Again (pp. 398 and 399), in answer to the objection that what was charged did not constitute a case involving commerce among the states, the court said:

stock in the yards and the shipment of ter is sales, and the very point of the them therefrom is a part of interstate combination is to restrain and monopocommerce, or is so associated with it as lize commerce among the states in reto bring it within the power of national spect of such sales." regulation. A similar question has been before this court and had great consideration in Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276. The judgment in that case gives a clear and comprehensive exposition which leaves to us in this case little but the obvious application of the principles there declared.

"Commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business. When cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase, in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is a part and incident of such commerce. What we say

The Swift Case presented to this court the sufficiency of a bill in equity brought against substantially the same packing firms as those against whom this legislation is chiefly directed, charging them as a combination of a dominant proportion of the dealers in fresh meat throughout the United States not to bid against each other in the live stock markets of the different states, to bid up prices for a few days in order to induce the cattle men to send their stock to the stock-is true, at least, of such a purchase by yards, to fix prices at which they would residents in another state from that of sell, and to that end to restrict shipments the seller and of the cattle." of meat when necessary, to establish a uniform credit to dealers, and to keep a black list, to make uniform and improper charges for cartage, and finally to get less than lawful rates from the railroads, to the exclusion of competitors, and all this in a conspiracy and single connected scheme to monopolize the supply and distribution of fresh meats throughout the United States. In holding the bill good, this court said (p. 396): "The scheme as a whole seems to us to be within reach of the law. The constituent elements, as we have stated them, are enough to give to the scheme a body, and, for all that we can say, to accomplish it. It is suggested that the several acts charged are lawful, and that intent can make no difference. But they are bound together [518] as the parts of a single plan. The plan may make the parts unlawful. consin, 195 U. S. 194, 206, 49 L. ed. 154, 260, 25 Sup. Ct. Rep. 3. The statute gives this proceeding against combinations in restraint of commerce among the states and against attempts to monopolize the same. Intent is almost essential to such a combination and is essential to such an attempt."

The application of the commerce clause of the Constitution in the Swift Case was the result of the natural development of interstate commerce under modern conditions. It was the inevitable recognition of the great [519] central fact that such streams of commerce from one part of the country to another, which are ever flowing, are, in their very essence, the commerce among the states and with foreign nations which historically it was one of the chief purposes of the Constitution to bring under national protection and control. This court declined to defeat this purpose in respect of such a stream, and take it out of complete national regulation by a nice and technical inquiry into the noninterstate character of some of its necessary incidents and facilities when considered alone and without reference Aikens v. Wis- to their association with the movement of which they were an essential but subordinate part.

Again (pp. 396 and 397) :

The principles of the Swift Case have become a fixed rule of this court in the construction and application of the commerce clause. Its latest expression on the subject is found in Lemke v. Farmers' Grain Co. decided at this term, February 27, 1922 [258 U. S. 50, ante, "Although the combination alleged 458, 42 Sup. Ct. Rep. 244]. In that embraces restraint and monopoly of case it was held, on the authority of the trade within a single state, its effect upon Swift Case, that the delivery and sale commerce among the states is not acci- of wheat by farmers to local grain dental, secondary, remote, or merely elevators in North Dakota, to be shipped probable. . . Here the subject-mat-to Minneapolis, when practically all

the wheat purchased by such eleva-, dictment charging conspiracy to ob tors was so shipped and the price was struct interstate commerce, but a law. fixed by that in the Minneapolis market, The language of the law shows that less profit and freight, constituted a course of business and determined the interstate character of the transaction. Accordingly a state statute which sought to regulate the price and profit of such sales, and was found to interfere with the free flow of interstate commerce, was declared invalid as a violation of the commerce clause. Similar confirmation of the principle of the Swift Case is to be found in Dahnke-Walker Mill Co. v. Bondurant, 257 U. S. 282, ante, 239, 42 Sup. Ct. Rep. 106, in Eureka Pipe Line v. Hallanan, 257 U. S. 265, ante, 227, 42 Sup. Ct. Rep. 101, and in United Fuel Gas Co. v. Hallanan, 257 U. S. 277, ante, 234, 42 Sup. Ct. Rep. 105, all decided December 12, 1921; in Western U. Teleg. Co. v. Foster, 247 U. S. 105, 113, 62 L. ed. 1006, 1015, 1 A.L.R. 1278, P.U.R.1918D, 865, 38 Sup. Ct. Rep. 438; in United States v. [520] Reading Co. 226 U. S. 324, 367, 368, 57 L. ed. 243, 257, 258, 33 Sup. Ct. Rep. 90; Railroad Commission v. Worthington, 225 U. S. 101, 108, 56 L. ed. 1004, 1008, 32 Sup. Ct. Rep. 653; Loewe v. Lawlor, 208 U. S. 274, 301, 52 L. ed. 488, 502, 28 Sup. Ct. Rep. 301, 13 Ann. Cas. 815.

