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among the states and territories and, with days in order to induce the cattle men to foreign countries, and, 11, the defendants send their stock to the stock yards, to fix are and have been in conspiracy with each prices at which they will sell, and to that other, with the railroad companies, and end to restrict shipments of meat when others unknown, to obtain a monopoly of necessary, to establish a uniform rule of the supply and distribution of fresh meats credit to dealers, and to keep a black list, throughout the United States, etc. And to to make uniform and improper charges for that end defendants artificially restrain the cartage, and finally to get less than lawful commerce and put arbitrary regulations in rates from the railroads, to the exclusion force affecting the same from the shipment of competitors. It is true that the last of the live stock from the plains to the charge is not clearly stated to be a part of final distribution of the meats to the con- the combination. But as it is alleged that sumer. There is a prayer for an injunction the defendants have each and all made arof the most comprehensive sort, against all rangements with the railroads, that they the foregoing proceedings and others, for were exclusively to enjoy the unlawful addiscovery of books and papers relating di- vantage, and that their intent in what they rectly or indirectly to the purchase or ship- did was to monopolize the commerce and to ment of live stock, and the sale or shipment prevent competition, and in view of the genof fresh meat, and for an answer under eral allegation to which we shall refer, we oath. The injunction issued is appended in think that we have stated correctly the purà note.t
port of the bill. It will be noticed further To sum up the bill more shortly, it that the intent to monopolize is alleged for charges a combination of a dominant pro- the first time in the 8th section of the bill portion of the dealers in fresh meat through- as to raising, lowering, and fixing prices. out the United States not to bid against In the earlier sections, the intent alleged each other in the live-stock markets of the is to restrain competition among themdifferent states, to bid up prices for a few selves. But, after all the specific charges,
f“And now, upon motion of the said attorney, states and territories and the District of Colum. the court doth order that the preliminary in-bia, by demanding,'obtaining, or, with or with. Junction heretofore awarded in this cause, to out the connivance of the officers or agents restrain the said defendants and each of them, thereof, or any of them, receiving from railroad their respective agents and attorneys, and all companies or other common carriers transportother persons acting in their behalf, or in being such fresh meats in such trade and comhalf of either of them, or claiming so to act, merce, either directly or by means of rebates, or from entering into, taking part in, or perform- by any other device, transportation of or for ing any contract, combination, or conspiracy, the such meats, from the points of the preparation purpose or effect of which will be, as to trade and production of the same from live stock or and commerce in fresh meats between the sev. elsewhere, to the markets for the sale of the eral states and territories and the District of same to dealers and consumers in other states Columbia, a restraint of trade, in violation of and territories than those wherein the same are the provisions of the act of Congress approved so prepared, or the District of Columbia, at less July 2, 1890, entitled 'An Act to Protect Trade than the regular rates which may be established and Commerce against Unlawful Restraints and or in force on their several lines of transportaMonopolies,' either by directing or requiring tion, under the provisions in that behalf of the their respective agents to refrain from bidding laws of the said United States for the regulaagainst each other in the purchase of live stock;tion of commerce. be, and the same is hereby, or collusively, and by agreement, to refrain made perpetual. from bidding against each other at the sales "But nothing herein shall be construed to pro of live stock; or, by combination, conspiracy, or hibit the said defendants from agreeing upon contract, raising or lowering prices or fixing charges for cartage and delivery, and other in. uniform prices at which the said meats will be cidents connected with local sales, where such so!d, either directly or through their respective charges are not calculated to have any effect agents; or by curtailing the quantity of such upon competition in the sales and delivery of meats shipped to such markets and agents; or meats; nor from establishing and maintaining by establishing and maintaining rules for the giv. rules for the giving of credit to dealers where ing of credit to dealers in such meats, the effect such rules in good faith are calculated solely to of which rules will be to restrict competition; protect the defendants against dishonest or iror by imposing uniform charges for cartage and responsible dealers, nor from curtailing the delivery of such meats to dealers and consumers, quantity of meats shipped to a given market the effect of which will be to restrict competi- where the purpose of such arrangement in good tion; or by any other method or device, the pur- faith is to prevent the over-accumulation of pose and effect of which is to restrain commerce meats as perishable articles in such markets. as aforesaid; and also from violating the pro
“Nor skall anything herein contained be convisions of the act of Congress approved July 2, strued to restrain or interfere with the action 1890, entitled 'An Act to Protect Trade and of any single company or firm, by its or their Commerce against Unlawful Restraints and Mo- officers or agents (whether such officers or nopolies,' by combining or conspiring together, agents are themselves personally made parties or with each other and others, to monopolize or defendant hereto or not), acting with respect attempt to monopolize any part of the trade and to its or their own corporate or firm business, commerce in fresh meats among the several 'property, or affairs."
