c' 'I' ' d'
, " . (Dt8tridl iOOU91, D. Minnuota. October 10,1892.)
An indlotDuint under,the!¥lt ,of congress, "to protect tra,de and commerce against unlawl'Uh'est'aint lind' monopolies," (26 St. at Large, p. 209,) must contain a certain. O;ellCrlptiollof the. olfellae,: and a statement of facts constituting same, and it is not suft!.cletitsimply tocfollo vv the language of the statute. An agreement betwen a numbl!r of lumber dealerS to raise the price of lumber 1$0 cents Perthousand ;in 114va,nceof the market price, cannot operate as a restraint upon trade, Within the me;ming o.f the ailt of "to protect trade and commerce against unlawfUl restraint and monopolies;" (26 ;:;t, at Larll;e, p. 209,) unless such agreement invo\vesan absorption of the entire traffic, and is entered into for the purpose of mOD'Opollzing trade in that commodity ,with the ohject of extortion.
TO RAISE PRIOE. ,
()Jl' :W:D1CTMENT-WORDS 011' STATUTE.
At Law. Indictment under the act of July 2, 1890, (26 St. at Large, p.209,) C, to, protect trade and commerce against unlawful restraints and monopolies.» Demurl'er to ,all the counts sustained.
The, United States District Auorney. W. E. Hale, for defendants.
NELSON, ·District Judge. In. the case of United States 'IJ. Benjamin F. Nelson, Sumner T. William H. H. Day, et al., a demurrer is interposed tQ the indictment. Pressure of business in court has prevented an earlier decision, and Lean now only give my reasons briefly for sustaining the demurrer. The indictment intends to charge offenses under the act of congress entitledfCAnact to protect trade and commerce against unlawful restraints and monopolies. " This statute declares contracts, combinations in the form of trusts or otherwise, and monopolies to restrain trade or commerce among the several states and foreign nations, illep;al, and makes them offenses, and affixes the punishment. The indictment purports to charge the defendants with violating the law by entering into a contract, and unlawfully engaging in a combination in the form of a trust,;;and confederating together in a conspiracy in restraint of trade among:the several states. There are 12 counts in the indictment. The first 6 counts charge the offensein,the'language of the statute, and the others set forth facts which are claimed to constitute the offense. The federal courts by this act are given jurisdiction to apply remedies in cases where interstate commerce is injuriously affected by combinations and contracts which the state courts had formerly applied to protect local interests. In order to administer the law, the court must determine what is an unreasonable and unlawful restraint of trade or commerce by contracts, trusts. and conspiracies, and whether a contract is injurious to the public. In all cases at common law, it must be made to appear that the acts complained of threatened the interests of the public, and this is true whether the remedy sought to be applied is by civil or criminal proceedings. It is urged by the district attorney that, the offense being statutory, the general rule in such cases, to wit,
WilTED STATES 11. NELSON.
that it is sufficient .to allege the offense in the language of the statute, will sustain. the firs.tsix counts. Icannot agree to that. This is not a case where every fact necessary to constitute the offense is charged, or necessarily implied, by following the words of the statute; and the words themselves fully and directly, without any uncerta1nty or ambiguity, set fortb all of the elements necessary to constitute the offense; and it is not sufficient to follow only the language of the statute. Where the act becomes illegal and an offense only from the means used to effect it, as in this statute, the indictment Ulllststate,where it is practicablE.', so much as will show its illegality and charge the accused with a substantialoffense. See U; S. v.Cruikshank, 92 U. S. 558.. The charge must contain a statement of facts constituting the offense, and a certain description of it, which this does not in either of the first si; counts, aad they cannot be sustained. Do the facts set forth in the last six counts describe an offense which the statilte forbids? The first of these counts charges, in substance, that the defendants were each dealers in lumber in the United States,and each transacted business.at numerous towns and cities in different states, and on September 7th, at the citY' of Minneapolis, they agreed together that they would raise the price of lumber 50 cents per thousand feet in advance of the market price of pine lumber in the Rtates of Wisconsin, Minnesota, Iowa, Illinois, and Missouri, and in pursuance of such agreement they did then and there raise the price of pine lumber 50 cents per thousand feet in each of said states in which they acted business. How this advance in price by these parties in the several states mentioned could regulate thereby the price for all dealers is not set forth. It appears that the idea of the pleader was that a mutual agreement between several dealers that they would raise the price of the lumber owned or manufactured by themselves 50 cents per thousand feet above the market price necessarily advanced the price of all the pine lumber for saje in those states to that extent, and none could be purchased for a less price. While it may be true that some of the other dealers might attempt to induce purchasers to be governed by the price fixed in their locality by the parties to the agreement, and try to keep up prices, yet competition in the commodity would soon bring the price down, unless there were fraudulent or coercive means resorted to for the purpose of restraining other dealers, and preventing them from exercising their own judgment as to prices. An agreement between a number of dealers and manufacturers to raise prices. unless they practically controlled the entire commodity, cannot operate as a restraint upon trade, nor does it tend to injuriously affect the public. Unless the agreement involves an absorption of the entire traffic in lumber, and is entered into for the purpose of obtaining the entire c0ntrol of it with the object of extortion, it is not objectionable to the statute, in my opinion. Competition is not stifled by such an agreement, and other dealers would soon force the parties to the agreement to Bell at the market price, or a reasonable price, at least. What has been said in regard to this count applies to the remaining five, in which
In'Ongfulcombtnations and:conspiracies in restraint of trade are alleged, and a .monopoly of the whole or a part of the trade and commerce in lumber: in' the several states mentioned. The allegations are too indefinite and uncertain, and the demurrer to all the counts is sustained.
