porations is of such a fiduciary nature that transactions between boards of directors having common members are regarded as jealously by the law as are personal dealings between a director and his corporation, and where the fairness of such transactions is challenged the burden is upon those who

would maintain them to show their entire fairness, and where a sale is involved, the full adequacy of the consideration, and this is especially true where a common director is dominating in influence or in character. [For other cases, see Corporations, V. d; Evi dence, II. f, in Digest Sup. Ct. 1908.] Appeal findings.

review of facts concurrent

7. In suits in equity a concurrent finding by the two lower courts on a question of fact will be accepted by the Federal Supreme Court unless it be clear that their

conclusion is erroneous.

[For other cases, see Appeal and Error, 49314959, in Digest Sup. Ct. 1908.] Corporations sale of property -confirmation consideration failure to obtain higher bid at public sale. 8. The highest cash offer for the property of a corporation at a public sale is not such a measure of its value that the failure to obtain a bid at such sale for more than the consideration fixed in a private sale of such property, authorized by the owners of a majority of the capital stock, should be accepted by the courts as a sufficient reason for confirming such sale when attacked by the minority stockholders, where the courts found such consideration on other evidence to be inadequate.

[For other cases, see Corporations, VI. f, in Digest Sup. Ct. 1908.] Judgment conformity to pleadings.

9. A court of equity must set aside, at the instance of minority stockholders, a sale of all the corporate property, authorized by the owners of a majority of the stock, if the consideration for the sale is found to be inadequate, and may not confirm such sale upon condition that no higher price be obtained at public sale, where, under the pleadings, the court had power to confirm the sale if it was found to have been lawfully made, but only upon the terms on which the parties had contracted to make it, and neither the offer to purchase nor the acceptance contemplated any public offer of the property, or a sale at a higher price if offered.

[For other cases, see Judgment, II. f, in Digest

Sup. Ct. 1908.]

[No. 25.]

Argued April 25 and 28, 1919. Restored to docket for reargument December 8, 1919. Reargued March 3 and 4, 1920. Decided January 24, 1921.

the relief sought by minority stockholders against a sale of the entire corporate property, authorized by the owners of the majority of the capital stock. Reversed and remanded for further proceedings.

See same case below, 157 C. C. A. 417, 245 Fed. 225.

The facts are stated in the opinion.

Mr. Thomas J. Walsh argued the cause and filed a brief for appellants: Appellants admit that it is within the power of the directors and a majority of the stockholders of an insolvent corporation, or a corporation in danger of insolvency, to convert all of its property into cash, with a view to the division of the remainder among the stockholders, and the dissolution of the company.

Treadwell v. Salisbury Mfg. Co. 7 Gray, 393, 66 Am. Dec. 490.

But, in this connection, a distinction must be drawn between a losing corporation and one that is insolvent or threatened with insolvency. The bare fact that, in the way the business of the company has been conducted, it does not produce a profit, does not justify the majority of the stockholders in abandoning the purpose for which the corporation was organized and winding it up.

Noyes, Intercorporate Relations, § 112; Butler v. New Keystone Copper Co. Del. 93 Atl. 380; Treadwell v. Salisbury Mfg. Co. 7 Gray, 393, 66 Am. Dec. 490.

If the affairs of a corporation get into such a condition that a sale of all of its property is justified, that sale must be made for a pecuniary consideration, as a step towards the liquidation of the company.

Noyes, Intercorporate Relations, 118; Tanner v. Lindell R. Co. 103 Am. St. Rep. 548, note.

Even a general power to buy, sell, or exchange property would not authorize an exchange of all the property of a corporation for the stock of another.

Forrester v. Boston & M. Consol. Copper & S. Min. Co. 21 Mont. 563, 55 Pac. 229, 353; Kean v. Johnson, 9 N. J. Eq. 401.

There was neither a sale nor an exchange in any just or legal sense. Forrester v. Boston & M. Consol. Cop

APPEAL from the United States Cir- per & S. Min. Co. 21 Mont. 563, 55 Pae.

cuit Court of Appeals for the Ninth Circuit to review a decree which affirmed

229, 353; Morris v. Elyton Land Co. 125 Ala. 263, 28 So. 513.

a decree of the District Court for the Even if the right to sell all of its District of Montana, granting a part of property under the circumstances ap

pearing could be justified, the Alice had no power to acquire or hold the stock of the Anaconda, and accordingly the Isale was void.

