conferred by statute. 123 Moreover, the conferring of this specific authority on the Secretary of Agriculture is a denial of the existence of such authority in other agencies. 124 The fact that a cooperative may have unduly enhanced the prices of the agricultural products which it is engaged in marketing gives the Secretary of Agriculture jurisdiction to proceed against the association, and because the Secretary of Agriculture is specifically given this jurisdiction, the question of whether there has been an undue enhancement of prices is a matter for his exclusive determination. Common Marketing Agencies Associations meeting the terms and conditions of the CapperVolstead Act may have a common marketing agency. By means of such an agency two or more eligible cooperatives may legally eliminate competition among them by having such an agency. It should be possible also to thus reduce marketing costs and expenses. Each of the associations that is a member of a common marketing agency must comply with all of the conditions of the Capper-Volstead Act. Such associations and a common marketing agency formed by them may not enter into abnormal transactions such as price fixing or other agreements with third persons which are contrary to the antitrust laws. If an association enters into agreements or transactions which amount to a violation of the antitrust statutes, it is amenable thereto and the Department of Justice may proceed against it.125 123 Tobacco Growers' Co-op Association v. Jones, 185 N.C. 265, 117 S.E. 174, 33 A.L.R. 231 (1923). 124"That remedy is in the Secretary of Agriculture exclusively. If he does not move, absolutely nobody can move, and the bill does not give the individual, it does not give any association, any right to go into court and have these prices reviewed." Mr. Husted, 59 Cong. Rec. 8021 (1920). Cf. Silberschein v. United States, 266 U.S. 221, 45 S. Ct. 69, 69 L. Ed. 256, and Mara v. United States, 54 F. 2d 397. 125 United States v. Borden Company, 308 U.S. 188, 204, 60 S. Ct. 182, 84 L. Ed. 181 (1939), reversing 28 F. Supp. 177 (N. D. III. 1939). See also United States v. Hutcheson, 312 U. S. 219, 61 S. Ct. 463, 85 L. Ed. 788 (1941). In United States v. Maryland Cooperative Milk Producers, Inc. and Maryland and Virginia Milk Producers' Association, Inc., 145 F. Supp. 151 (D. D. C.), decided October 16, 1956, the defendants, each of which were an association of producers of milk, were indicted for conducting an unlawful combination and conspiracy to fix prices for milk sold to distributors, which in turn was supplied to the Government. A motion for judgment of acquittal on the grounds that their conduct was On the other hand, as an independent organization an association meeting the terms of the Capper-Volstead Act, or a common marketing agency composed of such associations, has all the general rights, powers, and privileges that a businessman or ordinary business corporation possesses. For instance, as businessmen and other business corporations may select their customers, an association of farmers may likewise do so. 126 A cooperative, like any other organization, has the right at common law to select its members. 127 How this and like principles may have been changed, if at all, by State and Federal civil rights laws should be ascertained. In connection with the right of associations to select their own members, it will be remembered that this, in essence, means that they may determine the producers from whom they will receive agricultural products for handling and marketing. It is a common right of businessmen and corporations to determine the parties from whom they will purchase goods, and a cooperative in determining who may become members thereof is simply determining from whom it will acquire commodities. Under normal circumstances an association may enter into an agreement to furnish a dealer with all of a given commodity that his business may require, 128 exempt under section 6 of the Clayton Act and the Capper-Volstead Act was granted. The district judge said: “* * * a combination between two or more agricultural cooperatives to fix prices of their products is exempt from the antitrust laws provided no other person that is not of such an organization or a member of such a group is a part of the combination." 126 Federal Trade Commission v. Raymond Brothers-Clark Co., 263 U. S. 565, 44 S. Ct. 162, 68 L. Ed. 448. 30 A.L.R. 1114 (1924). 127 Cf. Associated Press v. United States, 326 U.S. 1, 65 S. Ct. 1416, 89 L. Ed. 2013. 128 Federal Trade Commission v. Curtis Publishing Company, 260 U.S. 568, 43 S. Ct. 210, 67 L. Ed. 408; Arkansas Brokerage Co. v. Dunn & Powell, Inc., 173 F. 899, 35 L.R.A. (N.S.) 464; Barnes v. Dairymen's League Coop. Association, 222 N.Y.S. 294, 220 App. Div. 624; Wiseman v. Dennis, 156 Va. 431, 157 S.E.716; Castorland Milk & Cheese Co. v. Shantz, 179 N.Y.S. 131 (1919; American Fur Manufacturers Association v. Associated Fur Coat and Trimming Manufacturers, 291 N. Y.S. 610, 161 Misc. 246; Dairy Cooperative Association v. Brandes Creamery, 147 Ore. 488, 30 P. 2d 338 (1934), 147 Ore. 503, 30 P. 2d 344 (1934); Stark County Milk Producers' Association v. Tabeling, 129 Ohio St. 159, 194 N.E. 16, 98 A.L.R. 1393 (1934); Cole Motor Car Company v. Hurst, 228 F. 280; American Sea Green Slate Company v. O'Halloran, 229 F. 77; Virtue v. Creamery Package Manufacturing Company, 227 U.S. 8, 33 S. Ct. 202, 57 L. Ed. 393, affirming 179 F. 115, 102 C.C.A. 413; Sussex v. Carvel Corp., 332 F. 2d 505. In a New York case, nonunion workers were denied the right to enjoin the carrying out of a closed shop contract entered into by their employer with a labor union which compelled these workers to become members of the union if they were to continue their employment. 