« ForrigeFortsett »
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.
107 U. S. 691 [27:584]. As was said by Mr. Justice Field, in Sands v. Manistee River Improvement Company, supra, "should there be any gross injustice in the rate of tolls fixed, it would not in our system of government remain long uncorrected." Pages 294, 295 [31:151].
affect interstate commerce, just as state leg-| Missouri, 156 U. S. 296 [39: 430, 5 Intera islauon may, and yet, like it, be entirely Com. Rep. 68]. valid, because the interference produced by the agreement or by the legislation is not direct. Sherlock v. Alling, 93 U. S. 99-103 [23: 819,820]; United States v. E. C. Knight Company, 156 U. S. 1, 16 [39: 325, 330]; Pittsburg & S. Coal Co. v. Louisiana, 156 U. S. 590-597 [39: 544-547, 5 Inters. Com. Rep. 18]; Parkersburg & O. River Transportation Company v. Parkersburg, 107 U. S. 691 [27: 584]; Ficklen v. Shelby County Taxing It is possible that exorbitant charges for Dist. supra. Reasonable charges for the use the use of these facilities might have similar of a facility for the transportation of inter- effect as a burden on commerce that a state commerce have heretofore been regard-charge upon commerce itself might have. In ed as valid in this court, even though such a case like that the remedy would probably [59 charges might necessarily enhance the cost be forthcoming. Parkersburg & 0. River of doing the business. Northwestern U. Transportation Company v. Parkersburg, Packet Company v. St. Louis, 100 U. S. 423 [25: 688]; Cincinnati, P. B. S. & P. Packet Company v. Catlettsburg Trustees, 105 U. S. 559 [26: 1169]; Parkersburg & O. River Transportation Company v. Parkersburg, 107 U. S. 691 [27: 584]; Huse v. Glover, 119 U. S. 543 [30: 487]; Ouachita & M. R. Packet Company v. Aiken, 121 U. S. 444 [30: 976, 1 Inters. Com. Rep. 379]; St. Louis v. Western U. Telegraph Company, 148 U. S. 92 [37: 380]. An agreement among the owners of such facilities, to charge not less than a minimum rate for their use, cannot be condemned as illegal under the act of Congress. The fact that the above-cited cases relate to tangible property, the use of which was  harged for, does not alter the reasoning upon 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 ●wner 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 cattle.
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.
But whether the charges are or are not exorbitant is a question primarily of local law, at least in the absence of any superior or paramount law providing for reasonable charges. (107 U. S.  supra.) This case does not involve that question.
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 are in regard to compensation for privileges accorded for services rendered as a facility to commerce or trade, they are not illegal as a restraint thereon.
defendants are apparent and valuable
ing cattle upon commission and not at all
Definitions as to what constitutes inter-
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.
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  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.
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 An agreement among the defendants to absends him the shares of stock or the bonds stain from telegraphing in certain circumof a corporation created and doing business stances and for certain purposes is so clearly in another state, for sale, engaged in inter- not an attempt to regulate or restrain the state commerce? If he is employed to pur- general sending of telegrams that it would chase stock or bonds in a like corporation un- seem unnecessary to argue the question. der the same circumstances, is he then en- An agreement among business men not to gaged in the business of interstate commerce? send telegrams in regard to their business It may, perhaps, be answered that stocks or in certain contingencies, when the agreement *bonds are not commodities, and that dealers is entered into only for the purpose of regutherein are not engaged in commerce. lating the business of the individuals, is not Whether it is an answer to the question need a direct attempt to affect the business of the not be considered, for we will take the case telegraph company, and has no direct effect of the New York Produce Exchange. Is thereon. Although communication by telea member of that body to whom a cargo of graph may be commerce, and if carried on begrain is consigned from a western state tween different states may be commerce to be sold engaged in interstate com- among the several states, yet an agreement merce when he performs the service of or by-law of the nature of the one under conselling the article upon its arrival in New sideration is not a burden, or a regulation of, York and transmitting the proceeds of the or a duty laid upon, the telegraph company, sale less his commissions? Is a New Or and was clearly not entered into for the purleans cotton broker who is a member of pose of affecting in the slightest degree the the Cotton Exchange of that city, and who company itself or its transaction of interreceives consignments of cotton from differ-state commerce. ent 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 character of the business altered in either case by the fact that the broker has advanced moneys to the owner of the article and taken a mortgage thereon as his security? We un
fering with or abridging the right of persons in Kansas or Missouri to send prepaid tele grams of the nature in question, therefore an agreement to that effect entered into between business men as a means towards the
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 be illegal as an improper attempt to interfere with the liberty of transacting legitimate business enjoyed by the citizen, while the agreement among business men for the better conduct of their own *business, as they think, to refrain from using the telegraph for certain purposes, is a matter purely for their own consideration. There is no similarity between the two cases, and the principle existing in the one is wholly absent in the other. The private agreement does not, as we have said, regulate commerce or impose any impediment upon it or tax it. Communication by telegraph is free from any burden so far as this agreement is concerned and no restrictions are placed on the com-gaged in interstate commerce, the agreement merce itself.