MacGinniss v. Boston & M. Consol. Copper & S. Min. Co. 29 Mont. 459, 75 Pac. 89; California Nat. Bank v. Kennedy, 167 U. S. 362, 42 L. ed. 198, 17 Sup. Ct. Rep. 831; Noves, Intercorporate Relations, §§ 264, 281; Elyton Land Co. v. Dowdell, 113 Ala. 177, 59 Am. St. Rep. 105, 20 So. 981; Seely v. Huntington Canal & Agri. Asso. 27 Utah, 179, 75 Pac. 367.

The identity between the parties effecting the purchase and the parties accomplishing the sale invalidates it.


Idaho-Oregon Light & P. Co. v. State Bank, 139 C. C. A. 503, 224 Fed. 39; Richardson V. Green (Washburn Green) 133 U. S. 30, 33 L. ed. 516, 10 Sup. Ct. Rep. 280; Sausalito Bay Land Co. v. Sausalito Improvement Co. 166 Cal. 302, 136 Pac. 57; O'Conner Min. & Mfg. Co. v. Coosa Furnace Co. 95 Ala. 617, 36 Am. St. Rep. 251, 10 So. 290; Munson v. Syracuse, G. & C. R. Co. 103 N. Y. 58, 8 N. E. 355; Sumners v. Glenwood Gold & S. Min. Co. 15 S. D. 20, 86 N. W. 749; Thomas v. Brownsville Ft. K. & P. R. Co. 1 McCrary, 2 Fed. 877; 2 Thomp. Corp. §§ 1242, 1243; 10 Cyc. 791; 21 Am. & Eng. Enc. Law, 2d ed. 899; Noyes, Intercorporate Relations, § 114; San Diego v. San Diego & L. A. R. Co. 44 Cal. 106; Hyams v. Calumet & H. Min. Co. 137 C. C. A. 239, 221 Fed. 542.

The contention that the transaction under investigation is in violation of the Sherman Law can be made in this suit. Bigelow v. Calumet & H. Min. Co. 155 Fed. 876; United States v. Union P. R. Co. 226 U. S. 86, 57 L. ed. 133, 33 Sup. Ct. Rep. 53; Frank v. Union P. R. Co. 141 C. C. A. 510, 226 Fed. 906; De Koven v. Lake Shore & M. S. R. Co. 216 Fed. 955; International Harvester Co. v. Missouri, 234 U. S. 199, 58 L. ed. 1276, 52 L.R.Á.(N.S.) 525, 34 Sup. Ct. Rep. 859. The transfer assailed was made in

violation of the Anti-trust Act.

United States v. Reading Co. 226 Fed. 299; Continental Wall Paper Co. v. Louis Voight & Sons Co. 212 U. S. 227. 53 L. ed. 486, 29 Sup. Ct. Rep. 280, 19 L.R.A.(N.S.) 143, 78 C. C. A. 567, 148 Fed. 939; Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 44 L. ed. 136, 20 Sup. Ct. Rep. 96, 46 L.R.A. 122, 29 C. C. A. 141, 54 U. S. App. 723, 85 Fed. 271; Chattanooga Foundry & Pipe

Works v. Atlanta, 203 U. S. 390, 51 L. ed. 241, 27 Sup. Ct. Rep. 65; W. W. Montague & Co. v. Lowry, 193 U. S. 38, 48 L. ed. 608,, 24 Sup. Ct. Rep. 307; United States v. United States Steel Corp. 223 Fed. 178; United States v. American Can Co. 230 Fed. 859; United States v. Eastman Kodak Co. 226 Fed. 62; United States v. Union P. R. Co. 226 U. S. 61, 57 L. ed. 124, 33 Sup. Ct. Rep. 53; Bathtub Trust Case (Standard Sanitary Mfg. Co. v. United States) 226 U. S. 49, 57 L. ed. 117, 33 Sup. Ct. Rep. 9; United States v. Reading Co. 226 U. S. 324, 370, 57 L. ed. 243, 258, 33 Sup. Ct. Rep. 90.

