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the Sherman law, at New Orleans the National Association of Master Plumbers adopted what is known as the "New Orleans resolution," as follows:
"That we, the master plumbers of the United States, in convention assembled, do hereby assert our rights to be protected in conducting our business as plumbers and business men, and in the future will purchase our supplies from those who sell only to members of the national association of master plumbers and manufacturers and jobbers in accord therewith."
As there were about twice as many master plumbers outside the association as inside, though generally speaking the individuals outside had rather a smaller business than those inside, still the business of those outside was so considerable that many of the manufacturers and dealers decided to resist the attempt, which was apparently successful in cutting from the list of their customers the consumers, and now sought to extend this to two-thirds of the plumbers. This resulted in a conference in New York, at which an agreement known as the "New York agreement" was made. Conflicts arising under this agreement, in 1902, at Atlantic City, what was known as the "Cleveland resolution" was adopted, as follows: "That members of the National Association of Master Plumbers are requested to confine their purchases of plumbing goods to manufacturers and jobbers who are willing to assist in improving the condition of the plumbing business, and who sell plumbing goods in localities where there are members of the National Association of Master Plumbers only to recognized master plumbers whose names appear in the National Directory of Master Plumbers, published under the supervision of the National Association of Master Plumbers." It thus satisfactorily appears that the National Association was called for the purpose of doing what is now a violation of law, and such purpose was "the pivot of" its position. Instead of withdrawing when it became illegal, members by remaining such, and continuing without objection when the association increased the already illegal restraint, became guilty under the Sherman law without proof of any individual participation in any overt act. The institution, if the law had been as it now is, would have been illegal from its inception, and all who joined it with knowledge of its purPoses, and remained members after the Sherman law was passed, and made no effort to withdraw, or have the association withdraw, from its illegal course, are subject to conviction for conspiracy under the law. One who was a member when the act of July 2, 1890, was passed, or who subsequently became a member, and who knew the illegal purpose of the association, and never withdrew from it or repudiated its illegal methods, is guilty under the act in question.
BOYCOTT-BLACKLISTING-CONSPIRACY-COMBINATION IN RESTRAINT OF TRADE-ANTITRUST ACT-United States v. Hollis et al., United States District Court, District of Montana, Fourth Division (Mar. 14, 1917), 246 Federal Reporter, page 611.-Suit in equity was brought under the Sherman Antitrust Act against Willard G. Hollis and others, alleging them to be engaged in an unlawful con64919°-18-Bull. 246-5
spiracy and combination to restrain trade. The defendants were members of the Northwestern Lumbermen's Association, composed of retail lumber dealers in Minnesota, Iowa, North Dakota, South Dakota, and part of Nebraska. It was charged that the objects of their organization were as follows:
(1) To unreasonably eliminate or restrict competition, except as between retail yards, for the trade of (a) contractors and builders, (b) mail-order houses, (c) cooperative yards, (d) the ultimate consumer, except possibly some consumers, such as the United States Government, railroads, grain elevators, etc. (2) To force the ultimate consumer to buy at retail prices from regularly established and organized retail lumber merchants, recognized by retail associations. (3) To force the ultimate consumer to buy from the regular and recognized retail merchant who is operating a yard in the vicinity where such lumber is to be used. (4) To prevent any wholesale dealer or manufacturer from quoting prices, or selling and shipping to consumers.
The association adopted a code of ethics which had been adopted by the National Lumber Manufacturers' Association, one article of which was as follows:
It should be the duty of the manufacturer and wholesaler to take an active interest in the marketing of their products through regular channels only. It is the sense of the conference that the widest trade publicity be given for the purpose of making known irresponsive, irregular, and unscrupulous dealers and manufacturers.
The word "irregular" in the above was in 1909 changed to “unethical."
