(47 S.Ct.) was upon it to establish their value. The Suit by Cornelius Anderson against the record contains no finding of the reasonable Shipowners' Association of the Pacific Coast value of these services, and petitioner failed, and others. Decree for defendants was afas the court below found, to offer any proof firmed (10 F.[2d] 96), and plaintiff brings of the reasonableness of the rate which it certiorari. Reversed and remanded. sought to apply. Judgment affirmed. (272 U. S. 359) *360 *Mr. H. W. Hutton, of San Francisco, Cal., for petitioner. Mr. C. F. Eldridge, of San Francisco, Cal., for respondents. Mr. Justice SUTHERLAND delivered the ANDERSON v. SHIPOWNERS' ASS'N OF opinion of the Court. (Argued Oct. 28, 29, 1926. Decided 1926.) No. 306. 1. Monopolies 24(1). [1] This is a suit to enjoin the respondNov. 22, ents from maintaining a combination in restraint of interstate and foreign commerce in violation of section 1 of the Anti-Trust Act, chapter 647, 26 Stat. 209 (Comp. St. § 8820), and to recover damages. Such a suit is authorized by sections 4 and 16 of the Clayton Act, chapter 323, 38 Stat. 730, 731, 737 (Comp. St. §§ 8835d, 88350). Duplex Co. v. Deering, 254 U. S. 443, 464, 465, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196. Upon respondents' motion, the District Court dismissed the bill of complaint apparently upon the merits, and the Circuit Court of Appeals affirmed the decree. 10 F.(2d) 96. The only question necessary to be considered here is whether the bill states a case within the Anti-Trust Act. Seamen's suit to enjoin shipowners from maintaining a combination regulating employment, in restraint of interstate and foreign commerce, in violation of Anti-Trust Act July 2, 1890, § 1 (Comp. St. § 8820), is authorized by Clayton Act, §§ 4, 16 (Comp. St. §§ 8835d, 88350). 2. Monopolies 24(2)—Bill alleging associations controlling vessels engaged in interstate and foreign commerce had entered into combination to control employment of seaman held to state case within statute (Anti-Trust Act July 2, 1890, § 1 [Comp. St. § 8820]). Bill alleging that associations, owning, operating, or controlling substantially all vessels engaged in interstate and foreign commerce among Pacific Coast ports, had entered into combination to control employment of all seamen on Pacific Coast, held to state a case within Anti-Trust Act July 2, 1890, § 1 (Comp. St. § 8820). 3. Commerce 21. Ships and those who operate them are instrumentalities of commerce, and within the commerce laws. 4. Monopolies 24 (2). Failure to allege that combination of shipowners to control employment of seamen was to defeat right of freedom to trade held immaterial, where such was the direct and necessary consequence of combination and acts thereunder. 5. Monopolies 12(1). Restraint of interstate commerce cannot be justified by fact that object of participants of combination was to benefit themselves in way which might have been unobjectionable, in absence of such restraint. 6. Courts 383 (1). On certiorari from decree dismissing bill of complaint, Supreme Court must take allegations of bill at their face value, in absence of countervailing facts or explanations. On Writ of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit. [2] The bill is not concisely drawn and the application of its allegations is to some degree obscured by references to acts of Congress regulating commerce, other than the Anti-Trust Act. For present purposes the pertinent allegations, shortly stated, are as *361 follows: Petitioner is a *seaman, and has followed that calling for more than 20 years on ships engaged in the carrying trade among the states on the Pacific Coast and with for eign countries. He is a member of the Seamen's Union of America, having a membership of about 10,000 seamen engaged in various forms of maritime service in the same field, and he sues on their behalf, as well as his own. The members of the respondent associations own, operate, or control substantially all the merchant vessels of American registry engaged in interstate and foreign commerce among the ports of the Pacific Coast and with foreign countries. These associations and their members have entered into a combination to control the employment, upon such vessels, of all seamen upon the Pacific Coast, and to that end the associations have established and maintain offices in San Francisco and San Pedro, Cal., where seamen are engaged and supplied to the operators of the vessels. Among other requirements, every seaman seeking employment is compelled to register, receive a number, and await his turn according to the number, before he can obtain employment, the result of which is that seamen, well qualified and well known, are frequently pre For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes vented from obtaining employment at once, | who operate them are instrumentalities of when, but for these conditions, they would be commerce, and within the commerce clause, able to do so. A certificate is issued to each no less than cargoes. Second Employers' seaman, which he is obliged to carry and Liability Cases, 223 U. S. 1, 47, 49, 