STAHL tI. WILt.UMS.
(CHrcuU Court. 1). Oonnecticut. September til, 18ll1.) No. 708.
L :PAfttftsJ'OB I1fVBNTIONS-AoqtJIBS<lBNOB-EvIDBNOB. On a motion for preliminary injunction the patentee made amdavit that he put .*he illvention into practical US8 about the time of the application, and it had .been ill practical use ever since; that the rights of the owner of the patent had been aequfesced ill by the public; that the inventlonhad been applied to many bundred machines i 't.,hat he had never given any licenses, or sold any manufacturing rights; and that tDe.validity of the patent had never been questioned. The assignee of the p.8atehtm.adeamdavit th.a.t be. had applied the, pa.tent. since ;January, l8lla. Held, that this wM1nsu1tioient to Illow public acquiescence. .
.. BAMB:-l'RBLtJlllURY INJUNCiTION-PRIOR ADJUDIOATION.
On a motion for a preliminary injunction, complainant introduoed the record of aDother circuit court, that in a suit by him against a third person the court fo1lDd iDfringement, and granted a restraining order; tbat SUbsequently this injunctioJl. was made perpetual, but there was nothing to show that any question 11.1 to patentable novelty, the prior state of the art. or public acquiescence, were raised therelD; Held, that such an adjudication was not of controlling weight. On amotion tor preliminary a prior adjudicatioD in· another circuit, finding infringement, and awardmg a perpetual injunction, is not conclusive, when the alleged infringing devices are materially di1ferent in the two cases.
tray for incubators, wires or cross barshin combination with a muslin web below the lame, on which the eggs rest, ,and w ich is movable by means of rollers so aato turn the eggs. In his application the patentee claimedaa his improvement an arrangement whereby the eggs re&ted between cross bars not supporting the eggs; and disclaimed crOlisrollers on which the eggs In defendant's incubatortbeeggs rest upon a cloth bars, and the-oloth revolves on rollers, bu.t the rollers serve both to support the eggs and to hold them in place While the cloth is moved to turn them. Defendant's device bad greater likeness to · prIor lilatent than to that of complainant. '. There was DO ,evidence that serious injury would, be caused by withholding a preliminary injunction. Held, that the lame lIhould be denied. . . . I. B.um--DIsOLAIMER. Letters No. SllS,249, ill. 1887 to George H. Stahl,covers in claim 8 an incubator in which uniform heatmg is secured by a fiat tank overlying the chamber, and divided by two partitions extending from one end nearly to the other, the hot water being discharged by pipes into the outer divisions, and carried 01'1' by a single return pipe, leading from a point between the partitions. Defendant substitutes pipes for the partitions, and it appeared that the patentee originally claimed similar pipes, but, the same being rejected, he disclaimed the use of pipes for maintaining an even temperature. Held, that the claim should be strictly consttued agairist him, and that a preliminary injunction should be denied, espe. cially M it appeared that both pipes and partitions had been used prior to the .
&. S.uo:'-PRBLmINARY INJUNO'J1ION....;,INII'RINGEMENT. Letterll patent No. 258,005, issued to Halstead, May 28,1882, cover an egg-holding
In Equity. Bill by George H. Stahl against Albert F. Williams for lnfringemellt of patents. On motion for preliminary injunction. Denied. J. J. Jqnnings, forcQmplainant.