there is a general allegation that the de- that the several acts charged are lawful, fendants are conspiring with one another, and that intent can make no difference. But the railroads and others, to monopolize the they are bound together as the parts of a supply and distribution of fresh meat single plan. The plan may make the parts throughout the United States, etc., as has unlawful. Aikens v. Wisconsin, 195 U. S. been stated above, and it seems to us that 194, 206, 25 Sup. Ct. Rep. 3, 49 L. ed. 154. this general allegation of intent colors and The statute gives this proceeding against comapplies to all the specific charges of the binations in restraint of commerce among bill. Whatever may be thought concerning the states and against attempts to monopothe proper construction of the statute, a bill lize the same. Intent is almost essential to in equity is not to be read and construed as such a combination, and is essential to such an indictment would have been read and an attempt. Where acts are not sufficient construed a hundred years ago, but it is to in themselves to produce a result which the be taken to mean what it fairly conveys to a law seeks to prevent,-for instance, the dispassionate reader by a fairly exact use monopoly,—but require further acts in addiof English speech. Thus read this bill seems tion to the mere forces of nature to bring to us intended to allege successive elements that result to pass, an intent to bring it to of a single connected scheme.
pass is necessary in order to produce a danWe read the demurrer with the same gerous probability that it will happen. liberality. Therefore we take it as applying Com. v. Peaslee, 177 Mass. 267, 272, 59 N. to the bill generally for multifariousness E. 55. But when that intent and the conseand want of equity, and also to each section quent dangerous probability exist, this statof it which makes a charge, and to the dis- ute, like many others, and like the common covery. The demurrer to the discovery will law in some cases, directs itself against that not need discussion in the view which we dangerous probability as well as against the take concerning the relief, and therefore we completed result. What we have said disturn at once to that.
poses incidentally of the objection to the The general objection is urged that the bill as multifarious. The unity of the plan bill does not set forth sufficient definite or embraces all the parts. specific facts. This objection is serious, but One further observation should be made. it seems to us inherent in the nature of the Although the combination alleged embraces case. The scheme alleged is so vast that it restraint and monopoly of trade within a presents a new problem in pleading. If, single state, its effect upon commerce among as we must assume, the scheme is enter the states is not accidental, secondary, retained, it is, of course, contrary to the very mote, or merely probable. On the allegawords of the statute. Its size makes the tions of the bill the latter commerce no less, violation of the law more conspicuous, and perhaps even more, than commerce within a yet the same thing makes it impossible to single state, is an object of attack. See fasten the principal fact to a certain time Leloup v. Port of Mobile, 127 U. S. 640, 647, and place. The elements, too, are so numer- 32 L. ed. 311, 314, 2 Inters. Com. Rep. 134, ous and shifting, even the constituent parts 8 Sup. Ct. Rep. 1380; Crutcher v. Kentucky, alleged are, and from their nature must be, 141 U. S. 47, 59, 35 L. ed. 649, 652, 11 Sup. so extensive in time and space, that some-Ct. Rep. 851; Allen v. Pullman's Palace Car thing of the same impossibility applies to Co. 191 U. S. 171, 179, 180, 48 L. ed. 134, them. The law has been upheld, and there- 138, 24 Sup. Ct. Rep. 39. Moreover, it is fore we are bound to enforce it notwith- a direct object; it is that for the sake of standing these difficulties. On the other which the several specific acts and courses hand, we equally are bound, by the first of conduct are done and adopted. Therefore principles of justice, not to sanction a de- the case is not like United States v. E. C. cree so vague as to put the whole conduct Knight Co. 156 U. S. 1, 39 L. ed. 325, 15 of the defendants' business at the peril of a Sup. Ct. Rep. 249, where the subject matter summons for contempt. We cannot issue a of the combination was manufacture, and general injunction against all possible the direct object monopoly of manufacture breaches of the law. We must steer between within a state. However likely monopoly of these opposite difficulties as best we can. commerce among the states in the article
The scheme as a whole seems to us to be manufactured was to follow from the agreewithin reach of the law. The constituent ment, it was not a necessary consequence elements, as we have stated them, are nor a primary end. Here the subject-matter enough to give to the scheme a body and, is sales, and the very point of the combinafor all that we can say, to accomplish it. tion is to restrain and monopolize comMoreover, whatever we may think of them merce among the states in respect to such separately, when we take them up as dis- sales. The two cases are near to each other, tinct charges, they are alleged sufficiently as as sooner or later always must happen elements of the scheme. It is suggested' where lines are to be drawn, but the line
between them is distinct. Montague & Co.
