252

85 FEDERAL REPORTER.

UNITED STATES v. COAL DEALERS' ASS'N OF CALIFORNIA et al. (Circuit Court, N. D. California. January 28, 1898.) No. 12,539.
1.

MONOPOLIES-ANTI·TRUST LAW-RESTRAINING ORDER.

Under,llecUon 4 of the anti-trust law of July 2, 1890, a resh'alnlng order may be Issued without notice, under the circumstances sanctioned by the established' usages of equity practice In other cases.

2. PARTIES IN EQUITY-UNINCORPORATED ASSOCIATION.

In a suit In equity to restrain an alleged unlawful combination acting as an unincorporated association, it is sufficient' that the association, together with a large number of Its members, as individuals and officers of the association, are made parties defendant. Under the anti-trust law of July 2, 1890, a contract or combination which Imposes any restraints whatever upon Interstate commerce is unlawful; and it is immaterial whether or not the restraint is a fair and reasonable one, or whether it has actually resulted In Increasing the price of the commodity dealt in. Where coal Is brought from other states and foreign countries to a certain city by Importers and dealers, who, by a combination with a local coal dealers' association, regulate the retail prices ar!:Jitrarily, and prOVide against free comcommerce, In the petition, such combination Is one In restraint of meaning of the act of 1890.

S.

MONOPOLIES-COMBINATIONS IN RESTRAINT OF TRADE-ANTI-TRUST LAW.

4.

SAME-INTERSTATE COMMERCE.

In Equity.,

Bill by the United States against the Coal Dealers' Association of California and the members of the association, and' against Charles R. Allen, Central Coal Company, R. D. Chandler, George Fritch, J. C. Wilson & Co., Oregon Improvement Company, Oregon Coal & Navigation Company, W. G. Stafford, trading as W. G. Stafford & Co., R. Dunsmuir's Sons, John Rosenfeld, Louis Rosenfeld, and Henry Rosenfeld, partners, trading as, John Rosenfeld Sonll. The bill is brought to secure the dissolution of the Coal Dealers' Association of California, and to set aside an agreement between the said association and the other defendants, relating to the sale of coal in the city and county of San Francisco, alleged to be In restraint of trade and commerce, In violation of the act of July 2, 1890, and for an, injunction the defendants from further agrf!eing, combining, conspiring, and acting together In maintaining rules and,regulations and' rates and prices for coal hrought from British Columbia, Washington, and Oregon to San FrancIsco, for domestic purposes as fuel.

H. S. Foote, U. S. Dist. Atty., and Alfred L. Black, Sp. Asst. U. S. Atty. R. Y. and William Craig, for respondents Coal Dealers' Ass'n of California, Oregon Coal & Navigation Co., W. G. Stafford, and R. D. Chandler. James T. Boyd and W. H. Fifield, for respondent' R. Dunsmuir's Sons. W. S. Goodfellow, for respondents Central Coal Co., John Rosenfeld, Louis Rosenfeld, and Henry Rosenfeld, partners trading as John Rosenfeld Sons. John A. Wright and George R. Lukens, for respondents J. S. Wil· son & Co. ' T. C. Coogan, for respondents Charles R. AlIen and George Fritch.

MORROW, Circuit Judge. This is a bill in equity, brought by the United States attorney, upon the authority of the attorney general, in

UNITED STATES V. COAL DEALERS' ASS'N.

