proper transaction of their legitimate business would be void, is, as we think, entirely unsound. The conclusion does not follow 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 [600]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 commerce itself.

in the performance of duties or services relating to stock upon its arrival at Kansas City. We do not think it can be properly 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 soliciting others to give them such business is not itself interstate commerce. Not being engaged in interstate commerce, the agreement 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

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, 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 i ule 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 claim is that these solicitors are engaged in interstate commerce, and that such commerce must be free from any state legislation and free from the control or restraint by any person or combination of persons. They also object that the rule is an unlawful inhibition upon the privilege possessed by each person under the Constitution to make lawful contracts in the furtherance of his business, and they allege that in this respect these members have surrendered their dominion over their own business and permitted 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[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

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 nego tiation 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 have no property or goods for sale, and their only duty is to ask or induce those who own the property to agree that when they send it to market for sale they will consign it to the [602] solicitor's principal, so that he nay perform such services as may be necessary to sell the stock for them and account to them for the proceeds thereof. Unlike the drummer who contracts in one state for the sale of goods which are in another, and which are to be thereafter delivered in the state in which the contract is made, the solicitor in this case has no goods or samples of goods and negoti ates no sales, and merely seeks to exact a promise from the owner of property that 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.

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

do 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 à 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.

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.

not, *are questions not open for discussion [604]
here. As defendant's actions or agreements
are not a violation of the act of Congress, the
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.

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 member. of the exchange.

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.

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

done is

[No. 181.]

tober 24, 1898.

NA CERTIFICATE from and writ

In the least altered by these immaterial and 0 of certiorari to the United States Cir

incidental facts.

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

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 certain rules, etc. The order was taken by appeal to said Circuit Court of Appeals and the entire record removed therefrom to this court for final disposal. Order reversed, and case remanded to said Circuit Court of the United States for the Western Division of the Western District of Missouri, with directions to dismiss the action, with costs.

states the cattle so received at the Kansas City stock yards; that all the live stock shipped to and received at these stock yards is consigned to commission merchants, who take charge of the stock when it is received, and who sell the same *to packing houses lo-[ cated at Kansas City, Missouri, and Kansas City in the state of Kansas, and they sell large numbers of cattle to the defendants herein.

Statement by Mr. Justice Peckham: The bill then alleges that the defendants [605] *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, Stock Exchange, as aforesaid, from buying the suit being brought for the purpose of ob- and selling cattle upon the Kansas City martaining a decree dissolving the exchange and ket at the Kansas City stock yards as aforeenjoining the members thereof from entering said; that the commission firm, person, partinto or continuing any sort of combination nership, or corporation to whom said cattle to deprive any people engaged in shipping, are consigned at Kansas City, as aforesaid, [606] selling, buying, and handling *live stock (re- is not permitted to and cannot sell or disceived from other states and from the ter- pose of said cattle at the Kansas City marritories, intended to be sold at the Kansas ket as aforesaid to any buyer or speculator City market), of free access to the markets at the Kansas City stock yards unless said at Kansas City, and to the same facilities buyer or speculator is a member of the afforded by the Kansas City stock yards, to Traders' Live Stock Exchange, and these dedefendants and their associate members of fendants, and each of them, unlawfully and the Traders' Live Stock Exchange. 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
the Kansas City stock yards."

It is further alleged that, acting in pur-
suance of the unlawful combination above
described, the board of directors of the ex-
change have imposed fines upon certain
members of the exchange "who had traded
with persons, speculators upon the mar
kets, who were not members of the said
live-stock exchange, and within three
months last past have imposed fines
upon members of said live-stock exchange
who have traded with commission firms at
said Kansas City stock yards which said [609]
commission firms had bought from, and sold
cattle to, speculators upon said market who
were not members of the said live-stock ex-

It was further stated in the bill that in

carrying out the purposes and aims of this
exchange and by the conduct of its members
engaged in this alleged combination, con-
spiracy, and confederation, they were acting
in violation of the laws of the United States,
and particularly in violation of section 1 of
the act of Congress, approved July 2, 1890,
entitled "An Act to Protect Trade and Com-
merce against Unlawful Restraints and Mo-

nopolies," and in the prosecution of this un- | defendants, and copies of the articles of as-
lawful combination they had agreed to hin- sociation and by-laws of the exchange were
der and delay the business of buying and attached to the affidavit of the president of
selling cattle at the market named, and the exchange and read on the motion.
had confederated together in restraint of
trade and commerce between the states,
and that the object of the defendants in
organizing the exchange was to prevent
the sale by any commission merchant
at the Kansas City stock yards of any cattle
to any person who might be a buyer and spec-
ulator upon the market who is not a member
of the exchange.