32 S. present in order to obtain employment. The Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. certificate, in part, recites that no person And, as was said by this court in United will be employed unless registered; that the States v. Colgate & Co., 250 U. S. 300, 307, certificate must be delivered to the master 39 S. Ct. 465, 468 (63 L. Ed. 992, 7 A. L. R. of the vessel upon articles being signed; 443): that the certificate is the personal record of the seaman and the basis of his future employment. At the same time, two cards are issued-one to the seaman, assigning him to a specified employment, and another to the ship, reciting the capacity in which the seaman is to be employed, with the statement that "he must not be employed on your ship *362 in any capacity unless he presents *an assignment card, grey in color, issued by us and addressed to your vessel, designating the position to which we have assigned him." The associations fix the wages which shall be paid the seamen. Under the regulations, when a seaman's turn comes, he must take the employment then offered or none, whether it is suited to his qualifications, or whether he wishes to engage on the particular ves sel or for the particular voyage, and the officers of the vessels are deprived of the right to select their own men or those deemed most suitable. Without a compliance with the foregoing requirements, no seaman can be employed on any of the vessels owned or operated by members of the associations. It is further alleged that the petitioner sought employment through the San Francisco office of the associations and was refused registration because he failed to produce a discharge book. At a later time he was employed by the mate of a vessel engaged in coastwise interstate traffic, but was required by the mate to apply at the office of the associations for assignment as a sailor; that upon application being thus made such assignment was refused; that, nevertheless, he was directed by the mate to report on board for duty; that he did report, but was informed by the mate that he had been ordered to take no seamen, except through the office of the associations, and in consequence petitioner lost the employment, to his damage in a sum stated. "The purpose of the Sherman Act is to prohibit monopolies, contracts, and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce-in a word to preserve the right of freedom to trade." That the effect of the combination now under consideration, both as to the seamen and the owners, is precisely what this language condemns, is made plain by the allegations of the bill which we have just summarized. The absence of an allegation that such was the specific intent is not important, since that is the necessary and direct consequence of the combination and the acts of the associations under it, and they cannot be heard to say the contrary. United States v. Patten, 226 U. S. 525, 543, 33 S. Ct. 141, 57 L. Ed. 333, 44 L. R. A. (N. S.) 325. It is not important, therefore, to inquire whether, as contended by respondents, the object of the combination was merely to regulate the employment of men, and not to restrain commerce. A restraint of interstate commerce cannot be justified by the fact that the object of the participants in the combination was to benefit themselves in a way which might have been unobjectionable, in the absence of such restraint. Duplex Co. v. Deering, supra, page 468 (41 S. Ct. 172); Ellis v. Inman, Poulsen & Co., 131 F. 182, 186, 65 C. C. A. 488. Respondents rely on Industrial Association v. United States, 268 U. S. 64, 45 S. Ct. 403, 69 L. Ed. 849, United Leather Workers v. Herkert, 265 U. S. 457, 44 S. Ct. 623, 68 L. Ed. 1104, 33 A. L. R. 566, and United Mine Workers v. Coronado Co., 259 U. S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762; but these cases are not in point. The conspiracies or combinations in all three related to local #364 [3-5] From these averments, the conclu-matters-the first, to building in San Fransion results that each of the shipowners and cisco; the second, to manufacturing; and operators, by entering into this combination, the third, to mining operations-and the effect has, in respect of the employment of seamen, upon interstate commerce was held to be puresurrendered himself completely to the con- ly indirect and secondary. Neither the maktrol of the associations. If the restraint thus ing of goods nor the mining of coal is comimposed had related to the carriage of goods merce, and the fact that the things produced in interstate and foreign commerce-that is are afterwards shipped or used in interstate to say, if each shipowner had precluded him-commerce does not make their production a self from making any contract of transportation directly with the shipper, and had put ⚫363 himself under an obligation to *refuse to carry for any person without the previous approval of the associations-the unlawful restraint would be clear. But ships and those part of it. Nor is building commerce, and the fact that the materials to be used are shipped in from other states does not make building a part of such interstate commerce. In the Industrial Association Case, after a referencė to the two earlier decisions (pages 80, 82), it was said (page 82 [45 S. Ct. 408]): (47 S. Ct.) sentence. 