the name of the United States, against the Coal Dealers' Association of California and the members oUhe association and certain firms and cor· porations doing business in San Francisco, for the purpose of dissolving the Coal DeaIe,rs' Association, as an unlawful combination, and to set aside ari between the said association and the other defend· ants, alleged to be in restraint of trade and commerce, in violation of the act of congress entitled "An act to protect trade and commerce against unlawful restraints and monopolies," approved July 2, 1890. It is alleged in the bill that the Coal Dealers' Association and the officers and members thereof are an unincorporated organization, composed of retail dealers in coal, residents in the city of San Francisco, and of miners and shippers of coal, who are residents of and are carrying on business in the city of San Francisco; that R. Dunsmuir's Sons are the agents and largely interested in and control and import coal from the Wellington colliers of British Columbia, from which comes a large part of the coal shipped from British Columbia; that R. D. Chandler is a wholesale coal dealer in the city of San Francisco, and imports and brings and deals in and sells coal brought from the state of Washington; that J. C. Wilson & Co. deal in coal brought from. British Columbia; that the Oregon Coal & Navigation Company own coal mines in the state of Oregon, and import and bring coal to the state of California from said mines, and sell the same at wholesale; that W. G. Stafford & Co. import and bring coal from the state of Oregon; th,at the defendants and their associates comprise all the wholesale dealers who handle, bring, and import, and sell coal, used in· .San Francisco for domestic purposes as fuel; and that the saiddefen(iants, combined together, can absolutely control the price charged for coal for' domestic purposes as fuel at said city of San Francisco, by reasOn of the fact that San Francisco is located at such a distance from all coal mines, other than those controlled by the defendants, that the rates of transportation are prohibitory, and make it an impossibility to import or bring coal as fuel for domestic purposes from any place or places or mines other than the mines owned, operated, and controlled by the defendants, or some of them; that all the coal mined in the state of California that is used as fuel in said San Francisco is owned and controlled by the defendants, or some of them. The bill further alleges that the city of San Francisco is a city of 290,000 population and upward; that the inhabitants generally use coal as fuel for domestic purposes, and that it is to them one of the prime and common necessaries of life; that they use, as fuel for domestic purposes, about 800,000 tons of coal an· which amount more than 700,000 tons are mined in BritiRh nually, Columbia and in the states of Oregon and Washington, and imported and brought to San Francisco; that the small percentage of about 50,000 tons is mined and produced in the state of California; and that this domestic product has no practical effect on the market price of coal in San Francisco. It is further alleged that in the year 1895 there were in the city of San Francisco divers and numerous persons engaged in the retail coal business, supplying coal as fuel for domestic purposes to the inhabitants of said city; that said coal came, in 'lal'gepart, through the agency of the dealers mentioned in the

of

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85 ,FEDERI\.I,. REPORTER..

till, from Britlsh Columbia, .the state of Washington, and the state ofOt'egon; that the retail dealers, in combination with certain wholesale dealers and importers of coal from British Columbia, and those bringing coalfrom the states of Washington and Oregon, and other dealersmentiQned, with intent to form a contract, trust, and conspiracy in restraint of the trade and commerce between British Columbia, the state of Washington, tile state of Oregon, and the state of California, and with intent to monopolize, and to attempt to monopolize, and combine and conspire to monopolize, the coal trade and commerce between British Columbia, Washington, Oregon, and California, to the extent of the coal used in the city of San Francisco as fuel for domestic purposes, did associate themselves together in the state of California, and on the 11th day of September, 1896, adopted a constitution and by-laws, the provisions of which are set <mt in full in the bill. For the present purpose, it will only be necessary to notice the following articles and sections:
Constitution. . "ArtIcle l.Tltle and Object. (a) The tltle of thlsorg-anill:atlon shall be the ·'Coal Dealers' Associa tlon of California,' with pripcipal place of business in San J;'rancisco. . (b) It shall have for its object the furnishing of Information to Its members as to sales of coal made by wholesale dealers to the retail dealers, and by retail dealers to consumers, and alsO the names of any dealers who· have been guilty of violating any of the rates or rules made from time to time by this organization, and the furnishing of as complete a list as pOssible of delinquent conllumers, and such other matters as may be decided upon. "Art. 2. What Constitutes a Dealer. (a) Any person who engages In the sale of coal as regular business, buying to sell again, who shall own and operate a yard, keeping an office, and displaying 8. sign, shall be. regarded as a retail -dealer. (b) All miners and sWppers shall be eligible to membership in this assoeiatlon, provided such miner and shipper shall not wake a of sellIng 'Coal, at retail, at less price than the retail dealers." "Art. 4. Fees-Dues-Assessments. (a) The admittance fee for membership shall be two hundred (200) dollars, and must Invariably accomllanythe application. (b) The amount of dues shall be flfty cents per month, payable quarterly .in advance, and to date frow the first day of the. month following the month in which the member was admitted. (c) Assessments may be levied by a twothirds vote of the memhers present at a regular meeting, but only in such cases when the interests of this association as a business society reqUire It. (d) No assessment shall be levied unless it Is expressed In the notice of meeting that 'a resolution to levy an assessl\lent will be introduced.' " "Art. 6. FaUure to Pay Dues, Assessments, or Fines-ChargeS-Rlght of Appear. (a) If any methber shall neglect or refuse to pay the monthly dues and. assessments as provided in the constitution and by-laws of this association within three -days after the same have beciome due, he or they shall no longer be considered J;lJ.embers of thiS assoclatlon"or participant .In its benefits,and shall surrender certificate of membership; but a written or printed notice m1;1.st be sent, at the expiration of sltld time, to all those members who are dellnqttent; and may be reinstated within ten days thereafter by paying In full all dues." By-Laws. Their Duties. * *. * (c) The secretary, prior to .tak"Sec. 3. lng his office, shall be required· to give a bond, for· the falrhful performance of his duties, In the, sum of one thousand (1,000) dollars, w,ith; two, sureties quallfyingfor the SUD) of five hundred (500) dollars each, and satisfactory to the board of He shall collect all dues, issue all communications, notices, and other not provided for. He shall keep a register of all members of the assoclatiO'l1, together with a regular set of books for the proper eonduct ofl>us!ness;recelve all moneys due the association, and pay the same .oyer to the, sign all orders on the paYJUeilt of such