One method which the activity of the association took was the use of "customers' lists." The members of the association reported the names of wholesalers and manufacturers with whom they dealt, and from this information a list of the customers of each wholesaler and manufacturer was compiled. This was extended by exchange of lists with similar associations in other territory. Through reports of the members and of detectives employed by the association, information was received of sales by wholesalers or manufacturers to consumers, including cooperative and mail-order houses, and this was sent to the customers of the wholesalers or manufacturers concerned, who protested against the "unethical" shipment. The members did not deny the existence of this method, but did deny that it was carried out in furtherance of a conspiracy, or that members receiving such notice were under any obligation to take action upon it. Information as to shipments of lumber directly to consumers was furnished by the secretary of the association to the Mississippi Valley Lumberman, and this journal also published under the heading "selfish dealers," a list of retailers. who traded with the offending manufacturers, and a list of the manufacturers and wholesalers who had signed an affidavit that "they
do not sell to catalogue houses, nor solicit trade of the consumers in the territory of the legitimate dealers." One contention of the defendants was that there was no evidence of actual restraint of interstate commerce resulting. The court reviewed the testimony, showing that the manufacturers usually made promises of amendment when reprimanded by the retailers, and that the testimony from the mail-order houses, etc., made it plain that they had difficulty in securing the desired lumber, although in some cases they were able to get what they wanted. In the concluding portion of the opinion Judge Booth, who held the law violated and granted the injunction sought by the Government, said:
The test is, not whether by alleged methods carried out in pursuance of a conspiracy some portion of interstate commerce is annihilated, but whether such commerce is substantially interfered with or restrained.
The responsibility of those who unlawfully place substantial obstacles in the legitimate channels of interstate commerce is not lessened by the fact that some of the persons engaged in such commerce are able by superior agility to surmount the obstacles, and that others by strength are able to break them down.
The court will not feel itself compelled to adjudicate in mathematical terms the extent of the restraint of interstate commerce, if the evidence shows that it is substantial. Nor is it material here that the motives of the defendants in carrying out the activities above described were of the best, and that the acts were inspired by an honest belief that the interests, not only of those engaged in the lumber trade, but of the community at large, would be best served by having lumber and lumber products distributed solely through so-called regular channels. Such matters might very properly be considered by Congress in determining the propriety of enacting proposed legislation. The sole inquiry here before the court at this time, however, is whether the facts disclosed by the record make out a case within the statute already enacted.
In Eastern States Lumber Association v. United States the court uses the following language:
The argument that the course pursued is necessary to the protection of the retail trade and promotive of the public welfare in providing retail facilities is answered by the fact that Congress, with the right to control the field of interstate commerce, has so legislated as to prevent resort to practices which unduly restrain competition or unduly obstruct the free flow of such commerce, and private choice of means must yield to the national authority thus exerted. Addyston Pipe Co. v. United States, 175 U. S. 211, 241, 242, 20 Sup. Ct. 96.
In my judgment, the Government has clearly made out a case within the statute, as interpreted in Eastern States Lumber Association v. United States, 234 U. S. 600, 34 Sup. Ct. 951 [Bul. No. 169, p. 53], and Lawlor v. Loewe, 235 U. S. 522, 35 Sup. Ct. 170 [Bul. No. 169, p. 140], and is entitled to relief by way of injunction.
It is proper to add that the defendants have, each of them, activities other than those above criticized, of wide range and considerable importance, in reference to which no complaint is made.
EMPLOYEES' DISABILITY INSURANCE-COLOR BLINDNESS AS COMPLETE AND PERMANENT LOSS OF SIGHT-Routt v. Brotherhood of Railroad Trainmen, Supreme Court of Nebraska (Nov. 3, 1917), 165 Northwestern Reporter, page 141.-Doris Routt was a trainman in the employ of the Union Pacific Railroad Co. and was discharged on June 5, 1913, because he had become affected with color blindness. He was insured by the Brotherhood of Railroad Trainmen, among other things, against "the complete and permanent loss of sight of both eyes," which was declared to constitute total and permanent disability. On refusal of the association to make payment he brought suit, and a verdict in his favor for $1,740 was rendered by the district court of Douglas County. The brotherhood contended that color blindness was not "complete and permanent loss of sight,” since the eyes might be used for other purposes, though the employee was disqualified for railroad service. The court, Judge Hamer delivering the opinion, affirmed the judgment, first examining certain cases analogous to the present one, and then saying in part:
Applying the principle declared in the above cases, complete and permanent loss of the sight of both eyes means loss of the use of the eyesight of both eyes for the purposes of the insured's vocation. [Cases cited.]