Mr. W. B. Rodgers argued the cause, and, with Mr. L. O. Evans, filed a brief for appellees:

The circumstances under which private corporations may sell and dispose, by absolute conveyance, of all of their property, are clearly stated in Thompson, Corporations, 2d ed. § 2429. the Alice was expressly authorized by A conveyance of all the property of its articles of incorporation and by the statutory law of the state of Utah. Min. Co. 39 Wash. 608, 81 Pac. 1047; Pitcher v. Lone Pine Surprise Consol. Lange v. Reservation Min. & Smelting Co. 48 Wash. 167, 93 Pac. 208; Traer v. Lucas Prospecting Co. 124 Iowa, 107, 99 N. W. 290; Maben v. Gulf Coal & Coke Co. 173 Ala. 259, 35 L.R.A.(N.S.) 396, 55

So. 607.

The findings of the district court and holders of the Alice Company had full court of appeals that the majority stockpower to dispose of all its property, by reason of its financial condition, the state of its property and corporate busiout the purposes for which it was ness, and its inability to further carry created, are fully supported by both the

law and the evidence.

Forrester v. Boston & M. Consol. Copper & S. Min. Co. 21 Mont. 544, 55 Pac. 229; Treadwell v. Salisbury Mfg. Co. 7 Gray, 393, 66 Am. Dec. 490; Hayden v. Official Hotel Red Book & Directory Co. 42 Fed. 875; Manufacturers' Sav. Bank v. Big Muddy Iron Co. 94 Mo. 38, 10 S. W. 865; Bowditch v. Jackson Co. 76 N. H. 351, L.R.A.1917A, 1174, 82 Atl. 1014, Ann. Cas. 1913A, 366; Sewell v. East Cape May Beach Co. 50 N. J. Eq. 717, 25 Atl. 929; Traer v. Lucas Prospecting Co. 124 Iowa, 107, 99 N. W. 290; Price v. Holcomb, 89 Iowa, 123, 56 N. W. 407; Thomp. Corp. 2d ed. §§ 2424, 2429, note; Cummings v. Parker, 250 Mo. 427, 157 S. W. 629; Miners'

The Sherman Anti-trust Law cannot be invoked by stockholders of a selling corporation to rescind an executed sale upon the ground that the buying corporation exists in contravention of the Sherman Anti-trust Law.

Ditch Co. v. Zellerbach, 37 Cal. 543, 99, 24 Am. St. Rep. 448, 27 N. E. 831; Am. Dec. 300; Peabody v. Westerly Metcalf v. American School Furniture Waterworks, 20 R. I. 176, 37 Atl. 807. Co. 122 Fed. 115; Treadwell v. Salisbury Both the district court and the court Mfg. Co. 7 Gray, 393, 66 Am. Dec. 490; of appeals erred in holding that, by rea- First Nat. Bank v. National Exch. Bank, son of unity of control of the Alice 92 U. S. 122, 23 L. ed. 679; McCutcheon Company and Anaconda Company, the v. Merz Capsule Co. 31 L.R.A. 415, 19 burden of proof rested upon the Ana- C. C. A. 108, 37 U. S. App. 586, 71 Fed. conda Company to show that the sale 787. was fair and the consideration adequate, and that this burden was not discharged. San Diego, O. T. & P. B. R. Co. v. Pacific Beach Co. 112 Cal. 53, 33 L.R.A. 788, 44 Pac. 333; Reclamation Dist. v. Birks, 159 Cal. 233, 113 Pac. 171; Union P. R. Co. v. Credit Mobilier, 135 Mass. 377; Flagg v. Manhattan R. Co. 20 Blatchf. 142, 10 Fed. 413; Leathers v. Janney, 41 La. Ann. 1120, 6 L.R.A. 661, 6 So. 884; United States Rolling Stock Co. v. Atlantic & G. W. R. Co. 34 Ohio St. 450, 32 Am. Rep. 380; Davis v. United States Electric Power & Light Co. 77 Md. 35, 25 Atl. 982; Booth v. Robinson, 55 Md. 419; Adams Min. Co. v. Senter, 26 Mich. 73, 1 Mor. Min. Rep. 241; United States Rolling Stock Co. v. Atlantic & G. W. R. Co. 34 Ohio St. 450, 32 Am. Rep. 380; Leavenworth County v. Chicago, R. I. & P. R. Co. 134 U. S. 688, 33 L. ed. 1064, 10 Sup. Ct. Rep. 708; Evansville Public Hall Co. v. Bank of Commerce, 144 Ind. 34, 42 N. E. 1097; Hiles v. C. A. Hiles & Co. 120 Ill. App. 617; Thomp. Corp. § 1241; Blythe v. Hinckley, 84 Fed. 234; Celluloid Mfg. Co. v. Cellonite Mfg. Co. 40 Fed. 476; Northwest Transp. Co. v. Boston M. Ins. Co. 41 Fed. 796; 2 Street, Fed. Eq. Pr. § 1918; N. K. Fairbank Co. v. Windsor, 61 C. C. A. 233, 124 Fed. 202; Roemer v. Neumann, 26 Fed. 333; Deitch v. Staub, 53 C. C. A. 137, 115 Fed. 317.

