As set forth in the record, the main facts are that the defendants have entered into a voluntary association for the purpose of thereby the better conducting their business, and that after they entered into such association they still continued their individual business in full competition with each other, and that the association itself, as an association, does no business whatever, but is simply a means by and through which the individual members who have become thus associated are the better enabled to transact their business; to maintain and uphold a proper way of doing it; and to create the means for preserving business integrity in the transaction of the business itself. The [588] business of defendants is primarily and subThe act has reference only to that trade stantially the buying and selling, in their or commerce which exists, or may exist, character as commission merchants, at the among the several states or with foreign na-stock yards in Kansas City, live stock which tions, and has no application whatever to any other trade or commerce.

state. This difference in the manner of mak- | of the various things done by defendants for
ing the contract for the services cannot alter the cattle owner in order to secure it. The
the nature of the services themselves. competition among the defendants and others
If the person, under the circumstances who may be engaged in it, to obtain the busi-
stated, who makes a sale of the cattle for the ness, results in their sending outside the
owner by virtue of a personal employment city, to cattle owners, to urge them by dis-
at Kansas City, is not engaged in interstate tinct and various inducements to send their
commerce when he makes such sale, we re- cattle to one of the defendants to sell for
gard it as clear that he is not so engaged, al- them. In this view it is immaterial over
though he has been employed by means of a how many states the defendants may them-
written communication from the owner of selves or by their agents travel in order to
the cattle in another state.
thereby secure the business. They do not
purchase the cattle themselves; they do not
transport them. They receive them at Kan-
sas City, and the complaint made is in re-
gard to the agreements for charges for the
services at that point in selling the cattle
for the owner. Thus everything at last cen-
ters at the market at Kansas City, and the
charges are for services there, and there
only, performed.

The by-laws of the exchange relate to the business of its members who are commission merchants at Kansas City, and some of these by-laws, it is claimed by the government, are in violation of the act of Congress because they are in restraint of that business which is in truth interstate commerce. That one of the by-laws which relates to the commissions to be charged for selling the various kinds of stock, is particularly cited as a violation of the act. In connection with that by-law it will be well to examine with some detail the nature of defendants' busi

ness.

The selling of an article at its destination, which has been sent from another state, while it may be regarded as an interstate sale and one which the importer was enti tled to make, yet the services of the individIt is urged that they are active promoters ual employed at the place where the article of the business of selling cattle upon con- is sold are not so connected with the subject signment from their owners in other states, sold as to make them a portion of interstate and that in order to secure the business the commerce, and a combination in regard to [591] defendants send their agents into other the amount to be charged for such service states to the owners of the cattle to solicit is not, therefore, a combination in restraint the business from them; that the defendants of that trade or commerce. Granting that also lend money to the cattle owners and the cattle themselves, because coming from take back mortgages upon the cattle as se- another state, are articles of interstate comcurity for the loan; that they make advances merce, yet it does not therefore follow that of a portion of the purchase price of the cat- before their sale all persons performing serv tle to be sold, by means of the payment of ices in any way connected with them are drafts drawn upon them by the shippers of themselves engaged in that commerce, or the cattle in another state at the time of the that their agreements among each other shipment. All these things, it is said, con- relative to the compensation to be charged stitute intercourse and traffic between the for their services are void as agreements citizens of different states, and hence the by-made in restraint of interstate trade. The law in question operates upon and affects commission agent in selling the cattle commerce between the states. for their owner simply aids him in finding а market; but the facilities thus afforded the owner by the agent are not of such a nature as to thereby make that agent an individual engaged in interstate commerce, nor is his agreement with others engaged in the same business, as to the terms upon which they would provide these facilities, rendered void as a contract in restraint of that commerce. Even all agreements among buyers of cattle from other states are not necessarily a violation of the act, although such agreements may undoubtedly affect that commerce.

The facts stated do not, in our judgment, in any degree alter the nature of the services performed by the defendants, nor do they render that particular by-law void as in re[590]straint *of interstate trade or commerce because it provides for a minimum amount of commissions for the sale of the cattle. Objections are taken to other parts of the by-laws which we will notice hereafter.

