Lapas attēli

Opinion of the Court.

[3] The seventh clause is of a different nature, and, involves the right of the sugar company to limit the amount of its sales, in respect of quantity, to its purchasers, or any or all of them. It is settled law that a trader or manufacturer engaged in private business, not of a public or quasi public character, may sell to whom he pleases, may charge different prices for the same article to different individuals, and may make such discrimination in his business as he chooses. United States v. Freight Association, 166 U. S. 290, 320, 17 Sup. Ct. 540, 41 L. Ed. 1007. This, of course, with a restriction that his contracts shall not be in violation of law, imposed for the protection of the public. The doctrine as it relates to the anti-trust laws has been recently reannounced by the Supreme Court, in United States v. Colgate & Co., 250 U. S. 300, 307, 39 Sup. Ct. 465, 468, 63 L. Ed. 992, 7 A. L. R. 443, as follows:

"The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce-in a word, to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long-recognized right of trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell."

If a manufacturer may sell to whom he pleases, it is entirely logical that he may restrict his sales as to quantity, and sell to his customers [37] such quantities as he may see fit. This must be the general rule, and, as such, effective, unless the contract stipulating such terms, by reason of its intendment, in some relation impinges upon the restriction of the anti-trust laws.

[4] It is manifest that clause 7 does not so impinge upon any phase of such laws; and, applying the rule of reason, like considerations must follow as we have found apposite to clause 6, and it must be further held that the contracts in question are not rendered void because of the presence therein of clause 7.


A point is made in behalf of plaintiff that the United States District Attorney at San Francisco was without power or authority to suggest or direct the manner in which the contracts should be drawn, or the provisions which they should contain. This is without force. What was being done in the way of furthering the policy of the government to secure, if practicable, a fair and equitable distribution of sugar among the ultimate users, was by authority of the Attorney General. The United States attorney at San Francisco, and Montgomery, Miller, and others, were in the service of the Department of Justice and the Fair Trade Commission. It can scarcely be denied that these organizations were clothed with ample authority to pursue the policy adopted, if in subordination of the injunctions of the antitrust laws of Congress. As we have seen, these contracts do not contravene the interdiction of such laws.

We find no error in the decree rendered, dismissing the suit, and therefore affirm the same.


(Circuit Court of Appeals, Eighth Circuit. July 9, 1923.)

[291 Fed. Rep. 493.]

1. INJUNCTION 223 (2)—AssAULT ON ONE EMPLOYED IN PLACE OF STRIKER HELD VIOLATION, EVEN THOUGH HE HAD LEFT EMPLOYMENT BEFORE ASSAULT.-Injunction restraining interference with employees of railway company whose former employees were on strike, in going to and from their work or remaining at such work, or threats or suggestions of danger, violence, or personal injury against them, etc., was violated by assaulting one who had accepted employment in place of striker because of such fact even though, before the assault, he had left the employment."

2. CRIMINAL LAW 693-OBJECTION AT TRIAL TO ADMISSION OF EVIDENCE OBTAINED WITHOUT SEARCH WARRANT TOO LATE.-Where defendants charged with contempt knew that search and seizure had been made without search warrant long before trial but made no effort to prevent use of the property seized until it was offered in evidence, it was then too late to object.

a Syllabus copyrighted, 1923, by West Publishing Co.

Opinion of the Court.

In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.

L. F. Winkle and others were convicted of contempt of court, and they bring error. Affirmed.

Clif. Langsdale, of Kansas City, Mo., for plaintiffs in


Charles O. Madison, U. S. Atty., of Kansas City, Mo. (S. M. Carmean, Asst. U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before LEWIS and KENYON, Circuit Judges, and TRIEBER, District Judge.

TRIEBER, District Judge.

The plaintiffs in error were on a trial to a jury found guilty of contempt of court, having been charged by information with violating an injunction granted by the court below in an equity cause pending therein entitled Chicago & Alton Railway Co. v. International Association of Machinists et al. The terms of the injunction, alleged to have been violated, set out in the information, are:

"Not to interfere in any manner with the employees of the complainant in going to and from their daily work or in remaining at such work, except by such peaceful persuasion as announcing the socalled strike and requesting [494] and persuading employees and would-be employees not to work for the complainant, but such persuasion shall not be by profane, abusive, libelous or threatening epithets or threatened injury and shall not obstruct any unwilling listener or importunately follow his steps.

"Not to interfere in any manner with persons desiring to go into or upon the buildings or property of complainant for the purpose of working for the complainant, except by peaceful persuasion.