The subsequent ratification of the contract of sale by the stockholders of the Alice Company renders the question of common directors immaterial.

Metropolitan Teleph. & Teleg. Co. v. Domestic Teleg. & Teleph. Co. 44 N. J. Eq. 568, 14 Atl. 907; Cook, Corp. 6th ed. 658.

Under the circumstances of this case, the convevance in question is not affected by the fact that the consideration paid therefor was capital stock of the Anaconda Company.

Thomp. Corp. §§ 4063-4066; Clark & M. Priv. Corp. p. 531; Hodges v. New England Screw Co. 1 R. I. 312, 53 Am. Dec. 624; Byrne v. Schuyler Electric Mfg. Co. 65 Conn. 348, 28 L.R.A. 304, 31 Atl. 833; Holmes & G. Mfg. Co. v. Holmes & W. Metal Co. 127 N. Y. 252,


D. R. Wilder Mfg. Co. v. Corn Products Ref. Co. 236 U. S. 165, 59 L. ed. 521, 35 Sup. Ct. Rep. 398, Ann. Cas. 1916A, 118; Paine Lumber Co. v. Neal, 244 U. S. 459, 471, 61 L. ed. 1256, 37 Sup. Ct. Rep. 718; Fleitmann v. Welsbach Street Lighting Co. 240 U. S. 27, 28, 60 L. ed. 505, 506, 36 Sup. Ct. Rep. 233; Corey v. Independent Ice Co. 207 Fed. 459; Metcalf v. American School Furniture Co. 122 Fed. 116; Gulf, C. & S. F. R. Co. v. Miami S. S. Co. 30 C. C. A. 142, 52 U. S. App. 732, 86 Fed. 207; Pidcock v. Harrington, 64 Fed. 821; Ames v. American Teleph. & Teleg. Co. 166 Fed. 820; Greer, M. & Co. v. Stoller, 77 Fed. 2; Blindell v. Hagan, 54 Fed. 41; Southern Indiana Exp. Co. v. United States Exp. Co. 88 Fed. 660; Block v. Standard Distilling & Distributing Co. 95 Fed. 979; Boyd v. New York & H. R. Co. 220 Fed. 179; CamorsMcConnell Co. v. McConnell, 140 Fed. 415; Connolly v. Union Sewer Pipe Co. 184 U. S. 547, 46 L. ed. 679, 22 Sup. Ct. Rep. 431; Santa Cruz v. Wykes, 120 C. C. A. 485, 202 Fed. 372; Diamond Match Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep. 464, 13 N. E. 419; Houston & T. C. R. Co. v. Texas, 177 U. S. 97, 44 L. ed. 688, 20 Sup. Ct. Rep. 545; Long v. Georgia P. R. Co. 91 Ala. 519, 24 Am. St. Rep. 931, 8 So. 706; Illinois Trust & Sav. Bank v. Pacific R. Co. 117 Cal. 332, 49 Pac. 197; Planters' Bank v. Union Bank, 16 Wall. 500, 21 L. ed. 481.

The purchase of the Alice properties would not tend to effectuate any illegal purpose to monopolize interstate commerce in copper, as alleged in complainants' bill, and would therefore neither be illegal nor against public policy.

Moore, Interstate Commerce, § 355. Neither the Amalgamated Amalgamated Copper Company nor the Anaconda Copper Mining Company was at the time of the purchase of the Alice properties, nor had they ever been, illegal conbinations in restraint of interstate commerce, and

the Anaconda Company, under the circumstances disclosed in this case, had the legal right to acquire the Alice properties for the purposes and in the manner in which they were acquired.

