, it may be, violations of the law, but transient in their purpose and effect. They were scattered through the years from 1901 (the year of the formation of the corporation) until 1911, but, after instances of success and failure, were abandoned nine months before this suit was brought. There is no evidence that the abandonment was in prophecy of or dread of suit; and the illegal prac tices have not been resumed, nor is there any evidence of an intention to resume them, and certainly no "dangerous probability" of their resumption, the test for which Swift & Co. v. United States, 196 U. S. 396, 25 Sup. Ct. 276, 49 L. Ed. 518, is cited. It is our conclusion, therefore, as it was that of the judges below, that the practices were abandoned from a conviction of their futility, from the operation of forces that were not understood, or were underestimated, and the case is not peculiar. And we may say in passing that the government cannot fear their resumption, for it did not avail itself of the offer of the District Court to retain jurisdiction of the cause in order that, if illegal acts should be attempt-*would be a guaranty that there was value to ed, they could be restrained. it." Such being the emergency, it seems like an extreme accusation to say that the corporation which relieved it, and, perhaps, rescued the company and the communities dependent upon it from disaster, was urged by unworthy motives. Did illegality attach afterwards and how? And what was the corporation to do with the property? Let it decay in desuetude, or develop its capabilities and resources? In the development, of course, there would be profit to the corporation; but there would be profit as well to the world. For this reason President Roosevelt sanctioned the purchase, and it would seem a distempered view of purchase and result to regard them as violations of law. *447 [4] From this digression we return to the What, then, can now be urged against the corporation? Can comparisons in other regards be made with its competitors and by such comparisons guilty or innocent existence be assigned it? It is greater in size and productive power than any of its competitors, equal or nearly equal to them all, but its power over prices was not and is not commensurate with its power to produce. It is true there is some testimony tending to show that the corporation had such power, but there was also testimony and a course of action tending strongly to the contrary. The conflict was by the judges of the District Court unanimously resolved against the existence of that power, and in doing so they [3] We may pause here for a moment to notice illustrations of the government of the purpose of the corporation, instancing its acquisition after its formation of control over the Shelby Steel Tube Company, the Union Steel Company, and, subsequently, the Tennessee Company. There is dispute over the reasons for these acquisitions which we shall not detail. There is, however, an important circumstance in connection with that of the Tennessee Company which is worthy to be noted. It was submitted to President Roosevelt and he gave it his approval. His approval, of course, did not make it legal; but it gives assurance of its legality, and we know from his earnestness in the public welfare he would have approved of nothing that had even a tendency to its detriment, and he testified he was not deceived and that he believed that "the Tennessee Coal & Iron People had a property which was almost worthless in their hands, nearly worthless to them, nearly worthless to the communities in which it was situated, and entirely worthless to any financial institution that had the securities the minute that any panic came, and that the only way to give value to it was to put it in the hands of people whose possession of it consideration of the conduct of the corpora- | period, it is a consequence of competitive contion to its competitors. Besides the circum-ditions. It has become an aphorism that stances which we have mentioned there are there is danger of deception in generalities, others of probative strength. The company's and in a case of this importance we should officers, and, as well, its competitors and cus- have something surer for judgment than spectomers, testified that its competition was gen- ulation, something more than a deduction, uine, direct, and vigorous and was reflected in prices and production. No practical witness was produced by the government in opposition. Its contention is based on the size and asserted dominance of the corporation-alleg- as easily resolved as the witness implied, ed power for evil, not the exertion of the pow-been wasted, and some of the problems that much discussion and much literature have er in evil. Or, as counsel put it, "a combination may be illegal because of its purpose; it may be illegal because it acquires a dominating power, not as a result of normal growth and development, but as a result of a combination of competitors." Such composition and its resulting power constitute, in the view of the government, the offense against the law, and yet it is admitted "no competitor came forward and said he had to accept the Steel Corporation's prices." But this absence of complaint counsel urge against the corporation. Competitors, it is said, followed the corporation's prices, because they made money by the imitation. Indeed, the imita are now distracting the world would be given affects prices; but it is only one among other composing solution. Of course, competition influences, and does not, more than they, register itself in definite and legible effect. *449 equivocal of itself, even though the facts it rests on or asserts were not contradicted. If the phenomena of production and prices were tion. Against it competitors, dealers, and We magnify the testimony by its consideracustomers of the corporation testify in multitude that no adventitious interference was employed to either fix or maintain prices, and that they were constant or varied according to natural conditions. Can this testimony be minimized or dismissed by inferring that, as intimated, it is an evidence of power, not of weakness, and power exerted, not only to *448 tion is urged as *an