Montague & Co. | the end of the bill, to aid in an attempt to v. Loury, 193 U. S. 38, 48 L. ed. 608, 24 monopolize commerce among the states.
, Sup. Ct. Rep. 307.
It is said that this charge is too vague So, again, the line is distinct between this and that it does not set forth a case of comcase and Hopkins v. United States, 171 U. S. merce among the states. Taking up the 578, 43 L. ed. 290, 19 Sup. Ct. Rep. 40. All latter objection first, commerce among the that was decided there was that the local states is not a technical legal conception, business of commission merchants was not but a practical one, drawn from the course commerce among the states, even if what of business. When cattle are sent for sale the brokers were employed to sell was an from a place in one state, with the expectaobject of such commerce. The brokers were tion that they will end their transit, after not like the defendants before us, themselves purchase, in another, and when in effect the buyers and sellers. They only furnished they do so, with only the interruption certain facilities for the sales. Therefore, necessary to find a purchaser at the stock
. there again the effects of the combination yards, and when this is a typical, constantly of brokers upon the commerce was only in- recurring course, the current thus existing direct, and not within the act. Whether the is a current of commerce among the states, case would have been different if the com- and the purchase of the cattle is a part and bination had resulted in exorbitant charges incident of such commerce.
What we say was left open. In Anderson v. United is true at least of such a purchase by resiStates, 171 U. S. 604, 43 L. ed. 300, 19 Sup. dents in another state from that of the Ct. Rep. 50, the defendants were buyers and seller and of the cattle. And we need not sellers at the stock yards, but their agree trouble ourselves at this time as to whether ment was merely not to employ brokers, or the statute could be escaped by any to recognize yard-traders, who were not arrangement as to the place where the sale members of their association. Any yard-in point of law is consummated. See Nortrader could become a member of the asso-folk & W. R. Co. v. Sims, 191 U. S. 441, 48 ciation on complying with the conditions, L. ed. 254, 24 Sup. Ct. Rep. 151. But the and there was said to be no feature of 6th section of the bill charges an interfermonopoly in the case. It was held that the ence with such sales, a restraint of the parcombination did not directly regulate com- ties by mutual contract, and a combination merce between the states, and, being formed not to compete in order to monopolize. It with a different intent, was not within the is immaterial if the section also embraces act. The present case is more like Monta-domestic transactions. guc & Co. v. Lowry, 193 U. S. 38, 48 L. ed It should be added that the cattle in the 608, 24 Sup. Ct. Rep. 307.
stock yard are not at rest even to the exFor the foregoing reasons we are of opin- tent that was held sufficient to warrant taxion that the carrying out of the scheme alation in American Steel & Wire Co. v. leged, by the means set forth, properly may Speed, 192 U. S. 500, 48 L. ed. 538, 24 Sup. be enjoined, and that the bill cannot be dis-Ct. Rep. 365. But it may be that the ques- . missed.