United States v. E. I. DuPont De Nemours & Co. 188 Fed. 127; Taft, Antitrust Act & Supreme Ct. pp. 112, 126; MacGinniss v. Boston & M. Consol. Copper & S. Min. Co. 29 Mont. 428, 75 Pac. 89; Bigelow v. Calumet & H. Min. Co. 155 Fed. 869, 167 Fed. 704, 94 C. C. A. 13, 167 Fed. 721; Standard Oil Co. v. United States, 221 U. S. 1, 66, 55 L. ed. 619, 647. 34 L.R.A. (N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734; United States v. American Tobacco Co. 221 U. S. 106, 55 L. ed. 663, 31 Sup. Ct. Rep. 632; Moore, Interstate Commerce, § 337; Swift Co. v. United States, 196 U. S. 396, 49 L. ed. 524, 25 Sup. Ct. Rep. 276; Addyston Pipe & Steel Co. v. United States, 175 U. S. 244, 44 L. ed. 148, 20 Sup. Ct. Rep. 96; United States v. Union P. R. Co. 226 U. S. 82, 57 L. ed. 131, 33 Sup. Ct. Rep. 53; Northern Securities Co. v. United States, 193 U. S. 331, 48 L. ed. 697, 24 Sup. Ct. Rep. 436; United States v. Trans-Missouri Freight Asso. 166 U. S. 334, 41 L. ed. 1025, 17 Sup. Ct. Rep. 540; United States v. E. I. DuPont De Nemours & Co. 188 Fed. 127; 10 Columbia L. Rev. Dec. 1910, p. 687.

Although the findings of fact made by the court be not disturbed, and be held by this court to be justified by the testimony in the case, the decree of the court is nevertheless correct, and should, in all respects, be affirmed.

Mason v. Pewabic Min. Co. 133 U. S. 50, 33 L. ed. 524, 10 Sup. Ct. Rep. 224; 16 Cyc. 478; Wheeler v. Abilene Nat. Bank Bldg. Co. 16 L.R.A. (N.S.) 892, 89 C. C. A. 477, 159 Fed. 391, 14 Ann. Cas. 917; Koehler v. St. Mary's Brewing Co. 228 Pa. 648, 139 Am. St. Rep. 1024, 77 Atl. 1016; Bowditch v. Jackson Co. 76 N. H. 351, L.R.A.1917A, 1174, 82 Atl. 1014, Ann. Cas. 1913A, 366.

Mr. Justice Clarke delivered the opinion of the court:

assignments as should be necessary to complete the sale, and a deed in form conveying all of the Alice property to the Anaconda Company was executed and delivered by [592] them on May 31, 1910. The consideration, thirty thousand shares of the capital stock of the Anaconda Company, was paid, and the purchaser took possession of the property.

Almost a year later, on April 15, 1911, at a special meeting of the stockholders of the Alice Company, a resolution was adopted, by the vote of more than two thirds of the issued capital stock, in favor of dissolving the corporation, and the board of directors was authorized to take the court action prescribed by the laws of Utah, under which the company was organized, to accomplish such dissolution. Suit for this purpose was instituted in the appropriate state court.

On November 6, 1911, five months after the resolution in favor of dissolution was adopted, the bill in this case was filed by minority stockholders, praying for a decree, that the deed of May 31, 1910, be declared void, that it be delivered up and canceled, that the consideration for it be returned to the Anaconda Company, and that all court proceedings to dissolve the Alice Company be stayed pending final decree in the case. The district court approved and confirmed the sale, and its decree was affirmed by the circuit court of appeals. The case is here on appeal.

The appellants claimed in the courts below and argue here that the sale was voidable for four reasons, viz.:

(1) Because the purchase was made in pursuit of the purpose of the Amalgamated Copper Company and the Anaconda Company to monopolize the production of copper in the Butte camp, and to restrain the sale of it in interstate commerce and in the markets of the world, in violation of the Sherman Anti-trust Act;

(2) Because the owners of less than all of the capital stock of the Alice Company could not authorize the sale of all of the property of the corporation over the protest of owners of a minority of the stock;

[593] (3) Because the Alice Company could not lawfully acquire stock in another corporation; and

With formalities, which are not assailed, a special meeting of the stockholders of the Alice Gold & Silver Mining Company, by resolution, ratified a contract in writ- (4) Because the sale was negotiated by ing, theretofore authorized by the board two boards of directors, with a common of directors and executed by the officers membership, and for an inadequate conof the company, for the sale to the Ana-sideration. conda Copper Mining Company of all the property, of every kind, of the Alice Company. The officers were authorized and directed to execute such deeds and

We shall consider these claims in the order stated.

