251 U.S. 417
40 S.Ct. 293
64 L.Ed. 343
UNITED STATES STEEL CORPORATION et al.
Argued March 9, 12, 13, and 14, 1917.
Restored to docket May 21, 1917.
Reargued Oct. 7, 8, 9, and 10, 1919.
Decided March 1, 1920.
[Syllabus from pages 417-419 intentionally omitted]
Messrs. C. B. Ames, Asst. Atty. Gen., and Henry E. Colton, of Nashville, Tenn., for the United States.
[Argument of Counsel from pages 419-430 intentionally omitted]
Messrs. R. V. Lindabury, of Newark, N. J., David A. Reed, of Pittsburg, Pa., C. A. Severance, of St. Paul, Minn., and Geo. Welwood Murray, Kenneth B. Halstead, W. J. Curtis and Raynal C. Bolling, all of New York City, for appellees.
[Argument of Counsel from pages 430-436 intentionally omitted]
Mr. Justice McKENNA delivered the opinion of the Court.
Suit against the Steel Corporation and certain other companies which it directs and controls by reason of the ownership of their stock, it and they being separately and collectively charged as violators of the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830).
It is prayed that it and they be dissolved because engaged in illegal restraint of trade and the exercise of monopoly.
Special charges of illegality and monopoly are made and special redresses and remedies are prayed, among others, that there be a prohibition of stoc ownership and exercise of rights under such ownership, and that there shall be such orders and distribution of the stock and other properties as shall be in accordance with equity and good conscience and 'shall effectuate the purpose of the Anti-Trust Act.' General relief is also prayed.
The Steel Corporation is a holding company only; the other companies are the operating ones, manufacturers in the iron and steel industry, 12 in number. There are, besides, other corporations and individuals more or less connected in the activities of the other defendants, that are alleged to be instruments or accomplices in their activities and offendings, and that these activities and offendings (speaking in general terms) extend from 1901 to 1911, when the bill was filed, and have illustrative periods of significant and demonstrated illegality.
Issue is taken upon all these charges, and we see at a glance what detail of circumstances may be demanded, and we may find ourselves puzzled to compress them into an opinion that will not be of fatiguing prolixity.
The case was heard in the District Court by four judges. They agreed that the bill should be dismissed; they disagreed as to the reasons for it. (D. C.) 223 Fed. 55. One opinion (written by Judge Buffington and concurred in by Judge McPherson) expressed the view that the Steel Corporation was not formed with the intention or purpose to monopolize or restrain trade, and did not have the motive or effect 'to prejudice the public interest by unduly restricting competition or unduly obstructing the course of trade.' The corporation, in the view of the opinion, was an evolution, a natural consummation of the tendencies of the industry on account of changing conditions, practically a compulsion from 'the metallurgical method of making steel and the physical method of handling it,' this method, and the conditions consequent upon it, tending to combinations of capital and energies rather than diffusion in independent action. And the concentration of powers (we are still representing the opinion) was only such as was deemed necessary, and immediately manifested itself in improved methods and products and in an increase of domestic and foreign trade. Indeed an important purpose of the organization was the building up of the export trade in steel and iron which at that time was sporadic, the mere dumping of the products upon foreign markets.
Not monopoly, therefore, was the purpose of the organization of the corporation, but concentration of efforts, with resultant economies and benefits.
The tendency of the industry and the purpose of the corporation in yielding to it was expressed in comprehensive condensation by the word 'integration,' which signifies continuity in the processes of the industry from ore mines to the finished product.
All considerations deemed pertinent were expressed and their influence was attempted to be assigned and, while conceding that the Steel Corporation after its formation in times of financial disturbance, entered into informal agreements or understandings with its competitors to maintain prices, they terminated with their occasions, and, as they had ceased to exist, the court was not justified in dissolving the corporation.
The other opinion, by Judge Woolley and concurred in by Judge Hunt (223 Fed. 161), was in some particulars, in antithesis to Judge Buffington's. The view was expressed that neither the Steel Corporation nor the preceding combinations, which were in a sense its antetypes, had the justification of industrial conditions, nor were they or it impelled by the necessity for integration, or compelled to unite in comprehensive enterprise because such had become a condition of success under the new order of things. On the contrary, that the organizers of the corporation and the preceding companies had illegal purpose from the very beginning, and the corporation became 'a combination of combinations by which, directly or indirectly, approxia tely 180 independent concerns were brought under one business control,' which, measured by the amount of production, extended to 80 per cent. or 90 per cent. of the entire output of the country, and that its purpose was to secure great profits which were thought possible in the light of the history of its constituent combinations, and to accomplish permanently what those combinations had demonstrated could be accomplished temporarily, and thereby monopolize and restrain trade.1
The organizers, however, (we are still representing the opinion) underestimated the opposing conditions and at the very beginning the corporation instead of relying upon its own power sought and obtained the assistance and the cooperation of its competitors (the independent companies). In other words the view was expressed that the testimony did 'not show that the corporation in and of itself ever possessed or exerted sufficient power when acting alone to control prices of the products of the industry.' Its power was efficient only when in co-operation with its competitors, and hence it concerted with them in the expedients of pools, associations, trade meetings, and finally in a system of dinners inaugurated in 1907 by the president of the company, E. H. Gary, and called 'the Gary Dinners.' The dinners were congregations of producers and 'were nothing but trade meetings,' successors of the other means of associated action and control through such action. They were instituted first in 'stres of panic,' but their potency being demonstrated they were afterwards called to control prices 'in periods of industrial calm.' 'They were pools without penalties' and more efficient in stabilizing prices. But it was the further declaration that 'when joint action was either refused or withdrawn the corporation's prices were controlled by competition.