The condition is not made that the eyes of the insured shall be taken out of their sockets and away from his physical body, but only that he "shall suffer the complete and permanent loss of sight of both eyes." It does not say that he shall become blind in both eyes, so as to become unable to see objects of any kind, but that he shall lose the "sight of both eyes." This he did when he became color blind.
Where the peculiar malady known as color blindness so impairs the sight that the member of such [railroad trainmen's] association who is insured therein is disabled and is unable longer to continue in the train service, and is discharged therefrom on account of such defect in his vision, it will be held that he is entitled to the benefits provided by the certificate, the constitution, and by-laws and rules of the society. In such case, while the sight of the insured may not be entirely destroyed for some purposes, it will be deemed destroyed and lost as to the particular avocation of a railroad trainman, and he will be held entitled to recover upon the benefit certificate which he holds.
EMPLOYER AND EMPLOYEE-CONTRACT OF EMPLOYMENT-BREACHAMOUNT OF DAMAGES-COMMISSIONS-Barry v. New York Holding & Construction Co. et al., Supreme Judicial Court of Massachusetts (Jan. 24, 1917), 114 Northeastern Reporter, page 953.-Richard F. Barry brought action against the company named for damages for breach of a contract of employment for one year from September 22. 1913. He was employed to secure contracts for the use of a fireproof building material known as "ribbed concrete." He was to
receive a salary, and in addition commissions on contracts secured by him. During the previous contract, which was in force from January 1 to September 22, 1913, and under which he devoted half his time to this work, the auditor to whom the case had been referred found that he had procured contracts from which the company received over $51,000. The auditor also found that a second contract for full time was entered into September 22, and that on November 21 he was unlawfully discharged, not having secured any contracts during this period. Further findings of the auditor were that $90 was due the employee for salary and cash expenses, and that he had suffered damages to the amount of $2.000. Judgment was entered for $2,090, and, the company having gone into bankruptcy just after this judgment was rendered, its trustee took an appeal. The court, Judge Loring delivering the opinion, held that under the circumstances the judgment, including damages for the estimated amount of commissions, was proper. The following is quoted from the opinion:
We are of opinion that on the facts found by him the auditor was warranted in making a finding for more than nominal damages for this breach of the contract on its part. Of course the auditor could not know that commissions would have been earned. But under the circumstances of this case that did not prevent the auditor finding more than nominal damages. The amount of his earnings during 9 months under the first contract might well be taken as a basis for determining what he would have earned under the second contract during the 10 months during which he had a right to earn commissions under that agreement.
EMPLOYER AND EMPLOYEE-CONTRACT OF EMPLOYMENT-BREACH BY EMPLOYEE AFTER RECEIVING ADVANCES-CONSTITUTIONALITY OF STATUTE-INVOLUNTARY SERVITUDE-Goode v. Nelson, Supreme Court of Florida (Jan. 18, 1917), 74 Southern Reporter, page 17.-Harry Goode petitioned for a writ of habeas corpus against F. M. Nelson, a sheriff. Goode had been convicted and sentenced to imprisonment on a charge of contracting to perform labor, and, with intent to defraud, securing an advance of $37 and failing to perform the labor or return the money. He was remanded to custody by the circuit court of Bay County, but in the supreme court the statute (ch. 6528. Acts of 1913) under which the conviction was had was held unconstitutional, and the sheriff was directed to discharge the prisoner. The court based its opinion largely on the decision of the United States Supreme Court in Bailey v. Alabama, 219 U. S. 219, 31 Sup. Ct. 145 (see Bul. No. 93, p. 634), that a similar statute violated the provisions of the Federal Constitution forbidding involun