Lapas attēli

Opinion of the Court.

strike it from the files. Upon the view, touching the petition, which was taken by trial court, that is, that it was fatally defective, he committed no error in procedure in striking it from the files. So, the question is: was it fatally bad?

[2] The petition in this case has at least the merit of brevity, which greatly lightens the labor of analysis, and the statement of its salient allegations. No point is made as to jurisdictional averments, so far as regard diversity of citizenship and the amount in controversy. Following these merely jurisdictional averments, it is alleged that the action is brought, as already forecast, under the provisions of the Sherman Anti-Trust Act and the Clayton Act (38 Stat. 730); that defendants are engaged in the slaughter of cattle, hogs, sheep, and calves, and in the distribution of dressed meats to butchers, and through the latter to consumers; that defendants, on the information and belief of plaintiff, have since the year 1900 conspired, and from that year down to the time of the bringing of this action have been engaged in a conspiracy, to maintain a monopoly, in restraint of trade, in the business of buying and slaughtering live stock, and in preparing the carcasses thereof for distribution and consumption; that defendants in violation of the Act of July 2, 1890, and the amendments thereto, and in order to restrain competition in the purchase of live stock, have engaged in a combination and conspiracy among themselves in which they intend to continue "for directing and requiring their respective purchasing agents" in the several live stock markets, where defendants buy live stock and to which live stock is shipped by the producers for com- [744] petitive sale, to refrain from bidding against each other in the purchase of such live stock, thus and thereby compelling the owners of such stock to sell same at prices less than such owners would receive if the bidding were competitive. It is further alleged that defendants have combined and conspired to "bid up" the prices of live stock for a few days in the markets and stockyards, thereby inducing shippers to make heavy shipments, and when such shipments have been thus induced and the markets congested, to refrain from "bidding up" such live

Opinion of the Court.

stock, "thereby obtaining such live stock at prices much less than it would bring in the regular way of trade.”

It is further alleged that defendants, in order to restrain competition among themselves in such trade and commerce, and in order to monopolize the same, have combined and conspired arbitrarily to lower and fix prices and to maintain uniform prices, at which they will sell their products to dealers and consumers. The manner in which such prices are fixed, agreed on, and maintained is thereupon pleaded; but for reasons which are fairly obvious, it is not necessary to state these allegations. These facts, even if they exist, are of no particular concern to plaintiff, or to his case.

It is then averred that defendants are, and for years have been, in combination and conspiracy with each other, with the railroad companies, and with persons unknown, to obtain a monopoly in the supply and distribution of fresh meats, throughout the United States and foreign countries, and that to this end defendants will artificially restrain such commerce and "put in force unreasonable and arbitrary regulations for the conduct of their own and each others' business effecting the same" from the place of rearing such stock, to the final distribution of defendants' products to the consumer.

It is further alleged that defendants refrain from honest bidding against each other, and that in the principal live stock markets of the United States, they divide and parcel out by fixed percentages what each one of defendants shall purchase, and that defendants, in furtherance of their com mon purpose to maintain a monopoly in the slaughter of live stock and in the distribution of meats, have purchased, or secured control of a majority of the large stockyards of the United States, with the purpose and intent and with the effect of discouraging and suppressing the establishment and growth of such independent packing companies as might be in existence.

This is a fair résumé of the entire petition, barring iteration and reiteration of the intent of defendants, that is, that

Opinion of the Court.

the acts charged were in contravention of the Act of July 2, 1890, and that they were done in furtherance of a combination and conspiracy in restraint of trade and commerce, and barring the averment of the business in which plaintiff is engaged.

In conclusion, it is averred that by reason of the monopoly in restraint of trade, created and maintained by defendants as set out in the petition, plaintiff has been injured in his business in the sum of $25,000, for which he prays, and that such damages may be trebled, and that he have judgment against each of the defendants for $75,000 and his costs.

[745] Beyond alleging that he is engaged in the business of raising, buying, and selling cattle and hogs for profit, plaintiff nowhere avers his interest in the action he brings. He does not aver where, or in what markets, he either buys or sells the live stock in which he deals. He nowhere sets out the nature or extent, or manner in which the alleged unlawful acts of defendants have injured or affected him personally. And he sues for himself personally, and not in an official capacity.

The statute on which he relies provides, in substance, that any person who shall be injured in his business or property by reason of the doing by any other person or corporation of the acts and things prohibited by other sections of the Sherman Anti-Trust Act may sue therefor and recover threefold damages for the injuries so sustained. Section 7, Act of July 2, 1890, 26 Stat. 210 (Comp. St. § 8829).