The corporation, it was said, did not at any time abuse the power or ascendency it possessed. It resorted to none of the brutalities or tyrannies that the cases illustrate of other combinations. It did not secure freight rebates; it did not increase its profits by reducing the wages of its employes whatever it did was not at the expense of labor; it did not increase its profits by lowering the quality of its products, nor create an artificial scarcity of them; it did not oppress or coerce its competitors—its competition, though vigorous, was fair; it did not undersell its competitors in some localities by reducing its prices there below these maintained elsewhere, or require its customers to enter into contracts limiting their purchases or restricting them in resale prices; it did not obtain customers by secret rebates or departures from its published prices; there was no evidence that it attempted to crush its competitors or drive them out of the market, nor did it take customers from its competitors by unfair means, and in its competition it seemed to make no difference between large and small competitors. Indeed it is said in many ways and illustrated that 'instead of relying upon its own power to fix and maintain prices, the corporation, at its very beginning sought and obtained the assistance of others.' It combined its power with that of its competitors. It did not have power in and of itself, and the control it exerted was only in and by association with its competitors. Its offense, therefore, such as it was, was not different from theirs and was distinguished from 'theirs only in the leadership it assumed in promulgating and perfecting the policy.' This leadership it gave up and it had ceased to offend against the law before this suit was brought. It was hence concluded that it should be distinguished from its organizers and that their intent and unsuccessful attempt should not be attributed to it, that it 'in and of itself is not now and has never been a monopoly or a combination in restraint of trade,' and a decree of dissolution should not be entered against it.
This summary of the opinions, given necessarily in paraphrase, does not adequately represent their ability and strength, but it has value as indicating the contentions of the parties, and the ultimate propositions to which the contentions are addressed. The opinions indicate that the evidence admits of different deductions as to the genesis of the corporation and the purpose of its organizers, but only of a single deduction as to the power it attained and could exercise. Both opinions were clear and confident that the power of the corporation never did and does not now reach to monopoly, and their review of the evidence, and our independent examination of it, enables us to elect between their respective estimates of it, and we concur in the main with that of Judges Woolley and Hunt. And we add no comment except, it may be, that they understimated the influence of the tendency and movement to integration, the appreciation of the necessity or value of the continuity of manufacture from the ore to the finished product. And there was such a tendency, and though it cannot be asserted it had become a necessity, it had certainly become a facility of industrial progress. There was, therefore, much to urge it and give incentive to conduct that could accomplish it. From the nature and properties of the industry, the processes of production were something more than the state and setting of the human activities. They determined to an extent those activities, furnished their motives, and gave test of their quality not, of course, that th activities could get any immunity from size, or resources, or energies, whether exerted in integrated plants or diversified ones.
The contentions of the case, therefore, must be judged by the requirements of the law, not by accidental or adventitious circumstances. But what are such circumstances? We have seen that it was the view of the District Court that size was such a circumstance and had no accusing or excusing influence. The contention of the government is to the contrary. Its assertion is that the size of the corporation being the result of a 'combination of powerful and able competitors' had become 'substantially dominant' in the industry and illegal. And that this was determined. The companies combined, is the further assertion, had already reached a high degree of efficiency, and in their independence were factors in production and competition, ceased to be such when brought under the regulating control of the corporation, which by uniting them offended the law, and that the organizers of the corporation 'had in mind the specific purposes of the restraint of trade and the enormous profits resulting from that restraint.'
It is the contention of the corporation opposing those of the government and denying the illegal purposes charged against it, that the industry demanded qualities and an enterprise that lesser industries do not demand and must have a corresponding latitude and facility. Indeed it is insisted that the industry had practically, to quote the words of Judge Buffington, he quoting those of a witness, "reached the limit, or nearly, at which economies from a metallurgical or mechanical standpoint could be made effective" and "that instead, as was then the practice, of having one mill make 10, or 20, or 50 products, the greatest economy would result from one mill making one product and making that product continuously." In other words that there was a necessity for integration, and rescue from the old conditions—from their improvidence and waste of effort—and that in redress of the conditions the corporation was formed; its purpose and effect being 'salvage not monopoly,' to quote the words of counsel. It was, is the insistence, the conception of ability, 'a vision of a great business which should embrace all lines of steel and all processes of manufacture, from the ore to the finished product, and which by reason of the economies thus to be effected, and the diversity of products it would be able to offer, could successfully compete in all the markets of the world.' IT IS URGED, FURTHER, THAT TO THE DISCERNmeNt of that great possibility was added a courage that dared attempt its accomplishment, and the conception and the courage made the formation of the corporation notable, but did not make it illegal.
We state the contentions, we do not have to discuss them, or review the arguments advanced for their acceptance or repulsion. That is done in the opinions of the District Judges, and we may well despair to supplement the force of their representation of the conditions antecedent to the formation of the corporation, and in what respect and extent its formation changed them. Of course, in that representation and its details there is guidance to decision, but they must be rightly estimated to judge of what they persuade. Our present purpose is, not retrospect for itself, however instructive, but practical decision upon existing conditions that we may not by their disturbance, produce, or even risk, consequences of a concern that cannot now be computed. In other words, our consideration should be of, not what the corporation had power to do or did, but what it has now power to do and is doing, and what judgment shall be now pronounced—whether its dissolution, as the government prays, or the dismissal of the suit, as the corporation insists.