Notwithstanding these various matters
undertaken by defendants, we must keep our
attention upon the real business transacted
by them, and in regard to which the section
of the by-law complained of is made. The The charges of the agent on account of
section amounts to an agreement, and it re-his services are nothing more than charges
lates to charges made for services per- for aids or facilities furnished the owner
formed in selling cattle upon commission at whereby his object may be the more easily
Kansas City. The charges relate to that and readily accomplished. Charges for the
business alone. In order to obtain it the transportation of cattle between different
defendants advance money to the cattle own-states are charges for doing something
er; they pay his drafts, and they aid him which is one of the forms of and which it-
to keep his cattle and make them fit for the self constitutes interstate trade or com-
market. All this is done as a means towards merce, while charges or commissions based
an end; as an inducement to the cattle owner upon services performed for the owner in ef-
to give one of the defendants the business of fecting the sale of the cattle are not direct-
selling the cattle for him when the owner ly connected with, as forming part of, inter-
shall finally determine to sell them. That state commerce, although the cattle may
business is not altered in character because have come from another state. Charges for

services of this nature do not immediately them in pens or other places for their safe
touch or act upon, nor do they directly af- reception. Would an agreement among the
fect, the subject of the transportation. In- landowners along the line not to lease their
directly and as an incident, they may en- lands for less than a certain sum be a con-
hance the cost to the owner of the cattle in tract within the statute as being in restraint
finding a market, or they may add to the of interstate trade or commerce? Would it
price paid by a purchaser, but they are not be such a contract even if the lands, or some
charges which are directly laid upon the ar- of them, were necessary for use in furnish-
ticle in the course of transportation, and ing the cattle with suitable accommodations!
which are charges upon the commerce itself; Would an agreement between the dealers in
they are charges for the facilities given or corn at some station along the line of the
provided the owner in the course of the road not to sell it below a certain price be
movement from the home situs of the ar- covered by the act, because the cattle must
ticle to the place and point where it is sold. have corn for food? Or would an agreement
The contract condemned by the statute among the men not to perform the service
is one whose direct and immediate effect is of watering the cattle for less than a cer-
a restraint upon that kind of trade or com- tain compensation come within the restric
merce which is interstate. Charges for such tion of the statute? Suppose the railroad
facilities as we have already mentioned are company which transports the cattle itself
not a restraint upon that trade, although furnishes the facilities, and that its charges
the total cost of marketing a subject thereof for transportation are enhanced because of
may be thereby increased. Charges for fa- an agreement among the landowners along
cilities furnished have been held not a regu- the line not to lease their lands to the com-
lation of commerce, even when made for pany for such purposes for less than a
services rendered or as compensation for ben-named sum, could it be successfully con-
efits conferred. Sands v. Manistee River tended that the agreement of the landowners
Improvement Company, 123 U. S. 288 [31: among themselves would be a violation of the
149]; Monongahela Navigation Company v. act as being in restraint of interstate trade
United States, 148 U. S. 312, 329, 330 [37:
or commerce? Would an agreement between
463,469]; Kentucky & I. Bridge Company builders of cattle cars not to build them un-
. Louisville & N. Railroad Company, 37 Fed. der a certain price be void because the effect
Rep. 567 [2 L. R. A. 289, 2 Inters. Com. might be to increase the price of transporta-
Rep. 351].
tion of cattle between the states? Would
an agreement among dealers in horse blank-
ets not to sell them for less than a certain
price be open to the charge of a violation of
the act because horse blankets are necessary
to put on horses to be sent long journeys by
rail, and by reason of the agreement the ex-
to another for a market might be thereby
pense of sending the horses from one state
enhanced? Would an agreement among cat-
tle drivers not to drive the cattle after their
arrival at the railroad depot at their place
of destination, to the cattle yards where sold,
for less than a minimum sum, come within
the statute? Would an agreement among
themselves by locomotive engineers, firemen, [594]
or trainmen engaged in the service of an in-
terstate railroad not to work for less than a
certain named compensation be illegal be-
cause the cost of transporting interstate
freight would be thereby enhanced? Agree-
ments similar to these might be indefinitely
suggested.