evidence of the corpora- | suppress competition, but to compel testition's power. "Universal imitation," counsel mony, is the necessary inference, shading into assert, is "an evidence of power." In this perjury, to deny its exertion? The situation concord of action, the contention is, there is is indeed singular, and we may wonder at it, the sinister dominance of the corporation-wonder that the despotism of the corporation, "its extensive control of the industry is such so baneful to the world in the representation that the others [independent companies] fol- of the government, did not produce protesting victims. Ind low." Counsel, however, admit that there [5] But there are other paradoxes. The was "occasionally" some competition, but reject the suggestion that it extended practi-tradictions, though only one can be true; government does not hesitate to present concally to a war between the corporation and such being, we were told in our schoolbooks, the independents. Counsel say: the "principle of contradiction." In one, competitors (the independents) are represented as oppressed by the superior power of the corporation; in the other, they are represent ration was formed." "They [the corporation is made a plural] called a few-they called 200 witnesses out of some 40,000 customers-and they expect with that customer evidence to overcome the whole train of price movement shown since the corpo-ed as ascending to opulence by imitating that power's prices, which they could not do, if at disadvantage from the other conditions of competition, and yet confederated action is not asserted. If it were, this suit would take on another cast. The competitors would cease to be the victims of the corporation, and would become its accomplices. And *450 And by "movement of prices," counsel explained, "as shown by the published prices, *they were the ones that the competitors were maintaining all during the interval." It would seem that "200 witnesses" would be fairly representative. Besides the balance of the "40,000 customers" was open to the government to draw upon. Not having done so, is it not permissible to infer that none would testify to the existence of the influence that the government asserts? At any rate, not one was called, but instead the opinion of an editor of a trade journal is adduced, and that of an author and teacher of econom ics, whose philosophical deductions had, perhaps, fortification from experience as Deputy Commissioner of Corporations and as an employé in the Bureau of Corporations. His deduction was that, when prices are constant through a definite period, an artificial infiu- effect [the italics are the emphasis of the govence is indicated; if they vary during such a 'ernment], and therefore is unlawful regard there is no other alternative. The suggestion that lurks in the government's contention that the acceptance of the corporation's prices is the submission of impotence to irresistible power is, in view of the testimony of the competitors, untenable. They, as we have seen, deny restraint in any measure or illegal influence of any kind. The government, therefore, is reduced to the assertion that the size of the corporation, the power it may have, not the exertion of the power, is an abhorrence to the law, or, as the government says, "the combination embodied in the corporation unduly restrains competition by its necessary (40 Sup.Ct.) the distinction we made in the Standard Oil Case, 221 U. S. 1, 77, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734, between acts done in violation of the statute and a condition brought about which "in and of itself, is not only a continued attempt to monopolize, but also a monopolization." In such case, we declared, "the duty to enforce the statute" required "the application of broader and more controlling" reme less of purpose.” “A wrongful purpose," the government adds, is "matter of aggravation." The illegality is statical; purpose or move ment of any kind only its emphasis. To assent to that, to what extremes should we be led? Competition consists of business activities and ability-they make its life; but there may be fatalities in it. Are the activities to be encouraged when militant, and suppressed or regulated when triumphant, because of the dominance attained? To such paternalism the government's contention, which regards power, rather than its use, the determining plied conformed to the declaration; there consideration, seems to conduct. Certainly was prohibition of future acts and there was conducts we may say, for it is the inevitable dissolution of "the combination found to exist in violation of the statute" in order to "neulogic of the government's contention that competition must not only be free, but that it tralize the extension and continually operatmust not be pressed to the ascendency of a ing force which the possession of the power competitor, for in ascendency there is the unlawfully obtained" had "brought" and would "continue to bring about." menace of monopoly. +452 dies than in the other. And the remedies ap Are the case and its precepts applicable here? The Steel Corporation by its formation united under one control competing companies, and thus, it is urged, a condition was We have pointed out that there are several of the government's contentions which are difficult to represent or measure, and the one we are now considering that is, the power is "unlawful regardless of purpose"-is anoth-brought about in violation of the statute, and er of them. It seems to us that it has for therefore illegal, and became a "continually its ultimate principle and justification that operating force" with the "possession of power unlawfully obtained." strength in any producer or seller is a menace to the public interest and illegal, because there is potency in it for mischief. The re [6] But there are countervailing considerations. We have seen whatever there was of wrong intent could not be executed; whatever there was of evil effect was discontinued gov-before this suit was brought, and this, we think, determines the decree. We say this in full realization of the requirements of the The corporation was formed in 1901, no act law. It is clear in its denunciation of