But before a recovery can be had by a mere private person under this section, there must at least be an allegation of the manner, nature, extent, or amount of the injury sustained by such private person. The question whether the United States could sue upon such a showing as here made is not involved and is neither important nor decisive, and the cases cited by plaintiff are not in point. If plaintiff may sue for $75,000, and recover such sum, or even any respectable modicum thereof, simply because he happens to be engaged in raising, buying, and selling live stock, it would necessarily

Opinion of the Court.

follow that every person in the United States engaged in a business similar to plaintiff could likewise sue and recover an equal sum. Obviously the mere statement of the proposition discloses its unsoundness. On both reason and authority, no one can maintain an action under the provisions of section 7 of the Sherman Anti-Trust Act, unless he has suffered an injury in his business or property by proximate reason of the violation by the defendant or defendants whom he sues, of some of the prohibitions contained in that act; for this is what the act says in plain and simple language. It is needless to say that it has been so construed by the courts. Locker v. American Tob. Co., 218 Fed. 447, 134 C. C. A. 247; American, etc., Co., v. O'Halloran, 229 Fed. 77, 143 C. C. A. 353; American Banana Co. v. United Fruit Co., 213 U. S. 347, 29 Sup. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047.

So far at least as concerns private persons, a mere conspiracy is not actionable, absent overt manifestations thereof, by which injury is inflicted upon the business or property of him who sues, or mayhap, in a proper case, upon his person. Darrow v. Briggs, 261 Mo. 244, 169 S. W. 118; Commercial, etc., Co. v. Shoemaker, 63 Neb. 173, 88 N. W. 156; Porter v. Mack, 50 W. Va. 581, 40 S. E. 459.

It is obvious that at least in the absence of the allegations mentioned, the petition in this case was fatally defective, and the trial court did not err in striking it from the files. This, in the last analysis, is the only question in the case; the first contention being, as seen already, a mere corollary of the second. No necessity arises to point out other defects, if such exist; so we content ourselves with passing upon the single point mooted, leaving other questions to be disposed of as they shall arise.

It follows that the case ought to be affirmed, which accordingly is ordered.



(Circuit Court of Appeals, Seventh Circuit. July 11, 1923. Petition for Rehearing Overruled. September 21, 1923.)

[291 Fed. Rep. 940.]

1. INJUNCTION 231-ON WRIT OF ERROR, ONLY QUESTION IS WHETHER PRIMA FACIE CASE OF VIOLATION MADE BY EVIDENCE.-On writ of error to review judgments for criminal contempt, challenge of sufficiency of evidence goes only to question whether prima facie case of violation of injunction was made."

2. JURY 13 (21)-STRIKERS NOT ENTITLED TO BENEFIT OF PROVISION FOR TRIAL BY JURY, UNLESS THEY CONTINUED TO BE EMPLOYEES.-Under Clayton Act, §§ 20-22 (Comp. St. 1243d, 1245a, 1245b), strikers, in order to have benefit of provision for jury trial for contempt in violating injunction, must have been employees until after the alleged violations.

3. JURY 13 (21)—STATUTE INTENDED TO GIVE ABSOLUTE RIGHT TO TRIAL BY JURY.-Though Clayton Act, § 22 (Comp. St. § 1245b), provides that trial for contempt in violating injunction "may," on demand of accused, be by jury, it was intended to give absolute right to such trial to the special class in the special cases to which it applies. 4. JURY 13 (21)—STRIKE DOES NOT IN ITSELF TERMINATE RELATION, SO AS TO DEPRIVE STRIKERS OF BENEFIT OF STATUTE AS TO JURY TRIAL.In case of controversy over wages and conditions of work in private and local industry, a strike does not of itself terminate relation of employer and employee, so as to defeat right to jury trial for violation of injunction, under Clayton Act, §§ 20-22( Comp. St. §§, 1243d, 1245a, 1245b).

5. JURY 13 (21)—STRIKING EMPLOYEES OF INTERSTATE RAILROAD DO NOT REMAIN EMPLOYEES, AND ARE NOT ENTITLED TO TRIAL BY JURY FOR VIOLATION OF INJUNCTION.-In view of control by Interstate Commerce Commission over service and rates of interstate railroads and their lack of right to abandon operations, under Comp. St. 88 8563-8583, a strike by employees is not a lawful strike, and the strikers do not remain employees, and are not entitled to benefit of Clayton Act, §§ 20-22 (Comp. St. §§ 1243d, 1245a, 1245b), providing for trial by jury for violation of injunction.

6. JURY 13(21)-STRIKERS, REJECTING DECISION OF LABOR BOARD, HELD NOT EMPLOYEES, SO AS TO BE ENTITLED TO TRIAL BY JURY.-Where railroad company accepted decision of Railroad Labor Board fixing wages of employees under Transportation Act 1920, tit. 3, but employees rejected the decision and went on strike, the strike was a


• Syllabus copyrighted, 1923, by West Publishing Co.

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