The alternatives are perplexing, involve conflicting considerations, which, regarded in isolation, have diverse tendencies. We have seen, that the judges of the District Court unanio usly concurred in the view that the corporation did not achieve monopoly, and such is our deduction, and it is against monopoly that the statute is directed; not against an expectation of it, but against its realization, and it is certain that it was not realized. The opposing conditions were underestimated. The power attained was much greater than that possessed by any one competitor—it was not greater than that possessed by all of them. Monopoly, therefore, was not achieved, and competitors had to be persuaded by pools, associations, trade meetings, and through the social form of dinners, all of them, it may be, violations of the law, but transient in their purpose and effect. They were scattered through the years from 1901 (the year of the formation of the corporation) until 1911, but, after instances of success and failure, were abandoned nine months before this suit was brought. There is no evidence that the abandonment was in prophecy of or dread of suit; and the illegal practices have not been resumed, nor is there any evidence of an intention to resume them, and certainly no 'dangerous probability' of their resumption, the test for which Swift & Co. v. United States, 196 U. S. 396, 25 Sup. Ct. 276, 49 L. Ed. 518, is cited. It is our conclusion, therefore, as it was that of the judges below, that the practices were abandoned from a conviction of their futility, from the operation of forces that were not understood, or were underestimated, and the case is not peculiar. And we may say in passing that the government cannot fear their resumption, for it did not avail itself of the offer of the District Court to retain jurisdiction of the cause in order that, if illegal acts should be attempted, they could be restrained.
What, then, can now be urged against the corporation? Can comparisons in other regards be made with its competitors and by such comparisons guilty or innocent existence be assigned it? It is greater in size and productive power than any of its competitors, equal or nearly equal to them all, but its power over prices was not and is not commensurate with its power to produce.
It is true there is some testimony tending to show that the corporation had such power, but there was also testimony and a course of action tending strongly to the contrary. The conflict was by the judges of the District Court unanimously resolved against the existence of that power, and in doing so they but gave effect to the greater weight of the evidence. It is certain that no such power was exerted. On the contrary, the only attempt at a fixation of prices was, as already said, through an appeal to and confederation with competitors, and the record shows besides that when competition occurred it was not in pretense, and the corporation, declined in productive powers—the competition growing either against or in consequence of the competition. If against the competition we have an instance of movement against what the government insists was an irresistible force; if in consequence of competition, we have an illustration of the adage that 'competition is the life of trade' and is not easily repressed. The power of monopoly in the corporation under either illustration is an untenable accusation.
We may pause here for a moment to notice illustrations of the government of the purpose of the corporation, instancing its acquisition after its formation of control over the Shelby Steel Tube Company, the Union Steel Company, and, subsequently, the Tennessee Company. There is dispute over the reasons for these acquisitions which we shall not detail. There is, however, an important circumstance in connection with that of the Tennessee Company which is worthy to be noted. It was submitted to President Roosevelt and he gave it his approval. His approval, of course, did not make it legal; but it gives assurance of its legality, and we know from his earnestness in the public welfare he would have approved of nothing that had even a tendency to its detriment, and he testified he was not dc eived and that he believed that 'the Tennessee Coal & Iron People had a property which was almost worthless in their hands, nearly worthless to them, nearly worthless to the communities in which it was situated, and entirely worthless to any financial institution that had the securities the minute that any panic came, and that the only way to give value to it was to put it in the hands of people whose possession of it would be a guaranty that there was value to it.' Such being the emergency, it seems like an extreme accusation to say that the corporation which relieved it, and, perhaps, rescued the company and the communities dependent upon it from disaster, was urged by unworthy motives. Did illegality attach afterwards and how? And what was the corporation to do with the property? Let it decay in desuetude, or develop its capabilities and resources? In the development, of course, there would be profit to the corporation; but there would be profit as well to the world. For this reason President Roosevelt sanctioned the purchase, and it would seem a distempered view of purchase and result to regard them as violations of law.
From this digression we return to the consideration of the conduct of the corporation to its competitors. Besides the circumstances which we have mentioned there are others of probative strength. The company's officers, and, as well, its competitors and customers, testified that its competition was genuine, direct, and vigorous and was reflected in prices and production. No practical witness was produced by the government in opposition. Its contention is based on the size and asserted dominance of the corporation—alleged power for evil, not the exertion of the power in evil. Or, as counsel put it, 'a combination may be illegal because of its purpose; it may be illegal because it acquires a dominating power, not as a result of normal growth and development, but as a result of a combination of competitors.' Such composition and its resulting power constitute, in the view of the government, the offense against the law, and yet it is admitted 'no competitor came forward and said he had to accept the Steel Corporation's prices.' But this absence of complaint counsel urge against the corporation. Competitors, it is said, followed the corporation's prices, because they made money by the imitation. Indeed, the imitation is urged as an evidence of the corporation's power. 'Universal imitation,' counsel assert, is 'an evidence of power.' In this concord of action, the contention is, there is the sinister dominance of the corporation—'its extensive control of the industry is such that the others [independent companies] follow.' Counsel, however, admit that there was 'occasionally' some competition, but reject the suggestion that it extended practically to a war between the corporation and the independents. Counsel say:
'They [the corporation is made a plural] called a few—they called 200 witnesses out of some 40,000 customers—and they expect with that customer evidence to overcome the whole train of price movement shown since the corporation was formed.'
And by 'movement of prices,' counsel explained, 'as shown by the published prices, * * * they were the ones that the competitors were maintaining all during the interval.'