"Not to make any threats or suggestion of danger, violence or personal injury of any kind against the employees or would-be employees of complainant, or the members of their families, and not to

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Opinion of the Court.

commit any act of force or violence or any injury against any such person or the members of his family or his property.

"Not to interfere by violence or threats of violence in any manner with any person desiring to be employed by the complainant."

It then charges:

"That on or about the 28th day of August, 1922, at Slater, Saline county, Mo., the defendants, L. F. Winkle, L. R. Johnson, Barney Mayfield, Max Bates and Emmett Todd, whose true first names other than above set forth are to this affiant unknown, then and there being, within the Western District of Missouri, and within the jurisdiction of this court, did then and there unlawfully, willfully, knowingly and contemptuously commit contempt against the dignity and authority of this honorable court with intent then and there to disobey, resist and violate the lawful orders and decree as contained in said injunetive order aforesaid, and willfully obstruct its lawful processes by acts and conduct as follows:

"That on said 28th day of August, 1922, at Slater, Mo., the abovenamed defendants, acting in their own behalf, together with others to these affiants unknown, and aiding, assisting, combining, conspiring and agreeing with the persons so enjoined, as aforesaid, did then and there by force and violence seize one G. H. Gifford, who was an employee and a would-be employee of said Chicago & Alton Railway Company at Slater, Mo., and did force him into a certain automobile and convey him against his will to a place remote from the place of his employment, and did at said place brutally assault, beat and bruise the said G. H. Gifford, and did take from said G. H. Gifford money and other valuables belonging to him, and did command him to cease his employment with the said Chicago & Alton Railway Company and commanded him to leave Slater, Mo., and not return, with intent thereby to frighten, coerce and intimidate the said employee and would-be employee to leave the employment of said railroad company, all in disobedience, resistance and violation of the lawful orders of this court and in contempt thereof, contrary to the authority and dignity of this court and the laws of the United States."

The charge against one of the respondents was dismissed at the trial for insufficiency of the evidence against him.

The evidence on the part of the government tended to show that the employees of the railway company's machine shop were on a strike, and that Gifford, the person assaulted and robbed, was at the time and had been for some time prior thereto in the employ of the railway company, having

Opinion of the Court.

taken the place of one of the striking employees at Slater, Mo. He testified that

At 11 o'clock a. m., of August 28th, he quit work at the shops, having obtained five days' leave of absence to go to Kansas City, Mo. Another employee by the name of Gibbons accompanied him. Before leaving he drew part of the money from the chief clerk of the company, which he had on deposit with him, no part of which was for wages. He left between $300 and $400 of his deposit with the company at the time. He drew $35 and had $1 of his own. The money he drew consisted of two $5 bills, and the balance in silver and dollar bills. He changed the two $5 bills, five paper dollars, and $5 in silver for a $20 bill from George Cole, a colored man. On the way to the depot they [495] were stopped by a picket, who asked him where he had been. He told him: "I had worked at the railway shop and was on my way to Kansas City." He told me I would have to see Winkle. I asked him why, as I was not a union man, and he said "Winkle was the big boss of the union and see what he wanted to do with me." Another man came up, who was trying to bully me, and we went to see Winkle. Winkle called us scabs and asked what I was going to do, and I told him I was going to Kansas City. He threatened me about coming back to work and I told him I wouldn't. Just then a car drove up with Mayfield in a Buick. Seven or eight other men came up, when Winkle said, "If you want to get out of town, get in this car, and we'll take you to Marshall." I got in the back seat and Winkle got in the seat with Mayfield. The two men who got in the back seat with me were working in the shop. When they came to the forks of the roads, there are three roads, one leading to Marshall; they drove up a little lane that ran off. When I asked what was the idea, he said, "I have no chains, and it is raining, and I don't want to go to Marshall in this rain." They stopped there about two minutes, when a Dodge car and a Chevrolet drove up, and they then told me to, "Get out of that car, you scab." I got out. They told me how low down I was for working there taking the bread out of other people's mouths, and I tried to explain that I wanted to make some money myself, because they were starving was no use for me to starve. They made me take off my clothes and took my money. One fellow took my watch off, and another fellow took my shoes off, and Winkle hit me on the head, leaving a mark on my head. Another car came up, and they pulled us back in the car and drove back to the main road towards Marshall. The other two cars were still following. After they had gone four or five miles further, they drove on to another side road and stopped the car, these two cars still following, and Winkle and Parr said: "This is were we are going to finish you. Dead men tell no tales." Parr got a rope and began twisting a knot in it, when Winkle said: "He has got some more money on him. He has been working too long to have just this money.

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