Accompanying this bill were several affidavits of individuals not members of the exchange, but who were traders or speculators at the stock yards, and those persons said that they were acquainted with the association in question and with the officers and members, and that they did everything in their power to prevent other persons who were not members from trading at the stock yards, and a number of instances were given in which the affiants who were not members of the exchange were endeavoring to do business with commission merchants and others at the exchange in question, when the affiants were notified that they could not continue in business unless they became members of the association, and where partnerships were engaged in business where one partner was a member of the association, the partner who was a member was notified that he could not continue in the partnership business with the other unless such other also became a member; that they had attempted to buy cattle from a great many commission firms and from their salesmen at these stock yards, [609]*but as soon as they went into the yards where the cattle were that were consigned to commission firms, and attempted to purchase them, some of the defendants would appear, call the salesman aside, and, after having a conversation with such salesman, the latter would invariably return to affiant and say that he could not price cattle to the affiant or sell the same to him, as he had been warned by members of the exchange not to do so; that the Traders' Live Stock Exchange would not permit other traders and speculators upon the market, and that the exchange does not permit commission firms at the stock yards to sell cattle consigned to them to any trader or speculator upon the market who is not a member of the exchange, and that commission firms had been notified by the officers of the stock exchange not to sell to speculators on the market who were not members of the Live Stock Exchange, and where commission firms sold cattle to traders and speculators upon the market who were not members of the exchange, the association and members thereof would boycott the commission firm making such sales, and refuse to purchase any cattle from them, and refuse to go into the lots and look at cattle which had been consigned to them.

Upon the bill and affidavits application was made to the circuit court for the western division of the western district of Missouri for an injunction as prayed for in the bill, in opposition to which application various affidavits were read on the part of the

Among other affidavits was that of the general superintendent of the stock-yards company, who said that he had known the organization, the Traders' Live Stock Exchange, since its formation, and that it had been a benefit to the live-stock market at Kansas City by furnishing constant buyers for cattle shipped to the market, no matter how large the receipts for any one day or series of days might be, and also by raising the standard of business integrity among its members, because it required every member to comply with his business promises *and verbal agree-[610] ments; that no embargo was placed upon anyone purchasing or desiring to purchase cattle at the yards, but a free and open market was offered to all buyers and sellers; that the members of the organization were engaged in the business of buying and selling cattle on the market, and were competitors among and against each other; that their organization did not restrain or interfere with interstate or local commerce, and the members did not monopolize or attempt to monopolize the business of buying and selling cattle at Kansas City, nor did the organization in any manner tend to limit or decrease the number of cattle marketed at Kansas City, but that it had the contrary effect; that about eightyfive per cent of the total receipts for the years 1895, 1896, and 1897, at the Kansas City market of cattle had been billed to the Kansas City market alone for purposes of sale there.

Other affidavits were presented to the same effect. Also the affidavit of the president of the exchange. The president denied all allegations in relation to conspiracies to prevent other persons than members of the exchange from buying and selling cattle upon the Kansas City market, and on the contrary alleged that in buying cattle the defendants were in competition with each other, with the representative buyers of all the packing houses, with the representatives of the various commission merchants, who buy constantly on orders from a distance, and with others who buy on orders on their own account, none of whom are menibers of the exchange, and that with these various classes of buyers the defendants constantly deal, and that in selling cattle they compete with each other and with shippers and commission merchants offering stock for sale on the market, that the business in which these defendants are engaged is that of buying and selling cattle known as "stockers and feeders;" that the business is purely local to that market; that the defendants do not deal in quarantine cattle subject to government inspection or cattle shipped through to other markets, with or without the privilege of the Kansas City market, nor in fat cattle sold on the local market shipped to other states or to foreign countries; that except in rare instances both purchases and sales made by the defendants [611] are made from and to persons not members of the exchange, and that in the judgment of the president about ninety-nine per cent of

[ocr errors]

the transactions by the defendants are with | Live Stock Exchange, 143 III. 210, 18 L. R persons not members of the exchange.

A copy of the articles of association is annexed to the affidavit, which contains the following preamble:

"We, the undersigned, for the purpose of organizing and maintaining a business exchange, not for pecuniary profit or gain, but to promote and protect all interest connected with the buying and selling of live stock at the Kansas City Stock Yards, and to cult!vate courteous and manly conduct towards each other, and give dignity and responsibility to yard traders, have associated ourselves together under the name of Traders' Live Stock Exchange, and hereby agree, each with the other, that we will faithfully observe and be bound by the following rules and by-laws and such new rules, additions, or amendments as may from time to time be adopted in conformity with the provisions thereof from the date of organization."

Rules 10, 11, 12, and 13 are as follows: "Rule 10. This exchange will not recognize any yard trader unless he is a member of the Traders' Live Stock Exchange.

"Rule 11. When there are two or more parties trading together as partners, they shall each and all of them be members of this exchange.

"Rule 12. No member of this exchange shall employ any person to buy or sell cattle unless such person hold a certificate of membership in this exchange.