It would seem that '200 witnesses' would be fairly representative. Besides the balance of the '40,000 customers' was open to the government to draw upon. Not having done so, is it not permissible to infer that none would testify to the existence of the influence that the government asserts? At any rate, not one was called, but instead the opinion of an editor of a trade journal is adduced, and that of an author and teacher of economics, whose philosophical deductions had, perhaps, fortification from experience as Deputy Commissioner of Corporations and as an employe in the Bureau of Corporations. His deduction was that, when prices are constant through a definite period, an artificial influence is indicate; if they vary during such a period, it is a consequence of competitive conditions. It has become an aphorism that there is danger of deception in generalities, and in a case of this importance we should have something surer for judgment than speculation, something more than a deduction, equivocal of itself, even though the facts it rests on or asserts were not contradicted. If the phenomena of production and rices were as easily resolved as the witness implied, much discussion and much literature have been wasted, and some of the problems that are now distracting the world would be given composing solution. Of course, competition affects prices; but it is only one among other influences, and does not, more than they, register itself in definite and legible effect.
We magnify the testimony by its consideration. Against it competitors, dealers, and customers of the corporation testify in multitude that no adventitious interference was employed to either fix or maintain prices, and that they were constant or varied according to natural conditions. Can this testimony be minimized or dismissed by inferring that, as intimated, it is an evidence of power, not of weakness, and power exerted, not only to suppress competition, but to compel testimony, is the necessary inference, shading into perjury, to deny its exertion? The situation is indeed singular, and we may wonder at it, wonder that the despotism of the corporation, so baneful to the world in the representation of the government, did not produce protesting victims.
But there are other paradoxes. The government does not hesitate to present contradictions, though only one can be true; such being, we were told in our schoolbooks, the 'principle of contradiction.' In one, competitors (the independents) are represented as oppressed by the superior power of the corporation; in the other, they are represented as ascending to opulence by imitating that power's prices, which they could not do, if at disadvantage from the other conditions of competition, and yet confederated action is not asserted. If it were, this suit would take on another cast. The competitors would cease to be the victims of the corporation, and would become its accomplices. And there is no other alternative. The suggestion that lurks in the government's contention that the acceptance of the corporation's prices is the submission of impotence to irresistible power is, in view of the testimony of the competitors, untenable. They, as we have seen, deny restraint in any measure or illegal influence of any kind. The government, therefore, is reduced to the assertion that the size of the corporation, the power it may have, not the exertion of the power, is an abhorrence to the law, or, as the government says, 'the combination embodied in the corporation unduly restrains competition by its nccessary effect [the italics are the emphasis of the government], and therefore is unlawful regardless less of purpose.' 'A wrongful purpose,' the government adds, is 'matter of aggravation.' The illegality is statical; purpose or movement of any kind only its emphasis. To assent to that, to what extremes should we be led? Competition consists of business activities and ability—they make its life; but there may be fatalities in it. Are the activities to be encouraged when militant, and suppressed or regulated when triumphant, because of the dominance attained? To such paternalism the government's contention, which regards power, rather than its use, the determining consideration, seems to conduct. Certainly conducts we may say, for it is the inevitable logic of the government's contention that competition must not only be free, but that it must not be pressed to the ascendency of a competitor, for in ascendency there is the menace of monopoly.
We have pointed out that there are several of the government's contentions which are difficult to represent or measure, and the one we are now considering—that is, the power is 'unlawful regardless of purpoe '—is another of them. It seems to us that it has for its ultimate principle and justification that strength in any producer or seller is a menace to the public interest and illegal, because there is potency in it for mischief. The regression is extreme, but short of it the government cannot stop. The fallacy it conveys is manifest.
The corporation was formed in 1901, no act of aggression upon its competitors is charged against it, it confederated with them at times in offense against the law, but abandoned that before this suit was brought, and since 1911 no act in violation of law can be established against it, except its existence be such an act. This is urged, as we have seen, and that the interest of the public is involved, and that such interest is paramount to corporation or competitors. Granted—though it is difficult to see how there can be restraint of trade when there is no restraint of competitors in the trade, nor complaints by customers—how can it be worked out of the situation, and through what proposition of law? Of course it calls for nothing other than a right application of the law, and, to repeat what we have said above, shall we declare the law to be that size is an offense, even though it minds its own business, because what it does is imitated? The corporation is undoubtedly of impressive size, and it takes an effort of resolution not to be affected by it or to exaggerate its influence. But we must adhere to the law, and the law does not make mere size an offense, or the existence of unexerted power an offense. It, we repeat, requires overt acts, and trusts to its prohibition of them and its power to repress or punish them. It does not compel competition, nor require all that is possible.
Admitting, however, that there is pertinent strength in the propositions of the government, and in connection with them, we recall the distinction we made in the Standard Oil Case, 221 U. S. 1, 77, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734, between acts done in violation of the statute and a condition brought about which 'in and of itself, is not only a continued attempt to monopolize, but also a monopolization.' In such case, we declared, 'the duty to enforce the statute' required 'the application of broader and more controlling' remedies than in the other. And the remedies applied conformed to the declaration; there was prohibition of future acts and there was dissolution of 'the combination found to exist in violation of the statute' in order to 'neutralize the extension and continually operating force which the possession of the power unlawfully obtained' had 'brough' and would 'continue to bring about.'
Are the case and its precepts applicable here? The Steel Corporation by its formation united under one control competing companies, and thus, it is urged, a condition was brought about in violation of the statute, and therefore illegal, and became a 'continually operating force' with the 'possession of power unlawfully obtained.'
