Denison, J., dissenting.

undue restriction, except that remote tendency which always exists in every such case, and provided the public interest arises. If upon full consideration, that court should decide to adopt a more restricted definition, it will not be embarrassed by any contrary, unspoken, but necessary, inference [1001] from the Winstead Case, but all other courts are bound by those inferences.

It is also thereby decided that the public interest does exist under circumstances substantially like those there involved; but it goes no further. It cannot, as I think, intend to hold that the public interest may be found merely because a fraction of the public may be misled as to the origion or identity of merchandise advertised for sale. That kind of public interest inheres in every ordinary injunction suit for unfair competition brought by one trader against another, and the public interest clause was inserted expressly to limit the scope of the act and to exclude that kind of controversy. The Winstead Case discloses a public interest of that very unusual kind and degree which alone, as I think, can justify a proceeding by the Commission where it is not striking at incipient monopoly. The purchasing public liable to be misled comprised the whole people, and the controversy was about an article of universal use. If a mere "palming off" case, not involving a tendency to crush competition, can ever indicate a public interest sufficient to give the Commission jurisdiction, the Winstead Case does.

Not so with the present case. It interests, not the whole public, but only those on farms; not all farmers, but only those who are stock raisers; not all stock raisers, but only swine breeders; and not all swine breeders, but only those with predilections for the Chester type. I cannot believe there is any statutory public interest in establishing that the "Mammoth" hog of early Pennsylvania lived only in fable, and is mythological, not historical. Nor is there any palming off." Defendant advertises, "My goods are better than plaintiff's, because they are different." Plaintiff says, "They are not better; they are the same thing." Complaint to a court by such a plaintiff of such competition is,

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Opinion of the Court.

I think, without precedent. Further, as the opinion of Judge Donahue points out, there is no restraint of competition; quite the contrary.

While I concur in that opinion, both as to reasoning and result, I would go further, and vacate entirely the first paragraph of the order to desist.

O'BRIEN ET AL. v. UNITED STATES.

(Circuit Court of Appeals, Sixth Circuit. June 5, 1923.)

[290 Fed. Rep. 185.]

MONOPOLIES 29-COMBINATION TO RESTRAIN INTERSTATE COMMERCE NOT DEPENDENT ON AMOUNT OF COMMERCE RESTRAINED.-It is not a defense to a charge of combining to restrain interstate commerce, in violation of Sherman Anti-Trust Act, that the amount of commerce restrained was small, but the offense is found in the direct and absolute character of the restraint."

[186] In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.

Criminal prosecution by the United States against James O'Brien and others. Judgment of conviction, and defendants bring error. Affirmed.

O. M. Rogers, of Covington, Ky., and A. C. Hall, of Newport, Ky., for plaintiffs in error.

Sawyer A. Smith, U. S. Atty., of Covington, Ky. (John E. Shepard and Rodney G. Bryson, Ast. U. S. Attys., all of Covington, Ky., on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

PER CURIAM. While a strike was in progress at the rolling mills in Newport, Ky., just across the river from Cincinnati, the mills management arranged to sell a steel billet to a Cincinnati manufacturer. The purchaser was to take

• Syllabus copyrighted, 1923, by West Publishing Co.

Opinion of the Court.

delivery at the mills, and accordingly sent over from Cincinnati an automobile truck, the driver of which was instructed to get the billet and bring it across the river into Ohio. After he had received it at the mills, loaded it on his truck and started back, he was accosted by the four plaintiffs in error, and as a result of the conversation he turned back to the mills, unloaded the billet, and went back to Cincinnati with his empty truck. The plaintiffs in error were indicted for having conspired to restrain and obstruct interstate commerce in violation of the Sherman Act (Comp. St. §§ 88208823, 8827–8830). It was the theory of the prosecution that the respondents were, in effect, strike pickets, and that by threats and intimidation they compelled the truck driver to abandon the enterprise.

The point chiefly urged in support of reversal is that the effect of the Clayton Act (38 Stat. 730) is to exempt from the prohibitions of the Sherman Act any conspiracy which is merely in aid of a strike, and the overt acts in connection with which are only those things which are permitted to strikers by the express terms of the Clayton Act. It is quite unnecessary to decide this question. The trial judge expressed his belief that the Clayton Act did not have this effect; but in view of the specific language of the indictment, and for the purpose of the charge to the jury, he accepted the respondents' contention, and instructed that there could be no conviction unless the jury was convinced that there was such conduct by respondents and such a show of force as amounted to intimidation, rather than merely to "peaceful persuasion." The jury's necessarily implied finding that the respondents' conduct amounted to intimidation by threats of force is not without sufficient support in the record. The driver's testimony is that from six to ten men appeared in the road, stopped him, surrounded his truck, demanded to know what he was carrying, and, on being told the spokesman of the crowd told the driver he could not go any farther. While no specific threats were made, the state of mind produced in the driver is indicated by his statement that he turned around in order to avoid trouble, and

Syllabus.

because his truck was a new one and he did not want it destroyed, not being able to buy another.

