United States v. E. C. Knight Company

No. 675

Argued October 4, 1894

Decided January 1, 1895

156 U.S. 1

APPEAL FROM THE CIRCUIT COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus



The monopoly and restraint denounced by the act of July 2, 1890, c. 647,

26 Stat. 209, "to protect trade and commerce against unlawful restraints

and monopolies," are a monopoly in interstate and international trade or

commerce, and not a monopoly in the manufacture of a necessary of life.



The American Sugar Refining Company, a corporation existing under the

laws of the State of New Jersey, being in control of a large majority of

the manufactories of refined sugar in the United States, acquired,

through the purchase of stock in four Philadelphia refineries, such

disposition over those manufactories throughout the United States as

gave it a practical monopoly of the business.  Held, that the result of

the transaction was the creation of a monopoly in the manufacture of a

necessary of life, which could not be suppressed under the provisions of

the act of July 2, 1890, c. 647, 26 Stat. 209, "to protect trade and

commerce against unlawful restraints and monopolies," in the mode

attempted in this suit, and that the acquisition of Philadelphia

refineries by a New Jersey corporation, and the business of sugar

refining in Pennsylvania, bear no direct relation to commerce between

the States or with foreign nations. [156 U.S. 2]



This was a bill filed by the United States against E. C. Knight Company

and others, in the Circuit Court of the United States for the Eastern

District of Pennsylvania, charging that the defendants had violated the

provisions of an act of Congress approved July 2, 1890, c. 64, entitled

"An act to protect trade and commerce against unlawful restraints and

monopolies," 26 Stat. 209, providing that every contract, combination in

the form of trust, or otherwise, or conspiracy in restraint of trade and

commerce among the several States is illegal, and that persons who shall

monopolize or shall attempt to monopolize, or combine or conspire with

other persons to monopolize trade and commerce among the several States,

shall be guilty of a misdemeanor. The bill alleged that the defendant,

the American Sugar Refining Company, was incorporated under and by

virtue of the laws of New Jersey, whose certificate of incorporation

named the places in New Jersey and New York at which its principal

business was to be transacted and several other States in which it

proposed to carry on operations, and stated that the objects for which

said company was formed were "the purchase, manufacture, refining, and

sale of sugar, molasses, and melads, and all lawful business incidental

thereto;" that the defendant, E. C. Knight Company, was incorporated

under the laws of Pennsylvania "for the purpose of importing,

manufacturing, refining and dealing in sugars and molasses," at the city

of Philadelphia; that the defendant, the Franklin Sugar Company, was

incorporated under the laws of Pennsylvania "for the purpose of the

manufacture of sugar and the purchase of raw material for that purpose,"

at Philadelphia; that the defendant, Spreckels Sugar Refining Company,

was incorporated under the laws of Pennsylvania for the purpose of

refining sugar, which will involve the buying of the raw material

therefor and selling the manufactured product, and of doing whatever

else shall be incidental to the said business of refining, at the city

of Philadelphia; that the defendant, the Delaware Sugar House, was

incorporated under the laws of Pennsylvania for the purpose of the

manufacture of sugar and syrups, and preparing the same for [156 U.S. 3]

market, and the transaction of such work or business as may be necessary

or proper for the proper management of the business of manufacture.



It was further averred that the four defendants last named were

independently engaged in the manufacture and sale of sugar until on or

about March 4, 1892; that the product of their refineries amounted to

thirty-three percent of the sugar refined in the United States; that

they were competitors with the American Sugar Refining Company; that the

products of their several refineries were distributed among the several

States of the United States, and that all the companies were engaged in

trade or commerce with the several States and with foreign nations; that

the American Sugar Refining Company had, on or prior to March 4, 189,2

obtained the control of all the sugar refineries of the United States

with the exception of the Revere of Boston, and the refineries of the

four defendants above mentioned; that the:  Revere produced annually

about two percent of the total amount of sugar refined.



The bill then alleged that, in order that the American Sugar Refining

Company might obtain complete control of the price of sugar in the

United States, that company, and John E. Searles, Jr., acting for it,

entered into an unlawful and fraudulent scheme to purchase the took,

machinery, and real estate of the other four corporations defendant, by

which they attempted to control all the sugar refineries for the purpose

of restraining the trade thereof with other States as theretofore

carried on independently by said defendants; that, in pursuance of this

scheme, on or about March 4, 1892, Searles entered into a contract with

the defendant Knight Company and individual stockholders named for the

purchase of all the stock of that company, and subsequently delivered to

the defendants therefor in exchange shares of the American Sugar

Refining Company; that, on or about the same date, Searles entered into

a similar contract with the Spreckels Company and individual

stockholders, and with the Franklin Company and stockholders, and with

the Delaware Sugar House and stockholders.  It was further averred that

the American Sugar Refining Company monopolized the manufacture and [156

U.S. 4] sale of refined sugar in the United States, and controlled the

price of sugar; that, in making the contracts, Searles and the American

Sugar Refining Company combined and conspired with the other defendants

to restrain trade and commerce in refined sugar among the several States

and foreign nations, and that the said contracts were made with the

intent to enable the American Sugar Refining Company to restrain the

sale of refined sugar in Pennsylvania and among the several States, and

to increase the regular price at which refined sugar was sold, and

thereby to exact and secure large sums of money from the State of

Pennsylvania, and from the other States of the United States, and from

all other purchasers, and that the same was unlawful and contrary to the

said act.



The bill called for answers under oath, and prayed --



1. That all and each of the said unlawful agreements made and entered

into by and between the said defendants, on or about the fourth day of

March, 1892, shall be delivered up, cancelled, and declared to be void,

and that the said defendants, the American Sugar Refining Company and

John E. Searles, Jr., be ordered to deliver to the other said defendants

respectively the shares of stock received by them in performance of the

said contracts, and that the other said defendants be ordered to deliver

to the said defendants, the American Sugar Refining Company and John E.

Searles, Jr., the shares of stock received by them respectively in

performance of the said contracts.



2. That an injunction issue preliminary until the final determination of

this cause, and perpetual thereafter, preventing and restraining the

said defendants from the further performance of the terms and conditions

of the said unlawful agreements.



3. That an injunction may issue preventing and restraining the said

defendants from further and continued violations of the said act of

Congress, approved July 2, 1890.



4. Such other and further relief as equity and justice may require in

the premises.



Answers were filed and evidence taken, which was thus [156 U.S. 5]

sufficiently summarized by Judge Butler in his opinion in the Circuit

Court:



The material facts proved are that the American Sugar Refining Co., one

of the defendants, is incorporated under the laws of New Jersey, and has

authority to purchase, refine, and sell sugar; that the Franklin Sugar

Refinery, the E. C. Knight Co., the Spreckels Sugar Refinery, and the

Delaware Sugar House, were incorporated under the laws of Pennsylvania

and authorized to purchase, refine, and sell sugar; that the four latter

Pennsylvania companies were located in Philadelphia, and, prior to

March, 1892, produced about thirty-three percent of the total amount of

sugar refined in the United States, and were in active competition with

the American Sugar Refining Co., and with each other, selling their

product wherever demand was found for it throughout the United States;

that, prior to March, 1892, the American Sugar Refining Co. had obtained

control of all refineries in the United States excepting the four

located in Philadelphia, and that of the Revere Co. in Boston, the

latter producing about two percent of the amount refined in this

country; that, in March, 1892, the American Sugar Refining Co. entered

into contracts (on different dates) with the stockholders of each of the

Philadelphia corporations named, whereby it purchased their stock,

paying therefor by transfers of stock in its company; that the American

Sugar Refining Co. thus obtained possession of the Philadelphia

refineries and their business; that each of the purchases was made

subject to the American Sugar Refining Co.'s obtaining authority to

increase its stock $5,000,000; that this assent was subsequently

obtained, and the increase made; that there was no understanding or

concert of action between the stockholders of the several Philadelphia

companies respecting the sales, but that those of each company acted

independently of those of the others, and in ignorance of what was being

done by such others; that the stockholders of each company acted in

concert with each other, understanding and intending that all the stock

and property of the company should be sold; that the contract of sale in

each instance left the sellers free to establish other refineries [156

U.S. 6] and continue the business if they should see fit to do so, and

contained no provision respecting trade or commerce in sugar, and that

no arrangement or provision on this subject has been made since; that,

since the purchase, the Delaware Sugar House Refinery has been operated

in conjunction with the Spreckels Refinery, and the E. C. Knight

Refinery in connection with the Franklin, this combination being made

apparently for reasons of economy in conducting the business; that the

amount of sugar refined in Philadelphia has been increased since the

purchases; that the price has been slightly advanced since that event,

but is still lower than it had been for some years before and up to

within a few months of the sales; that about ten percent of the sugar

refined and sold in the United States is refined in other refineries

than those controlled by the American Sugar Refining Co.; that some

additional sugar is produced in Louisiana and some is brought from

Europe, but the amount is not large in either instance.



The object in purchasing the Philadelphia refineries was to obtain a

greater influence or more perfect control over the business of refining

and selling sugar in this country.



The Circuit Court held that the facts did not show a contract,

combination, or conspiracy to restrain or monopolize trade or commerce

"among the several States or with foreign nations," and dismissed the

bill.  60 Fed.Rep. 306.  The cause was taken to the Circuit Court of

Appeals for the Third Circuit, and the decree affirmed.  60 Fed.Rep.

934.  This appeal was then prosecuted.  The act of Congress of July 2,

1890, o. 647, is as follows:



An act to protect trade and commerce against unlawful restraints and

monopolies.



SEC. 1.  Every contract, combination in the form of trust or otherwise,

or conspiracy, in restraint of trade or commerce among the several

States, or with foreign nations, is hereby declared to be illegal. 