It is manifest that Congress framed the Packers and Stockyards Act in keeping with the principles announced and applied in the opinion in the Swift Case. The recital in § 2, ¶ b, of title 1 of the act quoted in the margin leaves no doubt of this. The act deals with the same current of business, and the same practical conception of interstate com

merce.

Of course, what we are considering here is not a bill in equity, or an in1 The first title, § 2, ¶ b, provides that "for the purpose of this act a transaction in respect to any article shall be considered to be in commerce if such article is part of that current of commerce usual in the livestock and meat-packing industries whereby live stock and its products are sent from one state with the expectation that they will end their transit after purchase in another, including, in addition to cases within the general description, all cases whose purchase or sale is either for shipment to another state, or for slaughter of the live stock within the state and the shipment outside of the state of the products resulting from such slaughter. Articles normally in such current of commerce shall not be considered out of such current through resort being had to any means or device intended to remove transactions in respect thereto from the provisions of the act."

what Congress had in mind primarily was to prevent such conspiracies by supervision of the agencies which would be likely to be employed in it. If Congress could provide for punishment or restraint of such conspiracies after their formation through the Anti-trust Law, as in the Swift Case, certainly it may provide regulation to prevent their formation. The reasonable fear by Congress that such acts, usually lawful, and affecting only intrastate commerce when considered alone, will probably [521] and more or less constantly be used in conspiracies against interstate commerce, or constitute a direct and undue burden on it, expressed in this remedial legislation, serves the same purpose as the intent charged in the Swift indictment to bring acts of a similar character into the current of interstate commerce for Federal restraint. Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce, is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent.

In United States v. Ferger, 250 U. S. 199, 63 L. ed. 936, 39 Sup. Ct. Rep. 445, the validity of an act of Congress punishing forgery and utterance of bills of lading for fictitious shipments in interstate commerce was in question. It was contended that there was and could be no commerce in a fraudulent and fictitious bill of lading, and therefore that the power of Congress could not embrace such pretended bill. In upholding the act, this court, speaking through Chief Justice White, answered the objection by saying:

"But this mistakenly assumes that the power of Congress is to be necessarily tested by the intrinsic existence of commerce in the particular subject dealt with, instead of by relation of that subject to commerce and its effect upon it. We say mistakenly assumes, because we think it clear that if the proposition were sustained, it would destroy the power of Congress to regulate, as obviously that power, if it is to exist, must include the authority to deal with ob

structions to interstate commerce (Re, therewith that the effective government Debs, 158 U. S. 564, 39 L. ed. 1092, 15 of the former incidentally controls the Sup. Ct. Rep. 900), and with a host of latter. This conclusion necessarily reother acts which, because of their results from the supremacy of the national lation to and influence upon interstate power within its appointed sphere." [522] commerce, come within the power of Congress to regulate, although they are not interstate commerce in and of themselves."

༥..

