attention was called to that. It seems that when the fleet, in its marvelous trip, reached San Francisco, it was arranged that they should be entertained by two classes of people who could not agree. One class was designated, locally, by some of the newspapers as the good trust and the other the bad trust. [Laughter.] Both the good trust people and the bad trust people gave a banquet in their honor. Both invitations were accepted. The good trust banquet was $10 a plate and the bad trust banquet $20 a plate. The governor attended the bad trust banquet. [Laughter.] Then I wanted to know what it was that constituted a man a member of the good trust and what a member of the bad trust, so I looked the subject up.

I found that the members of the good trust were those who cornered the necessaries of life, while those who belonged to the bad trust were those who secured great franchises. [Laughter.]

Mr. MARTIN. Under the present law offenders are liable to fine and imprisonment for their offenses. Those same gentlemen get together and prepare a change in the law, bring it to Congress, and ask Congress to pass it a law which will exempt them from the punishment which they have incurred through a long series of years. They are like the Irishman who was arrested for horse stealing, when I was a boy. The people said to him: "Now, Pat, you are guilty; you stole the horse; the punishment is hanging, and we are going to hang you in five minutes. But," they said to him, "we will give you the privilege of naming the kind of tree you will be hung to." He said: "I'll be hung to a gooseberry tree." [Laughter.] 'But," they said to him, a gooseberry tree is not big enough to support you.' "Well," he says, "I'm in no hurry; I'll wait till it grows." [Laughter.]

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We have now a good, big oak tree in the shape of the Sherman antitrust law on which to hang the trust criminals for their offenses, and now come these gentlemen of the steel trust and their friends and propose a gooseberry tree in the shape of the Hepburn bill as a substitute, and they are willing to wait till it grows. [Renewed laughter.]

Senator NELSON. Do you, Mr. Gompers, and those you represent, wish a further hearing?

Mr. GOMPERS. No, sir.

Senator NELSON. Because we want you and those you represent to have all the hearing that you desire.

Mr. GOMPERS. We are very anxious that Congress shall pass the Wilson-Smith bill before adjournment, and we do not want to take up any more of your time at this session of Congress.

Mr. DAVENPORT. Since this Wilson bill has been brought up I wish to say that Mr. Emery, on behalf of his associations, and myself, on behalf of the American Anti-Boycott Association, desire to be heard in opposition, and request the committee to give us a hearing. Would it be practicable to give us a hearing next week?

Senator NELSON. I can not say about that. The other members of the subcommittee, as you see, have left, and I will simply adjourn the meeting now and confer with the other members of the subcommittee and see what their views are. I can come to no conclusion all alone. This meeting now stands adjourned.

(The subcommittee thereupon adjourned.)



Supreme Court of the United States.

No. 389.-OCTOBER TERM, 1907.


On a writ of certiorari to the United States circuit court of appeals for the second circuit.

[February 3, 1908.]

Mr. Chief Justice FULLER delivered the opinion of the court: This was an action brought in the circuit court for the District of Connecticut under section 7 of the antitrust act of July 2, 1890, claiming threefold damages for injuries inflicted on plaintiffs by combination or conspriacy declared to be unlawful by the act.

Defendants filed a demurrer to the complaint, assigning general and special grounds. The demurrer was sustained as to the first six paragraphs, which rested on the ground that the combination stated was not within the Sherman Act, and this rendered it unnecessary to pass upon any other questions in the case; and upon plaintiffs declining to amend their complaint the court dismissed it with costs. (148 Fed. Rep., 924, and see 142 Fed. Rep., 216; 130 Fed. Rep., 633.)

The case was then carried by writ of error to the circuit court of appeals for the second circuit, and that court, desiring the instruction of this court upon a question arising on the writ of error, certified that question to this court. The certificate consisted of a brief statement of facts, and put the question thus: "Upon this state of facts can plaintiffs maintain an action against defendants under section 7 of the antitrust act of July 2, 1890?

After the case on certificate had been docketed here plaintiffs in error applied, and defendants in error joined in the application, to this court to require the whole record and cause to be sent up for its consideration. The application was granted, and the whole record and cause being thus brought before this court it devolved upon the court, under section 6 of the judiciary act of 1891, to "decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal."



The case comes up, then, on complaint and demurrer, and we give the complaint in the margin."

