(40 Sup.Ct.) less of purpose." "A wrongful purpose," the the distinction we made in the Standard Oil government adds, is "matter of aggravation." | Case, 221 U. S. 1, 77, 31 Sup. Ct. 502, 55 L. Ed. The illegality is statical; purpose or move 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, ment of any kind only its emphasis. To as- 734, between acts done in violation of the sent to that, to what extremes should we be statute and a condition brought about which led? Competition consists of business activi- "in and of itself, is not only a continued atties and ability-they make its life; but there tempt to monopolize, but also a monopolizamay be fatalities in it. Are the activities to tion." In such case, we declared, "the duty be encouraged when militant, and suppressed to enforce the statute" required "the applicaor regulated when triumphant, because of the tion of broader and more controlling" reme dominance attained? To such paternalism dies than in the other. And the remedies apthe 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 logic of the government's contention that competition must not only be free, but that it must not be pressed to the ascendency of a competitor, for in ascendency there is the menace of monopoly. +452 dissolution of "the combination found to exist in violation of the statute" in order to "neutralize the extension and continually operating force which the possession of the power unlawfully obtained" had "brought" and would "continue to bring about." Are the case and its precepts applicable We have pointed out that there are several here? The Steel Corporation by its formaof the government's contentions which are tion united under one control competing comdifficult to represent or measure, and the one we are now considering—that is, the power is panies, and thus, it is urged, a condition was "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 its ultimate principle and justification that 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 451 therefore illegal, and became a "continually operating force" with the "possession of power unlawfully obtained." [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 gression is extreme, but *short of it the gov-before this suft was brought, and this, we ernment cannot stop. The fallacy it conveys is manifest. think, determines the decree. We say this in full realization of the requirements of the law. It is clear in its denunciation of monopolies, and equally clear in its direction that the courts of the nation shall prevent and restrain them (its language is "to prevent and restrain violations of" the act); but the com The corporation was formed in 1901, no act of aggression upon its competitors is charged against it, it confederated with them at times in offense against the law, but abandoned that before this suit was brought, and since 1911 no act in violation of law can be estab-mand is necessarily submissive to the condi. lished 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 *453 certainly a matter for consideration that there was no legal attack on the corporation until 1911, 10 years after its formation and the commencement of its career. We do not, however, speak of the delay simply as to its time, or say that there is estoppel in it because of its time, but on account of what was done during that time-the many millions of dollars spent, the development made, and the enterprises undertaken; the investments by the public that have been invited and are not to be ignored. And what of the foreign 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, 88 883640-88364e) 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 presence. 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 court said no disinterested mind could doubt them is enough. And of the practices this that the purpose was "to drive others from the field, and to exclude them from their right to trade, and thus accomplish the masfurther said that what was done and the tery which was the end in view." It was final culmination "in the plan of the New Jersey corporation" made "manifest the continued existence of the intent inpelled the expansion of the New Jersey which represented the power and purpose of corporation." It was to this corporation, all that preceded, that the suit was addressed and the decree of the court was to apply. What we have quoted contrasts that case with this. The contrast is further emphasized by pointing out how in the case of the New Jersey corporation the original wrong was reflected in and manifested by the acts which followed the organization, as described by the court. It said: 456 ⚫ and "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 District Court should be affirmed. So ordered. Mr. Justice MCREYNOLDS and Mr. Justice BRANDEIS took no part in the consideration or decision of the case. Mr. Justice DAY, dissenting. *458 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 This record seems to me to leave no fair American Tobacco Companies, but we use room for a doubt that the defendants, the the name as designating the new company United States Steel Corporation and the sevas representing the combinations of the suit] eral subsidiary corporations which make up continued-indeed, progressed in intensity that organization, were formed in violation and defiance to the moment of decree. And of the Sherman Act. I am unable to accept it is the intimation of the opinion, if not its direct assertion, that the formation of the the conclusion *which directs a dismissal of company (the word "combination" is used) the bill instead of following the well-settled was preceded by the intimidation of a trade practice, sanctioned by previous decisions of war "inspired by one or more of the minds this court, requiring the dissolution of comwhich brought about and became parties to binations made in direct violation of the law. that combination." In other words, the pur- that the formation of the corporations, here It appears to be thoroughly established pose of the combination was signaled to competitors, and the choice presented to them under consideration, constituted combinations was submission or ruin, to become parties to between competitors, in violation of law, and the illegal enterprise or be driven "out of the intended to remove competition