129 The court, in upholding the right of the labor union to enter into a closed shop agreement, said: As before stated, there is nothing in the present case May a cooperative prescribe resale prices for commodities which it sells? Generally, in the absence of a statutory authorization, agreements of this character are invalid. 131 On the other hand, it appears to be established that a seller may refuse to deal with those who do not adhere to the schedule of resale prices prescribed by him and that a seller may announce that he may refuse to deal with those who do not adhere to such a price schedule. In a certain case132 the Supreme Court said: certiorari granted, 379 U.S. 885, dismissed, 381 U.S. 125; Isaly Dairy Co. of Pittsburgh v. United Dairy Farmers, 250 F. Supp. 99; but see Denison Mattress Factory v. Spring-Air Co., 308 F.2d 403. Fletcher Cyc. Corp. (Perm. Ed.), Vol. 10, sec. 5010, p.836; 3 Williston on Contracts, p. 2896. Ballantine, W., Cooperative Marketing Associations, 8 Minn. L. Rev. 1-27 (1923). 129 Williams v. Quill, 227 N.Y. 1. 12 N.E. 2d 547, appeal dismissed. 303 U.S. 621, 58 S. Ct. 650, 82 L. Ed. 1085. See also Mills, David N., Labor Law-Right of Union to Deny Membership to Applicant, 40 Mich. L. Rev. 310 (1941). 130 Williams v. Quill, 277 N.Y. 1, 12 N.E. 2d 547, appeal dismissed, 303 U.S. 621, 58 S. Ct. 650, 82 L. Ed. 1085. 131 Miles Medical Company v. Park & Sons Company, 220 U.S. 373, 31 S. Ct. 376, 55 L. Ed. 502. 132 Federal Trade Commission v. Beech-Nut Packing Company, 257 U.S. 441, 42 S. Ct. 150, 66 L. Ed. 307, 19 A.L.R. 882, (1922). By these decisions 133 it is settled that in prosecutions The restrictions of the foregoing statement are as applicable to a cooperative as to any other type of business concern; and a cooperative may prescribe resale prices only under conditions in which any other business concern could do likewise. 134 Agricultural associations, especially in the case of milk, frequently enter into contracts agreeing to furnish distributors with all the milk they may need during a given period. One case involving this type of situation has been before the courts. 135 The Maryland and Virginia Milk Producers' Association, which controlled a large percentage of the milk in the District of Columbia metropolitan area, entered into.full-supply contracts with some of the major milk distributors. As a defense to indictment under section 3 of the Sherman Act, the Capper-Volstead Act's provisions were invoked. The indictment was first dismissed, but the Court of Appeals reinstated it, apparently relying on a charge of concerted action between the cooperative and outsiders. On a second appeal, the Court of Appeals reversed conviction of the defendants for failure to show that the agreements were made for the purpose of eliminating competition from independent sources of supply. This decision appears to make permissible a marketing cooperative's sales contracts which require purchasers to obtain their full supply from the association, where the contracts 133 United States v. Colgate & Company, 250 U.S. 300, 39 S. Ct. 465, 63 L. Ed. 992, 7 A.L.R. 433; Frev & Son, Inc. v. Cudahy Packing Company, 256 U.S. 208, 41 S. Ct. 451, 65 L. Ed. 892; United States v. Schrader's Son, Inc., 252 U.S. 85,40 S. Ct. 251, 64 L. Ed. 471. 134 See Ethyl Gasoline Corporation v. United States, 309 U.S. 436, 60 S. Ct. 618, 84 L. Ed. 852; Biddle Purchasing Company v. Federal Trade Commission, 96 F.2d 687; Armand Company v. Federal Trade Commission, 78 F. 2d 707. 135 United States v. Maryland & Virginia Milk Producers' Association, Inc., 179 F. 2d 426, 193 F. 2d 907 (D.C. Cir. 1951). In a New York case, nonunion workers were denied the right to enjoin the carrying out of a closed shop contract entered into by their employer with a labor union which compelled these workers to become members of the union if they were to continue their employment. 129 The court, in upholding the right of the labor union to enter into a closed shop agreement, said: As before stated, there is nothing in the present case May a cooperative prescribe resale prices for commodities which it sells? Generally, in the absence of a statutory authorization, agreements of this character are invalid. 131 On the other hand, it appears to be established that a seller may refuse to deal with those who do not adhere to the schedule of resale prices prescribed by him and that a seller may announce that he may refuse to deal with those who do not adhere to such a price schedule. In a certain case132 the Supreme Court said: certiorari granted, 379 U.S. 885, dismissed, 381 U.S. 125; Isaly Dairy Co. of Pittsburgh v. United Dairy Farmers, 250 F. Supp. 99; but see Denison Mattress Factory v. Spring-Air Co., 308 F. 2d 403. Fletcher Cyc. Corp. (Perm. Ed.), Vol. 10, sec. 5010, p.836; 3 Williston on Contracts, p. 2896. Ballantine, W., Cooperative Marketing Associations, 8 Minn. L. Rev. 1-27 (1923). 129 Williams v. Quill, 227 N.Y. 1, 12 N.E. 2d 547, appeal dismissed. 303 U.S. 621, 58 S. Ct. 650, 82 L. Ed. 1085. See also Mills, David N., Labor Law-Right of Union to Deny Membership to Applicant, 40 Mich. L. Rev. 310 (1941). 130 Williams v. Quill, 277 N.Y. 1, 12 N.E. 2d 547, appeal dismissed, 303 U.S. 621, 58 S. Ct. 650, 82 L. Ed. 1085. 131 Miles Medical Company v. Park & Sons Company, 220 U.S. 373, 31 S. Ct. 376, 55 L. Ed. 502. 132 Federal Trade Commission v. Beech-Nut Packing Company, 257 U.S. 441, 42 S. Ct. 150, 66 L. Ed. 307, 19 A.L.R. 882, (1922). |