upon prices to be adopted and restrictions upon the quantities of meats to be shipped, and the making of agreements between transportation companies for rebates and discriminating rates, was sufficient to show a violation of the law. The demurrer was overruled and the motion for an injunction was sustained. This judgment was affirmed by the supreme court (no dissent), 1905, supra, § 81.

§ 439 (321). The Washington Shingle Trust Case.-In Gibbs v. McNeeley et al., 55 C. C. A. 70, 118 Fed. Rep. 120, 60 L. R. A. 152 (ninth circuit (1902), reversing 107 Fed. Rep. 210 and 102 Fed. Rep. 594), it was held that an association of manufacturers and dealers in red cedar shingles in the state of Washington formed for the purpose of controlling the production and sale of such shingles, which are made only in the state, but are principally sold and used in other states, and by its action in closing the mills of its members, has reduced the production and has also arbitrarily increased the prices at which the product is sold, is a combination in restraint of commerce, in violation. of the act of 1890. The court applied the rule of the Knight and Addyston cases, and said that it was not essential for contract to refer expressly to interstate commerce, if its purpose and effect were necessarily to restrain such commerce.

§ 440 (322). Incidental restraint of trade not violative of the act. The contract condemned by the statute is one whose direct and immediate effect is a restraint upon that kind of trade or commerce which is interstate. It does not include regulations which are nothing more than a charge for a local facility provided for the transaction of commerce, nor does it include an agreement among business men for the better conduct of their own business which incidentally effects interstate commerce. The leading cases on this subject are those decided in relation to the Kansas City Live Stock Exchange, Hopkins v. Union States, 171 U. S. 578, 43 L. Ed. 290 (1898), and the Traders Live Stock Exchange of Kansas City, 171 U. S. 604, 43 L. Ed. 300, wherein the supreme court reversed the judgment of the circuit court in 82 Fed. Rep. 529.

§ 441 (323) The Kansas City Live Stock Exchange Cases.— In the first of these cases the court held that the Kansas City Live Stock Exchange, an unincorporated voluntary association

of men doing business at the stock yards situated partly in Kansas City, Missouri, and partly across the state line in Kansas City, Kansas, doing business as commission merchants, receiving consignments of cattle under rules which prohibited the employment of agents to solicit consignments except upon a stipulated salary, and forbidding the sending of prepaid telegrams or telephone messages as to the conditions of the market, and providing that no member should transact business with any commission merchant of Kansas City not a member of the exchange, or that any person violating the rules or regulations or with any expelled or suspended member after notice of such violation, was not in violation of the act. The court said that the situation of the yards partly in Kansas and partly in Missouri was a fact without any weight, and that such business was not in fact interstate business or commerce. The association merely provided facilities for the transaction of commerce. There must be some direct and immediate effect upon interstate commerce to come within the act. The court in this case cited a number of agreements incidentally affecting commerce which would not be included, as agreements among land owners, enhancing the cost of transporting cattle, or that of railroad employes to cease from work unless paid a certain compensation, saying that these agreements would enhance the cost of interstate commerce, but only indirectly and incidentally.

In Anderson v. United States, supra, the defendants were not commission men, but were themselves purchasers of cattle on the market. The members bore the same relation to the association and they had carried on the same business as they carried on in the Hopkins Case. The court said it was not called upon to decide whether the defendants were or were not engaged in interstate commerce, because the agreement was not one in restraint of trade, nor was there any combination to monopolize or attempt to monopolize such trade within the meaning of the

act.

The court in this latter case laid down the general rule that where the subject-matter of the agreement does not directly relate to and act upon and embrace interstate commerce, and where the anticipated facts clearly show that the purpose of the agreement was not to regulate, obstruct or restrain that commerce, but that it was entered into with the object to properly and fairly regulate the transaction of the business in which

the parties to the agreement were engaged, such agreement will be upheld as not within the statute, where it can be seen that the character and terms of the agreement are all calculated to attain the purposes for which it was formed, and where the effect of its formation and enforcement upon interstate trade and commerce is in any event indirect and incidental, and not its purpose or object. These cases were decided with only one dissent, that of Mr. Justice Harlan.

See also Field v. Barber Asphalt Co., 194 U. S. 618, 48 L. Ed. 1142 (1904), where the court held that the specification in an ordinance, that a particular kind of asphalt produced only in a foreign country should be used in a city pavement, was valid under the laws of the state and did not violate the act of 1890 or any federal right.