Every person who shall make any such contract or engage in any such

combination or conspiracy shall be deemed guilty of a misdemeanor, and,

on conviction thereof, shall be punished by a fine not exceeding five

thousand dollars, or by imprisonment not exceeding one [156 U.S. 7]

year, or by both said punishments, in the discretion of the court.



SEC. 2.  Every person who shall monopolize, or attempt to monopolize, or

combine or conspire with any other person or persons, to monopolize any

part of the trade or commerce among the several States, or with foreign

nations, shall be deemed guilty of a misdemeanor, and, on conviction

thereof, shall be punished by fine not exceeding five thousand dollars,

or by imprisonment not exceeding one year, or by both said punishments,

in the discretion of the court.



SEC. 3.  Every contract, combination in form of trust or otherwise, or

conspiracy, in restraint of trade or commerce in any Territory of the

United States or of the District of Columbia, or in restraint of trade

or commerce between any such Territory and another, or between any such

Territory or Territories and any State or States or the District of

Columbia, or with foreign nations, or between the District of Columbia

and any State or States or foreign nations, is hereby declared illegal. 

Every person who shall make any such contract or engage in any such

combination or conspiracy shall be deemed guilty of a misdemeanor, and,

on conviction thereof, shall be punished by a fine not exceeding five

thousand dollars, or by imprisonment not exceeding one year, or by both

said punishments, in the discretion of the court.



SEC. 4.  The several Circuit Courts of the United States are hereby

invested with jurisdiction to prevent and restrain violations of this

act, and it shall be the duty of the several district attorneys of the

United States, in their respective districts, under the direction of the

Attorney General, to institute proceedings in equity to prevent and

restrain such violations.  Such proceedings may be by way of petition

setting forth the case and praying that such violation shall be enjoined

or otherwise prohibited.  When the parties complained of shall have been

duly notified of such petition, the court shall proceed, as soon as may

be, to the hearing and determination of the case, and pending such

petition and before final decree, the court may at any time make such

temporary [156 U.S. 8] restraining order or prohibition as shall be

deemed just in the premises.



SEC. 5.  Whenever it shall appear to the court before which any

proceeding under section four of this act may be pending that the ends

of justice require that other parties should be brought before the

court, the court may cause them to be summoned, whether they reside in

the district in which the court is held or not, and subpoenas to that

end may be served in any district by the marshal thereof.



SEC. 6.  Any property owned under any contract or by any combination, or

pursuant to any conspiracy (and being the subject thereof) mentioned in

section one of this act, and being in the course of transportation from

one State to another, or to a foreign country, shall be forfeited to the

United States, and may be seized and condemned by like proceedings as

those provided by law for the forfeiture, seizure, and condemnation of

property imported into the United States contrary to law.



SEC. 7.  Any person who shall be injured in his business or property by

any other person or corporation by reason of anything forbidden or

declared to be unlawful by this act may sue therefor in any Circuit

Court of the United States in the district in which the defendant

resides or is found, without respect to the amount in controversy, and

shall recover threefold the damages by him sustained, and the costs of

suit, including a reasonable attorney's fee.



SEC. 8.  That the word "person," or "persons," wherever used in this

act, shall be deemed to include corporations and associations existing

under or authorized by the laws of either the United States, the laws of

any of the Territories, the laws of any State, or the laws of any

foreign country. 26 Stat. 209, c. 647. [156 U.S. 9] FULLER, J., lead

opinion



MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion

of the court.



By the purchase of the stock of the four Philadelphia refineries, with

shares of its own stock, the American Sugar Refining Company acquired

nearly complete control of the manufacture of refined sugar within the

United States.  The bill charged that the contracts under which these

purchases were made constituted combinations in restraint of trade, and

that, in entering into them, the defendants combined and conspired to

restrain the trade and commerce in refined sugar among the several

States and with foreign nations, contrary to the act of Congress of July

2, 1890.



The relief sought was the cancellation of the agreements under which the

stock was transferred; the redelivery of the stock to the parties

respectively, and an injunction against the further performance of the

agreements and further violations of the act.  As usual, there was a

prayer for general relief, but only such relief could be afforded under

that prayer as would be agreeable to the case made by the bill and

consistent with that specifically prayed.  And as to the injunction

asked, that relief was ancillary to and in aid of the primary equity, or

ground of suit, and, if that failed, would fall with it.  That ground

here was the existence of contracts to monopolize interstate or

international trade or commerce, and to restrain such trade or commerce,

which, by the provisions of the act, could be rescinded, or operations

thereunder arrested.



In commenting upon the statute, 21 Jac. 1, c. 3, at the commencement of

chapter 85 of the third Institute, entitled " Against Monopolists,

Propounders, and Projectors," Lord Coke, in language often quoted, said:



It appeareth by the preamble of this act (as a judgment in Parliament)

that all grants of monopolies are against the ancient and fundamentall

laws of this Kingdome.  And therefore it is necessary to define what a

monopoly is.



A monopoly is an institution, or allowance by the King by his grant,

commission, or otherwise to any person or persons, bodies politique, or

corporate, of or for the sole [156 U.S. 10] buying, selling, making,

working, or using of anything, whereby any person or persons, bodies

politique, or corporate, are sought to be restrained of any freedome or

liberty that they had before, or hindred in their lawfull trade.



For the word monopoly, dictur [Greek phrase]  (i. solo) [Greek phrase]

(i. vendere) quod est cum unus solus aliquod genus mercaturae universum

vendit, ut solus vendat, pretium ad suum libitum statuens:  hereof you

may read more at large in that case.  Trin. 44 Eliz.Lib. 11, f. 84, 8;

le case de monopolies. 3 Inst. 181.



Counsel contend that this definition, as explained by the derivation of

the word, may be applied to all cases in which "one person sells alone

the whole of any kind of marketable thing, so that only he can continue

to sell it, fixing the price at his own pleasure," whether by virtue of

legislative grant or agreement; that the monopolization referred to in

the act of Congress is not confined to the common law sense of the term,

as implying an exclusive control, by authority, of one branch of

industry without legal right of any other person to interfere therewith

by competition or otherwise, but that it includes engrossing as well,

and covers controlling the market by contracts securing the advantage of

selling alone or exclusively all, or some considerable portion, of a

particular kind of merchandise or commodity to the detriment of the

public, and that such contracts amount to that restraint of trade or

commerce declared to be illegal.  But the monopoly and restraint

denounced by the act are the monopoly and restraint of interstate and

international trade or commerce, while the conclusion to be assumed on

this record is that the result of the transaction complained of was the

creation of a monopoly in the manufacture of a necessary of life.



In the view which we take of the case, we need not discuss whether,

because the tentacles which drew the outlying refineries into the

dominant corporation were separately put out, therefore there was no

combination to monopolize; or, because, according to political

economists, aggregations of capital may reduce prices, therefore the

objection to concentration of power is relieved; or, because others were

theoretically left [156 U.S. 11] free to go into the business of

refining sugar, and the original stockholders of the Philadelphia

refineries, after becoming stockholders of the American Company, might

go into competition with themselves, or, parting with that stock, might

set up again for themselves, therefore no objectionable restraint was

imposed.



The fundamental question is whether, conceding that the existence of a

monopoly in manufacture is established by the evidence, that monopoly

can be directly suppressed under the act of Congress in the mode

attempted by this bill.



It cannot be denied that the power of a State to protect the lives,

health, and property of its citizens, and to preserve good order and the

public morals, "the power to govern men and things within the limits of

its dominion," is a power originally and always belonging to the States,

not surrendered by them to the general government nor directly

restrained by the Constitution of the United States, and essentially

exclusive.  The relief of the citizens of each State from the burden of

monopoly and the evils resulting from the restraint of trade among such

citizens was left with the States to deal with, and this court has

recognized their possession of that power even to the extent of holding

that an employment or business carried on by private individuals, when

it becomes a matter of such public interest and importance as to create

a common charge or burden upon the citizen -- in other words, when it

becomes a practical monopoly to which the citizen is compelled to resort

and by means of which a tribute can be exacted from the community -- is

subject to regulation by state legislative power.  On the other hand,

the power of Congress to regulate commerce among the several States is

also exclusive.  The Constitution does not provide that interstate

commerce shall be free, but, by the grant of this exclusive power to

regulate it, it was left free except as Congress might impose

restraints.  Therefore it has been determined that the failure of

Congress to exercise this exclusive power in any case is an expression

of its will that the subject shall be free from restrictions or

impositions upon it by the several States, and if a law passed by a

State in the exercise of its acknowledged powers comes into conflict

[156 U.S. 12] with that will, the Congress and the State cannot occupy

the position of equal opposing sovereignties, because the Constitution

declares its supremacy and that of the laws passed in pursuance thereof,

and that which is not supreme must yield to that which is supreme. 

"Commerce, undoubtedly, is traffic," said Chief Justice Marshall, but it

is something more; it is intercourse.  It describes the commercial

intercourse between nations and parts of nations in all its branches,

and is regulated by prescribing rules for carrying on that intercourse.

That which belongs to commerce is within the jurisdiction of the United

States, but that which does not belong to commerce is within the

jurisdiction of the police power of the State.  Gibbons v. Ogden, 9

Wheat. 1, 189, 210; Brown v. Maryland, 12 Wheat. 419, 448; The License

Cases, 5 How. 504, 599; Mobile v. Kimball, 102 U.S. 691; Bowman v.

Chicago & N.W. Railway. 125 U.S. 465; Leisy v. Hardin, 135 U.S. 100; In

re Rahrer, 140 U.S. 545, 555.



The argument is that the power to control the manufacture of refined

sugar is a monopoly over a necessary of life, to the enjoyment of which

by a large part of the population of the United States interstate

commerce is indispensable, and that, therefore, the general government,

in the exercise of the power to regulate commerce, may repress such

monopoly directly and set aside the instruments which have created it. 