But there are countervailing considerations. We have seen whatever there was of wrong intent could not be executed; whatever there was of evil effect was discontinued before this suit was brought, and this, we think, determines the decree. We say this in full realization of the requirements of the law. It is clear in its denunciation of monopolies, and equally clear in its direction that the courts of the nation shall prevent and restrain them (its language is 'to prevent and restrain violations of' the act); but the command is necessarily submissive to the conditions which may exist and the usual powers of a court of equity to adapt its remedies to those conditions. In other words, it is not expected to enforce abstractions, and do injury thereby, it may be, to the purpose of the law. It is this flexibility of discretion—indeed, essential function—that makes its value in our jurisprudence—value in this case as in others. We do not mean to say that the law is not its own measure, and that i can be disregarded, but only that the appropriate relief in each instance is remitted to a court of equity to determine, not, and let us be explicit in this, to advance a policy contrary to that of the law, but in submission to the law and its policy, and in execution of both. And it is certainly a matter for consideration that there was no legal attack on the corporation until 1911, 10 years after its formation and the commencement of its career. We do not, however, speak of the delay simply as to its time, or say that there is estoppel in it because of its time, but on account of what was done during that time—the many millions of dollars spent, the development made, and the enterprises undertaken; the investments by the public that have been invited and are not to be ignored. And what of the foreign trade that has been developed and exists? The government, with some inconsistency, it seems to us, would remove this from the decree of dissolution. Indeed, it is pointed out that under congressional legislation in the Webb Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 8836 1/4 c-8836 1/4 e) the foreign trade of the corporation is reserved to it. And further, it is said, that the corporation has constructed a company called the Products Company, which can be 'very easily preserved as a medium through which the steel business might reach the balance of the world,' and that in the decree of 'dissolution that could be provided.' This is supplemented by the suggestion that not only the Steel Corporation, 'but other steel makers of the country, could function through an instrumentality created under the Webb Act.'
The propositions and suggestions do not commend themselves. We do not see how the Steel Corporation can be such a beneficial instrumentality in the trade of the world, and its beneficence be preserved, and yet be such an evil instrumentality in the trade of the United States that it must be destroyed. And by whom and how shall all the adjustments of preservation or destruction be made? How can the corporation be sustained, and its power of control over its subsidiary companies be retained and exercised in the foreign trade, and given up in the domestic trade? The government presents no solution of the problem. Counsel realize the difficulty, and seem to think that its solution or its evasion is in the suggestion that the Steel Corporation and 'other steel makers could function through an instrumentality created under the Webb Act.' But we are confronted with the necessity of immediate judicial action under existing laws, not action under conceptions which may never be capable of legal execution. We must now decide, and we see no guide to decision in the propositions of the government.
The government, however, tentatively presents a proposition which has some tangibility. It submits that certain of the subsidiary companies are so mechanically equipped and so officially directed as to be released and remitted to independent action and individual interests and the competition to which such interests prompt, without any disturbance to business. The companies are enumerated. They are the Carnegie Steel Company (a combination of the old Carnegie Company, the National Steel Company, and the American Steel Company), the Federal Steel Company, the Tennessee Company, and the Union Steel Company (a combination of the Union Steel Company of Donora, Pa., Sharon Steel Company of Sharon, Pa., and Sharon Tin Plate Company). They are fully integrated, it is said—possess their own supplies, facilities of transportation, and distribution. They are subject to the Steel Corporation, is in effect the declaration, in nothing but its control of their prices. We may say parenthetically that they are defendants in the suit and charged as offenders, and we have the strange circumstance of violators of the law being urged to be used as expedients of the law.
But let us see what guide to a procedure of dissolution of the corporation and the dispersion asw ell of its subsidiary companies, for they are asserted to be illegal combinations, is prayed. And the fact must not be overlooked or underestimated. The prayer of the government calls for, not only a disruption of present conditions, but the restoration of the conditions of 20 years ago, if not literally, substantially. Is there guidance to this in the Standard Oil Case and the Tobacco Case, 31 Sup. Ct. 632, 55 L. Ed. 663? As an element in determining the answer we shall have to compare the cases with that at bar, but this can only be done in a general way. And the law necessarily must be kept in mind. No other comment of it is necessary. It has received so much exposition that it and all it prescribes and proscribes should be considered as a consciously directing presence.
The Standard Oil Company had its origin in 1882 and through successive forms of combinations and agencies it progressed in illegal power to the day of the decree, even attempting to circumvent by one of its forms the decision of a court against it. And its methods in using its power was of the kind that Judge Woolley described as 'brutal,' and of which practices, he said, the Steel Corporation was absolutely guiltless. We have enumerated them, and this reference to them is enough. And of the practices this court said no disinterested mind could doubt that the purpose was 'to drive others from the field, and to exclude them from their right to trade, and thus accomplish the mastery which was the end in view.' It was further said that what was done and the final culmination 'in the plan of the New Jersey corporation' made 'manifest the continued existence of the intent * * * and inpelled the expansion of the New Jersey corporation.' It was to this corporation, which represented the power and purpose of all that preceded, that the suit was addressed and the decree of the court was to apply. What we have quoted contrasts that case with this. The contrast is further emphasized by pointing out how in the case of the New Jersey corporation the original wrong was reflected in and manifested by the acts which followed the organization, as described by the court. It said:
'The exercise of the power which resulted from that organization fortifies the foregoing conclusions (as to monopoly, etc.), since the development which came, the acquisition here and there which ensued of every efficient means by which competition could have been asserted, the slow but resistless methods which followed by which means of transportation were absorbed AND BROUGHT UNDER CONTROL, THE SYSTEM OF marketing which was adopted, by which the country was divided into districts and the trade in each district in oil was turned over to the designated corporation within the combination and all others were excluded, all lead the mind up to a conviction of a purpose and intent which we think is so certain as practically to cause the subject not to be within the domain of reasonable contention.'