monopof aggression upon its competitors is charged olies, and equally clear in its direction that against it, it confederated with them at times the courts of the nation shall prevent and in offense against the law, but abandoned restrain them (its language is "to prevent and that before this suit was brought, and since restrain violations of" the act); but the com1911 no act in violation of law can be estab-mand is necessarily submissive to the condilished against it, except its existence be such tions which may exist and the usual powers an act. This is urged, as we have seen, and of a court of equity to adapt its remedies to that the interest of the public is involved, and those conditions. In other words, it is not that such interest is paramount to corpora- expected to enforce abstractions, and do intion or competitors. Granted-though it is jury thereby, it may be, to the purpose of the difficult to see how there can be restraint of law. It is this flexibility of discretion-intrade when there is no restraint of competi- deed, essential function-that makes its value tors in the trade, nor complaints by custom- in our jurisprudence-value in this case as in ers-how can it be worked out of the situa- others. We do not mean to say that the law tion, and through what proposition of law? is not its own measure, and that it can be disOf course it calls for nothing other than a regarded, but only that the appropriate relief right application of the law, and, to repeat in each instance is remitted to a court of what we have said above, shall we declare equity to determine, not, and let us be explicit the law to be that size is an offense, even in this, to advance a policy contrary to that though it minds its own business, because of the law, but in submission to the law and what it does is imitated? The corporation is its policy, and in execution of both. And it is undoubtedly of impressive size, and it takes an effort of resolution not to be affected by it or to exaggerate its influence. But we must adhere to the law, and the law does not make mere size an offense, or the existence of unexerted power an offense. It, we repeat, requires overt acts, and trusts to its prohibition of them and its power to repress or punish them. It does not compel competition, nor require all that is possible. Admitting, however, that there is pertinent strength in the propositions of the government, and in connection with them, we recall *451 gression is extreme, but *short of it the ernment cannot stop. The fallacy it conveys is manifest. *453 certainly a matter for consideration that and charged as offenders, and we have the strange circumstance of violators of the law being urged to be used as expedients of the law. trade that has been developed and exists? ically that they are defendants in the suit The government, with some inconsistency, it seems to us, would remove this from the decree of dissolution. Indeed, it is pointed out that under congressional legislation in the Webb Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 88361⁄440-88364e) the foreign trade of the corporation is reserved to it. And further, it is said, that the corporation has constructed a company called the Products Company, which can be "very easily preserved as a medium through which the steel business might reach the balance of the world," and that in the decree of "dissolution that could be provided." This is supplemented by the suggestion that not only the Steel Corporation, "but other steel makers of the country, could function through an instrumentality created under the Webb Act." The propositions and suggestions do not commend themselves. We do not see how the Steel Corporation can be such a beneficial instrumentality in the trade of the world, and its beneficence be preserved, and yet be such an evil instrumentality in the trade of the United States that it must be destroyed. And by whom and how shall all the adjustments of preservation or destruction be made? How can the corporation be sustained, and its power of control over its subsidiary companies be retained and exercised in the foreign trade, and given up in the domestic trade? The government presents no solution of the problem. Counsel realize the difficulty, and seem to think that its solution or its eva *454 sion is in the suggestion *that the Steel Corporation and "other steel makers could function through an instrumentality created under the Webb Act." But we are confronted with the necessity of immediate judicial action under existing laws, not action under conceptions which may never be capable of legal execution. We must now decide, and we see no guide to decision in the propositions of the government. The government, however, tentatively pre sents a proposition which has some tangibility. It submits that certain of the subsidiary companies are so mechanically equipped and so officially directed as to be released and remitted to independent action and individual interests and the competition to which such interests prompt, without any disturbance to business. The companies are enumerated. They are the Carnegie Steel Company (a combination of the old Carnegie Company, the National Steel Company, and the American Steel Company), the Federal Steel Company, the Tennessee Company, and the Union Steel Company (a combination of the Union Steel Company of Donora, Pa., Sharon Steel Company of Sharon, Pa., and Sharon Tin Plate Company). They are fully integrated, it is said-possess their own supplies, facilities of transportation, and distribution. They are subject to the Steel Corporation, is in effect the declaration, in nothing but its control of their prices. We may say parenthet But let us see what guide to a procedure of dissolution of the corporation and the dispersion as well of its subsidiary companies, for they are asserted to be illegal combinations, is prayed. And the fact must not be overlooked or underestimated. The prayer of the government calls for, not only a disruption of present conditions, but the restoration of the conditions of 20 years ago, if *455 *not literally, substantially. Is there guidance to this in the Standard Oil Case and the Tobacco Case, 31 Sup. Ct. 632, 55 L. Ed. 663? As