But this argument cannot be confined to necessaries of life merely, and

must include all articles of general consumption.  Doubtless the power

to control the manufacture of a given thing involves in a certain sense

the control of its disposition, but this is a secondary, and not the

primary, sense, and although the exercise of that power may result in

bringing the operation of commerce into play, it does not control it,

and affects it only incidentally and indirectly.  Commerce succeeds to

manufacture, and is not a part of it.  The power to regulate commerce is

the power to prescribe the rule by which commerce shall be governed, and

is a power independent of the power to suppress monopoly.  But it may

operate in repression of monopoly whenever that comes within the rules

by which commerce is governed or whenever the transaction is itself a

monopoly of commerce. [156 U.S. 13]



It is vital that the independence of the commercial power and of the

police power, and the delimitation between them, however sometimes

perplexing, should always be recognized and observed, for while the one

furnishes the strongest bond of union, the other is essential to the

preservation of the autonomy of the States, as required by our dual form

of government, and acknowledged evils, however grave and urgent they may

appear to be, had better be borne than the risk be run, in the effort to

suppress them, of more serious consequences by resort to expedients of

even doubtful constitutionality.



It will be perceived how far-reaching the proposition is that the power

of dealing with a monopoly directly may be exercised by the general

government whenever interstate or international commerce may be

ultimately affected.  The regulation of commerce applies to the subjects

of commerce, and not to matters of internal police.  Contracts to buy,

sell, or exchange goods to be transported among the several States, the

transportation and its instrumentalities, and articles bought, sold, or

exchanged for the purposes of such transit among the States, or put in

the way of transit, may be regulated, but this is because they form part

of interstate trade or commerce.  The fact that an article is

manufactured for export to another State does not, of itself, make it an

article of interstate commerce, and the intent of the manufacturer does

not determine the time when the article or product passes from the

control of the State and belongs to commerce.  This was so ruled in Coe

v. Errol, 116 U.S. 517, 525, in which the question before the court was

whether certain logs cut at a place in New Hampshire and hauled to a

river town for the purpose of transportation to the State of Maine were

liable to be taxed like other property in the State of New Hampshire. 

Mr. Justice Bradley, delivering the opinion of the court, said: Does the

owner's state of mind in relation to the goods, that is, his intent to

export them, and his partial preparation to do so, exempt them from

taxation?  This is the precise question for solution. . . .  There must

be a point of time when they cease to be governed exclusively by the

domestic [156 U.S. 14] law and begin to be governed and protected by the

national law of commercial regulation, and that moment seems to us to be

a legitimate one for this purpose, in which they commence their final

movement from the State of their origin to that of their destination.



And again, in Kidd v. Pearson, 198 U.S. 1, 20, 21, 22, where the

question was discussed whether the right of a State to enact a statute

prohibiting within its limits the manufacture of intoxicating liquors,

except for certain purposes, could be overthrown by the fact that the

manufacturer intended to export the liquors when made, it was held that

the intent of the manufacturer did not determine the time when the

article or product passed from the control of the State and belonged to

commerce, and that, therefore, the statute, in omitting to except from

its operation the manufacture of intoxicating liquors within the limits

of the State for export, did not constitute an unauthorized interference

with the right of Congress to regulate commerce.  And Mr. Justice Lamar

remarked: No distinction is more popular to the common mind, or more

clearly expressed in economic and political literature, than that

between manufacture and commerce.  Manufacture is transformation -- the

fashioning of raw materials into a change of form for use.  The

functions of commerce are different.  The buying and selling and the

transportation incidental thereto constitute commerce, and the

regulation of commerce in the constitutional sense embraces the

regulation at least of such transportation. . . .  If it be held that

the term includes the regulation of all such manufactures as are

intended to be the subject of commercial transactions in the future, it

is impossible to deny that it would also include all productive

industries that contemplate the same thing.  The result would be that

Congress would be invested, to the exclusion of the States, with the

power to regulate not only manufactures, but also agriculture,

horticulture, stock raising, domestic fisheries, mining -- in short,

every branch of human industry.  For is there one of them that does not

contemplate, more or less clearly, an interstate or foreign market? 

Does not the wheat grower of the Northwest or the cotton planter of the

[156 U.S. 15] South, plant, cultivate, and harvest his crop with an eye

on the prices at Liverpool, New York, and Chicago?  The power being

vested in Congress and denied to the States, it would follow as an

inevitable result that the duty would devolve on Congress to regulate

all of these delicate, multiform and vital interests -- interests which

in their nature are and must be local in all the details of their

successful management. . . .  The demands of such a supervision would

require not uniform legislation generally applicable throughout the

United States, but a swarm of statutes only locally applicable and

utterly inconsistent.  Any movement toward the establishment of rules of

production in this vast country, with its many different climates and

opportunities, could only be at the sacrifice of the peculiar advantages

of a large part of the localities in it, if not of every one of them. 

On the other hand, any movement toward the local, detailed and

incongruous legislation required by such interpretation would be about

the widest possible departure from the declared object of the clause in

question. or this alone.  Even in the exercise of the power contended

for, Congress would be confined to the regulation not of certain

branches of industry, however numerous, but to those instances in each

and every branch where the producer contemplated an interstate market. 

These instances would be almost infinite, as we have seen; but still

there would always remain the possibility, and often it would be the

case, that the producer contemplated a domestic market.  In that case,

the supervisory power must be executed by the State, and the

interminable trouble would be presented that whether the one power or

the other should exercise the authority in question would be determined

not by any general or intelligible rule, but by the secret and

changeable intention of the producer in each and every act of

production.  A situation more paralyzing to the state governments, and

more provocative of conflicts between the general government and the

States, and less likely to have been what the framers of the

Constitution intended it would be difficult to imagine. And see Veaie v.

Moor, 14 How. 568, 574.



In Gibbons v. Ogden, Brown v. Maryland, and other cases [156 U.S. 16]

often cited, the state laws, which were held inoperative, were instances

of direct interference with, or regulations of, interstate or

international commerce; yet, in Kidd v. Pearson, the refusal of a State

to allow articles to be manufactured within her borders even for export

was held not to directly affect external commerce, and state legislation

which, in a great variety of ways, affected interstate commerce and

persons engaged in it has been frequently sustained because the

interference was not direct.



Contracts, combinations, or conspiracies to control domestic enterprise

in manufacture, agriculture, mining, production in all its forms, or to

raise or lower prices or wages might unquestionably tend to restrain

external as well as domestic trade, but the restraint would be an

indirect result, however inevitable and whatever its extent, and such

result would not necessarily determine the object of the contract,

combination, or conspiracy.



Again, all the authorities agree that, in order to vitiate a contract or

combination, it is not essential that its result should be a complete

monopoly; it is sufficient if it really tends to that end, and to

deprive the public of the advantages which flow from free competition. 

Slight reflection will show that, if the national power extends to all

contracts and combinations in manufacture, agriculture, mining, and

other productive industries whose ultimate result may affect external

commerce, comparatively little of business operations and affairs would

be left for state control.



It was in the light of well settled principles that the act of July 2,

1890, was framed.  Congress did not attempt thereby to assert the power

to deal with monopoly directly as such, or to limit and restrict the

rights of corporations created by the States or the citizens of the

States in the acquisition, control, or disposition of property, or to

regulate or prescribe the price or prices at which such property or the

products thereof should be sold, or to make criminal the acts of persons

in the acquisition and control of property which the States of their

residence or creation sanctioned or permitted.  Aside from the

provisions applicable where Congress might exercise municipal [156 U.S.

17] power, what the law struck at was combinations, contracts, and

conspiracies to monopolize trade and commerce among the several States

or with foreign nations; but the contracts and acts of the defendants

related exclusively to the acquisition of the Philadelphia refineries

and the business of sugar refining in Pennsylvania, and bore no direct

relation to commerce between the States or with foreign nations.  The

object was manifestly private gain in the manufacture of the commodity,

but not through the control of interstate or foreign commerce.  It is

true that the bill alleged that the products of these refineries were

sold and distributed among the several States, and that all the

companies were engaged in trade or commerce with the several States and

with foreign nations; but this was no more than to say that trade and

commerce served manufacture to fulfil its function. Sugar was refined

for sale, and sales were probably made at Philadelphia for consumption,

and undoubtedly for resale by the first purchasers throughout

Pennsylvania and other States, and refined sugar was also forwarded by

the companies to other States for sale. Nevertheless it does not follow

that an attempt to monopolize, or the actual monopoly of, the.

manufacture was an attempt, whether executory or consummated, to

monopolize commerce, even though, in order to dispose of the product,

the instrumentality of commerce was necessarily invoked. There was

nothing in the proofs to indicate any intention to put a restraint upon

trade or commerce, and the fact, as we have seen, that trade or commerce

might be indirectly affected was not enough to entitle complainants to a

decree.  The subject matter of the sale was shares of manufacturing

stock, and the relief sought was the surrender of property which had

already passed and the suppression of the alleged monopoly in

manufacture by the restoration of the status quo before the transfers;

yet the act of Congress only authorized the Circuit Courts to proceed by

way of preventing and restraining violations of the act in respect of

contracts, combinations, or conspiracies in restraint of interstate or

international trade or commerce.



The Circuit Court declined, upon the pleadings and proofs, [156 U.S. 18]

to grant the relief prayed, and dismissed the bill, and we are of

opinion that the Circuit Court of Appeals did not err in affirming that

decree.



Decree affirmed. HARLAN, J., dissenting



MR. JUSTICE HARLAN dissenting.