The Tobacco Company Case (31 Sup. Ct. 632, 55 L. Ed. 663) has the same bad distinctions as the Standard Oil Case. The illegality in which it was formed [there were two American Tobacco Companies, but we use the name as designating the new company as representing the combinations of the suit] continued—indeed, progressed in intensity and defiance to the moment of decree. And it is the intimation of the opinion, if not its direct assertion, that the formation of the company (the word 'combination' is used) was preceded by the intimidation of a trade war 'inspired by one or more of the minds which brought about and became parties to that combination.' In other words, the purpose of the combination was signaled to competitors, and the choice presented to them was submission or ruin, to become parties to the illegal enterprise or be driven 'out of the business.' This was the purpose, and the achievement, and the processes by which achieved, this court enumerated to be the formation of new companies, taking stock in others to 'obsu re the result actually attained, but always to monopolize and retain power in the hands of the few and mastery of the trade; putting control in the hands of seemingly independent corporations as barriers to the entry of others into the trade; the expenditure of millions upon millions in buying out plants, not to utilize them, but to close them; by constantly recurring stipulations by which numbers of persons, whether manufacturers, stockholders, or employes, were required to bind themselves, generally for long periods, not to compete in the future. In the Tobacco Case (31 Sup. Ct. 632, 55 L. Ed. 663), therefore as in the Standard Oil Case, the court had to deal with a persistent and systematic lawbreaker masquerading under legal forms, and which not only had to be stripped of its disguises but arrested in its illegality. A decree of dissolution was the manifest instrumentality and inevitable. We think it would be a work of sheer supererogation to point out that a decree in that case or in the Standard Oil Case furnishes no example for a decree in this.
In conclusion, we are unable to see that the public interest will be served by yielding to the contention of the government respecting the dissolution of the company or the separation from it of some of its subsidiaries; and we do see in a contrary conclusion a risk of injury to the public interest, including a material disturbance of, and, it may be serious detriment to, the foreign trade. And in submission to the policy of the law and its fortifying prohibitions the public interest is of paramount regard.
We think, therefore, that the decree of the District Court should be affirmed.
Mr. Justice McREYNOLDS and Mr. Justice BRANDEIS took no part in the consideration or decision of the case.
Mr. Justice DAY, dissenting.
This record seems to me to leave no fair room for a doubt that the defendants, the United States Steel Corporation and the several subsidiary corporations which make up that organization, were formed in violation of the Sherman Act. I am unable to accept the conclusion which directs a dismissal of the bill instead of following the well-settled practice, sanctioned by previous decisions of this court, requiring the dissolution of combinations made in direct violation of the law.
It appears to be thoroughly established that the formation of the corporations, here under consideration, constituted combinations between competitors, in violation of law, and intended to remove competition and to directly restrain trade. I agree with the conclusions of Judges Woolley and Hunt, expressed in the court below (223 Fed. 161 et seq.), that the combinations were not submissions to business conditions but were designed to control them for illegal purposes, regardless of other consequences, and 'were made upon a scale that was huge and in a manner that was wild,' and 'properties were assembled and combined with less regard to their importance as integral parts of an integrated whole than to the advantages expected from the elimination of the competition which theretofore existed between them.' Those judges found that the constituent companies of the United States Stell Corporation, nine in number, were themselves combinations of steel manufacturers, and the effect of the organization of these combinations was to give a control over the industry at least equal to that theretofore possessed by the constituent companies and their subsidiaries; that the Steel Corporation was a combination of combinations by which directly or indirectly 180 independent concerns were brought under one control, and in the language of Judge Woolley (167):
'Without referring to the great mass of figures which bears upon this aspect of the case, it is clear to me that combinations were created by acquiring competing producing concerns at figures not based upon their physical or * * * business values, as independent and separate producers, but upon their values in combination; that is, upon their values as manufacturn g plants and business concerns with competition eliminated. In many instances, capital stock was issued for amounts vastly in excess of the values of the properties purchased, thereby capitalizing the anticipated fruits of combination. The control acquired over the branches of the industry to which the combinations particularly related measured by the amount of production, extended in some instances from 80 per cent. to 95 per cent. of the entire output of the country, resulting in the immediate increase of prices, in some cases double and in others treble what they were before, yielding large dividends upon greatly inflated capital.
'The immediate, as well as the normal effect of such combinations, was in all instances a complete elimination of competition between the concerns absorbed, and a corresponding restraint of trade.'
The enormous overcapitalization of companies and the appropriation of $100,000,000 in stock to promotion expenses were represented in the stock issues of the new organizations thus formed, and were the basis upon which large dividends have been declared from the profits of the business. This record shows that the power obtained by the corporation brought under its control large competing companies which were of themselves illegal combinations, and succeeded to their power; that some of the organizers of the Steel Corporation were parties to the preceding combinations, participated in their illegality, and by uniting them under a common direction intended to augment and perpetuate their power. It is the irresistible conclusion from these premises that great profits to be derived from unified control were the object of these organizations.
The contention must be rejected that the combination was an inevitable evolution of industrial tendencies compelling union of endeavor. Nothing could add to the vivid accuracy with which Judge Woolley, speaking for himself and Judge Hunt, has stated the illegality of the organization, and its purpose to combine in one great corporation the previous combinations by a direct violation of the purposes and terms of the Sherman Act.
For many years, as the record discloses, this unlawful organization exerted its power to control and maintain prices by pools, associations, trade meetings, and as the result of discussion and agreements at the so-called 'Gary Dinners,' where the assembled trade opponents secured co-operation and joint action through the machinery of special committees of competing concerns, and by prudent prevision took into account the possibility of defection, and the means of controlling and perpetuating that industrial harmony which arose from the control and maintenance of prices.
It inevitably follows that the corporation violated the law in its formation and by its immediate practices. The power, thus obtained from the combination of resources almost unlimited in the aggregation of competing organizations, had within its control the domination of the trade, and the ability to fix prices and restrain the free flow of commerce upon a scale heretofore unapproached in the history of corporate organization in this country.