Counsel for appellants cite cases to show that transactions like those of the commission men or dealers here are not interstate commerce or within the power of Congress to regulate. The chief of these are Hopkins v. [524] United States, 171 U. S. 604, 43 L. ed. 300, 19 Sup. Ct. Rep. 40, and Anderson v. United States, 171 U. S. 604, 43 L. ed. 300, 19 Sup. Ct. Rep. 50. These cases were considered in the Swift Case and disposed of by the court as follows (p. 397):

[523] In § 311 of the act quoted in the margin, Congress gives to the Secretary of Agriculture, in respect to intrastate transactions that affect prejudicially inThe Transportation Act of February terstate commerce under his protection, 28, 1920 [41 Stat. at L. 456, chap. 91] the same powers given to the Interstate presents a close analogy to this case. It Commerce Commission in respect to inauthorizes supervision by the Interstate trastate commerce which affects prejudiCommerce Commission of intrastate cially interstate railroad commerce in ¶ commerce where it is so carried on as to 4, § 13, as amended in § 416 of the work undue, unreasonable advantage or Transportation Act of 1920. This was preference in favor of persons or locali- the paragraph and section which were ties in intrastate commerce, as against enforced in Railroad Commission v. Chithose in interstate commerce, or any un-cago, B. & Q. R. Co. supra, and the due, unjust, or unreasonable discrimina- validity of which was upheld by this tion against interstate commerce itself. court. Railroad Commission v. Chicago, B. & Q. R. Co. decided February 27, 1922 [257 U. S. 563, ante, 371, 22 A.L.R. 1086, 42 Sup. Ct. Rep. 232]. That case followed the Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 432, 433, 57 L. ed. 1511, 1555, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18; the Shreveport Case (Houston, E. & W. R. Co. V. United States) 234 U. S. 342, 351, 58 L. ed. 1341, 1348, 34 Sup. Ct. Rep. 833; Illinois C. R. Co. v. Public Utilities Commission, 245 2 Section 311 is as follows: U. S. 493, 62 L. ed. 425, P.U.R.1918C, 1279, 38 Sup. Ct. Rep. 170; Baltimore & the provisions of this title or in any in"Whenever in any investigation under O. R. Co. v. Interstate Commerce Com-vestigation instituted by petition of the mission, 221 U. S. 612, 618, 55 L. ed. stockyard owner or market agency con878, 882, 31 Sup. Ct. Rep. 621; South-cerned, which petition is hereby authorized ern R. Co. v. United States, 222 U. S. to be filed, the Secretary after full hearing 20, 26, 27, 56 L. ed. 72, 74, 32 Sup. Ct. Rep. 2, 3 N. C. C. A. 822; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 48, 51, 56 L. ed. 327, 345, 346, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875. The principle of these cases is thus clearly stated by the court in Minnesota Rate Cases, supra, p. 399: "The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on; and the full concommerce which is hereby forbidden and trol by Congress of the subjects com- declared to be unlawful, the Secretary shall mitted to its regulation is not to be de- prescribe the rate, charge, regulation or nied or thwarted by the commingling of practice thereafter to be observed in such interstate and intrastate operations. manner as in his judgment will remove such This is not to say that the nation may advantage, preference, or discrimination. deal with the internal concerns of the Such rates, charges, regulations or pracstate as such, but that the execution tices shall be observed while in effect by by Congress of its constitutional power parties to such proceeding affected thereby, the stockyard owners or market agencies to regulate interstate commerce is not the law of any state or the decision of any limited by the fact that intrastate trans-state authority to the contrary notwithactions may have become so interwoven standing."

finds that any rate, charge, regulation or practice of any stockyard owner or market agency for or in connection with the buying, or selling on a commission basis or holding, delivery, shipment, weighing or otherwise, receiving, marketing, feeding, handling, not in commerce, of live stock, causes any undue or unreasonable advan tage, or preference as between persons or localities in intrastate commerce in live stock on the one hand, and interstate or foreign commerce in live stock, on the other discrimination against interstate or foreign hand, or any undue, unjust, or unreasonable

to another, the case would have been different, as the court suggests. The effect on interstate commerce in such a case would have been direct. Similarly, in the Anderson Case, if the combination of dealers had been directed to collusion with the commission men to secure sales at unduly low prices to the dealers, and to double commissions, or to practise any other fraud or oppression calculated to decrease the price received by the shipper and increase the price to the purchaser in the passage of live stock through the stockyards in interstate commerce, this would have been a direct burden on such commerce and within the Anti-trust Act.