The question is whether upon the facts therein averred and admitted by the demurrer this action can be maintained under the antitrust act. The first, second, and seventh sections of that act are as follows:

1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court,

2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine not exceeding

a The complaint alleged that the defenadnts were residents of the District of Connecticut and that complainants resided in Danbury, in that district, were copartners and located and doing business as manufacturers and sellers of hats there; that they had "a factory for the making of hats, for sale by them in the various States of the Union, and have for many years employed, at said factory, a large number of men in the manufacture and sale of said hats, and have invested in that branch of their business a large amount of capital, and in their business of selling the product of their factory and filling orders for said hats, have built up and established a large interstate trade, employing more than two hundred and thirty (230) persons in making and annually selling hats of a value exceeding four hundred thousand ($400,000) dollars. "4. The plaintiffs, deeming it their right to manage and conduct their business without interference from individuals or associations not connected therewith, have for many years maintained the policy of refusing to suffer or permit any person or organization to direct or control their said business, and in consequence of said policy have conducted their said business upon the broad and patriotic principle of not discriminating against any person seeking employment because of his being or not being connected with any labor or other organization, and have refused to enter into agreement with any person or organization whereby the rights and privileges, either of themselves or any employee, would be jeopardized, surrendered to or controlled by said person or organization, and have believed said policy, which was and is well known to the defendants, to be absolutely necessary to the successful conduct of their said business and the welfare of their employees.

"5. The plaintiffs, for many years, have been and now are engaged in trade and commerce among the several States of the Union, in selling and shipping almost the whole of the product of their said factory by common carriers, from said Danbury to wholesale dealers residing and doing business in each of the States of Maine, Massachusetts, Rhode Island, New York, New Jersey, Pennsylvania, Maryland Virginia, Ohio, Illinois, Michigan, Wisconsin, Missouri, Nebraska, Arkansas, California, and other States, to the amount of many hundreds of thousands of dollars, and in sending agents with samples from said Danbury into and through each of said States to visit said wholesale dealers at their places of business in said several States, and solicit and procure from them orders for said hats, to be filled by hats to be shipped from their said factory at said Danbury, by common carriers to said wholesale dealers, to be by them pain for after the delivery thereof at their several places of business.

"6. On July 25, 1902, the amount of capital invested by the plaintiffs in said business of making and selling hats approximated one hundred and thirty thousand dollars, and the value of the hats annually sold and shipped by them in previous years to said dealers in States other than Connecticut exceeded four hundred thousand dollars, while the value of hats sold by them in the State of Connecicut did not exceed ten thousand dollars.

"7. On July 25, 1902, the plaintiffs had made preparations to do a large and profitable business with said wholesale dealers in other States, and the condition of their business was such as to warrant the full belief that the ensuing year would be the most successful in their experience. Their factory was then running to its full capacity in filling a large number of orders from such wholesale dealers in other States. They were then employing about one hundred and sixty men in the making and finishing departments, a large number in the trimming and other departments, whose work was dependent upon the previous work of the makers and finishers, and they then had

five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.

7. Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee.

In our opinion, the combination described in the declaration is a combination "in restraint of trade or commerce among the several States," in the sense in which those words are used in the act, and the action can be maintained accordingly.

And that conclusion rests on many judgments of this court, to the effect that the act prohibits any combination whatever to secure action which essentially obstructs the free flow of commerce between

about one hundred and fifty dozens of hats in process of manufacture and in such condition as to be perishable and ruined if work was stopped upon them.

"8. The plaintiffs then were and now are almost wholly dependent upon the sale and shipments of hats, as aforesaid, to said dealers in States other than Connecticut, to keep their said factory running and to dispose of its product and their capital in said business profitably employed, and the restraint, curtailment, and destruction of their said trade and commerce with their said customers in said States other than Connecticut, by the combination, conspiracy, and acts of the defendants, as hereinafter set forth, have been and now are of serious damage to the property and business of the plaintiffs, as hereinafter set forth.

"9. The individual defendants named in this writ are all members of a combination or association of persons styling themselves The United Hatters of North America, and said combination includes more than nine thousand persons residing in the several States of Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Indiana, Illinois, Missouri, California, and the Province of Ontario, in the Dominion of Canada. The said combination is subdivided into twenty subcombinations, each of which is by themselves styled a local union of The United Hatters of North America. Six of said subcombinations are in the State of Connecticut and known as Local Unions 1 and 2, 10 and 11, and 15 and 16, of The United Hatters of North America, and have an aggregate membership of more than three thousand persons residing in the State of Connecticut.

"10. Said combination of persons, collectively known as The United Hatters of North America, owns, controls, edits, publishes, and issues a paper styled The Journal of The United Hatters of North America, in which are published reports of many of the acts of its agents, hereinafter mentioned, which circulates widely among its members and the public, and which affords a ready, convenient, powerful, and effective vehicle for the dissemination of information to its members and the public as to boycotts declared and pushed by them, and of the acts and measures of its members and agents for carrying such boycotts into effect, and was so used by them in connection with the acts of the defendants hereinafter set forth.