These facts established, as it seems to me they are by the record, it follows that if the Sherman Act is to be given efficacy, there must be a decree undoing so far as is possible that which has been achieved in open, notorious, and continued violation of its provisions.
I agree that the act offers no objection to the mere size of a corporation, nor to the continued exertion of its lawful power, when that size and power have been obtained by lawful means and developed by natural growth, although its resources, capital and strength may give to such corporation a dominating place in the business and industry with which it is concerned. It is entitled to maintain its size and the power that legitimately goes with it, provided no law has been transgressed in obtaining it. But I understand the reiterated decisions of this court construing the Sherman Act to hold that this power may not legally be derived from conspiracies, combinations, or contracts in restraint of trade. To permit this would be to practically annul the Sherman Law by judicial decree. This principle has been so often declared by the decisions that it is only necessary to refer to some of them. It is the scope of such combinations, and their power to suppress and stifle competition and create or tend to create monopolies, which, as we have declared so often as to make its reiteration monotonous, it was the purpose of the Sherman Act to condemn, including all combinations and conspiracies to restrain the free and natural flow of trade in the channels of interstate commerce. Pearsall v. Great Northern Ry. Co., 161 U. S. 646, 676, 677, 16 Sup. Ct. 705, 40 L. Ed. 838; Trans-Missouri Freight Ass'n Case, 166 U. S. 290, 324, 17 Sup. Ct. 540, 41 L. Ed. 1007; Northern Securities Case, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679; Addyston Pipe Co. v. United States, 175 U. S. 211, 238, 20 Sup. Ct. 96, 44 L. Ed. 136; Harriman v. Northern Securities Co., 197 U. S. 244, 291, 25 Sup. Ct. 493, 49 L. Ed. 739; Union Pacific Case, 226 U. S. 61, 88, 33 Sup. Ct. 53, 57 L. Ed. 124. While it was not the purpose of the act to condemn normal and usual contracts to lawfully expand business and further legitimate trade, it did intend to effectively reach and control all conspiracies and combinations or contracts of whatever form which unduly restrain competition and unduly obstruct the natural course of trade, or which from their nature, or effect, have proved effectual to restrain interstate commerce. Standard Oil Co. v. United States, 221 U. S. 1, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734; United States v. American Tobacco Co., 221 U. S. 106, 31 Sup. Ct. 632, 55 L. Ed. 663; United States v. Reading Co., 226 U. S. 324, 33 Sup. Ct. 90, 57 L. Ed. 243; Straus v. American Publishers' Ass'n, 231 U. S. 222, 34 Sup. Ct. 84, 58 L. Ed. 192, L. R. A. 1915A, 1099, Ann. Cas. 1915A, 369; Eastern States Lumber Association v. United States, 234 U. S. 600, 34 Sup. Ct. 951, 58 L. Ed. 1490, L. R. A. 1915A, 788.
This statute has been in force for nearly 30 years. It has been frequently before this court for consideration, and the nature and character of the relief to be granted against combinations found guilty of violations of it have been the subject of much consideration. Its interpretation has become a part of the law itself, and if changes are to be made now in its construction or operation, it seems to me that the exertion of such authority rests with Congress and not with the courts.
The fourth section is intended to give to courts of equity of the United States the power to effectively control and restrain violations of the act. In none of the cases which have been before the courts was the character of the relief to be granted, where organizations were found to be within the condemnation of the act, more thoroughly considered than in the Standard Oil and Tobacco Company Cases reported in 221 U. S. In the former case, considering the measure of relief to be granted in the case of a combination, certainly not more obnoxious to the Sherman Act than the court now finds the one under consideration to be, this court declared that it must be twofold in character (221 U. S. 78, 31 Sup. Ct. 523, 55 L. Ed. 619, 34 L. R. A. [N. S.] 834, Ann. Cas. 1912D, 734):
'(1) To forbid the doing in the future of acts like those which we have found to have been done in the past which would be violative of the statute. (2) The exertion of such measure of relief as will effectually dissolve the combination found to exist in violation of the statute, and thus neutralize the extension and continually operating force which the possession of the power unlawfully obtained has brought and will continue to bring about.'
In the American Tobacco Company Case the nature of the relief to be granted was again given consideration, and it was there concludd that the only effectual remedy was to dissolve the combination and the companies comprising it, and for that purpose the cause was remanded to the District Court to hear the parties and determine a method of dissolution and of recreating from the elements composing it 'a new condition which should be in honest harmony with and not repugnant to the law.' In that case the corporations dissolved had long been in existence, and the offending companies were organized years before the suit was brought and before the decree of dissolution was finally made. Such facts were considered no valid objection to the dissolution of these powerful organizations as the only effective means of enforcing the purposes of the Sherman Anti-Trust Act. These cases have been frequently followed in this court, and in the lower federal courts, in determining the nature of the relief to be granted, and I see no occasion to depart from them now.
As I understand the conclusions of the court, affirming the decree directing dismissal of the bill, they amount to this: That these combinations, both the holding company and the subsidiaries which comprise it, although organized in plain violation and bold defiance of the provisions of the act, nevertheless are immune from a decree effectually ending the combinations and putting it out of their power to attain the unlawful purposes sought, because of some reasons of public policy requiring such conclusion. I know of no public policy which sanctions a violation of the law, nor of any inconvenience to trade, domestic or foreign, which should have the effect of placing combinations, which have been able to thus organize one of the greatest industries of the country in defiance of law, in an impregnable position above the control of the law forbidding such combinations. Such a conclusion does violence to the policy which the law was intended to enforce, runs counter to the decisions of the court, and necessarily results in a practical nullification of the act itself.
