Com. Rep. 68]. affect interstate commerce, just as state leg-| Missouri, 156 U. S. 296 [39: 430, 5 Inters. The fact that the above-cited cases relate to tangible property, the use of which was [595] harged for, does not alter the reasoning apon which the decisions were placed. The charges were held valid because they related to facilities furnished in aid of the commerce and which did not constitute a regulation thereof. Facilities may consist in privileges er conveniences provided and made use of, or in services rendered in aid of commerce, as well as in the use of tangible property, and so long as they are facilities and the charges not unreasonable an agreement relating to their amount is not invalid. The cattle owner has no constitutional right to the services of the commission agent to aid him in the sale of his cattle, and the agent has the right to say upon what terms he will render them, and he has the equal right, so far as the act of Congress is concerned, to agree with others in his business not to render those services unless for a certain charge. The services are no part of the commerce in the If charges of the nature described do not amount to a regulation of interstate trade or commerce because they touch it only in an indirect and remote way, or else because they are in the nature of compensation for the use of property or privileges as a mere facility for that commerce, it would for a like reason seem clear that agreements relating to the amounts of such charges among those who furnish the privileges or facilities are not in restraint of that kind of trade. While the indirect effect of the agreements may be to enhance the expense to those engaged in the business, yet as the agreements accorded for services rendered as a facility are in regard to compensation for privileges to commerce or trade, they are not illegal as a restraint thereon. cattle. the least troublesome to the owners and at The facilities or privileges offered by the defendants are apparent and valuable The cattle owner has the use of a place for his cattle furnished by the defendants and all the facilities arising from a market where the sales and purchases are conducted under the auspices of the association of which the defendants are members, and in a manner the same time the most expeditious and effective. Each of these defendants has the right to have the cattle which are consigned to him taken to the cattle yards, where, by virtue of the arrangements made by defendants with the owners of the yards, the cattle are placed in pens, watered and fed, if necessary, and a sale effected at the earliest moment. It is these facilities and services which are paid for by a commission on the sale effected by the commission men. *If, as is [597] claimed, the commission men sometimes own the cattle they sell, then the rules do not apply, for they relate to charges made for sell In Brown v. Maryland, 12 Wheat. 419 [6: 678], Chief Justice Marshall, while maintaining the right of an importer to sell his article in the original package, free from any tax, recognized the distinction between the importer selling the article himself and employing an auctioneer to do it for him, and. he said that in the latter case the importer could not object to paying for such services as for any other, and that the right to sell might very well be annexed to importation without annexing to it also the privilege of using auctioneers, and thus to make the sale in a peculiar way. In such case a tax upon the auctioneer's license would be valid. The same view is enforced in Emert v. The right of the cattle owners themselves to sell their own cattle is not affected or touched by the agreement in question, while the privilege of having their cattle sold for them at the market place frequented by defendants, and with the aid of one of them, is a privilege which they are charged for, and which is not annexed to their right to sell their own cattle. ing cattle upon commission and not at all derstand we are in these queries assuming substantially the same facts as those which are contained in the case before us, and if these defendants are engaged in interstate commerce because of their services in the sale of cattle which may come from other states, then the same must be said in regard to the members of the other exchanges above referred to. We think it would be an entirely novel view of the situation if all of the members of these different exchanges throughout the country were to be regarded as engaged in interstate commerce, because they sell things for their principals which come from states different from the one in which the exchange is situated and the sale made. The theory upon which we think the bylaw or agreement regarding commissions is not a violation of the statute operates also in the case of the other provisions of the by-laws. The answer in regard to all objections is, the defendants are not engaged in interstate commerce. Definitions as to what constitutes interstate commerce are not easily given so that they shall clearly define the full meaning of the term. We know from the cases decided in this court that it is a term of very large significance. It comprehends, as it is said, intercourse for the purposes of trade in any and all its forms, including transportation, purchase, sale, and exchange of commodities between the citizens of different states, and the power to regulate it embraces all the instruments by which such commerce may