"11. Said combination owns and absolutely controls the use of a certain label or distinguishing mark, which it styles the Union Label of The United Hatters of North America, which mark, when so used by them, affords to them a ready, convenient, and effective instrument and means of boycotting the hats of any manufacturer against whom they may desire to use it for that purpose.

"12. The defendants in this suit are also all members of a combination or association of persons calling themselves and known as The American Federation of Labor, which includes more than a million and four hundred thousand members residing in the several States and Territories of the Union, and in the Dominion of Canada, and in all the places in the several States where the wholesale dealers in hats, herein before mentioned, and their customers, reside and do business. Said combination is subdivided in subordinate groups, or combinations, comprising one hundred and ten national and international unions and combinations, of which the said combinations of persons styling themselves The United Hatters of North America is one, composed of twelve thousand local unions, twenty-eight State federations or combinations, more than five hundred central labor unions or combinations, and more than two thousand local unions or combinations, which are not included in the above-mentioned national and international combinations.

the States, or restricts, in that regard, the liberty of a trader to engage in business.

The combination charged falls within the class of restraints of trade aimed at compelling third parties and strangers involuntarily not to engage in the course of trade except on conditions that the combination imposes; and there is no doubt that (to quote from the well-known work of Chief Justice Erle on Trade Unions) "at common law every person has individually, and the public also has collectively, a right to require that the course of trade should be kept free from unreasonable obstruction." But the objection here is to the jurisdiction, because, even conceding that the declaration states a case good at common law, it is contended that it does not state one within the statute. Thus, it is said, that the restraint alleged would operate

"13. Said combination of persons, collectively known as The American Federation of Labor, owns, controls, edits, publishes, and issues a paper or magazine called the American Federationist, which it declares to be its official organ and mouthpiece, which has a very wide circulation among its members and others, and which affords a ready, convenient, powerful, and effective vehicle and instrument for the dissemination of information, as to persons, their products and manufactures, boycotted or to be boycotted by its members, and as to measures adopted and statements to be published detrimental to such persons and to the sale of their manufactures, and for boycotting such persons, their manufactures, and said paper has been and now is constantly used, printed, and distributed for said purposes among its members and the public, and was so used by the defendants and their confederates in boycotting the products of the firm of F. Berg & Co., of Orange, New Jersey, and H. H. Roelofs & Co., of Philadelphia, Pa., hat manufacturers, to their very great injury and until the said firms successively yielded to their demands in pursuance of the general scheme of the defendant hereinafter set forth.

"14. The persons united in said combination known as the American Federation of Labor, including the persons in said subcombination known as The United Hatters of North America, constantly employ more than one thousand agents in the States and Territories of the United States, to push, enforce and carry into effect all boycotts declared by the said members, including those in aid of the combined scheme, purpose and effort hereinafter stated, to force all the manufacturers of fur hats in the United States, including the plaintiffs, to unionize their factories by restraining and destroying their interstate trade and commerce, as hereinafter stated, all of which said agents act under the immediate supervision and personal direction of one Samuel Gompers, who is chief agent of the said combination of persons for said purpose, and of each of the said combinations, and the said agents make monthly reports of their doings in pushing and enforcing and causing to be pushed and enforced said boycotts, and publish the same monthly in said paper known as The American Federationist, of which he is the editor, appointed by the said members, which said paper in connection with said statement or summary, is declared to be the authorized and official mouthpiece of each of said subcombinations, including the said United Hatters of North America. Said statement is declared by the defendants to be a faithful record of the doings of said agents, and each of said statements, made during the period covered by the acts of the defendants against the plaintiffs herein stated, contains the announcement to the members of said combination and the public, that all boycotts declared by them are being by them and their agents pushed, enforced, and observed.

"15. Said combination of persons collectively known as The American Federation of Labor, of which the defendants are members, was by the defendants and their other members formed for the purpose among others, of facilitating the declaration and successful maintenance of boycotts, by and for said combination of persons known as The United Hatters of North America, acting through the said Federation of Labor and its other component parts or members, and it and its component parts have frequently declared boycotts, at the request of the defendants, against the business and product of various hat manufacturers, and have vigorously prosecuted the same by and through the powerful machinery at their command as aforesaid, in carrying out their general scheme herein stated, to the great damage and loss of business of said manufacturers, and particularly during the years of 1901 and 1902, they declared, prosecuted, and waged, at the request of the defendants and their agents, a boycott against the hats made by and the business of H. H. Roelofs & Co., of Philadelphia, Pa., until, by causing them great damage and loss of business, they coerced them into

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