2. Criminal law 275. "The alleged conspiracy and the acts here, 10385), authorizing punishment by fine or imcomplained of spent their intended and direct prisonment, had authority to impose a prison force upon a local situation, for building is as essentially local as mining, manufacturing, or growing crops, and if, by a resulting diminution of the commercial demand, interstate trade was curtailed, either generally or in specific instances, that was a fortuitous consequence so remote and indirect as plainly to cause it to fall outside the reach of the Sherman Act." Here, however, the combination and the acts complained of did not spend their intended and direct force upon a local situation. On the contrary, they related to the employment of seamen for service on ships, both of them instrumentalities of, and intended to be used in, interstate and foreign commerce, and the immediate force of the combination, both in purpose and execution, was directed toward affecting such commerce. The interference with commerce, therefore, was direct and pri mary, and not, as in the cases cited, inciden tal, indirect, and secondary. [6] Taking the allegations of the bill at their face value, as we must do, in the absence of countervailing facts or explanations, it appears that each shipowner and operator in this widespread combination has surrendered his freedom of action in the matter of *365 employing seamen and *agreed to abide by the will of the associations. Such is the fair interpretation of the combination and of the various requirements under it, and this is borne out by the actual experience of the petitioner in his efforts to secure employment. These shipowners and operators having thus put themselves into a situation of restraint upon their freedom to carry on interstate and foreign commerce according to their own choice and discretion, it follows, as the case now stands, that the combination is in violation of the Anti-Trust Act. Decree reversed, and cause remanded to the District Court, for further proceedings in conformity with this opinion. Plea of "nolo contendere" does not create an estoppel, but is an admission of guilt for purposes of the case. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Nolo Contendere.] gate punishment on plea of nolo contendere. Federal court may, in its discretion, miti On writ of Certiorari to the United States Circuit Court of Appeals for the Third Circuit. C. A. Hudson and another were convicted for conspiracy to use and for using the mails to defraud, which conviction was affirmed by the Circuit Court of Appeals (9 F. [2d] 825), and they bring certiorari. Affirmed. Mr. B. B. McGinnis, of Pittsburgh, Pa., for petitioners. The Attorney General and Mr. Charles Bunn, of St. Paul, Minn., for respondent. Mr. Justice STONE delivered the opinion of the Court. Petitioners were indicted in the District Court of Western Pennsylvania for conspiracy to use and for using the mails to defraud, crimes punishable by fine or imprisonment, or both. (sections 37, 215 Criminal Code [Comp. St. §§ 10201, 10385]). On pleas of nolo contendere they were sentenced to imprisonment for one year and one day. The conviction and sentence were affirmed by the Court of Appeals for the Third Circuit. 9 F. (2d) 825. The case is here on certiorari. 271 U. S. 652. 46 S. Ct. 474, 70 L. Ed. 1133; Judicial Code, § 240 (a), as amended (Comp. St. § 1217). [1] The sole question raised by the assignment of error is whether a United States court, after accepting a plea of nolo contendere, may impose a prison sentence. It is Mr. Justice STONE took no part in the the contention of petitioners that the plea in consideration or decision of this case. (272 U. 8. 451) HUDSON et al. v. UNITED STATES. (Argued and Submitted Oct. 21, 1926. cided Nov. 22, 1926.) No. 307. effect is conditioned upon the imposition of a 452 lighter penalty; that therefore the court may not accept the plea to an indictment charging a crime punishable by imprisonment only, and if accepted, where the crime is punishable by imprisonment or fine or both, De- it may not accept the plea and ignore the condition by imposing a prison sentence. This contention is supported by Tucker v. United States (C. C. A. 7th) 196 F. 260, 116 C. C. A. 62, 41 L. R. A. (N. S.) 70, Shapiro v. United States (C. C. A. 7th) 196 F. 268, 116 C. C. A. 70, Blum v. United States (C. C. A. 7th) 196 F. 269, 116 C. C. A. 71, in which sentences of imprisonment on the plea of nolo contendere were set aside. But in United States v. Lair (C. C. A. 8th) 195 F. 47, 115 C. C. A. 49, ha 1. Criminal law 980(1)-Federal court may impose prison sentence after accepting plea of nolo contendere (Criminal Code, §§ 37, 215 [Comp. St. §§ 10201, 10385]). Federal court, after acceptance of plea of nolo contendere in prosecution for conspiracy for using mails to defraud, in violation of Criminal Code, §§ 37, 215 (Comp. St. §§ 10201, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes beas