an element in determining the answer we shall have to compare the cases with that at bar, but this can only be done in a general way. And the law necessarily must be kept in mind. No other comment of it is necessary. It has received so much exposition that it and all it prescribes and proscribes should be considered as a consciously directing pres ence. The Standard Oil Company had its origin in 1882 and through successive forms of combinations and agencies it progressed in illegal power to the day of the decree, even attempting to circumvent by one of its forms the decision of a court against it. And its methods in using its power was of the kind that Judge Woolley described as "brutal," and of which practices, he said, the Steel Corporation was absolutely guiltless. We have enumerated them, and this reference to them is enough. And of the practices this court said no disinterested mind could doubt that the purpose was "to drive others from the field, and to exclude them from their right to trade, and thus accomplish the mas * and tery which was the end in view." It was *456 "The exercise of the power which resulted from that organization fortifies the foregoing conclusions (as to monopoly, etc.), since the development which came, the acquisition here and there which ensued of every efficient means by which competition could have been asserted, the slow but resistless methods which followed by which means of transportation were absorbed (40 Sup.Ct.) and brought under control, the system of marketing which was adopted, by which the country was divided into districts and the trade in each district in oil was turned over to the designated corporation within the combination and all others were excluded, all lead the mind up to a conviction of a purpose and intent which we think is so certain as practically to cause the subject not to be within the domain of reasonable contention." serious detriment to, the foreign trade. And We think, therefore, that the decree of the Mr. Justice McREYNOLDS and Mr. Justice BRANDEIS took no part in the consideration or decision of the case. The Tobacco Company Case (31 Sup. Ct. 632, 55 L. Ed. 663) has the same bad distinctions as the Standard Oil Case. The illegality in which it was formed [there were two American Tobacco Companies, but we use the name as designating the new company as representing the combinations of the suit] continued—indeed, progressed in intensity and defiance to the moment of decree. And it is the intimation of the opinion, if not its direct assertion, that the formation of the company (the word "combination" is used) was preceded by the intimidation of a trade war "inspired by one or more of the minds which brought about and became parties to that combination." In other words, the purpose of the combination was signaled to competitors, and the choice presented to them was submission or ruin, to become parties to the illegal enterprise or be driven "out of the business." This was the purpose, and the achievement, and the processes by which achieved, this court enumerated to be the formation of new companies, taking stock in others to "obscure the result actually attained, but always to monopolize and retain pow-signed to control them for illegal purposes, er in the hands of the few and mastery of regardless of other consequences, and "were the trade; putting control in the hands of made upon a scale that was huge and in a seemingly independent corporations as bar-manner that was wild," and "properties were riers to the entry of others into the trade; assembled and combined with less regard to the expenditure of millions upon millions in their importance as integral parts of an inbuying out plants, not to utilize them, but to tegrated whole than to the advantages expected from the elimination of the competition which theretofore existed between them." Those judges found that the constituent companies of the United States Steel Corporation, nine in number, were themselves combinations of steel manufacturers, and the effect of the organization of these combinations was to give a control over the industry at least equal to that theretofore possessed by the constituent companies and their subsidiaries; that the Steel Corporation was a combination of combinations by which directly or indirectly 180 independent concerns were brought under one control, and in the the conclusion *which directs a dismissal of the bill instead of following the well-settled practice, sanctioned by previous decisions of this court, requiring the dissolution of combinations made in direct violation of the law. that the formation of the corporations, here It appears to be thoroughly established under consideration, constituted combinations between competitors, in violation of law, and intended to remove competition and to directly restrain trade. I agree with the conclusions of Judges Woolley and Hunt, expressed in the court below (223 Fed. 161 et seq.), that the combinations were not submissions to business conditions but were de *457 In conclusion, we are unable to see that the public interest will be served by yielding to the contention of the government respecting the dissolution of the company or the separation from it of some of its subsidiaries; and we do see in a contrary conclusion a risk of injury to the public interest, including a material disturbance of, and, it may be Mr. Justice DAY, dissenting. This record seems to me to leave no fair room for a doubt that the defendants, the United States Steel Corporation and the several subsidiary corporations which make up that organization, were formed in violation of the Sherman Act. I am unable to accept *458 close them; by constantly recurring stipula- * * "Without referring to the great mass of figures which bears upon this aspect of the case, it is clear to me that combinations were created by acquiring competing producing concerns at figures not based upon their physical or business values, as independent and separate producers, but upon their values in combination; that is, upon their values as manufacturing plants and business *concerns with competition eliminated. In many instances, capital stock was issued for amounts vastly in excess $459 |