Prior to the 4th day of March, 1892, the American Sugar Refining

Company, a corporation organized under a general statute of New Jersey

for the purpose of buying, manufacturing, refining, and selling sugar in

different parts of the country, had obtained the control of all the

sugar refineries in the United States except five, of which four were

owned and operated by Pennsylvania corporations -- the E. C. Knight

Company, the Franklin Sugar Refining Company, Spreckels' Sugar Refining

Company, and the Delaware Sugar House -- and the other, by the Revere

Sugar Refinery of Boston.  These five corporations were all in active

competition with the American Sugar Refining Company and with each

other.  The product of the Pennsylvania companies was about thirty-three

percent, and that of the Boston company about two percent, of the entire

quantity of sugar refined in the United States.



In March, 1899, by means of contracts or arrangements with stockholders

of the four Pennsylvania companies, the New Jersey corporation -- using

for that purpose its own stock -- purchased the stock of those

companies, and thus obtained absolute control of the entire business of

sugar refining in the United States except that done by the Boston

company, which is too small in amount to be regarded in this discussion.



"The object," the court below said, in purchasing the Philadelphia

refineries was to obtain a greater influence or more perfect control

over the business of refining and selling sugar in this country. This

characterization of the object for which this stupendous combination was

formed is properly accepted in the opinion of the court as justified by

the proof.  I need not therefore analyze the evidence upon this point. 

In its consideration of the important constitutional question presented,

this court assumes on the record before us [156 U.S. 19] that the result

of the transactions disclosed by the pleadings and proof was the

creation of a monopoly in the manufacture of a necessary of life.  If

this combination, so far as its operations necessarily or directly

affect interstate commerce, cannot be restrained or suppressed under

some power granted to Congress, it will be cause for regret that the

patriotic statesmen who framed the Constitution did not foresee the

necessity of investing the national government with power to deal with

gigantic monopolies holding in their grasp, and injuriously controlling

in their own interest, the entire trade among he States in food products

that are essential to the comfort of every household in the land.



The court holds it to be vital in our system of government to recognize

and give effect to both the commercial power of the nation and the

police powers of the States, to the end that the Union be strengthened

and the autonomy of the States preserved.  In this view I entirely

concur.  Undoubtedly, the preservation of the just authority of the

States is an object of deep concern to every lover of his country.  No

greater calamity could befall our free institutions than the destruction

of that authority, by whatever means such a result might be

accomplished.  "Without the States in union," this court has said "there

could be no such political body as the United States."  Lane County v.

Oregon, 7 Wall. 71, 76.  But it is equally true that the preservation of

the just authority of the General Government is essential as well to the

safety of the States as to the attainment of the important ends for

which that government was ordained by the People of the United States,

and the destruction of that authority would be fatal to the peace and

wellbeing of the American people.  The Constitution which enumerates the

powers committed to the nation for objects of interest to the people of

all the States should not, therefore, be subjected to an interpretation

so rigid, technical, and narrow that those objects cannot be

accomplished. L earned counsel in Gibbons v. Ogden, 9 Wheat. 1, 187,

having suggested that the Constitution should be strictly construed,

this court, speaking by Chief Justice Marshall, said that, when the

original States converted their league into a [156 U.S. 20] government,

when they converted their Congress of Ambassadors, deputed to deliberate

on their common concerns, and to recommend measures of general utility,

into a legislature empowered to enact laws on the most interesting

subjects, the whole character in which the States appear underwent a

change, the extent of which must be determined by a fair consideration

of the instrument by which that change was effected. . . .  What do

gentlemen mean, the court inquired, by a strict construction?  If they

contend only against that enlarged construction which would extend words

beyond their natural and obvious import, one might question the

application of the term, but should not controvert the principle.  If

they contend for that narrow construction which, in support of some

theory not to be found in the Constitution, would deny to the government

those powers which the words of the grant, as usually understood,

import, and which are consistent with the general views and objects of

the instrument -- for that narrow construction, which would cripple the

government, and render it unequal to the objects for which it is

declared to be instituted, and to which the powers given, as fairly

understood, render it competent -- then we cannot perceive the propriety

of this strict construction, nor adopt it as the rule by which the

Constitution is to be expounded. On the same occasion, the principle was

announced that the objects for which a power was granted to Congress,

especially when those objects are expressed in the Constitution itself,

should have great influence in determining the extent of any given

power.



Congress is invested with power to regulate commerce with foreign

nations and among the several States.  The power to regulate is the

power to prescribe the rule by which the subject regulated is to be

governed.  It is one that must be exercised whenever necessary

throughout the territorial limits of the several States.  Cohens v.

Virginia, 6 Wheat. 264, 413.  The power to make these regulations is

complete in itself, may be exercised to its utmost extent, and

acknowledges no limitations other than are prescribed in the

Constitution. It is plenary because vested in Congress as absolutely as

it [156 U.S. 21] would be in a single government having in its

constitution the same restrictions on the exercise of the power as are

found in the Constitution of the United States. It may be exercised

"whenever the subject exists."  Gibbons v. Ogden, 9 Wheat. 1, 195, 196. 

In his concurring opinion in that case, Mr. Justice Johnson observed

that the grant to Congress of the power to regulate commerce carried

with it the whole subject, leaving nothing for the State to act upon,

and that, if there was anyone object riding over every other in the

adoption of the Constitution, it was to keep commercial intercourse

among the States free from all invidious and partial restraints. "In all

commercial regulations, we are one and the same people."  Mr. Justice

Bradley, speaking for this court, said that the United States are but

one country, and are and must be subject to one system of regulations in

respect to interstate Commerce.  Robbins v. Shelby Taxing District, 120

U.S. 489, 494.



What is commerce among the States?  The decisions of this court fully

answer the question.  "Commerce, undoubtedly, is traffic, but it is

something more:  it is intercourse."  It does not embrace the completely

interior traffic of the respective States -- that which is "carried on

between man and man in a State, or between different parts of the same

State and which does not extend to or affect other States" -- but it

does embrace "every species of commercial intercourse" between the

United States and foreign nations and among the States, and therefore it

includes such traffic or trade, buying, selling, and interchange of

commodities as directly affects or necessarily involves the interests of

the People of the United States.  "Commerce, as the word is used in the

Constitution, is a unit," and cannot stop at the external boundary line

of each State, but may be introduced into the interior. . . . .  The

genius and character of the whole government seem to be that its action

is to be applied to all the external concerns of the nation, and to

those internal concerns which affect the States generally.



These principles were announced inGibbons v. Ogden, and have often been

approved.  It is the settled doctrine of this [156 U.S. 22] court that

interstate commerce embraces something more than the mere physical

transportation of articles of property, and the vehicles or vessels by

which such transportation is effected.  In County of Mobile v. Kimball,

102 U.S. 691, 702, it was said that commerce with foreign countries and

among the States, strictly considered, consists in intercourse and

traffic, including, in these terms, navigation and the transportation

and transit of persons and property, as well as the purchase, sale, and

exchange of commodities. In Gloucester Ferry Co. v. Pennsylvania, 114

U.S. 196, 203, the language of the court was: Commerce among the States

consists of intercourse and traffic between their citizens, and includes

the transportation of persons and property, and the navigation of public

waters for that purpose, as well as the purchase, sale, and exchange of

commodities.  The power to regulate that commerce, as well as commerce

with foreign nations, vested in Congress, is the power to prescribe the

rules by which it shall be governed, that is, the conditions upon which

it shall be conducted; to determine when it shall be free, and when

subject to duties or other exactions. In Kidd v. Pearson, 128 U.S. 1,

20, it was said that "the buying and selling, and the transportation

incidental thereto constitute commerce."  Interstate commerce does not,

therefore, consist in transportation simply.  It includes the purchase

and sale of articles that are intended to be transported from one State

to another -- every species of commercial intercourse among the States

and with foreign nations.



In the light of these principles, determining as well the scope of the

power to regulate commerce among the States as the nature of such

commerce, we are to inquire whether the act of Congress of July 2, 1890,

c. 647, entitled "An act to protect trade and commerce against unlawful

restraints and monopolies," 26 Stat. 209, is repugnant to the

Constitution.



By that act every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or commerce among the

several States or with foreign nations, is declared to be illegal, and

every person making any such contract, or engaging in any such

combination or conspiracy, [156 U.S. 23] is to be deemed guilty of a

misdemeanor, and punishable, on conviction, by a fine not exceeding five

thousand dollars, or by imprisonment not exceeding one year, or by both

said punishments in the discretion of the court.   1.  It is also made a

misdemeanor, punishable in like manner, for any person to monopolize, or

attempt to monopolize, or combine or conspire with any other person or

persons to monopolize, any part of the trade or commerce among the

several States or with foreign nations. 2.  The act also declares

illegal every contract, combination in form of trust or otherwise, or

conspiracy, in restraint of trade or commerce in any Territory of the

United States or of the District of Columbia, or in restraint of trade

or commerce between any such Territory and another, or between any such

Territory or Territories or any State or States or the District of

Columbia, or with foreign nations, or between the District of Columbia

and any State or States or foreign nations, and prescribes the same

punishments for every person making any such contract or engaging in any

such combination or conspiracy.   3.



The fourth section of the act is in these words:



Sec. 4.  The several Circuit Courts of the United States are hereby

invested with jurisdiction to prevent and restrain violations of this

act, and it shall be the duty of the several district attorneys of the

United States, in their respective districts, under the direction of the

Attorney General, to institute proceedings in equity to prevent and

restrain such violations.  Such proceedings may be by way of petition

setting forth the case and praying that such violation shall be enjoined

or otherwise prohibited.  When the parties complained of shall have been

duly notified of such petition the court shall proceed, as soon as may

be, to the hearing and determination of the case, and pending such

petition and before final decree, the court may at any time make such

temporary restraining order or prohibition as shall be deemed just in

the premises.