corpus was denied a prisoner confined | indictamentum,' etc., in an indictment of tresfor a two-year term upon this plea, but the pass, estops the defendant to plead 'not guilty' objection pressed here apparently was nei- to an action brought afterwards against him for the same matter." ther raised nor considered. The state courts have rejected the contention when made.1 The use of the plea in the federal courts and the propriety of imposing a prison sentence upon it are recognized by the Probation Act. Act March 4, 1925, c. 521, 43 Stat. 1259 (Comp. St. §§ 10564%-10564%c). Section 1 of that Act provides for the suspension of sentence and the release of the prisoner on *453 probation "after *conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment." The plea of nolo contendere was known to the common law, and is referred to, although not by name, by a modern English text-writ er. See Archbold's Pleading, Evidence, and Practice in Criminal Cases (26th Ed., 1922) 379. But no example of its use in the English courts has been found since the case of Queen v. Templeman (decided in 1702) 1 Salk. 55, where, although a fine was imposed, the question now under consideration was neither decided nor discussed. The view of the court in the Tucker Case, that a prison sentence may not be imposed on the plea of nolo contendere, rests upon no more substantial basis than a possibly am biguous phrase in a passage from Hawkins, Pleas of the Crown (8th Ed.) book 2, c. 31, P. He then says: "Sec. 3. An implied confession is where a defendant, in a case not capital, doth not directly own himself guilty, but in a manner admits it by yielding to the king's mercy, and desiring to submit to a small fine: in which case, if the court think fit to accept of such submission, and make an entry that the defendant posuit se in gratiam regis, without putting him to a direct confession, or plea (which in such cases seems to be left to discretion), the defendant shall not the same fact, as he shall be where the entry be estopped to plead not guilty to an action for is quod cognovit indictamentum." 454 tions of Hawkins. It has been handed down *This passage appears in all the earlier edifrom generation to generation of text-writers in substantially the same form, with occasional glosses, but researches rarely went further.2 Similarly judicial study of the history of the plea halts with Hawkins. The author, neither here nor elsewhere, fulfills his promise "to consider what is to be done to a prisoner upon his confession." It is to be noted that this and the preceding sections are directed only to the effect of the confession, whether express or implied, as an He does not undertake to state estoppel. with any certainty the precise effect of the implied confession upon the sentence. Putre-ting oneself on the mercy of the king seems to have been at least an appeal for mercy, 466. The author prefaces the chapter, "Of Confessions and Demurrer," with the mark: "And now I am to consider what is to be done to a prisoner upon his confession, which may be either express or implied." In sections 1 and 2, he points out that a confession of guilt "carries with it so strong a presumption of guilt that an entry on record, 'quod cognovit 1 The precise question has rarely been raised. The contention now considered was explicitly rejected in Commonwealth v. Ferguson, 44 Pa. Super. Ct. 626. In most cases, however, the courts have ordered imprisonment on pleas of nolo contendere without discussing the matter. Commonwealth v. Holstine, 132 Pa. 357, 19 A. 273; State ex rel. Peacock v. Judges, 46 N. J. Law, 112; Philpot v. State, 65 N. H. 250, 20 A. 955; In re Lanni (R. I.) 131 A. 52, 927. State v. Burnett, 174 N. C. 796, 93 S. E. 473, L. R. A. 1918A, 955, may be cited as more than inferentially recognizing the power to impose a prison sentence since the court expressly considered its authority to order imprisonment, after having granted a suspended sentence upon this plea. The plea has of course been received in prosecutions for offenses punishable by fine only, without any intimations being made that its use is restricted to such cases, Young v. People, 53 Colo. 251, 125 P. 117; State v. Hopkins, 4 Boyce (Del.) 306, 88 A. 473; and accepted on charges punishable by both fine and imprisonment and a fine only imposed, Williams v. State, 130 Miss. 827, 94 So. 882. In Illinois, Indiana, and Minnesota the plea is not allowed. See People v. Miller, 264 Ill. 148, 154, 106 N. E. 191, Ann. Cas. 1915B, 1240; Mahoney v. State (Ind.) 149 N. E. 444, 447; State v. Kiewel, 166 Minn. 302, 207 N. W. 646, 647. *455 and at most a consent to be fined, if let off with that-not a plea, but a petition, the rejection of which may possibly have required 2 Comyns in his Digest, under Indictment, c. K, at page 513 of the 1765 edition, "Confessions," draws the same distinction between the two types of confessions and cites as his sole authority, 9 Hen. VI, 60. Viner similarly considers the different effects of the pleas as estoppels. Abridgment (2d Ed., 1792) vol. 10, "Estoppel," pp. 435, 436. Burn practically quotes Hawkins, who is his only