"So, again, the line is distinct between this case and Hopkins v. United States, 171 U. S. 578, 43 L. ed. 290, 19 Sup. Ct. Rep. 40. All that was decided there was that the local business of commission merchants was not commerce among the states, even if what the brokers were employed to sell was an object of such commerce. The brokers were not like the defendants before us, themselves the buyers and sellers. They only furnish certain facilities for the sales. Therefore there again the effect of the combination of brokers upon the commerce was only indirect and not within the act. Whether the case would have been different if the combination had resulted in exorbitant charges was left open. In The other cases relied on by appelAnderson v. United States, supra, the lants are less relevant to this discussion defendants were buyers and sellers at than the Anderson and Hopkins Cases. the stockyards, but their agreement was Some of them are tax cases. As to them merely not to employ brokers, or to rec-it is well to bear in mind the words of ognize yard traders who were not members of their association. Any yard "But we do not mean to imply that trader could become a member of the the rule which marks the point at which association on complying with the condi- state taxation or regulation becomes tions, and there was said to be no feature permissible necessarily is beyond the of monopoly in the case. It was held scope of interference by Congress where that the combination did not directly such interference is deemed necessary for regulate commerce between the states, the protection of commerce among the and, being formed with a different in-states." tent, was not within the act. The present case is more like W. W. Montague & Co. v. Lowry, 193 U. S. 38, 48 L. ed. 608, 24 Sup. Ct. Rep. 307."

the court in the Swift Case (p. 400):

Thus, take the case of Bacon v. Illinois, 227 U. S. 594, 57 L. ed. 615, 33 Sup. Ct. Rep. 299. Bacon had purchased grain in transit from a western It is clear from this that if the bill state to the East. He exercised the in the Swift Case had averred that con- power under his contract [526] to stop trol of the stockyards and the commis- the grain in Illinois and put it in a grain sion men was one of the means used by elevator there. He intended to send it the packers to make arbitrary prices in on to some other state for sale. He their plan of monopolizing the inter- might have changed his mind. He did, state commerce, the acts of the stock- however, after a time, send it out of the yards owners and commission men would state. The grain was taxed while it was have been regarded as directly affecting in Illinois. The question was whether it interstate commerce and within the was immune from taxation because in Anti-trust Act. Congress has found an transit in interstate commerce. Followevil to be apprehended and to be pre-ing the cases of Woodruff v. Parham, 8 vented by the act here in question, in the Wall. 123, 19 L. ed. 382; Coe v. Errol, [525] use and control of stockyards and 116 U. S. 517, 29 L. ed. 715, 6 Sup. Ct. the commission men to promote a pack-Rep. 475; Brown v. Houston, 114 U. S. ers' monopoly of interstate commerce. 622, 29 L. ed. 257, 5 Sup. Ct. Rep. 1091; The act finds and imports this injurious Pittsburg & S. Coal Co. v. Bates, 156 direct effect of such agencies upon in- U. S. 577, 39 L. ed. 538, 5 Inters. Com. terstate commerce just as the intent of Rep. 30, 15 Sup. Ct. Rep. 415; Diamond the conspiracy charged in the indict- Match Co. v. Ontonagon, 188 U. S. 82, ment in the Swift Case tied together the 93, 96, 47 L. ed. 394, 398, 399, 23 Sup. parts of the scheme there attacked, and Ct. Rep. 266; Kelley v. Rhodes, 188 U. S. imported their direct effect upon inter-1, 5, 7, 47 L. ed. 359, 361, 362, 23 Sup.

state commerce.

Again, if the result of the combination of commission men in the Hopkins Case had been to impose exorbitant charges on the passage of the live stock through the stockyards from one state

Ct. Rep. 259; General Oil Co. v. Crain, 209 U. S. 211, 52 L. ed. 754, 28 Sup. Ct. Rep. 475; and American Steel & Wire Co. v. Speed, 192 U. S. 500, 48 L. ed. 538, 24 Sup. Ct. Rep. 365, it was held that property in a state which its owner

intends to transport to some other state, but which is not in actual transit, and in respect to the disposition of which he may change his mind, is not in interstate commerce just because of the intention of its owner, and may, therefore, be taxed by the state where it is. The court brought out the distinction between such cases and this in the remark (p. 516):

"The question, it should be observed, is not with respect to the extent of the power of Congress to regulate interstate commerce, but whether a particular exercise of state power, in view of its nature and operation, must be deemed to be in conflict with this paramount authority."