It would seem to be indisputable that no combination of corporations or

individuals can, of right, impose unlawful restraints upon interstate

trade, whether upon transportation or upon such interstate intercourse

and traffic as precede transportation, [156 U.S. 24] any more than it

can, of right, impose unreasonable restraints upon the completely

internal traffic of a State.  The supposition cannot be indulged that

this general proposition will be disputed.  If it be true that a

combination of corporations or individuals may, so far as the power of

Congress is concerned, subject interstate trade, in any of its stages,

to unlawful restraints, the conclusion is inevitable that the

Constitution has failed to accomplish one primary object of the Union,

which was to place commerce among the States under the control of the

common government of all the people, and thereby relieve or protect it

against burdens or restrictions imposed, by whatever authority, for the

benefit of particular localities or special interests.



The fundamental inquiry in this case is what, in a legal sense, is an

unlawful restraint of trade



Sir William Erle, formerly Chief Justice of the Common Pleas, in his

essay on the Law Relating to Trade Unions, well said that "restraint of

trade, according to a general principle of the common law, is unlawful;

" that, at common law, every person has individually, and the public

also have collectively, a right to require that the course of trade

should be kept free from unreasonable obstruction; and that the right to

a free course for trade is of great importance to commerce and

productive industry, and has been carefully maintained by those who have

administered the common law. Pp. 6, 7, 8.



There is a partial restraint of trade which, in certain circumstances,

is tolerated by the law.  The rule upon that subject is stated in Oregon

Steam Nav. Co. v. Winsor, 20 Wall. 64, 66, where it was said that an

agreement in general restraint of trade is illegal and void; but an

agreement which operates merely in partial restraint of trade is good,

provided it be not unreasonable and there be a consideration to support

it.  In order that it may not be unreasonable, the restraint imposed

must not be larger than is required for the necessary protection of the

party with whom the contract is made.  Horner v. Graves, 7 Bing. 735,

743.  A contract, even on good consideration, not to use a trade

anywhere in England is held void in that country as being too general a

restraint of trade. [156 U.S. 25]



But a general restraint of trade has often resulted from combinations

formed for the purpose of controlling prices by destroying the

opportunity of buyers and sellers to deal with each other upon the basis

of fair open, free competition.  Combinations of this character have

frequently been the subject of judicial scrutiny, and have always been

condemned as illegal because of their necessary tendency to restrain

trade.  Such combinations are against common right, and are crimes

against the public.  To some of the cases of that character it will be

well to refer.



In Morris Run Coal Co. v. Barclay Coal Co., 68 Penn.St. 173, 184, 186,

187, the principal question was as to the validity of a contract made

between five coal corporations of Pennsylvania by which they divided

between themselves two coal regions of which they had the control.  The

referee in the case found that those companies acquired under their

arrangement the power to control the entire market for bituminous coal

in the northern part of the State, and their combination was therefore a

restraint upon trade, and against public policy.  In response to the

suggestion that the real purpose of the combination was to lessen

expenses, to advance the quality of coal, and to deliver it in the

markets intended to be supplied in the best order to the consumer, the

Supreme Court of Pennsylvania said: This is denied by the defendants,

but it seems to us it is immaterial whether these positions are

sustained or not.  Admitting their correctness, it does not follow that

these advantages redeem the contract from the obnoxious effects so

strikingly presented by the referee.  The important fact is that these

companies control this immense coal field; that it is the great source

of supply of bituminous coal to the State of New York and large

territories westward; that, by this contract, they control the price of

coal in this extensive market, and make it bring sums it would not

command if left to the natural laws of trade; that it concerns an

article of prime necessity for many uses; that its operation is general

in this large region, and affects all who use coal as a fuel, and this

is accomplished by a combination of all the companies engaged in this

branch of business [156 U.S. 26] in the large region where they operate.

 The combination is wide in scope, general in its influence, and

injurious in effects.  These being its features, the contract is against

public policy, illegal, and therefore void. Again, in the same case: The

effects produced on the public interests lead to the consideration of

another feature of great weight in determining the illegality of the

contract, to-wit, the combination resorted to by these five companies. 

Singly, each might have suspended deliveries and sales of coal to suit

its own interests, and might have raised the price, even though this

might have been detrimental to the public interest.  There is a certain

freedom which must be allowed to every one in the management of his own

affairs.  When competition is left free, individual error or folly will

generally find a correction in the conduct of others.  But here is a

combination of all the companies operating in the Blossburg and Barclay

mining regions, and controlling their entire productions.  They have

combined together to govern the supply and the price of coal in all the

markets from the Hudson to the Mississippi rivers, and from Pennsylvania

to the lakes.  This combination has a power in its confederated form

which no individual action can confer.  The public interest must succumb

to it, for it has left no competition free to correct its baleful

influence.  When the supply of coal is suspended, the demand for it

becomes importunate, and prices must rise.  Or if the supply goes

forward, the price fixed by the confederates must accompany it.  The

domestic hearth, the furnaces of the iron master, and the fires of the

manufacturer, all feel the restraint, while many dependent hands are

paralyzed and hungry mouths are stinted.  The influence of a lack of

supply or a rise in the price of an article of such prime necessity

cannot be measured.  It permeates the entire mass of community, and

leaves few of its members untouched by its withering blight.  Such a

combination is more than a contract; it is an offence.  "I take it,"

said Gibson, J., a combination is criminal whenever the act to be done

has a necessary tendency to prejudice the public or to oppress

individuals, by unjustly subjecting them to the power of the

confederates and giving effect to the purpose of the [156 U.S. 27]

latter, whether of extortion or of mischief. Commonwealth v. Carlisle,

Brightly (Penn.,) 40.  In all such combinations where the purpose is

injurious or unlawful, the gist of the offence is the conspiracy.  Men

can often do by the combination of many what severally no one could

accomplish, and even what when done by one would be innocent.. . . . 

There is a potency in numbers, when combined, which the law cannot

overlook where injury is the consequence.



This case in the Supreme Court of Pennsylvania was cited with approval

in Arnot v. Pittston & Elmira Coal Co., 68 N.Y. 558, 565, which involved

the validity of a contract between two coal companies the object and

effect of which was to give one of them the monopoly of the trade in

coal in a particular region by which the price of that commodity could

be artificially enhanced.  The Court of Appeals of New York held that a

combination to effect such a purpose is inimical to the interests of the

public, and that all contracts designed to effect such an end are

contrary to public policy, and therefore illegal. . . .  If they should

be sustained, the prices of articles of pure necessity, such as coal,

flour, and other indispensable commodities, might be artificially raised

to a ruinous extent far exceeding any naturally resulting from the

proportion between supply and demand.  No illustration of the mischief

of such contracts is perhaps more apt than a monopoly of anthracite

coal, the region of the production of which is known to be limited. See

also Hooker v. Vandewater, 4 Denio 351, 352; Stanton v. Allen, 5 Denio

434; Saratoga Bank v. King, 44 N.Y. 87.



In Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666, 672, the principal

question was as to the legality of an association of substantially all

the manufacturers of salt in a large salt producing territory.  After

adverting to the rule that contracts in general restraint of trade are

against public policy, and to the agreement there in question, it was

said: Public policy unquestionably favors competition in trade to the

end that its commodities may be afforded to the consumer as cheaply as

possible, and is opposed to monopolies, which tend to advance market

prices to the injury of the general public. . . .   [156 U.S. 28] The

clear tendency of such an agreement is to establish a monopoly, and to

destroy competition in trade, and, for that reason, on grounds of public

policy, the courts will not aid in its enforcement.  It is no answer to

say that competition in the salt trade was not, in fact, destroyed, or

that the price of the commodity was not unreasonably advanced.  Courts

will not stop to inquire as to the degree of injury inflicted upon the

public; it is enough to know that the inevitable tendency of such

contracts is injurious to the public.



In Craft v. McConoughy, 79 Illinois 346, 349, 350, which related to a

combination between all the grain dealers of a particular town to stifle

competition and to obtain control of the price of grain, the Supreme

Court of Illinois said: While the argument, upon its face, would seem to

indicate that the parties had formed a copartnership for the purpose of

trading in grain, yet, from the terms of the contract and the other

proof in the record, it is apparent that the true object was to form a

secret combination which would stifle all competition and enable the

parties, by secret and fraudulent means, to control the price of grain,

cost of storage, and expense of shipment.  In other words, the four

firms, by a shrewd, deep-laid, secret combination, attempted to control

and monopolize the entire grain trade of the town and surrounding

country.  That the effect of this contract was to restrain the trade and

commerce of the country is a proposition that cannot be successfully

denied.  We understand it to be a well settled rule of law that an

agreement in general restraint of trade is contrary to public policy,

illegal and void, but an agreement in partial or particular restraint

upon trade has been held good where the restraint was only partial,

consideration adequate, and the restriction reasonable. . . .  While

these parties were in business, in competition with each other, they had

the undoubted right to establish their own rates for grain stored and

commissions for shipment and sale.  They could pay as high or low a

price for grain as they saw proper, and as they could make contracts

with the producer.  So long as competition was free, the interest of the

public was safe.  The laws of trade, in connection with the right of

competition,were all the [156 U.S. 29] guaranty the public required, but

the secret combination created by the contract destroyed all competition

and created a monopoly against which the public interest had no

protection.



These principles were applied in People v. Chicago Gas Trust Co., 130

Illinois 269, 292, 297, which involved the validity of a corporation

formed for the purpose of operating gas works, and of manufacturing and

selling gas, and which, for the purpose of destroying competition,

acquired the stock of four other gas companies, and thereby obtained a

monopoly in the business of furnishing illuminating gas to the city of

Chicago and its inhabitants.  The court, in declaring the organization

of the company to be illegal, said: The fact that the appellee, almost

immediately after its organization, bought up a majority of the shares

of stock of each of these companies, shows that it was not making a mere

investment of surplus funds, but that it designed and intended to bring

the four companies under its control, and by crushing out competition to

monopolize the gas business in Chicago. . . .  Of what avail, said the

court, is it that any number of gas companies may be formed under the

general incorporation law, if a giant trust company can be clothed with

the power of buying up and holding the stock and property of such

companies, and, through the control thereby attained, can direct all

their operations and weld them into one huge combination?