To treat as condemned by the act all
agreements under which, as a result, the
cost of conducting an interstate commercial
business may be increased would enlarge
the application of the act far beyond the
fair meaning of the language used. There
must be some direct and immediate effect
upon interstate commerce in order to come
within the act. The state may levy a tax
upon the earnings of a commission merchant
which were realized out of the sales of prop-
erty belonging to nonresidents, and such a
tax is not one upon interstate commerce be-
cause it affects it only incidentally and re-
motely, although certainly. Ficklen V.
Shelby County Taxing Dist. 145 U. S. 1
[36:601, 4 Inters. Com. Rep. 79]. Many
agreements suggest themselves which relate
only to facilities furnished commerce, or else
touch it only in an indirect way, while pos-
sibly enhancing the cost of transacting the
business, and which at the same time we
would not think of as agreements in re-
straint of interstate trade or commerce.
They are agreements which in their effect
operate in furtherance and in aid of com-
merce by providing for it facilities, con-
veniences, privileges, or services, but which
do not directly relate to charges for its
transportation, nor to any other form of
interstate commerce. To hold all such
agreements void would in our judgment im-
properly extend the act to matters which are
not of an interstate commercial nature.
[698] *It is not difficult to imagine agreements
of the character above indicated. For ex-
ample, cattle, when transported long dis-
tances by rail, require rest, food, and water.
To give them these accommodations it is
necessary to take them from the car and put

In our opinion all these queries should be answered in the negative. The indirect effect of the agreements mentioned might be to enhance the cost of marketing the cattle, but the agreements themselves would not necessarily for that reason be in restraint of interstate trade or commerce. As their effect is either indirect or else they relate to charges for the use of facilities furnished, the agreements instanced would be valid provided the charges agreed upon were reasonable. The effect upon the commerce spoken of must be direct and proximate. New York, Lake Erie & W. Railroad Company v. Pennsylvania, 158 U. S. 431, at 439 [39: 1043, 1045].

An agreement may in a variety of ways

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 govern-
ment 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 (590) charges might necessarily enhance the cost be forthcoming. Parkersburg & O. 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. 8. & 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 [595] 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 serv-
ices 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 main-
taining 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 im-
porter could not object to paying for such
services as for any other, and that the right
to sell might very well be annexed to impor-
tation without annexing to it also the privi-
lege 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 ex-
orbitant 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. [27] supra.)
case does not involve that question.

This

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.

defendants are apparent and valuable The
The facilities or privileges offered by 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 least troublesome to the owners and at
fective. Each of these defendants has the
the same time the most expeditious and ef-
right to have the cattle which are consigned
to him taken to the cattle yards, where, by
virtue of the arrangements made by defend-
ants with the owners of the yards, the cattle
are placed in pens, watered and fed, if neces-
sary, and a sale effected at the earliest mo-
ment. It is these facilities and services which
are paid for by a commission on the sale ef-
fected by the commission men. *If, as is [597]
claimed, the commission men sometimes own
the cattle they sell, then the rules do not ap-
ply, for they relate to charges made for sell-

ing cattle upon commission and not at all
to sales of cattle by their owners.

Definitions as to what constitutes inter-
state 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 in-
struments 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 Com-
pany v. Pennsylvania, 114 U. S. 196 [29: 158,
1 Inters. Com. Rep. 382]; Hooper v. Califor-
nia, 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].

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 [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.

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 Ideal 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 differ-state commerce. ent states and sells them on 'change in New Orleans, and accounts to his consignors for the proceeds of such sales less his commission, 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

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 regu lating 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 inter

The argument of counsel in behalf of the United States, that because none of the states or territories could enact any law interfering with or abridging the right of persons in Kansas or Missouri to send prepaid telegrams of the nature in question, therefore an agreement to that effect entered into between business men as a means towards the