tion of taxation does not depend upon So far it has not been necessary to con- whether the article taxed may or may not sider whether the facts charged in any sin be said to be in the course of commerce begle paragraph constitute commerce among tween the states, but depends upon whether the states or show an interference with it. the tax so far affects that commerce as to There can be no doubt, we apprehend, as to amount to a regulation of it. The injuncthe collective effect of all the facts, if true, tion against taking part in a combination, and if the defendants entertain the intent the effect of which will be a restraint of alleged. We pass now to the particulars, trade among the states, by directing the and will consider the corresponding parts defendants' agents to refrain from bidding of the injunction at the same time. The against one another at the sales of live first question arises on the 6th section. stock, is justified so far as the subject-matThat charges a combination of independent ter is concerned. dealers to restrict the competition of their The injunction, however, refers not to agents when purchasing stock for them in trade among the states in cattle, concerning the stock yards. The purchasers and their which there can be no question of original slaughtering establishments are largely in packages, but to trade in fresh meats, as different states from those of the stock the trade forbidden to be restrained, and it yards, and the sellers of the cattle, perhaps is objected that the trade in fresh meats it is not too much to assume, largely in dif- described in the 2d and 3d sections of the ferent states from either. The intent of the bill is not commerce among the states, becombination is not merely to restrict com- cause the meat is sold at the slaughtering petition among the parties, but, as we have places, or, when sold elsewhere, may be sold said, by force of the general allegation at in less than the original packages. But the
allegations of the 2d section, even if they | any other method or device, the purpose and import a technical passing of title at the effect of which is to restrain commerce as slaughtering places, also import that the aforesaid," should be stricken out. The desales are to persons in other states, and that fendants ought to be informed, as accuthe shipments to other states are part of rately as the case permits, what they are the transaction,~"pursuant to such sales," forbidden to do. Specific devices are men—and the 3d section imports that the same tioned in the bill, and they stand prohibited. things which are sent to agents are sold The words quoted are a sweeping injunction by them, and sufficiently indicates that to obey the law, and are open to the objecsome, at least, of the sales, are of the origi- tion which we stated at the beginning, that nal packages. Moreover, the sales are by it was our duty to avoid. To the same end persons in one state to persons in another. of definiteness, so far as attainable, the But we do not mean to imply that the rule words "as charged in the bill,” should be which marks the point at which state taxa- inserted between “dealers in such meats,” tion or regulation becomes permissible neces- and “the effect of which rules,” and two sarily is beyond the scope of interference by lines lower, as to charges for cartage, the Congress in cases where such interference is same words should be inserted between deemed necessary for the protection of com- "dealers and consumers” and “the effect of merce among the states. Nor do we mean which." to intimate that the statute under consid- The acts charged in the 10th section, eration is limited to that point. Beyond apart from the combination and the intent, what we have said above, we leave those may, perhaps, not necessarily be unlawful, questions as we find them. They were except for the adjective which proclaims touched upon in Northern Securities Co. v. them so. At least we may assume, for purUnited States, 193 U. S. 197, 48 L. ed. 679, poses of decision, that they are not unlaw24 Sup. Ct. Rep. 436.
ful. The defendants severally lawfully may We are of opinion, further, that the obtain less than the regular rates for transcharge in the 6th section is not too vague. portation if the circumstances are not subThe charge is not of a single agreement, but stantially similar to those for which the of a course of conduct intended to be con- regular rates are fixed. Act of Feb. 4, 1887, tinued. Under the act it is the duty of the 24 Stat. at L. 379, chap. 104, § 2, U. S. court, when applied to, to stop the conduct. Comp. Stat. 1901, p. 3155. It may be that The thing done and intended to be done is the regular rates are fixed for carriage in perfectly definite: with the purpose men- cars furnished by the railroad companies, tioned, directing the defendants' agents and and that the defendants furnish their own inducing each other to refrain from compe- cars and other necessities of transportation. tition in bids. The defendants cannot be We see nothing to hinder them from comordered to compete, but they properly can bining to that end. We agree, as we already be forbidden to give directions or to make have said, that such a combination may be agreements not to compete. See Addyston unlawful as part of the general scheme set Pipe & Steel Co. v. United States, 175 U. S. forth in the bill, and that this scheme as a 211, 44 L. ed. 136, 20 Sup. Ct. Rep. 96. The whole might be enjoined. Whether this parinjunction follows the charge. No objection ticular combination can be enjoined, as it was made on the ground that it is not con is, apart from its connection with the other fined to the places specified in the bill. It elements, if entered into with the intent to seems to us, however, that it ought to set monopolize, as alleged, is a more delicate forth more exactly the transactions in which question. The question is how it would such directions and agreements are forbid stand if the 10th section were the whole den. The trade in fresh meat referred to bill. Not every act that may be done with should be defined somewhat as it is in the intent to produce an unlawful result is unbill, and the sales of stock should be con- lawful, or constitutes an attempt. It is a fined to sales of stock at the stock yards question of proximity and degree. The disnamed, which stock is sent from other states tinction between mere preparation and atto the stock yards for sale, or is bought attempt is well known in the criminal law. those yards for transport to another state. Com. v. Peaslee, 177 Mass. 267, 272, 59 N.
