Lapas attēli

Opinion of the Court.

jury and the district attorney of the duties conferred on them by law.

As I understand the reasoning, this is merely another way of saying that a District Court has inherent power to prevent abuse of its process. If this be true, then this power extends to the misuse of subpoenas for the purpose of requiring witnesses to appear and testify before grand juries and to the proceedings of the grand jury itself, as well as to the abuse of process in other spheres of the court's jurisdiction. If I am right, as I believe I am, in my view of the court's power, the question here in its last analysis comes down to what is an abuse of process, and whether, upon the facts as found herein, is the process of this court abused? Or, to put it another way, is such a case made as requires this court to exercise its inherent power to prevent the use of its process for purposes of oppression and injustice?

[7] The subject-matter of the present grand jury investigation has been made the subject of a grand jury investigation in the Southern district of New York.. An indictment has been returned therein charging certain persons with having conspired in restraint of trade. The government has announced its purpose and intention to try the indicted persons as expeditiously as is reasonably practicable. Both parties have been, and are now, or ought to be, engaged in preparing for that trial. At a date coincident with the time fixed for counsel and parties to appear in New York to fix a time of trial, the present grand jury investigation is started. This investigation requires the presence here of the same counsel who are or should be engaged in preparing that case for trial. This investigation also requires the presence here of witnesses and documents required by both parties elsewhere in that preparation. The only claimed justification for the present investigation is to get a new indictment, not for the purpose of immediate trial, but only for use in the event the New York prosecution should [227] fail for want of jurisdiction. This claim seems to me to be without much substance. See In re Palliser, 136 U. S. 257, 10 Sup. Ct. 1034, 34 L. Ed. 514; Benson v. Henkel, 198 U. S. 1, 15, 25 Sup. Ct. 569, 49 L. Ed. 919.

Opinion of the Court.

[8, 9] In ordinary cases of criminal conspiracy it is settled law that the conspirators may be prosecuted in any jurisdiction where an overt act has been committed, and that the statute of limitations begins to run only from the date of the commission of the last overt act. See Hyde v. U. S., 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Brown v. Elliott, 225 U. S. 392, 32 Sup. Ct. 812, 56 L. Ed. 1136. It is true that indictments for conspiracies in violation of the Sherman Anti-Trust Law (Comp. St. §§ 8820-8823, 8827-8830) do not require the averment of an overt act to complete the offense, but no good reason is perceived why the test of jurisdiction should be different. See Nash v. United States, 229 U. S. 373, 33 Sup. Ct. 780, 57 L. Ed. 1232; Armour Packing Co. v. United States, 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681. And it is undoubtedly true that a conviction or an acquittal on an indictment for a continuing conspiracy would bar another prosecution based on the same alleged conspiracy during a period subsequent to the return of the indictment on which the conviction or acquittal was had. See United States v. Kissel, 218 U. S. 601, 31 Sup. Ct. 124, 54 L. Ed. 1168.

The situation, briefly summed up, is this: May the government proceed from district to district in which overt acts have been committed in the furtherance of a continuing criminal conspiracy, and continuously and successively investigate the same transactions, and indict the same persons? May counsel, parties, and witnesses be called from their duty and obligation to prepare for trial on an indictment already returned, at the will or discretion of government counsel? Is there any power or discretion in a District Court to prevent or set a limit to the oppression or injustice which may thus be inflicted? If any necessity or substantial reason for a new investigation and a new indictment is shown, the court undoubtedly would decline to interfere with a new investigation and the return of a new indictment. Likewise the court will not interfere unless good and substantial reason therefor, in addition merely to the inconvenience to parties and counsel, is clearly


shown. Every precaution which the courts have imposed to protect the secrecy, freedom, and independence of grand jury investigations should and ought to be preserved. But here no reason is suggested for the new investigation, except one of little substance.

In addition thereto, it is shown that the government intends to proceed as expeditiously as possible with the trial of an indictment already obtained, and that counsel, witnesses, and parties should be giving their attention to the work of preparing for that trial. It is also shown that the dominating, if not the only, object of the present investigation is to examine witnesses in advance of trial, find out what their testimony is to be, so as to use it in that trial, and to obtain the possession and production of documents for that purpose. This, it seems to me, presents a situation which calls for a limited interference on the part of this court. The present grand jury investigation should be re- [228] strained, and the outstanding subpoenas should be vacated and set aside, until the Government either has tried the defendants on the New York indictment, or has filed in this court a stipulation in satisfactory form evidencing an intention to try the defendants here first upon any new indictment that may be obtained. Such will be the order of the court.


(District Court, N. D. Ohio, E. D. February 2, 1923.)