So, in India Bagging Association v. Kock, 14 La.Ann. 168, where the

court passed upon the legality of an association of various commercial

firms in New Orleans that were engaged in the sale of India bagging, it

was said: The agreement between the parties was palpably and

unequivocably a combination in restraint of trade, and to enhance the

price in the market of an article of primary necessity to cotton

planters.  Such combinations are contrary to public order, and cannot be

enforced in a court of justice.



In Santa Clara Mill & Lumber Co. v. Hayes, 76 California 387, 390, which

related to a combination, the result of certain contracts among certain

manufacturers, the court found that the object, purpose, and

consideration of those contracts was to form a combination among all the

manufacturers of lumber [156 U.S. 30] at or near a particular place, for

the sole purpose of increasing the price of that article, limiting the

amount to be manufactured, and giving certain parties the control of all

lumber manufactured near that place for the year 1881, and of the supply

for that year in specified counties.  It held the combination to be

illegal, observing that among the contracts illegal under the common

law, because opposed to public policy, were contracts in general

restraint of trade; contracts between individuals to prevent competition

and keep up the price of articles of utility. It further said that,

while the courts had nothing to do with the results naturally flowing

from the laws of demand and supply, they would not respect agreements

made for the purpose of "taking trade out of the realm of competition,

and thereby enhancing or depressing prices of commodities."



A leading case on the question as to what combinations are illegal as

being in general restraint of trade is Richardson v. Buhl, 77 Michigan

632, 635, 657, 660, which related to certain agreements connected with

the business and operations of the Diamond Match Company.  From the

report of the case, it appears that that company was organized under the

laws of Connecticut for the purpose of uniting in one corporation all

the match manufactories in the United States, and to monopolize and

control the business of making all the friction matches in the country

and establish the price thereof.  To that end, it became necessary,

among other things, to buy many plants that had become established or

were about to be established, as well as the property used in connection

therewith.  Chief Justice Sherwood of the Supreme Court of Michigan

said: The sole object of the corporation is to make money by having it

in its power to raise the price of the article, or diminish the quantity

to be made and used, at its pleasure.  Thus, both the supply of the

article and the price thereof are made to depend upon the action of a

half dozen individuals, more or less, to satisfy their cupidity and

avarice, who may happen to have the controlling interest in this

corporation -- an artificial person, governed by a single motive or

purpose, which is to accumulate money regardless of the wants or

necessities [156 U.S. 31] of over 60,000,000 people.  The article thus

completely under their control for the last fifty years has come to be

regarded as one of necessity not only in every household in the land,

but one of daily use by almost every individual in the country.  It is

difficult to conceive of a monopoly which can affect a greater number of

people, or one more extensive in its effect on the country, than that of

the Diamond Match Company.  It was to aid that company in its purposes

and in .carrying out its object that the contract in this case was made

between those parties which we are now asked to aid in enforcing. 

Monopoly in trade, or in any kind of business in this country, is odious

to our form of government.  It is sometimes permitted to aid the

government in carrying on a great public enterprise or public work under

governmental control in the interest of the public.  Its tendency is,

however, destructive of free institutions and repugnant to the instincts

of a free people, and contrary to the whole scope and spirit of the

Federal Constitution, and is not allowed to exist under express

provisions in several of our state constitutions. . . .  All

combinations among persons or corporations for the purpose of raising or

controlling the prices of merchandise, or any of the necessaries of

life, are monopolies and intolerable, and ought to receive the

condemnation of all courts.



In the same case, Mr. Justice Champlin, with whom Mr. Justice Campbell

concurred, said: There is no doubt that all the parties to this suit

were active participants in perfecting the combination called "The

Diamond Match Company," and that the present dispute grows out of that

transaction and is the fruit of the scheme by which all competition in

the manufacture of matches was stifled, opposition in the business

crushed, and the whole business of the country in that line engrossed by

the Diamond Match Company.  Such a vast combination as has been entered

into under the above name is a menace to the public.  Its object and

direct tendency is to prevent free and fair competition, and control

prices throughout the national domain.  It is no answer to say that this

monopoly has, in fact, reduced the price of friction matches.  That

policy may have been necessary to crush competition.   [156 U.S. 32] The

fact exists that it rests in the discretion of this company at any time

to raise the price to an exorbitant degree.  Such combinations have

frequently been condemned by courts as unlawful and against public

policy. See also Raymond v. Leavitt, 46 Michigan 44, and Texas Standard

Oil Co. v. Adoue, 83 Texas 650.



This extended reference to adjudged cases relating to unlawful

restraints upon the interior traffic of a State has been made for the

purpose of showing that a combination such as that organized under the

name of the American Sugar Refining Company has been uniformly held by

the courts of the States to be against public policy and illegal because

of its necessary tendency to impose improper restraints upon trade.  And

such, I take it, would be the judgment of any Circuit Court of the

United States in a case between parties in which it became necessary to

determine the question.  The judgments of the state courts rest upon

general principles of law, and not necessarily upon statutory provisions

expressly condemning restraints of trade imposed by or resulting from

combinations.  Of course, in view of the authorities, it will not be

doubted that it would be competent for a State, under the power to

regulate its domestic commerce and for the purpose of protecting its

people against fraud and injustice, to make it a public offence

punishable by fine and imprisonment for individuals or corporations to

make contracts, form combinations, or engage in conspiracies, which

unduly restrain trade or commerce carried on within its limits, and also

to authorize the institution of proceedings for the purpose of annulling

contracts of that character, as well as of preventing or restraining

such combinations and conspiracies.



But there is a trade among the several States which is distinct from

that carried on within the territorial limits of a State.  The

regulation and control of the former is committed by the national

Constitution to Congress.  Commerce among the States, as this court has

declared, is a unit, and, in respect of that commerce, this is one

country and we are one people.  It may be regulated by rules applicable

to every part of the United States, and state lines and state

jurisdiction cannot [156 U.S. 33] interfere with the enforcement of such

rules.  The jurisdiction of the general government extends over every

foot of territory within the United States.  Under the power with which

it is invested, Congress may remove unlawful obstructions, of whatever

kind, to the free course of trade among the States.  In so doing, it

would not interfere with the " autonomy of the States," because the

power thus to protect interstate commerce is expressly given by the

people of all the States.  Interstate intercourse, trade, and traffic is

absolutely free except as such intercourse, trade, or traffic may be

incidentally or indirectly affected by the exercise by the States of

their reserved police powers.  Sherlock v. Alling, 93 U.S. 99, 103.  It

is the Constitution, the supreme law of the land, which invests Congress

with power to protect commerce among the States against burdens and

exactions arising from unlawful restraints by whatever authority

imposed.  Surely a right secured or granted by that instrument is under

the protection of the government which that instrument creates.  Any

combination, therefore, that disturbs or unreasonably obstructs freedom

in buying and selling articles manufactured to be sold to persons in

other States or to be carried to other States -- a freedom that cannot

exist if the right to buy and sell is fettered by unlawful restraints

that crush out competition -- affects, not incidentally, but directly,

the people of all the States, and the remedy for such an evil is found

only in the exercise of powers confided to a government which, this

court has said, was the government of all, exercising powers delegated

by all, representing all, acting for all.  McCulloch v. Maryland, 4

Wheat. 316, 405.



It has been argued that a combination between corporations of different

States, or between the stockholders of such corporations, with the

object and effect of controlling not simply the manufacture, but the

price, of refined sugar throughout the whole of the United States --

which is the case now before us -- cannot be held to be in restraint of

"commerce among the States" and amenable to national authority without

conceding that the general government has authority to say what shall

and what shall not be manufactured in the several States.  [156 U.S. 34]

Kidd v. Pearson, 128 U.S. 1, was cited in argument as supporting that

view.  In that case, the sole question was whether the State of Iowa

could forbid the manufacture within its limits of ardent spirits

intended for sale ultimately in other States.  This court held that the

manufacture of intoxicating liquors in a State is none the less a

business within the State subject to state control because the

manufacturer may intend, at his convenience, to export such liquors to

foreign countries or to other States.  The authority of the States over

the manufacture of strong drinks within their respective jurisdictions

was referred to their plenary power, never surrendered to the national

government, of providing for the health, morals, and safety of their

people.



That case presented no question as to a combination to monopolize the

sale of ardent spirits manufactured in Iowa to be sold in other States

-- no question as to combinations in restraint of trade as involved in

the buying and selling of articles that are intended to go, and do go,

and will always go into commerce throughout the entire country, and are

used by the people of all the States, and the making or manufacturing of

which no State could forbid consistently with the liberty that everyone

has of pursuing, without undue restrictions, the ordinary callings of

life.  There is no dispute here as to the lawfulness of the business of

refining sugar, apart from the undue restraint which the promoters of

such business, who have combined to control prices, seek to put upon the

freedom of interstate traffic in that article.



It may be admitted that an act which did nothing more than forbid, and

which had no other object than to forbid, the mere refining of sugar in

any State would be in excess of any power granted to Congress.  But the

act of 1890 is not of that character.  It does not strike at the

manufacture simply of articles that are legitimate or recognized

subjects of commerce, but at combinations that unduly restrain, because

they monopolize, the buying and selling of articles which are to go into

interstate commerce.  In State v. Stewart, 9 Vermont 273, 286, it was

said that, if a combination of persons "seek to restrain trade, or tend

to the destruction of the material property [156 U.S. 35] of the

country, they work injury to the whole people."  And in State v.