and to dibusiness." This was the purpose, and the rectly restrain trade. I agree with the conachievement, and the processes by which clusions of Judges Woolley and Hunt, exachieved, this court enumerated to be the pressed in the court below (223 Fed. 161 et formation of new companies, taking stock in seq.), that the combinations were not subothers to "obscure the result actually attain-missions to business conditions but were deed, but always to monopolize and retain pow-signed to control them for illegal purposes, er in the hands of the few and mastery of the trade; putting control in the hands of seemingly independent corporations as barriers to the entry of others into the trade; the expenditure of millions upon millions in buying out plants, not to utilize them, but to *457 regardless of other consequences, and "were 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 In conclusion, we are unable to see that by acquiring competing producing concerns at the public interest will be served by yielding figures not based upon their physical or to the contention of the government respect- business values, as independent and separate ing the dissolution of the company or the producers, but upon their values in combinaseparation from it of some of its subsidia- tion; that is, upon their values as manufacturries; and we do see in a contrary conclusioning plants and business *concerns with competia risk of injury to the public interest, includ- tion eliminated. In many instances, capital ing a material disturbance of, and, it may be stock was issued for amounts vastly in excess *459 of the values of the properties purchased, there- | fix prices and restrain the free flow of comby capitalizing the anticipated fruits of com- merce upon a scale heretofore unapproached bination. The control acquired over the branch- in the history of corporate organization in es of the industry to which the combinations this country. particularly related measured by the amount of The enormous overcapitalization of companies and the appropriation of $100,000,000 in stock to promotion expenses were represented in the stock issues of the new organizations thus formed, and were the basis upon which large dividends have been declared from the profits of the business. This record shows that the power obtained by the corporation brought under its control large competing companies which were of themselves illegal combinations, and succeeded to their power; that some of the organizers of the These facts established, as it seems to me they are by the record, it follows that if the Sherman Act is to be given efficacy, there must be a decree undoing so far as is possible that which has been achieved in open, notorious, and continued violation of its provisions. I agree that the act offers no objection to the mere size of a corporation, nor to the continued exertion of its lawful power, when that size and power have been obtained by lawful means and developed by natural growth, although its resources, capital and strength may give to such corporation a dominating place in the business and industry with which it is concerned. It is entitled to maintain its size and the power that legiti *461 mately goes with it, pro*vided no law has been transgressed in obtaining it. But I understand the reiterated decisions of this court construing the Sherman Act to hold that this Steel Corporation were parties to the pre- spiracies, combinations, or contracts in repower may not legally be derived from conceding combinations, participated in their il-straint of trade. To permit this would be legality, and by uniting them under a com- to practically annul the Sherman Law by mon direction intended to augment and perjudicial decree. This principle has been so petuate their power. It is the irresistible often declared by the decisions that it is only conclusion from these premises that great profits to be derived from unified control were the object of these organizations. 460 The contention must be rejected that the combination was an inevitable evolution of industrial tendencies compelling union of endeavor. Nothing could add to the vivid accuracy with which Judge Woolley, speaking for himself *and Judge Hunt, has stated the illegality of the organization, and its purpose to combine in one great corporation the previous combinations by a direct violation of the purposes and terms of the Sherman Act. necessary to refer to some of them. It is the scope of such combinations, and their power or tend to create monopolies, which, as we to suppress and stifle competition and create have declared so often as to make its reiteration monotonous, it was the purpose of the Sherman Act to condemn, including all combinations and conspiracies to restrain the free and natural flow of trade in the channels of interstate commerce. Pearsall F. Great Northern Ry. Co., 161 U. S. 646, 676, 677, 16 Sup. Ct. 705, 40 L. Ed. 838; TransMissouri Freight Ass'n Case, 166 U. S. 290, 324, 17 Sup. Ct. 540, 41 L. Ed. 1007; NorthFor many years, as the record discloses, ern Securities Case, 193 U. S. 197, 24 Sup. this unlawful organization exerted its power Ct. 436, 48 L. Ed. 679; Addyston Pipe Co. v. to control and maintain prices by pools, as- United States, 175 U. S. 211, 238, 20 Sup. Ct. sociations, trade meetings, and as the result 96, 44 L. Ed. 136; Harriman v. Northern Seof discussion and agreements at the so-called curities Co., 197 U. S. 244, 291, 25 Sup. Ct. "Gary Dinners," where the assembled trade 493, 49 L. Ed. 739; Union Pacific Case, 226 opponents secured co-operation and joint ac- U. S. 61, 88, 33 Sup. Ct. 53, 57 L. Ed. 124. tion through the machinery of special com- While it was not the purpose of the act to mittees of competing concerns, and by pru- condemn normal and usual contracts to lawdent prevision took into account the possibil- fully expand business and further legitimate ity of defection, and the means of control- trade, it did intend to effectively reach and ling and perpetuating that industrial har-control all conspiracies and combinations or mony which arose from the control and main-contracts of whatever form which unduly retenance of prices. strain competition and unduly obstruct the It inevitably follows that the corporation natural course of trade, or which from their