be conducted. Welton v. Missouri, 91 U. S. 275 [23: 347];County of Mobile v. Kimball, 102 U. S. 691 [26: 238]; Gloucester Ferry Company v. Pennsylvania, 114 U. S. 196 [29: 158, 1 Inters. Com. Rep. 382]; Hooper v. California, 155 U. S. 648, at 653 [39: 297, 300, 5 Inters. Com. Rep. 610]; United States v. E. C. Knight Company, 156 U. S. 1 [39: 325]. But in all the cases which have come to this court there is not one which has denied the distinction between a regulation which directly affects and embarrasses interstate trade or commerce, and one which is nothing more than a charge for a local facility provided for the transaction of such commerce. On the contrary, the cases already cited show the existence of the distinction and the validity of a charge for the use of the facility. The services of members of the different stock and produce exchanges throughout the country in effecting sales of the articles they deal in are of a similar nature. Members of the New York Stock Exchange buy and sell shares of stock of railroads and other corporations, and the property represented by such shares of stock is situated all over the country. Is a broker whose principal lives outside of New York state, and who sends him the shares of stock or the bonds of a corporation created and doing business in another state, for sale, engaged in interstate commerce? If he is employed to purchase stock or bonds in a like corporation under the same circumstances, is he then engaged in the business of interstate commerce? It may, perhaps, be answered that stocks or [598]*bonds are not commodities, and that dealers therein are not engaged in commerce. Whether it is an answer to the question need not be considered, for we will take the case of the New York Produce Exchange. Is a member of that body to whom a cargo of grain is consigned from a western state to be sold engaged in interstate commerce when he performs the service of selling the article upon its arrival in New York and transmitting the proceeds of the sale less his commissions? Is a New Orleans cotton broker who is a member of the Cotton Exchange of that city, and who receives consignments of cotton from different states and sells them on 'change in New The argument of counsel in behalf of the Orleans, and accounts to his consignors for United States, that because none of the the proceeds of such sales less his commis-states or territories could enact any law intersion, engaged in interstate commerce? Is the fering with or abridging the right of persons character of the business altered in either in Kansas or Missouri to send prepaid telecase by the fact that the broker has advanced grams of the nature in question, therefore moneys to the owner of the article and taken an agreement to that effect entered into bea mortgage thereon as his security? We un- tween business men as a means towards the But special weight is attached to the objection raised to section 11 of rule 9 of the bylaws, which provides against sending prepaid telegrams, as set forth in the statement of facts herein. It is urged that the purpose of this section is to prevent the sending of prepaid telegrams by the defendants* to their [599] various customers in the different states tributary to the Kansas City market, and that the section is a part of the contract between the members of the exchange, and is clearly an attempt to regulate and restrict the sending of messages by telegraph and telephone between citizens of the various states and territories, and operates upon and directly affects the interstate business of communicating between points in different states by telegraph or telephone. An agreement among the defendants to abstain from telegraphing in certain circumstances and for certain purposes is so clearly not an attempt to regulate or restrain the general sending of telegrams that it would seem unnecessary to argue the question. An agreement among business men not to send telegrams in regard to their business in certain contingencies, when the agreement is entered into only for the purpose of regulating the business of the individuals, is not a direct attempt to affect the business of the telegraph company, and has no direct effect thereon. Although communication by telegraph may be commerce, and if carried on between different states may be commerce among the several states, yet an agreement or by-law of the nature of the one under consideration is not a burden, or a regulation of, or a duty laid upon, the telegraph company, and was clearly not entered into for the purpose of affecting in the slightest degree the company itself or its transaction of interstate commerce. proper transaction of their legitimate busi- | in the performance of duties or services reness would be void, is, as we think, entirely lating to stock upon its arrival at Kansas unsound. The conclusion does not follow City. We do not think it can be properly from the facts stated. The statute might said that the agents of the defendants whom be illegal as an improper attempt to inter- they send out to solicit the various owners fere with the liberty of transacting legiti- of stock to consign the cattle to one of the mate business enjoyed by the citizen, while defendants for sale are thereby themselves the agreement among business men for the engaged in interstate commerce. They are [600]better conduct of their own *business, as they simply soliciting the various stock owners think, to refrain from using the telegraph