There is no mistaking the terms of the act as they have hitherto been interpreted by this court. It was not intended to merely suppress unfair practices, but, as its history and terms amply show, it was intended to make it criminal to form combinations or engage in conspiracies or contracts in restraint of interstate trade. The remedy by injunction, at the instance of the Attorney General, was given for the purpose of enabling the courts, as the statute states, to prohibit such conspiracies, combinations and contracts, and this court interpreting its provisions has held that the proper enforcement of the act requires decrees to end combinations by dissolving them and restoring as far as possible the competitive conditions which the combinations have destroyed. I am unable to see force in the suggestion that public policy, or the assumed disastrous effect upon foreign trade of dissolving the unlawful combination, is sufficient to entitle it to immunity from the enforcement of the statute.
Nor can I yield assent to the proposition that this combination has not acquired a dominant position in the trade which enables it to control prices and production when it sees fit to exert its power. Its total assets on December 31, 1913, were in excess of $1,800,000; its outstanding capital stock was $868,583,600; its surplus $151,798,428. Its cash on hand ordinarily was $75,000,000; this sum alone exceeded the total capitalization of any of its competitors, and with a single exception, the total capitalization and surplus of any one of them. That such an organization thus fortified and equipped could if it saw fit dominate the trade and control competition would seem to be a business proposition too plain to require extended argument to support it. Its resources, strength and comprehensive ownership of the means of production enable it to adopt measures to do again as it has done in the past, that is, to effectually dominate and control the steel business of the country. From the eal iest decisions of this court it has been declared that it was the effective power of such organizations to control and restrain competition and the freedom of trade that Congress intended to limit and control. That the exercise of the power may be withheld, or exerted with forbearing benevolence, does not place such combinations beyond the authority of the statute which was intended to prohibit their formation, and when formed to deprive them of the power unlawfully attained.
It is said that a complete monopolization of the steel business was never attained by the offending combinations. To insist upon such result would be beyond the requirements of the statute and in most cases practicably impossible. As we said in dealing with the Packers' combination in Swift & Co. v. United States, 196 U. S. 396, 25 Sup. Ct. 279, 49 L. Ed. 518:
'Where acts are not sufficient in themselves to produce a result which the law seeks to prevent—for instance, the monopoly—but require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen. Commonwealth v. Peachie, 177 Mass. 267, 272 [59 N. E. 55]. But when that intent and the consequent dangerous probability exist, this statute [Sherman Act] like many others and like the common law in some cases, directs itself against that dangerous probability as well as against the completed result.'
It is affirmed that to grant the government's request for a remand to the District Court for a decree of dissolution would not result in a change in the conditions of the steel trade. Such is not the theory of the Sherman Act. The act was framed in the belief that attempted or accomplished monopolization, or combinations which suppress free competition were hurtful to the public interest, and that a restoration of competitive conditions would benefit the public. We have here a combination in control of one-half of the steel business of the country. If the plan were followed, as in the American Tobacco Case, of remanding the case to the District Court, a decree might be framed restoring competitive conditions as far as practicable. See United States v. American Tobacco Co. (C. C.) 191 Fed. 371. In that case the subject of reconstruction so as to restore such conditions was elaborated and carefully considered. In my judgment the principles there laid down, if followed now, would make a very material difference in the steel industry. Instead of one dominating corporation, with scattered competitors, there would be competitive conditions throughout the whole trade which would carry into effect the policy of the law.
It seems to me that if this act is to be given effect, the bill, under the findings of fact made by the court, should not be dismissed, and the cause should be remanded to the District Court, where a plan of effective and final dissolution of the corporations should be enforced by a decree framed for that purpose.
Mr. Justice PITNEY and Mr. Justice CLARKE concur in this dissent.
As bearing upon the power obtained and what the corporation did we give other citations from Judge Woolley's opinion as follows:
'The ore reserves acquired by the corporation at and subsequent to its organization, the relation which such reserves bear to ore bodies then existing and subsequently discovered, and their bearing upon the question of monopoly of raw materials, are matters which have been discussed in the preceding opinion, and with the reasoning as well as with the conclusion that the corporation has not a monopoly of the raw materials of the steel industry, I am in entire accord.'
'Further inquiring whether the corporation inherently possesses monopolistic power attention is next given to its proportion of the manufacture and sale of finished iron and steel products of the industry. Upon this subject there is a great volume of testimony, a detailed consideration of which in an opinion would be quite inexcusable. As a last analysis of this testimony, it is sufficient to say it shows that, large as was the corporation, and substantial as was its proportion of the business of the industry, the corporation was not able in the first ten years of its history to maintain its position in the increase of trade. During that period, its proportion of the domestic business decreased from 50.1 per cent. to 40.9 per cent. and its increase of business during that period was but 40.6 per cent. of its original volume. Its increase of business, measured by percentage, was exceeded by eight of its competitors, whose increase of business, likewise measured by percentage, ranged from 63 to 3779. This disparity in the increase of production indicates that the power of the corporation is not commensurate with its size, and that the size and the consequent power of the corporation are not sufficient to retard prosperous growth of efficient competitors.'
'From the vast amount of testimony, it is conclusively shown that the Steel Corporation did not attempt to exert a power, if such it possessed, to oppress and destroy its competitors, and it is likewise disclosed by the history of the industry subsequent to the organization of the corporation that if it had made such an attempt it would have failed. It is also shown by the testimony that, acting independently and relying alone upon its power and wealth, great as they were, the corporation has never been able to dominate the steel industry by controlling the supply of raw materials, restraining production of finished products, or enhancing and maintaining the prices of either.'