§ 442. The Chicago Board of Trade Bucket Shop Case.-In Chicago Board of Trade v. The Christy G. & S. Co., 198 U. S. 236, 49 L. Ed. 1031 (1905). The supreme court reversed the circuit court of appeals, eighth circuit, 125 Fed. 161, and affirmed that court of the seventh circuit, 130 Fed. 507, and held that the Chicago board of trade had the right to enjoin the defendants from using and distributing the continuous quotations of prices on sales of grain and provisions for future delivery which were collected by the board of trade and which could not be obtained by the defendants except through a known breach of the confidential terms on which the plaintiff communicated. The court held that contracts with telegraph companies by which the Chicago board of trade limited the communication of quotation of prices of sales of grain and provisions for future delivery collected by it which it might have refrained from communicating to any one, did not make a monopoly or amount to an attempted monoply, nor did it amount to a contract in restraint of trade either under the Anti-Trust Act or at common law. Justices Harlan, Brewer, and Day dissented.

§ 443. The Calumet & Heckla Mining Co. case.-The circuit court of appeals of the sixth circuit, in Bigelow v. Calumet & Co., in 167 Fed. 721 (1908), affirming 167 Fed. 704, held that the purchase by one Michigan mining corporation of the stock of another expressly authorized by the statute and thereby with the aid of proxies from other stockholders subject to control of

the latter where the two together were shown to produce about one-ninth of the copper product of the country, was not illegal as a combination in restraint of trade or commerce in violation of the anti-trust act in the absence of evidence of an unlawful intent to use the control so as to bring about a monopoly. In this case, the court, opinion by Lurton, J., said that the fundamentai rule declared by the supreme court in the Knight case, supra, had not been overruled or qualified by subsequent decisions and that its last analysis was but an illustration of the rule that the monoply or agreement to come within the act must directly and immediately affect interstate commerce.

See also concurring opinion of Judge Cochran. In this case was laid down the rule following the supreme court in the Cinn. Packet Co. v. Bay, 200 U. S. 179, 50 L. Ed. 428 (1906), that a contract is not to be assumed to contemplate unlawful results, unless a fair construction required it upon the established facts.

§ 444. Combinations held to be within the act.-Whether a combination is in restraint of trade within the meaning of the act is thus made to depend upon the intent and purpose of the parties to control the market by eliminating competition. Thus, in Wheeler Stencil Co. v. National Window Glass Association, 152 Fed. 864 (1907), it was held by the circuit court of appeals, third circuit that an agreement between jobbers and wholesale dealers doing business in different states to control a purchasing corporation in the window glass business and through this corporation controlled by them enter into a combination with a manufacturer operating factories in different states and manufacturing seven per cent. of all the window glass in the United States, whereunder the defendant and the dealers agreed to buy window glass from no other manufacturer unless at materially lower rates, and the manufacturer agreed to sell to no other dealers except for higher prices than it charged them, with a further agreement for limiting the quantity of window glass to be purchased by each of the window dealers with the power to arbitrarily fix prices which were to be charged retail dealers, was an agreement to destroy competition and illegal under the act.

Thus, also, an association of books publishers controlling ninety per cent. of the book business of the country which agreed not to sell to persons who cut prices of copyrighted books, was held, in Mines v. Scribner et al., 147 Fed. 927 (1906), by the cir

cuit court in New York to constitute a conspiracy in restraint of interstate trade.

In Penn. Sugar Refining Co. v. American Sugar Refining Co., the circuit court of appeals of the second circuit, 166 Fed, 254 (1908), reversing 160 Fed. 144, held the purchase of a controlling interest in the stock of a sugar refining company so as to acquire control thereof and prevent the corporation from refining sugar in competing with a purchaser so that the latter might control the business, constituted an unlawful conspiracy in restraint of trade under the act.

In the circuit court of appeals of the fifth circuit, Peoples Tobacco Company v. American Tobacco Co., 170 Fed. 396 (1909), it was held that an unlawful conspiracy was stated in the allegation that defendants conspired to render its business unprofitable and to ruin and destroy the same through competing corporations, which they secretly controlled, by enticing away his workmen, by compelling it to pay more than the normal price for leaf tobacco, and to adopt unnecessary and expensive means to sell its products.

In United States Tobacco Co. v. American Tobacco Co., 163 Fed. 701 (1908, S. D. of N. Y.), an agreement between tobacco manufacturers as set forth in a complaint for damages, was held on demurrer to be an unlawful interference with interstate commerce in that it charged an inducement to competitors to maintain arbitrary and non-competitive prices and apportioned the interstate trade and commerce, fixing the amount of business that their customers should do.

See also Monarch Tobacco Works v. American Tobacco Co., circuit court (W. D. of Ky.), 165 Fed. 774 (1908), and Hale v. O'Connor Coal & Supply Co., 181 Fed. 267 (C. C. of Conn, 1908), where the combinations charged were held to be in violation of the act.

See also Ware Cramer Tobacco Co. v. American Tobacco Co.. 180 Fed. 160, (C. C. of N. C. 1910).

See also decision of the C. C. A. fifth circuit, in McConnell v. Connors McConnell Co., 152 Fed. 321 (1907), where a corporation organized for monopolizing fruit importing business was held to violate the act.

§ 445. Agreements held not within the act.-Agreements of manufacturers or dealers with their customers for the preven