to consign the stock owned by them to particfor certain purposes, is a matter purely for ular defendants at Kansas City, and until their own consideration. There is no simi- the arrival of the stock at that point and the larity between the two cases, and the princi- delivery by the transportation company no ple existing in the one is wholly absent in duties of an interstate commerce nature the other. The private agreement does not, arise to be performed by the defendants. As as we have said, regulate commerce or im- the business they do is not interstate compose any impediment upon it or tax it. merce, the business of their agents in solicit Communication by telegraph is free from anying others to give them such business is not burden so far as this agreement is concerned itself interstate commerce. Not being enand no restrictions are placed on the com-gaged in interstate commerce, the agreement merce itself. of the defendants through the by-law in ques. The act of Congress must have a reason- tion, restricting the number of solicitors to able construction or else there would scarce-three, does not restrain that commerce, and ly be an agreement or contract among busi- does not therefore violate the act of Congress ness men that could not be said to have, in- under discussion. directly or remotely, some bearing upon interstate commerce and possibly to restrain it. We have no idea that the act covers or was intended to cover such kinds of agreements. The next by-law which complainants object to is section 10 of the same tule 9, which prohibits the hiring of a solicitor except upon a stipulated salary not contingent upon commissions earned, and which provides that no more than three solicitors shall be employed at one time by a commission firm or corporation. The position of the solicitors is entirely different from that of drummers who are traveling through the several states for the purpose of getting orders for the purchase of property. It was said in Robbins v. Shelby County Taxing District, 120 U. S. 489 [30: 694, 1 Inters. Com. Rep. 45], that the negotiation of sales of goods which are in another state for the purpose of introducing them into the state in which the negotiation is made is interstate commerce. But the solicitors for these defendants The claim is that these solicitors are en- have no property or goods for sale, and their gaged in interstate commerce, and that such only duty is to ask or induce those who own commerce must be free from any state leg- the property to agree that when they send it islation and free from the control or restraint to market for sale they will consign it to the [602] by any person or combination of persons. solicitor's principal, so that he nay perform They also object that the rule is an unlawful such services as may be necessary to sell the inhibition upon the privilege possessed by stock for them and account to them for the each person under the Constitution to make proceeds thereof. Unlike the drummer who lawful contracts in the furtherance of his contracts in one state for the sale of goods business, and they allege that in this respect which are in another, and which are to be these members have surrendered their do- thereafter delivered in the state in which the minion over their own business and permit-contract is made, the solicitor in this case ted the exchange to establish a species of re- has no goods or samples of goods and negotigency, and that the by-law in regard to the ates no sales, and merely seeks to exact a employment of solicitors is one which direct promise from the owner of property that ly affects interstate commerce. when he does wish to sell he will consign to and sell the property through the solicitor's principal. There is no interstate commerce in that business. McCall v. California, 136 U. S. 104 [34: 391, 3 Inters. Com. Rep. 181] is cited for the proposition that the solicitors employed by these defendants are engaged in interstate commerce. In that case the railroad company was itself engaged in such commerce, and its agent in California was taxed by rea[601]son of his business in soliciting *for his company that which was interstate commerce. The fact that he did not sell tickets or receive or pay out money on account of it was not regarded as material. His principal was a common carrier, engaged in interstate commerce, and he was engaged in that commerce because he was soliciting for the transportation of passengers by that company through the different states in which the railroad ran from the state of California. In the case before us the defendants are not employed in interstate commerce, but are simply engaged Hooper v. California, 155 U. S. 648 [39: 297, 5 Inters. Com. Rep. 610], is another illustration of the meaning of the term "commerce" as used in the Constitution of the United States. In that case contracts of marine insurance are stated not to appertain to interstate commerce, and cases are cited upon the nature of the contract of insurance generally at page 653 [39: 300, 5 Inters. Com. Rep. 615] of the opinion. It is also to be remarked that the effect of the agreement as to the number of solicitors to be employed by defendants can only be remote and indirect upon interstate commerce. The number of solicitors employed has no direct effect upon the number of cattle transported from state to state. The solicitors An not solicit transportation of the cattle. They are not in the interest of the transportation