[287 Fed. Rep., 228.]

1. MONOPOLIES 13-AGREEMENT RESTRICTING ALL FACTORIES IN TRADE TO HALF-TIME OPERATION DIRECTLY RESTRAINS INTERSTATE COMMERCE. An agreement between an association embracing all the skilled window glass blowers and an association of the window glass manufacturers, whereby all of the factories in which window glass is manufactured by hand were divided into two classes, and each class permitted to operate only half of the time, during which the other class must remain idle, must of necessity limit the total

Statement of the Case.

production of such glass, and must necessarily and directly restrain interstate commerce therein, notwithstanding testimony that those results did not follow."

2. COMMERCE 16-PRODUCTION OF ARTICLES INTENDED FOR SHIPMENT INTO ANOTHER STATE IS NOT "INTERSTATE COMMERCE."-The manufacture and production of articles is not interstate trade or commerce, even though there may be a present intention to sell and ship them in such trade or commerce.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]

3. MONOPOLIES 13-INTERFERENCE WITH COMMERCE BY AGREEMENT CLOSING FACTORIES FOR HALF TIME IS NOT INCIDENTAL.-An agreement between employers and employees, whereby each of the factories engaged in the production of an article shipped in interstate commerce is required to cease operation for half of the year is one whose effect on interstate commerce is direct, material, and substantial, and not merely indirect or incidental.

4. MONOPOLIES 13-CLAYTON ACT DOES NOT JUSTIFY AGREEMENT WITH LABOR UNION CLOSING FACTORIES HALF TIME.-Clayton Act, § 6 (Comp. St. § 8835f), providing that the anti-trust laws shall not forbid the existence and operation of labor organizations or restrain members thereof from lawfully carrying out their legitimate objects, does not legalize an agreement between an association of window glass workers and window glass manufacturers, whereby each of the factories producing hand-blown window glass was to remain closed for half of each year, since the restraint or undue interference with interstate trade or commerce is not a legitimate object of a labor organization, nor a lawful means of carrying out its objects.

5. MONOPOLIES 13-RESTRICTION OF FACTORIES TO HALF-TIME OPERATION HELD UNREASONABLE.-Even if the Sherman Anti-Trust Act (Comp. St. 88 8820-8823, 8827-8830) prohibits only unreasonable restraint of interstate trade or commerce, an agreement between an association of window glass workers and an association of manufacturers, whereby each factory was to remain closed for half of each year, as a result of which the workers were required to go from place to place to obtain employment, and the less efficient fac- [229] tories were kept in operation at the expense of the more efficient and of the consuming public, is not a reasonable restraint of trade.

In Equity. Suit by the United States against the National Association of Window Glass Manufacturers and others, to dissolve and enjoin an agreement and combination in re

a Syllabus copyrighted, 1923, by West Publishing Co.

Opinion of the Court.

straint of interstate trade or commerce. Decree rendered for plaintiff.

Roger Shale, Sp. Asst. Atty. Gen., and Gerard J. Pilliod, Asst. U. S. Atty., of Toledo, Ohio, for the United States.

Squire, Sanders & Dempsey, of Cleveland, Ohio, John W. Davis, of New York City, Patterson, Crawford, Miller & Arensburg, of Pittsburgh, Pa., and Stetson, Jennings & Russell, of New York City, for National Ass'n of Window Glass Mfrs.

Calfee, Fogg & White, of Cleveland, Ohio, and I. L. Broadwin, of New York City (Pierre A. White, of Cleveland, Ohio, of counsel), for National Ass'n of Window Glass Workers.

WESTENHAVER, District Judge.

This suit is brought, under favor of section 4 of the Sherman Anti-Trust Law (Comp. St. § 8823), to dissolve and enjoin an agreement and combination in restraint of interstate trade or commerce. The manufacturers of hand-blown window glass, said to comprise substantially all engaged in that industry, are charged with having agreed through their wage committee with a workers' organization, said to comprise all laborers in the hand-blown glass industry, upon a wage scale which, in view of the conditions surrounding the industry and the manner in which the wage agreement is observed and enforced, curtails production of window glass, restricts its distribution in interstate trade, and limits the opportunity of the workers to follow their normal occupation. Upon the filing of this bill, a motion was made for a preliminary injunction. The defendants having all appeared and answered, the hearing of this motion was by agreement converted into a final hearing and the case submitted for a final decree on the merits.

Whether an agreement or combination prohibited by section 1 of the Sherman Anti-Trust Law (Comp. St. § 8820) is shown to exist depends upon the determination of certain disputed propositions, namely: (1) That this wage agree

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