It is likewise urged that respondents' knowledge of the interstate [187] character of the shipment does not sufficiently appear. It is replied that when respondents engage in an act unlawful under the common law or the state law, it is not important whether they know that the facts bring their conduct also within the federal law. This question also need not be decided. It was not raised in the court below, even by the motion to direct a verdict upon the specific grounds recited; and there was substantial evidence that the respondents must have known that this shipment was bound for Cincinnati. Not only was the billet "prepared for delivery and marked," but carriage across the river was in the natural course of business at this point, and it is to be assumed that the truck carried the usual evidence that it was an Ohio car.

It is also urged that the amount of commerce involved was too insignificant to justify invoking the Sherman Act; but we hold, as we did in Steers v. U. S., 192 Fed. 1, 112 C. C. A. 423, that the existence of the offense is found not in the amount of commerce restrained, but in the direct and absolute character of the restraint.

The convictions and sentences are affirmed.

UNITED STATES v. TALIAFERRO."

(District Court, W. D. Virginia. October 2, 1922.)

[290 Fed. Rep. 214.]

1. INJUNCTION 223(2)-POSTING PLACARD HELD VIOLATION OF STRIKE INJUNCTION; "ASSOCIATED."-The acceptance by respondent from strikers during a railroad strike, and the posting or permitting to be posted in a conspicuous place in the front window of his barber shop, facing a main street near an entrance to a railroad building, a conspicuous placard with large letters reading "No scabs wanted in here," held a violation of an order enjoining the strikers

• For opinion of the Circuit Court of Appeals (290 Fed. 906), post, page 990.

see

Statement of the Case.

and "all persons conspiring or associated' with them" from interfering with, annoying, or insulting employees of the company about the premises or on their way to or from their work, and failure to remove said placard after service of the injunction order held a contempt of court.

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

2. [215] INJUNCTION 230 (3)—VIOLATION OF STRIKE INJUNCTION MAY BE SHOWN BY CIRCUMSTANTIAL EVIDENCE.-Contempt may be proved by circumstantial evidence, and evidence that employees of the railroad company passed along the street in front of respondent's shop, going to and from their work, is sufficient to show that they saw and were annoyed and insulted by the placard, which remained in the window for nearly two months.

3. COURTS 262(4)—FEDERAL COURT MAY ENJOIN INTERFERENCE WITH EMPLOYEES OF INTERSTATE CARRIER.-Under its power to enjoin acts which restrain interstate commerce a federal court may enjoin acts which may interfere with the working of numbers of the employees of an interstate carrier during a widespread strike. 4. JURY 13 (21)-RESPONDENT IN CONTEMPT PROCEEDING HELD NOT ENTITLED TO JURY TRIAL.-A charge of contempt in violating an injunction by displaying in a shop window a placard calculated to annoy or insult railroad employees passing to and from work held not to involve a criminal offense, which entitled respondent to a jury trial, under Clayton Act Oct. 15, 1914, § 22 (Comp. St. § 1245b). 5. JURY 13(21)-WHETHER RESPONDENT IS ENTITLED TO A JURY TRIAL IS TO BE DETERMINED FROM THE CHARGE MADE AGAINST HIM.Whether a person proceeded against for contempt is entitled to a jury trial, under Clayton Act Oct. 15, 1914, § 22 (Comp. St. § 1245b), is to be determined from the charge made, and not from the evidence introduced on the trial.

6. JURY 13 (21)—RIGHT TO JURY TRIAL FOR CONTEMPT LIMITED TO CASES WHERE CRIMINAL OFFENSE IS CHARGED.—The right to a jury trial for contempt, given by Clayton Act Oct. 15, 1914, § 22 (Comp. St. § 1245b), is limited to the cases specified in section 21 (Comp. St. § 1245a), where the acts charged constitute a criminal offense. 7. INJUNCTION 101 (3)-CLAYTON ACT DOES NOT PROHIBIT INJUNCTION FORBIDDING CALLING WORKING EMPLOYEES "SCABS."-Clayton Act Oct. 15, 1914, § 20 (Comp. St. § 1243d), does not prohibit the granting of an injunction forbidding the use of insulting epithets, such as "scab."

Proceeding for contempt by the United States against L. A. Taliaferro. Defendant adjudged in contempt. Judgment affirmed 290 Fed. 906.

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