company, and the transportation is an incident only. They solicit a consignment of cattle to their principals, so that the latter may sell them on commission and thus transact their local business. The transportation would take place anyway, and the cattle be consigned for sale by some one of the defendants, or by others engaged in the business. It is not a matter of transportation, but one of agreement as to who shall render the services of selling the cattle for their owner at the place of destination. We say nothing against the constitutional right of each one of the defendants, and each person doing business at the Kansas City stock yards, to send into distant states and territories as many solicitors as the business of each will warrant. This original right is not denied or questioned. But cannot the citizen, for what he thinks good reason, contract to curtail that right? To say that a state would not have the right to prohibit a defendant from employing as many solicitors as he might choose proves nothing in regard to the right of individuals to agree upon that subject in a way which they may think the most conducive to their Own interests. What a state may do is one thing, and what parties may contract voluntarily to do among themselves is quite another thing. not, are questions not open for discussion [604] The liberty of contract as referred to in Allgeyer v. Louisiana, 165 U. S. 578, [41: 832], is the liberty of the individual to be free, under certain circumstances, from the restraint of legislative control with regard to all his contracts, but the case has no reference to the right of individuals to sometimes enter into those voluntary contracts by which their rights and duties may properly be measured and defined and in many cases greatly restrained and limited. Mr. Justice McKenna took no part in the decision of this case. J. C. ANDERSON et al., Appts., UNITED STATES. (See S. C. Reporter's ed. 604–620.) Agreement among yard traders as to buy 1. An agreement among persons engaged in the common business, as yard traders, of buying at a city stock-yard cattle which came from different states, that they will form an association for the better conduct of their business, and that they will not transact business with other yard traders who are not members, or buy cattle from those who also sell to yard traders who are not members of the association, is not a violation of the act of July 2, 1890, to protect trade and commerce against unlawful restraints and monopolies. 2. A rule of a live-stock exchange, that its members shall not recognize any yard trader who is not also a member of the exchange, is not in restraint of, or an attempt to monopolize, trade, where the exchange does not Itself do any business, and there is nothing to prevent all yard traders from being members of the exchange, and no one is hindered from having access to the yards or having all their facilities, except that of selling to members of the exchange. 3. We agree with the court below in thinking there is not the slightest materiality in the fact that the state line runs through the stock yards in question, resulting in some of the pens in which the stock may be confined being partly in the state of Kansas and partly in the state of Missouri, and that sales may be made of a lot of stock which may be at the time partly in one state and partly in the other. The erection of the building and the putting up of the stock pens upon the ground through which the state line ran| Argued February 25, 28, 1898. Decided Oowere matters of no moment so far as any question of interstate commerce is concerned. The character of the business done is not in the least altered by these immaterial and incidental facts. [No. 181.] tober 24, 1898. Rules to enforce the purpose and object of such exchange, if reasonable and fair, cannot, except remotely, affect interstate trade and commerce, and are not void as violations of the act of July 2, 1890. ON It follows from what has been said that the complainants have failed to show the defendants guilty of any violations of the act of Congress, because it does not appear that the defendants are engaged in interstate commerce, or that any agreements or contracts made by them and relating to conduct of their business are in restraint of any such commerce. Whether they refused to transact business yards at Kansas City, Missouri, live stock which is not interstate commerce, except shipped there from other states and terriwith those who are members of the exchange, tories, and from interfering with freedom and whether such refusal is justifiable or of access of others and equal facilities to and N A CERTIFICATE from and writ of certiorari to the United States Circuit Court of Appeals for the Eighth Cir. cuit to review an order of the Circuit Court of the United States for the Western Division of the Western District of Missouri in an action brought by the United States against J. C. Anderson and other members of the Traders' Live-Stock Exchange, that the defendants be enjoined as associates of the Traders' Live-Stock Exchange from hindering_others in selling at the stock in said stock yards, and from enforcing cer-states the cattle so received at the Kansas Statement by Mr. Justice Peckham: ceived from other states and from the ter-pose of said cattle at the Kansas City mar- It is further alleged that, acting in pur- It was further stated in the bill that in carrying out the purposes and aims of this |
