1

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
finding a market, or they may add to the
price paid by a purchaser, but they are not
charges which are directly laid upon the ar-
ticle in the course of transportation, and
which are charges upon the commerce itself;
2) they are charges for the "facilities given or
provided the owner in the course of the
movement from the home situs of the ar
ticle to the place and point where it is sold.
The contract condemned by the statute
is one whose direct and immediate effect is
a restraint upon that kind of trade or com-
merce which is interstate. Charges for such
facilities as we have already mentioned are
not a restraint upon that trade, although
the total cost of marketing a subject thereof
may be thereby increased. Charges for fa-
cilities furnished have been held not a regu-
lation of commerce, even when made for
services rendered or as compensation for ben-
efits conferred. Sands v. Manistee River
Improvement Company, 123 U. S. 288 [31:
149]; Monongahela Navigation Company v.
United States, 148 U. S. 312, 329, 330 [37:
463,469]; Kentucky & I. Bridge Company
▼. Louisville & N. Railroad Company, 37 Fed.
Rep. 567 [2 L. R. A. 289, 2 Inters. Com.
Rep. 351].

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

tract within the statute as being in restraint of interstate trade or commerce? Would it be such a contract even if the lands, or some of them, were necessary for use in furnishing the cattle with suitable accommodations? Would an agreement between the dealers in corn at some station along the line of the road not to sell it below a certain price be covered by the act, because the cattle must have corn for food? Or would an agreement among the men not to perform the service of watering the cattle for less than a certain compensation come within the restriction of the statute? Suppose the railroad company which transports the cattle itself furnishes the facilities, and that its charges for transportation are enhanced because of an agreement among the landowners along the line not to lease their lands to the company for such purposes for less than a named sum, could it be successfully contended that the agreement of the landowners among themselves would be a violation of the act as being in restraint of interstate trade or commerce? Would an agreement between builders of cattle cars not to build them under a certain price be void because the effect might be to increase the price of transportation of cattle between the states? Would an agreement among dealers in horse blankets 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 exto another for a market might be thereby enhanced? Would an agreement among cat

must be some direct and immediate effect pense of sending the horses from one state

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.

[608] *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

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.

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

affect interstate commerce, just as state leg- | Missouri, 156 U. S. 296 [39:430,5 Inters.

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 Transporta-
tion Company v. Parkersburg, 107 U. S. 691
[27:584]; Ficklen v. Shelby County Taxing
Dist. supra. Reasonable charges for the use
of a facility for the transportation of inter-
state commerce have heretofore been regard-
ed as valid in this court, even though such
charges might necessarily enhance the cost
of doing the business. Northwestern U.
Packet Company v. St. Louis, 100 U. S. 423
[25:688]; Cincinnati, P. B. S. & 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 own-
ers of such facilities, to charge not less than
a minimum rate for their use, cannot be con-
demned as illegal under the act of Congress.
The fact that the above-cited cases relate

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.

It is possible that exorbitant charges for the use of these facilities might have similar effect as a burden on commerce that a charge upon commerce itself might have. In a case *like that the remedy would probably (59) be forthcoming. Parkersburg & O. River Transportation Company v. Parkersburg, 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 government remain long uncorrected." Pages 294, 295 [31:151].

But whether the charges are or are not exorbitant 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.) This case does not involve that question.

If charges of the nature described do not amount to a regulation of interstate trade

to tangible property, the use of which was or commerce because they touch it only in [595] harged for, does not alter the reasoning an indirect and remote way, or else because apon which the decisions were placed. The they are in the nature of compensation for charges were held valid because they related the use of property or privileges as a mere to facilities furnished in aid of the commerce facility for that commerce, it would for a and which did not constitute a regulation like reason seem clear that agreements re

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
their mount is not invalid. The ottle
not unreasonable an agreement relating owner 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.

lating 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 en-
gaged in the business, yet as the agreements
are in regard to compensation for privileges
accorded for services rendered as a facility
to commerce or trade, they are not illegal
as a restraint thereon.

The facilities or privileges offered by the
defendants are apparent and valuable 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
the same time the most expeditious and ef-
fective. Each of these defendants has the

right to have the cattle which are consigned
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-

proper transaction of their legitimate busi- in the performance of duties or services r
ness would be void, is, as we think, entirely lating to stock upon its arrival at Kansas
unsound. The conclusion does not follow City. We do not think it can be properly
from the facts stated. The statute might said that the agents of the defendants whom
be illegal as an improper attempt to inter- they send out to solicit the various owners
fere with the liberty of transacting legiti- of stock to consign the cattle to one of the

mate 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 com_merce itself.

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, indirectly 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 rule 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

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 partic-
ular 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 com-
merce, the business of their agents in solicit-
ing others to give them such business is not
itself interstate commerce. Not being en-
gaged in interstate commerce, the agreement
of the defendants through the by-law in ques-
tion, restricting the number of solicitors to
three, does not restrain that commerce, and
does not therefore violate the act of Congress
under discussion.

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 negotiates 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. not, "are questions not open for discussion [604] They are not in the interest of the transpor- here. As defendant's actions or agreements Lation company, and the transportation is an are not a violation of the act of Congress, the

Incident only. They solicit a consignment of cattle to their principals, so that the lattor 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

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.,

♡.

UNITED STATES.

(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.

as he might choose proves nothing in regard 1. An agreement among persons engaged in the

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.

common business, as yard traders, of buying
at a city stock-yard cattle which came from
different states, that they will form an asso-
ciation for the better conduct of their busi-
ness, 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 associa-
tion, is not a violation of the act of July 2,
1890, to protect trade and commerce against
unlawful restraints and monopolies.

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 2. A rule of a live-stock exchange, that its 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.

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

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 monop-
olize, trade, where the exchange does not It-
self 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.

3. 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.

[No. 181.]

ground through which the state line ran Argued February 25, 28, 1898. Decided 00

were matters of no moment so far as any question of interstate commerce is concerned. The character of the business done is not in the least altered by these immaterial and incidental facts.

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

tober 24, 1898.

NA CERTIFICATE from and writ of certiorari to the United States Circuit 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