After what we have said, the 7th, 8th, and E. 55. The same distinction is recognized 9th sections need no special remark, except in cases like the present. United States v. that the cartage referred to in § 9 is not E. C. Knight Co. 156 U. S. 1, 13, 39 L. ed. an independent matter, such as was dealt in 325, 329, 15 Sup. Ct. Rep. 249; Kidd v. in New York ex rel. Pennsylvania R. Co. v. Pearson, 128 U. S. 1, 23, 24, 32 L. ed. 346, Knight, 192 U. S. 21, 48 L. ed. 325, 24 Sup. 351, 2 Inters. Com. Rep. 232, 9 Sup. Ct. Ct. Rep. 202, but a part of the contemplated Rep. 6. We are of opinion, however, that transit,-cartage for delivery of the goods. such a combination is within the meaning The general words of the injunction "or by' of the statute. It is obvious that no more
powerful instrument of monopoly could be County, to review a judgment refusing to used than an advantage in the cost of trans- discharge, on habeas corpus, a person arportation. And even if the advantage is one rested under a warrant issued by the govwhich the act of 1887 permits, which is ernor of that State in extradition proceed. denied, perhaps inadequately, by the ad- ings, which judgment was affirmed by the jective "unlawful,” still a combination to Supreme Court of the State. Affirmed. use it for the purpose prohibited by the act See same case below in Supreme Court, of 1890 justifies the adjective, and takes the 71 N. H. 594, 53 Atl. 1086, 72 N. H. 178, 55 permission away.
Atl. 554 It only remains to add that the foregoing The facts are stated in the opinion. question does not apply to the earlier sec- Mr. Edward A. Lane for plaintiff in tions, which charge direct restraints of error. trade within the decisions of the court, and Messrs. Edwin G. Eastman and George that the criticism of the decree, as if it ran A. Sanderson for defendant in error. generally against combinations in restraint of trade or to monopolize trade, ceases to
Mr. Justice Peckham delivered the opinhave any force when the clause against “any ion of the court: other method or device" is stricken out. So This was a proceeding on habeas corpus modified it restrains such combinations only in a state court of New Hampshire to obtain to the extent of certain specified devices, the discharge of the plaintiff in error from which the defendants are alleged to have arrest under a warrant given by the gov. used and intend to continue to use.
ernor of that state, directing the return of Decree modified and affirmed.
the plaintiff in error to the commonwealth of Massachusetts, as a fugitive from justice.
Upon the hearing the state court refused (196 U. S. 364)
to discharge the plaintiff in error, the order
of refusal was affirmed by the supreme court, MARTHA S. MUNSEY, Piff. in Err.,
and she has brought the case here for re
view. On a former proceeding in supreme M. SWAIN CLOUGH, Sheriff of Merrimack court, see 71 N. H. 594, 53 Atl. 1086.
The proceedings before the governor of
New Hampshire to obtain the warrant of Bætradition-right to hearing-questions arrest were taken under $ 5278 of the Re: open on habeas corpus-prima facie case.vised Statutes of the United States, re
enacting the statute approved February 12, 1. The person demanded in Interstate extradi- 1793 (1 Stat. at L. 302, chap. 7, U. S. Comp.
tion proceedings has no right to a hearing Stat. 1901, p. 3597), relating to the arrest before the governor on the question whether he has been substantially charged with a
of persons as fugitives' from justice, under crime and whether he is a fugitive from jus clause 2 of 8 2 of article 4 of the Constitutice.
tion of the United States. 2. On habeas corpus to review the issuance of The papers before the governor of New
an extradition warrant by the governor of a Hampshire consisted of a copy of an indictstate, the accused is concluded by the prima ment of the plaintiff in error, found in facie case made out by the papers upon which Massachusetts on the second Monday of the governor acted, where such accused, the hearing in the habeas corpus proceedings, February, 1902; it contained three counts, waived the right to introduce further evi- and charged the plaintiff in error with dence.
uttering and publishing as true a certain The technical sufficiency of the indictment forged instrument, purporting to be a will, and the question of the procedure under it well knowing the same to be forged. The are not open to inquiry on habeas corpus to review the issuance of a warrant of arrest in first count alleged that the crime was cominterstate extradition proceedings.
mitted on the 28th of February, 1895, at 4. Contradictory evidence on the question of Cambridge, in the county of Middlesex, in
the presence or absence of the accused in the the commonwealth of Massachusetts; and it · state at the time of the commission of the of- also alleged that since the commission of fense will not require his discharge on habeas the offense the plaintiff had not been usucorpus to review the issuance
of a warrant of ally or publicly a resident in that commonarrest in Interstate extradition proceedings.
wealth. [No. 126.]
The second count averred the uttering,
etc., to have been on the 17th day of May, Argued and submitted January 13, 1905. in the year 1895, in the same place, and the Decided January 30, 1905.
indictment had the same averment as to the
nonresidence of the plaintiff in error as conN ERROR to the Superior Court of the tained in the first count.
State of New Hampshire for Merrimack The third count averred the uttering at