Moreover, it will be noted that even in tax cases, where the tax is directed against a commodity in an actual flowing and constant stream out of a state, from which the owner may withdraw part of it for use or sale in the state before it reaches the state border, we have held that a tax on the flow is a burden on interstate commerce which the state may not impose because such flow in interstate commerce is an established course of business. United Fuel Gas Co. v. Hallanan, decided December 12, 1921 [257 U. S. 277, ante, 234, 42 Sup. Ct. Rep. | 105]; Eureka [527] Pipe Line Co. v. Hallanan, decided December 12, 1921 [257 U. S. 265, ante, 227, 42 Sup. Ct. Rep. 101]. In the former, the court summed up as follows:

United States v. Reading Co. 226 U. S. 324, 367, 57 L. ed. 243, 257, 33 Sup. Ct. Rep. 90; Western U. Teleg. Co. v. Foster, 247 U. S. 105, 113, 62 L. ed. 1006, 1015, 1 A.L.R. 1278, P.U.R.1918D, 865, 38 Sup. Ct. Rep. 438."

The case of Blumenstock Bros. Adv. Agency v. Curtis Pub. Co. 252 U. S. 436, 64 L. ed. 649, 40 Sup. Ct. Rep. 385, is easily distinguished from the one at the bar. There it was merely held that an attempt of a publisher to monopolize the business of publishing advertising matter in magazines, resulting in refusal of such publisher to accept advertisements in his magazines, was too remote in its relation to the interstate commerce of circulating magazines. The court said:

"This case is wholly unlike International Textbook v. Pigg, 217 U. S. 91, 54 L. ed. 678, 27 L.R.A (N.S.) 493, 30 Sup. Ct. Rep. 481, 18 Ann. Cas. 1103, wherein there was a continuous interstate traffic in textbooks and apparatus for a course of study pursued by means of correspondence, and the movements in interstate commerce were held to bring the subject-matter [528] within the domain of Federal control, and to exempt it from the burden imposed by state legislation."

New York ex rel. Pennsylvania R. Co. v. Knight, 192 U. S. 21, 48 L. ed. 325, 24 Sup. Ct. Rep. 202, relied on by counsel for appellants, and said to be exactly applicable to the case at bar, was an ef"In short, the great body of the gas fort by the Pennsylvania Railroad Comstarts for points outside the state and pany to secure immunity from city regulagoes to them. That the necessities of tion for a cab system which it ran in New business require a much smaller amount, York to and from its station to points in destined to points within the state, to New York city, on the ground that it was be carried undistinguished in the same part of interstate commerce. This court pipes, does not affect the character of held that because it was independent of the major transportation. Neither is the railroad transportation, and not inthe case as to the gas sold to the three cluded in the contract of railroad carcompanies changed by the fact that the riage, it did not come within interstate plaintiff, as owner of the gas, and the commerce. The case was distinguished purchasers, after they receive it, might in the Swift Case (p. 401) from cartage change their minds before the gas leaves for delivery of the goods when part of the state, and that the precise propor- the contemplated transit. There is nothtions between local and outside deliv-ing in the case to indicate that if such eries may not have been fixed, although an agency could be and were used in a they seem to have been. The typical conspiracy unduly and constantly to and actual course of events marks the monopolize interstate passenger traffic, carriage of the greater part as commerce it might not be brought within Federal among the states, and theoretical pos-restraint.

sibilities may be left out of account. As already noted, the word "comThere is no break, no period of delibera- merce," when used in the act, is defined tion, but a steady flow, ending, as con- to be interstate and foreign commerce. templated from the beginning, beyond Its provisions are carefully drawn to the state line. Railroad Commission v. apply only to those practices and obWorthington, 225 U. S. 101, 108, 56 L. structions which, in the judgment of ed. 1004, 1008, 32 Sup. Ct. Rep. 653; | Congress, are likely to affect interstate