"Rule 13. No member of this exchange shall be allowed to pay any order buyer or salesman any sum of money as a fee for buy. ing cattle from or selling cattle to such party."

A. 190; Dueber Watch Case Mfg. Co. v. E. Howard Watch & Clock Co. 35 U. S. App. 16, 66 Fed. Rep. 637, 14 C. C. A. 14; United States v. Addyston Pipe & Steel Co. 78 Fed. Rep. 712.

The decree is violative of the rights secured by the Fifth Amendment to the Constitution of the United States, forbidding that any person be deprived of liberty or property without due process of law; and, if the act of July 2d, 1890, is correctly construed by the circuit court, it is itself violative of said amendment.

Munn v. Illinois, 94 U. S. 123, 24 L. ed. 83; Kuhn v. Detroit, 70 Mich. 534; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621; Godcharles v. Wigeman, 113 Pa. 431; State v. Loomis, 115 Mo. 307, 21 L. R. A. 789; Ritchie v. People, 155 Ill. 108, 29 L. R. A. 79; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People v. Gillson, 109 N. Y. 389; Cald well v. Texas, 137 U. S. 697, 34 L. ed. 818; Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832.

Messrs. John R. Walker and John K. Richards, Solicitor General, for appellee:

The transportation of persons from one state into another is interstate commerce.

Norfolk & W. R. Co. v. Pennsylvania, 136 U. S. 114, 34 L. ed. 394, 3 Inters. Com. Rep. 178; Philadelphia & R. R. Co. v. Pennsylva nia, 15 Wall. 232, 21 L. ed. 146; The Daniel Ball, 10 Wall. 557, 19 L. ed. 999; State, Wolf, v. Pullman Palace Car Co. 16 Fed. Rep. 193.

Telegraph messages passing over lines from one state to another constitute a por

tion of interstate commerce.

These are the rules which are specially obnoxious to the complainants, and are alleged to be in their effect in violation of the Fed-v. eral statute above mentioned.

Messrs. R. E. Ball, I. P. Ryland, and John L. Peak, for appellants:

Conceding all the facts charged in the bill, even those in which the bill contradicts itself, the appellants are not engaged in, and their organization does not relate to, interstate commerce.

Coe v. Errol, 116 U. S. 517, 29 L. ed. 715; Kidd v. Pearson, 128 U. S. 1, 32 L. ed. 346, 2 Inters. Com. Rep. 232; Brown v. Houston, 114 U. S. 622, 29 L. ed. 257; Hynes v. Briggs, 41 Fed. Rep. 468; United States v. E. C. Knight Co. 60 Fed. Rep. 306; Re Greene, 52 Fed. Rep. 104; Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678; Pittsburg & S. Coal Co. v. Bates, 156 U. S. 577, 39 L. ed. 539, 5 Inters. Com. Rep. 30.

No act or agreement of appellants, charged in the bill, and no act or agreement not so charged, but from the doing or enforcing of which they are enjoined, constitutes any violation of the act of Congress, or is otherwise


Prescott & A. C. R. Co. v. Atchison, T. & S. F. R. Co. 73 Fed. Rep. 438; Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. Div. 544; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 54 Fed. Rep. 730, 19 L. R. A. 387; American Live Stock Commission Co. v. Chicago

Western U. Teleg. Co. v. James, 162 U. S. 650, 40 L. ed. 1105; Postal Teleg. Cable Co. Charleston, 153 U. S. 692, 38 L. ed. 871, 4 Inters. Com. Rep. 637: Leloup v. Port_of Mobile, 127 U. S. 640, 32 L. ed. 311, 2 Inters. Com. Rep. 134; Western U. Teleg. Co. v. Ratterman, 127 U. S. 411, 32 L. ed. 229, 2 Inters. Com. Rep. 59; Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708; Western U. Teleg. Co. v. Pendleton, 122 U. S. 347, 30 L. ed. 1187, 1 Inters. Com. Rep. 306; Western U. Teleg. Co. v. Texas, 105 U. S. 460, 26 L. ed. 1067; Western U. Teleg. Co. v. Norman, 77 Fed. Rep. 13; St. Louis v. Western U. Teleg. Co. 39 Fed. Rep. 59.

The right to import from one state into another carries with it, by necessary implication, the right of sale at the place where the importation terminates.

Lyng v. Michigan, 135 U. S. 161, 34 L. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Ined. 150, 3 Inters. Com. Rep. 143; Leisy v. 153 U. S. 289, 38 L. ed. 719, 4 Inters. Com. ters. Com. Rep. 36; Brennan v. Titusville, Rep. 58; Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823; Cook v. Pennsylvania, 97 U. S. 566, 24 L. ed. 1015; Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347.

Not until merchandise in the original packages is once sold by the importer does it become subject to taxation by the state.

« ForrigeFortsett »