With respect to the first contention. It is now the settled law that the remedies

The evidence in the case renders it

provided by the Anti-trust Act of July 2, corporations, the union of which in this 1890 [26 Stat. at L. 209, chap. 647, Comp. manner in the Amalgamated and AnaStat. § 8820, 9 Fed. Stat. Anno. 2d ed. conda Companies constituted the alleged p. 644], for enforcing the rights created unlawful combination in restraint of interby it, are exclusive; and therefore, look-state trade or commerce. ing only to that act, a suit, such as we have here, would not now be entertained. probable that the promoters of the AmalD. R. Wilder Mfg. Co. v. Corn Products gamated Company, when it was organized Ref. Co. 236 U. S. 165, 174, 59 L. ed. in 1899, entertained schemes or dreams 520, 525, 35 Sup. Ct. Rep. 398, Ann. of controlling the supply and price of Cas. 1916A, 118; Paine Lumber Co. v. copper in the interstate markets of this Neal, 244 U. S. 459, 471, 61 L. ed. 1256, country and in the markets of the world, 1264, 37 Sup. Ct. Rep. 718; United States and that they did what they could to v. Babcock, 250 U. S. 328, 331, 63 L. ed. make that company rich and powerful. 1011, 1012, 39 Sup. Ct. Rep. 464. But the law has become thus settled since this suit was commenced in 1911, and the lower courts, upon the allegations in the bill, properly assumed jurisdiction and disposed of the case. Busch v. Jones, 184 U. S. 598, 599, 46 L. ed. 707, 708, 22 Sup. Ct. Rep. 511; Clark v. Wooster, 119 U. S. 322, 326, 30 L. ed. 392, 393, 7 Sup. Ct. Rep. 217.

It is, however, argued that § 16 of the Clayton Act (38 Stat. at L. 730, 737, chap. 323, Comp. Stat. §§ 8835a, 88350, 9 Fed. Stat. Anno. 2d ed. pp. 730, 745), passed in 1914, was intended to, and does, modify the prior law, as declared by this court, and, since our decision will result in remanding the cause to the lower court, we shall consider its bearing upon the case. The applicable provision of the Clayton Act is as follows:

"Sec. 16. That any person shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the Anti-trust Laws . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings..."

The contention of the appellants is that they will suffer irreparable loss by the sale of the Alice properties to the [594] Anaconda Company, and that the sale should therefore be enjoined because that company and the Amalgamated Copper Company constitute a combination in restraint of interstate commerce, within the prohibitions of the Sherman Anti-trust Act.

But we are dealing with the Anaconda Company as it was in 1911, and with the extent to which its control of production and of prices appears in the record before us.

There is evidence that the total production of copper in the United States and Alaska in 1899 was 581,000,000 pounds, and of the Anaconda Company 1,000,000 pounds (probably an error, 100,000,000 pounds being intended); but the total production of the world at that time is nowhere stated. The production in the United States in 1910, the year before the suit was brought, was 1,086,000,000 pounds, and of this the Butte camp, in which there were several mines other than those of defendants, produced 238,000,000 pounds, or approximately 22 per cent. Here again there is no statement as to the total production of the world for that year.

[595] Whatever the fact may have been, it is obvious that from such evidence as this it is not possible to determine to what, if to any substantial, extent, the defendants restrained or monopolized the production of copper in the United States, much less in the world.

The evidence with respect to price control, although meager, is more definite. The average price of copper in 1899, the year before the Amalgamated Copper Company was organized, was 17.6 per pound; in 1900 it was 16.1; in 1902, 11.6; in 1904, 12.8; in 1907, 20; in 1908, 13; in 1909, 12.98; 1912, 16; and in 1913, the last year for which the price is given,

15 cents.

It is obviously impossible to say that these fluctuating prices prove monopolistic control of the price of copper by the de


The Amalgamated Copper Company, organized in 1899, is a holding company, and in 1911, when this case was com- No claim is made that the Anaconda menced, it controlled by capital stock Company restrained or restricted the proownership the Anaconda Company, which, duction of copper, but, so far as there in turn, held the title to the physical is any evidence at all upon the subject, property which had been owned by other it is to the effect that it maintained and

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