violated the law in its formation and by its nature, or effect, have proved effectual to immediate practices. The power, thus ob- restrain interstate commerce. Standard Oil tained from the combination of resources al- Co. v. United States, 221 U. S. 1, 31 Sup. Ct. most unlimited in the aggregation of compet-502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. ing organizations, had within its control the Cas. 1912D, 734; United States v. American domination of the trade, and the ability to | Tobacco Co., 221 U. S. 106, 31 Sup. Ct. 632, (40 Sup.Ct.) 55 L. Ed. 663; United States v. Reading | ful organizations as the only effective means Co., 226 U. S. 324, 33 Sup. Ct. 90, 57 L. Ed. of enforcing the purposes of the Sherman 243; Straus v. American Publishers' Ass'n, Anti-Trust Act. These cases have been fre231 U. S. 222, 34 Sup. Ct. 84, 58 L. Ed. 192, quently followed in this court, and in the L. R. A. 1915A, 1099, Ann. Cas. 1915A, 369; | lower federal courts, in determining the naEastern States Lumber Association v. United ture of the relief to be granted, and I see no States, 234 U. S. 600, 34 Sup. Ct. 951, 58 L. occasion to depart from them now. Ed. 1490, L. R. A. 1915A, 788. *462 This statute has been in force for nearly 30 years. It has been frequently before this court for consideration, and the nature and character of the relief to be granted *against combinations found guilty of violations of it have been the subject of much consideration. Its interpretation has become a part of the law itself, and if changes are to be made now in its construction or operation, it seems to me that the exertion of such authority rests with Congress and not with the courts. I As I understand the conclusions of the court, affirming the decree directing dismissal of the bill, they amount to this: That these combinations, both the holding company and the subsidiaries which comprise it, although organized in plain violation and bold defiance of the provisions of the act, nevertheless are immune from a decree effectually ending the combinations and putting it out of their power to attain the unlawful purposes sought, because of some reasons of public policy requiring such conclusion. know of no public policy which sanctions a The fourth section is intended to give to violation of the law, nor of any inconvenience courts of equity of the United States the pow- to trade, domestic or foreign, which should er to effectively control and restrain viola- have the effect of placing combinations, which tions of the act. In none of the cases which have been able to thus organize one of the have been before the courts was the charac- greatest industries of the country in defiter of the relief to be granted, where organi- ance of law, in an impregnable position zations were found to be within the condem-above the control of the law forbidding such nation of the act, more thoroughly considered combinations. Such a conclusion does viothan in the Standard Oil and Tobacco Com- lence to the policy which the law was intendpany Cases reported in 221 U. S. In the for-ed to enforce, runs counter to the decisions mer case, considering the measure of relief to of the court, and necessarily results in a pracbe granted in the case of a combination, cer- tical nullification of the act itself. tainly not more obnoxious to the Sherman Act than the court now finds the one under consideration to be, this court declared that it must be twofold in character (221 U. S. 78, 31 Sup. Ct. 523, 55 L. Ed. 619, 34 L. R. A. [N. S.] 834, Ann. Cas. 1912D, 734): There is no mistaking the terms of the act as they have hitherto been interpreted by this court. It was not intended to merely suppress unfair practices, but, as its history and terms amply show, it was intended to make it criminal to form combinations or engage in conspiracies or contracts in reThe remedy by straint of interstate trade. injunction, at the instance of the Attorney General, was given for the purpose of ena *464 "(1) To forbid the doing in the future of acts like those which we have found to have been done in the past which would be violative of the statute. (2) The exertion of such measure of relief as will effectually dissolve the combination found to exist in violation of the stat-bling the courts, as the statute states, to proute, and thus neutralize the extension and continually operating force which the possession of the power unlawfully obtained has brought and will continue to bring about." hibit such conspiracies, combinations and contracts, and this court interpreting its provisions has held that the proper enforcement of the act requires decrees to end combinations by dissolving them and restoring as far as possible the competitive conditions which the combinations have destroyed. I am unable to see force in the suggestion that public policy, or the assumed disastrous effect upon foreign trade of dissolving the unlawful combination, is sufficient to entitle it to immunity from the enforcement of the statute. In the American Tobacco Company Case the nature of the relief to be granted was again given consideration, and it was there concluded that the only effectual remedy was to dissolve the combination and the companies comprising it, and for that purpose the cause was remanded to the District Court to hear the parties and determine a method Nor can I yield assent to the proposition of dissolution and of recreating from the ele- that this combination has not acquired a ments composing it "a new condition which dominant position in the trade which enables should be in honest harmony with and not it to control prices and production when it sees fit to exert its power. Its total assets repugnant to the law." In that case the on December 31, 1913, were in excess of corporations dissolved had long been in ex- $1,800,000,000; its outstanding capital stock istence, and the offending companies were was $868,583,600; its surplus $151,798,428. organized years before the suit was brought Its cash on hand ordinarily was $75,000,000; and before the decree of dissolution was final- this sum alone exceeded the total capitalizaly made. Such facts were considered no val- tion of any of its competitors, and with a id objection to the dissolution of these power-single exception, the total capitalization and #463 |