The act of Congress must have a reasonable construction or else there would scarcely be an agreement or contract among business men that could not be said to have, indirectly 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 iule 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.
said that the agents of the defendants whom they send out to solicit the various owners of stock to consign the cattle to one of the defendants for sale are thereby themselves engaged in interstate commerce. They are simply soliciting the various stock owners to consign the stock owned by them to particular defendants at Kansas City, and until the arrival of the stock at that point and the delivery by the transportation company no duties of an interstate commerce nature arise to be performed by the defendants. As the business they do is not interstate commerce, the business of their agents in solicit ing others to give them such business is not itself interstate commerce. Not being en
of the defendants through the by-law in question, restricting the number of solicitors to three, does not restrain that commerce, and does not therefore violate the act of Congress under discussion.
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  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 regency, and that the by-law in regard to the employment of solicitors is one which directly affects interstate commerce.
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 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
has no goods or samples of goods and negoti-
Hooper v. California, 155 U. S. 648 [39:
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
complainants have failed in their case, and the order for the injunction must be reversed, and the case remitted to the Circuit Court of the United States for the District of Kansas, First Division, with directions to dismiss the bill with costs.
do not solicit transportation of the cattle. | not, *are questions not open for discussion 
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 10 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.
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.
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
Mr. Justice McKenna took no part in the decision of this case.
J. C. ANDERSON et al., Appts.,
(See S. C. Reporter's ed. 604-620.)
Agreement among yard traders as to buy ing cattle-rule of a live-stock exchange— when not void.
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.
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.
Rules to enforce the purpose and object of such exchange, if reasonable and fair, cannot, except remotely, affect interstate trade and commercé, and are not void as violations of the act of July 2, 1890.
tober 24, 1898.
ground through which the state line ran Argued February 25. 28, 1898. Decided Oo-
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 which is not interstate commerce, except with those who are members of the exchange, and whether such refusal is justifiable or
N A CERTIFICATE
from and writ
0 of certiorari to the United States Cir.
cuit Court of Appeals for the Eighth Circuit 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 yards at Kansas City, Missouri, live stock shipped there from other states and territories, and from interfering with freedom of access of others and equal facilities to and
in said stock yards, and from enforcing cer- | states the cattle so received at the Kansas
shipped to and received at these stock yards
Statement by Mr. Justice Peckham: The bill then alleges that the defendants  *This suit is somewhat similar to the Hop- "have unlawfully entered into a contract, kins suit, just decided, and was brought by combination, and conspiracy in restraint of the United States against the defendants trade and commerce among the several states named, who were citizens and residents of and with foreign nations, in this, to wit, that the western division of the western district they have unlawfully agreed, contracted, of Missouri, and members of a voluntary un- combined, and conspired to prevent all other incorporated association known and desig-persons than members of the Traders' Live nated as the Traders' Live Stock Exchange, the suit being brought for the purpose of obtaining a decree dissolving the exchange and enjoining the members thereof from entering into or continuing any sort of combination to deprive any people engaged in shipping,  selling, buying, and handling *live stock (received from other states and from the territories, intended to be sold at the Kansas City market), of free access to the markets at Kansas City, and to the same facilities afforded by the Kansas City stock yards, to defendants and their associate members of the Traders' Live Stock Exchange.
Stock Exchange, as aforesaid, from buying and selling cattle upon the Kansas City market at the Kansas City stock yards as aforesaid; that the commission firm, person, partnership, or corporation to whom said cattle are consigned at Kansas City, as aforesaid, is not permitted to and cannot sell or dispose of said cattle at the Kansas City market as aforesaid to any buyer or speculator at the Kansas City stock yards unless said buyer or speculator is a member of the Traders' Live Stock Exchange, and these defendants, and each of them, unlawfully and oppressively refuse to purchase cattle, or in The bill was filed under the direction of any manner negotiate or deal with or buy the Attorney General of the United States by from any commission merchant who shall sell the United States district attorney for the or purchase cattle from any speculator at western district of Missouri. It alleged in the said Kansas City stock yards who is not substance that the exchange was governed a member of the said Traders' Live Stock by a board of eight directors, who carried Exchange; that by and through the unlaw. on the business thereof with the consent and ful agreement, combination, and conspiracy approbation of the defendants, they person- of these defendants the business and traffic ally being members of the exchange. It then in cattle at the said Kansas City stock yards made the same allegations in relation to the is interfered with, hindered, and restrained, stock yards being partly in Kansas City, thus entailing extra expense and loss to the Kansas, and partly in Kansas City, Missouri, owner, and placing an obstruction and emthat are contained in the bill in the Hop-bargo on the marketing of cattle shipped kins Case, reported ante, 290, and also as to the sales of herds or droves of cattle which were at the time of the sale partly in one state and partly in another. It is further alleged that the Kansas City stock yards is a public market, and, next to the market at Chicago in the state of Illinois, is the largest live-stock market in the world, and vast numbers of cattle, hogs, and other live stock are received annually at the market, shipped from various states and from the territories, and are sold at the market to buyers who reside in other states and territories, and who reship the stock; that the stock is shipped to the market under contracts by which the shipper is permitted to unload the stock at the Kansas City stock yards, rest, water, and feed the same, and is accorded the privilege of selling the stock on the Kansas City market if the prices prevailing at the time justify the sale, and many head of such stock are so sold; that prior to the month of March, 1897, as alleged, the defendants herein were engaged as speculators at the Kansas City stock yards, and were buying upon the market and reselling upon the same market and reshipping to other markets in other
from the states and territories aforesaid to
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