Glidden, 55 Connecticut, 46, 75, the court said: Any one man, or any one

of several men acting independently, is powerless; but when several

combine and direct their united energies to the accomplishment of a bad

purpose, the combination is formidable.  Its power for evil increases as

its numbers increase. . . .  The combination becomes dangerous and

subversive of the rights of others, and the law wisely says it is a

crime. Chief Justice Gibson well said in Commonwealth v. Carlisle,

Brightly (Penn.) 36, 41: There is between the different parts of the

body politic a reciprocity of action on each other which, like the

action of antagonizing muscles in the natural body, not only prescribes

to each its appropriate state and action, but regulates the motion of

the whole.  The effort of an individual to disturb this equilibrium can

never be perceptible, nor carry the operation of his interest or that of

any other individual beyond the limits of fair competition; but the

increase of power by combination of means, being in geometrical

proportion to the number concerned, an association may be able to give

an impulse not only oppressive to individuals, but mischievous to the

public at large, and it is the employment of an engine so powerful and

dangerous that gives criminality to an act that would be perfectly

innocent, at least in a legal view, when done by an individual. These

principles underlie the act of Congress, which has for its sole object

the protection of such trade and commerce as the Constitution confides

to national control, and the question is presented whether the

combination assailed by this suit is an unlawful restraint upon

interstate trade in a necessary article of food which, as every one

knows, has always entered, now enters, and must continue to enter, in

vast quantities into commerce among the States.



In Kidd v. Pearson, we recognized, as had been done in previous cases,

the distinction between the mere transportation of articles of

interstate commerce and the purchasing and selling that precede

transportation.  It is said that manufacture precedes commerce, and is

not a part of it.  But it is equally true that, when manufacture ends,

that which has been manufactured [156 U.S. 36] becomes a subject of

commerce; that buying and selling succeed manufacture, come into

existence after the process of manufacture is completed, precede

transportation, and are as much commercial intercourse, where articles

are bought to be carried from one State to another, as is the manual

transportation of such articles after they have been so purchased.  The

distinction was recognized by this court in Gibbons v. Ogden, where the

principal question was whether commerce included navigation.  Both the

court and counsel recognized buying and selling or barter as included in

commerce.  Chief Justice Marshall said that the mind can scarcely

conceive a system for regulating commerce, which was "confined to

prescribing rules for the conduct of individuals in the actual

employment of buying and selling, or of barter."  Pp. 189, 190.



The power of Congress covers and protects the absolute freedom of such

intercourse and trade among the States as may or must succeed

manufacture and precede transportation from the place of purchase.  This

would seem to be conceded, for the court in the present case expressly

declare that contracts to buy, sell, or exchange goods to be transported

among the several States, the transportation and its instrumentalities,

and articles bought, sold, or exchanged for the purpose of such transit

among the States, or put in the way of transit, may be regulated, but

this is because they form part of interstate trade or commerce. Here is

a direct admission -- one which the settled doctrines of this court

justify -- that contracts to buy and the purchasing of goods to be

transported from one State to another, and transportation, with its

instrumentalities, are all parts of interstate trade or commerce.  Each

part of such trade is then under the protection of Congress.  And yet,

by the opinion and judgment in this case, if I do not misapprehend them,

Congress is without power to protect the commercial intercourse that

such purchasing necessarily involves against the restraints and burdens

arising from the existence of combinations that meet purchasers, from

whatever State they come, with the threat -- for it is nothing more nor

less than a threat -- that they shall not purchase what [156 U.S. 37]

they desire to purchase, except at the prices fixed by such

combinations.  A citizen of Missouri has the right to go in person, or

send orders, to Pennsylvania and New Jersey for the purpose of

purchasing refined sugar.  But of what value is that right if he is

confronted in those States by a vast combination which absolutely

controls the price of that article by reason of its having acquired all

the sugar refineries in the United States in order that they may fix

prices in their own interest exclusively?



In my judgment, the citizens of the several States composing the Union

are entitled, of right, to buy goods in the State where they are

manufactured, or in any other State, without being confronted by an

illegal combination whose business extends throughout the whole country,

which by the law everywhere is an enemy to the public interests, and

which prevents such buying, except at prices arbitrarily fixed by it.  I

insist that the free course of trade among the States cannot coexist

with such combinations.  When I speak of trade, I mean the buying and

selling of articles of every kind that are recognized articles of

interstate commerce.  Whatever improperly obstructs the free course of

interstate intercourse and trade, as involved in the buying and selling

of articles to be carried from one State to another, may be reached by

Congress under its authority to regulate commerce among the States.  The

exercise of that authority so as to make trade among the States in all

recognized articles of commerce absolutely free from unreasonable or

illegal restrictions imposed by combinations is justified by an express

grant of power to Congress, and would redound to the welfare of the

whole country.  I am unable to perceive that any such result would

imperil the autonomy of the States, especially as that result cannot be

attained through the action of anyone State.



Undue restrictions or burdens upon the purchasing of goods, in the

market for sale, to be transported to other States cannot be imposed

even by a State without violating the freedom of commercial intercourse

guaranteed by the Constitution.  But if a State within whose limits the

business of refining sugar is exclusively carried on may not

constitutionally impose [156 U.S. 38] burdens upon purchases of sugar to

be transported to other States, how comes it that combinations of

corporations or individuals, within the same State, may not be prevented

by the national government from putting unlawful restraints upon the

purchasing of that article to be carried from the State in which such

purchases are made?   If the national power is competent to repress

State action in restraint of interstate trade as it may be involved in

purchases of refined sugar to be transported from one State to another

State, surely it ought to be deemed sufficient to prevent unlawful

restraints attempted to be imposed by combinations of corporations or

individuals upon those identical purchases; otherwise, illegal

combinations of corporations or individuals may -- so far as national

power and interstate commerce are concerned -- do with impunity what no

State can do.



Suppose that a suit were brought in one of the courts of the United

States -- jurisdiction being based, it may be, alone upon the diverse

citizenship of the parties -- to enforce the stipulations of a written

agreement which had for its object to acquire the possession of all the

sugar refineries in the United States in order that those engaged in the

combination might obtain the entire control of the business of refining

and selling sugar throughout the country, and thereby to increase or

diminish prices as the particular interests of the combination might

require.  I take it that the court, upon recognized principles of law

common to the jurisprudence of this country and of Great Britain, would

deny the relief asked and dismiss the suit upon the ground that the

necessary tendency of such an agreement and combination was to restrain

not simply trade that was completely internal to the State in which the

parties resided, but trade and commerce among all the States, and was

therefore against public policy and illegal.  If I am right in this

view, it would seem to follow necessarily that Congress could enact a

statute forbidding such combinations so far as they affected interstate

commerce, and provide for their suppression as well through civil

proceedings instituted for that purpose as by penalties against those

engaged in them. [156 U.S. 39]



In committing to Congress the control of commerce with foreign nations

and among the several States, the Constitution did not define the means

that may be employed to protect the freedom of commercial intercourse

and traffic established for the benefit of all the people of the Union. 

It wisely forbore to impose any limitations upon the exercise of that

power except those arising from the general nature of the government, or

such as are embodied in the fundamental guarantees of liberty and

property.  It gives to Congress, in express words, authority to enact

all laws necessary and proper for carrying into execution the power to

regulate commerce, and whether an act af Congress, passed to accomplish

an object to which the general government is competent, is within the

power granted must be determined by the rule announced through Chief

Justice Marshall three-quarters of a century ago, and which has been

repeatedly affirmed by this court.  That rule is: The sound construction

of the Constitution must allow to the national legislature the

discretion with respect to the means by which the powers it confers are

to be carried into execution, which will enable that body to perform the

high duties assigned to it in the manner most beneficial to the people. 

Let the end be legitimate, let it be within the scope of the

Constitution, and all means which are appropriate, which are plainly

adapted to that end, which are not prohibited, but consistent with the

letter and spirit of the Constitution, are constitutional. McCulloch v.

Maryland, 4 Wheat. 316, 421.  The end proposed to be accomplished by the

act of 1890 is the protection of trade and commerce among the States

against unlawful restraints.  Who can say that that end is not

legitimate or is not within the scope of the Constitution?  The means

employed are the suppression, by legal proceedings, of combinations,

conspiracies, and monopolies which, by their inevitable and admitted

tendency, improperly restrain trade and commerce among the States.  Who

can say that such means are not appropriate to attain the end of freeing

commercial intercourse among the States from burdens and exactions

imposed upon it by combinations which, under principles long recognized

in this country as well as at the [156 U.S. 40] common law, are illegal

and dangerous to the public welfare?  What clause of the Constitution

can be referred to which prohibits the means thus prescribed in the act

of Congress?



It may be that the means employed by Congress to suppress combinations

that restrain interstate trade and commerce are not all or the best that

could have been devised.  But Congress, under the delegation of

authority to enact laws necessary and proper to carry into effect a

power granted, is not restricted to the employment of those means

"without which the end would be entirely unattainable."  "To have

prescribed the means," this court has said, by which government should,

in all future time, execute its powers would have been to change

entirely the character of that instrument, and give it the properties of

a legal code.  It would have been an unwise attempt to provide by

immutable rules for exigencies which, if foreseen at all, must have been

seen dimly, and which can be best provided for as they occur.  To have

declared that the best means shall not be used, but those alone without

which the power given would be nugatory, would have been to deprive the

legislature of the capacity to avail itself of experience, to exercise

its reason, and to accommodate its legislation to circumstances. Again:

Where the law is not prohibited, and is really calculated to effect any

of the objects entrusted to the government, to undertake here to inquire

into the degree of its necessity would be to pass the line which

circumscribes the judicial department and to tread on legislative

ground. McCulloch v. Maryland, 4 Wheat. 316, 415, 423.