authority. Justice of the Peace (5th Ed., 1758) "Confession," 149, 150. This passage is still printed in the thirtieth edition of 1869, edited by J. B. Maule. Chitty, relying upon Hawkins, Comyns, Burn, and the case of Queen v. Templeman, supra, makes no further contribution. The Criminal Law (1819) vol. 1, p. 431. In Jervis' twelfth edition of Archbold (1853) the effect of the plea upon an indictment for misdemeanor is described, the passage intimating that its only use is in such crimes. No authority for the restriction is offered other than Hawkins, who merely limited the use to "a case not capital." This passage is repeated in all the later editions and is the same as that in the twenty-sixth edition already cited. Gabbett, Criminal Law (1843) 320, 1 Colby, Criminal Law (1868) 287, and Clark, Criminal Procedure (1895) 374, to cite a few of the standard treatises of that century with no pretension of completeness, rely upon Hawkins essentially for their historical data. As for the more modern texts, 2 Wharton Criminal Procedure (10th Ed., 1918) § 1346, adds nothing, and 2 Bishop, New Criminal Procedure (2d Ed., 1913), § 802, limits the availability of the plea to light misdemeanors. The encyclopedias and dictionaries go back to Hawkins and indicate the variations of state court decisions. (47 S.Ct.) a plea. The text states the rule of law that has never been questioned that the implied confession, as contrasted to the express confession, does not estop the defendant to plead and prove his innocence in a civil action. [2] But, even if we regard the implied confession as a petition which in Hawkins' time had to be accepted as tendered, in modern practice it has been transformed into the formal plea of nolo contendere. Like the implied confession, this plea does not create an estoppel; but, like the plea of guilty, it is an admission of guilt for the purposes of the case. Section 3, it is true, speaks of the defendant's yielding to mercy and his desire "to submit to a small fine," but, even if we assign to these words the more comprehensive meaning suggested, they do not say that the court is bound to yield to the prisoner's petition in fixing sentence, nor do they sug gest that the court, by accepting a formal plea which admits guilt for the purposes of the case, would be bound to yield to its implied appeal for mercy. The genesis of the phrase "desiring to submit to a small fine," used by Hawkins, indicates unmistakably that its purpose was illustrative only. The authorities cited by Hawkins are Lambard's Eirenarcha, book 4, c. 9; 9 Hen. VI. 60; 11 Hen. IV. 65; 1 Fitzherbert, Gr. Abr. Estoppel, par. 24. The pertinent passage in Lambard is: Of the reports from the year books cited both by Hawkins and Lambard, 11 Hen. IV deals with express confessions. The extract from 9 Hen. VI is a colloquy between counsel and the court. The translation is printed in the margin. Its effect is that if one, indicted for trespass, has "put himself on the grace of our Lord and King and asked that he might be allowed to pay a fine (petit se admitti per finem)," his plea, if accepted, does not estop him from afterwards pleading not guilty. We have here the same illustration used by Hawkins and Lambard properly applied, as the case was one of trespass, but there is no suggestion that would warrant the conclusion that a court, by the mere acceptance of the plea of nolo contendere, would be limited to a fine in fixing sentence. Fitzherbert mere*457 Farresly, 40, added in the later editions of ly digests this year book case. A cita*tion to Hawkins, is the case of Queen v. Templeman in Salkeld to which reference has already been made. We think it clear, therefore, that the contention now pressed upon us not only fails of support in judicial decisions other than those historical background is too meager and inof the seventh circuit already noticed, but its Conclusive to be persuasive in leading us to adopt the limitation as one recognized by the common law. [3] Undoubtedly a court may, in its discretion, mitigate the punishment on a plea of nolo contendere and feel constrained to do so whenever the plea is accepted with the understanding that only a fine is to be imposed. But such a restriction made mandatory upon the court by positive rule of law would only hamper its discretion and curtail the utility of the plea. Judgment affirmed. 8 "Weston. If one be indicted for Trespass, and he surrenders and pays a fine, will he be permitted afterwards to plead Not Guilty? "Paston. (J.) Yes; certainly. "Weston. It is of record that he admitted it. "Babbington. If the entry be so, he will be estopped; but the entry is not so, but is thus, that he put himself on the grace of our Lord, the King, and asked that he might be allowed to pay a fine (petit se admitti per finem). [The folio reads "admittit," obviously a mistake.] Therefore, if one be indicted for felony, and has a charter of pardon, and pleads it, and prays that it be allowed, this does cluded himself (from claiming guilty) by his charnot prove that he is guilty; but the King has exter. And I and all the Court are against you on this point." |