By the act of 1890, Congress subjected to forfeiture any property owned

under any contract or by any combination, or pursuant to any conspiracy

(and being the subject thereof) mentioned in section one of this act and

being in the course of transportation from one State to another, or to a

foreign country. It was not deemed wise to subject such property to

forfeiture before transportation began or after it ended.  If it be

suggested that Congress might have prohibited the transportation from

the State in which they are manufactured of any articles, by whomsoever

at the time owned, that had been [156 U.S. 41] manufactured by

combinations formed to monopolize some designated part of trade or

commerce among the States, my answer is that it is not within the

functions of the judiciary to adjudge that Congress shall employ

particular means in execution of a given power simply because such means

are, in the judgment of the courts, best conducive to the end sought to

be accomplished.  Congress, in the exercise of its discretion as to

choice of means conducive to an end to which it was competent,

determined to reach that end through civil proceedings instituted to

prevent or restrain these obnoxious combinations in their attempts to

burden interstate commerce by obstructions that interfere in advance of

transportation with the free course of trade between the people of the

States.  In other words, Congress sought to prevent the coming into

existence of combinations the purpose or tendency of which was to impose

unlawful restraints upon interstate commerce



There is nothing in conflict with these views in Coe v. Errol, 116 U.S.

517, 529.  There, the question was whether certain logs cut in New

Hampshire and hauled to a river that they might be transported to

another State were liable to be taxed in the former State before actual

transportation to the latter State began.  The court held that the logs

might be taxed while they remained in the State of their origin as part

of the general mass of property there; that "for this purpose" --

taxation -- the property did not pass from the jurisdiction of the State

in which it was until transportation began.  The scope of the decision

is clearly indicated by the following clause in the opinion of Mr

Justice Bradley: How can property thus situated, to-wit, deposited or

stored at the place of entrepot for future exportation, be taxed in the

regular way as part of the property of the State?  The answer is plain. 

It can be taxed as all other property is taxed, in the place where it is

found, if taxed or assessed for taxation in the usual manner in which

such property is taxed, and not singled out to be assessed by itself in

an unusual and exceptional manner because of its situation. As we have

now no question as to the taxation of articles manufactured by one of

the combinations condemned by the act of Congress, and [156 U.S. 42] as

no one has suggested that the State in which they may be manufactured

could not tax them as property so long as they remained within its

limits, and before transportation of them to other States began, I am at

a loss to understand how the case before us can be affected by a

decision that personal property, while it remains in the State of its

origin, although it is to be sent at a future time to another State, is

within the jurisdiction of the former State for purposes of taxation.



The question here relates to restraints upon the freedom of interstate

trade and commerce imposed by illegal combinations.  After the fullest

consideration I have been able to bestow upon this important question, I

find it impossible to refuse my assent to this proposition:  whatever a

State may do to protect its completely interior traffic or trade against

unlawful restraints, the general government is empowered to do for the

protection of the people of all the States -- for this purpose, one

people -- against unlawful restraints imposed upon interstate traffic or

trade in articles that are to enter into commerce among the several

States.  If, as already shown, a State may prevent or suppress a

combination, the effect of which is to subject its domestic trade to the

restraints necessarily arising from their obtaining the absolute control

of the sale of a particular article in general use by the community,

there ought to be no hesitation in allowing to Congress the right to

suppress a similar combination that imposes a like unlawful restraint

upon interstate trade and traffic in that article.  While the States

retain, because they have never surrendered, full control of their

completely internal traffic, it was not intended by the framers of the

Constitution that any part of interstate commerce should be excluded

from the control of Congress.  Each State can reach and suppress

combinations so far as they unlawfully restrain its interior trade,

while the national government may reach and suppress them so far as they

unlawfully restrain trade among the States.



While the opinion of the court in this case does not declare the act of

1890 to be unconstitutional, it defeats the main object for which it was

passed.  For it is, in effect, held that the statute would be

unconstitutional if interpreted as embracing [156 U.S. 43] such unlawful

restraints upon the purchasing of goods in one State to be carried to

another State as necessarily arise from the existence of combinations

formed for the purpose and with the effect not only of monopolizing the

ownership of all such goods in every part of the country, but of

controlling the prices for them in all the States.  This view of the

scope of the act leaves the public, so far as national power is

concerned, entirely at the mercy of combinations which arbitrarily

control the prices of articles purchased to be transported from one

State to another State.  I cannot assent to that view.  In my judgment,

the general government is not placed by the Constitution in such a

condition of helplessness that it must fold its arms and remain inactive

while capital combines, under the name of a corporation, to destroy

competition not in one State only, but throughout the entire country, in

the buying and selling of articles -- especially the necessaries of life

-- that go into commerce among the States.  The doctrine of the autonomy

of the States cannot properly be invoked to justify a denial of power in

the national government to meet such an emergency, involving as it does

that freedom of commercial intercourse among the States which the

Constitution sought to attain.



It is said that there are no proofs in the record which indicate an

intention upon the part of the American Sugar Refining Company and its

associates to put a restraint upon trade or commerce.  Was it necessary

that formal proof be made that the persons engaged in this combination

admitted, in words, that they intended to restrain trade or commerce? 

Did anyone expect to find in the written agreements which resulted in

the formation of this combination a distinct expression of a purpose to

restrain interstate trade or commerce?  Men who form and control these

combinations are too cautious and wary to make such admissions orally or

in writing.  Why, it is conceded that the object of this combination was

to obtain control of the business of making and selling refined sugar

throughout the entire country.  Those interested in its operations will

be satisfied with nothing less than to have the whole population of

America pay tribute to them.  That object. [156 U.S. 44] is disclosed

upon the very face of the transactions described in the bill.  And it is

proved -- indeed, is conceded -- that that object has been accomplished

to the extent that the American Sugar Refining Company now controls

ninety-eight percent of all the sugar refining business in the country,

and therefore controls the price of that article everywhere.  Now the

mere existence of a combination having such an object and possessing

such extraordinary power is itself, under settled principles of law --

there being no adjudged case to the contrary in this country -- a direct

restraint of trade in the article for the control of the sales of which

in this country that combination was organized.  And that restraint is

felt in all the States for the reason, known to all, that the article in

question goes, was intended to go, and must always go, into commerce

among the several States, and into the homes of people in every

condition of life.



A decree recognizing the freedom of commercial intercourse as embracing

the right to buy goods to be transported from one State to another,

without buyers being burdened by unlawful restraints imposed by

combinations of corporations or individuals, so far from disturbing or

endangering, would tend to preserve the autonomy of the States, and

protect the people of all the States against dangers so portentous as to

excite apprehension for the safety of our liberties.  If this be not a

sound interpretation of the Constitution, it is easy to perceive that

interstate traffic, so far as it involves the price to be paid for

articles necessary to the comfort and wellbeing of the people in all the

States, may pass under the absolute control of overshadowing

combinations having financial resources without limit and an audacity in

the accomplishment of their objects that recognizes none of the

restraints of moral obligations controlling the action of individuals;

combinations governed entirely by the law of greed and selfishness -- so

powerful that no single State is able to overthrow them and give the

required protection to the whole country, and so all-pervading that they

threaten the integrity of our institutions.



We have before us the case of a combination which absolutely controls,

or may, at its discretion, control the price of all [156 U.S. 45]

refined sugar in this country.  Suppose another combination, organized

for private gain and to control prices, should obtain possession of all

the large flour mills in the United States; another, of all the grain

elevators; another, of all the oil territory; another, of all the

salt-producing regions; another, of all the cotton mills, and another,

of all the great establishments for slaughtering animals and the

preparation of meats.  What power is competent to protect the people of

the United States against such dangers except a national power -- one

that is capable of exerting its sovereign authority throughout every

part of the territory and over all the people of the nation?



To the general government has been committed the control of commercial

intercourse among the States, to the end that it may be free at all

times from any restraints except such as Congress may impose or permit

for the benefit of the whole country.  The common government of all the

people is the only one that can adequately deal with a matter which

directly and injuriously affects the entire Commerce of the country,

which concerns equally all the people of the Union, and which, it must

be confessed, cannot be adequately controlled by any one State.  Its

authority should not be so weakened by construction that it cannot reach

and eradicate evils that, beyond all question, tend to defeat an object

which that government is entitled, by the Constitution, to accomplish. 

"Powerful and ingenious minds," this court has said, taking as

postulates that the powers expressly granted to the government of the

Union are to be contracted by construction into the narrowest possible

compass, and that the original powers of the States are retained if any

possible construction will retain them, may, by a course of well

digested but refined and metaphysical reasoning founded on these

premises, explain away the Constitution of our country and leave it a

magnificent structure indeed to look at, but totally unfit for use. 

They may so entangle and perplex the understanding as to obscure

principles which were before thought quite plain, and induce doubts

where, if the mind were to pursue its own course, none would be

perceived. Gibbons v. Ogden, 9 Wheat. 1, 222.



While a decree annulling the contracts under which the [156 U.S. 46]

combination in question was formed may not, in view of the facts

disclosed, be effectual to accomplish the object of the act of 1890, I

perceive no difficulty in the way of the court's passing a decree

declaring that that combination imposes an unlawful restraint upon trade

and commerce among the States and perpetually enjoining it from further

prosecuting any business pursuant to the unlawful agreements under which

it was formed or by which it was created.  Such a decree would be within

the scope of the bill, and is appropriate to the end which Congress

intended to accomplish, namely, to protect the freedom of commercial

intercourse among the States against combinations and conspiracies which

impose unlawful restraints upon such intercourse.



For the reasons stated, I dissent from the opinion and judgment of the

court.