UNITED S'rA:l'ES v/ COAL DEALERS' ASa'N.

255

bflIsas may·'be apptoved'by il ma.jority of the finance and certlficatepurchasing committees. He shall keep a record; in a bOok provided for the purpose, of all transfers of certificates,.Of membership; be the custodian of all properties of the association; , receive all Charges made of violation of the' card' rates and rules, and refer the' same' to the grievance committee for action, after using due diligence in securtng .such facts in the case as possible. He shall devote his entire time to the association, and under no circumstances is he allowed to be associated in any manner with any other business. He shall, on receipt of findings of the grievance committee,' notify the wholesale dealers of such report, and request, in wrIting, that they impose the penalty for such violation. His compensation shall be fixed by the board of directors. * * * "Sec. 4., Standing Committees. (a) A grievance committee consif!ting of three persons shall be appointed by the president, from the board of directors, on the first Monday of .every month, to serve without compensation until the first Monday, of the follOWing month, or until their successors are appointed. They shall assemble whenever requested to do so by the secretary, and receive and of card rules or rates preferred against any ihvestigate all charges Of coaldealllr, or agent in the city and county of San Francisco, and report their findlIlgs 'to the secretary. They shall have the power t6 fix the time limit for the payment of any fines imposed by them. * * *" "Se,c. 9. Advertising, CirCUlars, etc. (a) Dealers in advertising coal are not permitted to state prices without adding the names of coal to be had for the prices named; both names and prices to correspond exactly with those on rate card. (b) Any circulars, posters, dodgers, cards, or signs conflicting with the card rates or rules displayed, found on the streets or circulated in any manner whatsoever,shall subject the deiller or agent,. who caused their distribution, to the penalties, as are provided in section 13 of these by-laws for selling coal in violation of card rates or rules. "Sec. )0. ,'Two or :More Yards. A member having two or more yards cannot dispose of his certificate of membership in the sale of one yard, and retain his membership in the association. "Sec. 11. New Yards. Any member opening a new yard or yards after June 14th, 1895, In addition to the one that secured his admission in the association, shall be liable for an addltlonal two hundred (200) dollars admittance fee and monthly dues for each yard so opened, in order for such yard or yards to participate in the benefits of the association. "Sec. 12. Standard Rules and Weights. (a) No dealer shall give more or less than 100 pounds to 1 sack; 500 pounds to 5 sacks, or % ton (short); 1,000 pounds to 10 sacks, or Y2 ton (short); 2,000 pounds to 20 sacks, or 1 ton (short); 2,240 pounds to 1 ton (long). (b) All long tons must be delivered In bulk. Names of coal must appear on bill exactly as they read on rate card. A load of coal delivered in bulk shall be per ton of 2,240 pounds. If handled after arrival at customer's place, an additional charge of fifty cents per ton must be made. A ton of coal delivered in twenty sacks, and put in bin, shall be 2,000 pounds. No premiums or presents are permitted to be offered as inducements for purchasers to buy coal. (c) Dealers shall be permitted to sell and deliver fifty pounds of coal at one-half card rates .for one hundred pounds, but in no case shall they be allowed to sell coal in quantities ranging between fifty pounds and one hundred pounds. "Sec. 13. Violations-Penalties. (a) If a dealer or agent, member or nonmember, be found guilty of selling coal in violation of the card rates or rules, he Shall be subject to a fine of not less than ten (10) dollars nor more than one hundred (100) dollars for first offense, not less than twenty-five (25) dollars nor more than two hundred (200) dollars for second offense; if a member of the association, be suspended and compelled to pay retail prices for third offense until restoreQ to membership in good standing by the board of directors. * * . . "Sec. ,14. Agreement. The following agreement between the wholesale coal dealers ,9f the city and county of San Francisco, Cal., and this association, is embodied in this section, and made a part and parcel of the by-laws of this association: " 'This agreement, made this first day of June, A. D. 1896, by and between the Coal Dealers' Association of California, an association, and the undersigned wholesale coal deaiers, witnesseth: (1) That the purposes of this agreement are:

256

8l)

REPORTER.

FIrst, protection to consumers In receiving full amount llnd kind· of coal purchased; flecond, protection to dealers in obtaining sufficient margin to carryon a llafe,buslneBB with justice to consumers. (2) That said wholesale dealers will nor will any or either of them,durlng the continuance of this agreement. sell coal at trade rates to anyone Dot having an established yard; . nor will any or either of tham sell coal at less than card rates to consumers, except In such cases as may be provided for by agreement among said wholesale dealers themselves.. (3) That said who.lesale coal dealers hereby acknowledge the request of the Coal Dealers' Association of California, made to them on the sixth day of May, i896, to charge one dollar ($i.OO) per ton additional over present trade rates for all coal sold by said wholesale dealers, or any or either of them, to the retail dealers In the city and county of San Francisco, who are not members of said association, and hereby agree to comply with said request, alld will during the continuance of this agreement charge one dollar ($1.00) per. ton additional over trade rates for all coal.sold to dealers, carrying on business iIi said city and county who are not members of said association. (4) 'l'hat upon receiving proof from the Coal Dealers' Association of the violation by any retall coal dealer of any of the rules of business printed on the rate card Issued by sald association, and being satisfied that the charge is established, said wholesale coal dealers agree, and each of them agrees, to, and will, charge the dealer so violating said rules or rule consumers' rates thereafter for coal, until said retail dealer, if a member of said association, shall have been reinstated to membership In the Coal Dealers' Association of California by the vote, of the board of directors of said association, or, If not a member, until be shall have paid such reasonable penalty as may be Imposed upon hijll by said association. (5) 'l'hat the followIng rules and rates shall be enforced ,during the continuance of this agreement: That rates at which coal sMll' be solq. to consumers shall be as shown on the rate card issued from time to time by tMCoal Dealers' 'Association ofOalifornla. A ton of coal delivered In, twenty (20), sacks" and deposited in bin, Will be 2,000 pounds; and no more nor less than twenty sacks shall constitute a ton so delivered. A ton of coal delivered'in bulk shall be 2,240 pounds. For coal In bull<: handled after arrival at place of delivery, an additional. charge of fifty cents per ton shall be made, provided, however, If the handling after arrival at place of delivery consists only of shoveling or dumping coal in place of deposit, no additional charge shall be made. All long tons must be delivered in bulk. (6) That any member of the Coal Dealers' Association furnishing coal to another dealer who has, been, duly adjudged. by the Coal Dealers' Association of California guilty of violation of the rules or any rule of said assOciation printed on said rate card will himself suffer the penalty imposed by said association for violation of said rules. (7) That no member of, the Coal Dealers' Association shall have the right to transfer his certificate of membership In sald association until all Indebtedness due to said wholesale coal dealers, or any of them, by the member of the said Coal Dealers' Association holding said certificate, shall have been paid, or until an adjustment between the debtor and creditors shall have been satlSfactorily made by such debtor and creditors. (8) That In the event of the discontinuance of business by any memb!!r of said Coal Dealers' Association, and his failure to promptly settie his Indebtedness due to said wholesale coal dealers, or any of them, then said Coal Dealers' Association shall have the right to declare such delinquent member's certificate forfeited to said wholesale coal dealers parties hereto, who are his creditors. That the said wholesale coal dealers for whose benefit said forfeiture takes place shall have the rIght to sell said membership certificate, and, upon the sale thereof, shall apply the proceeds of sale to the payment of the claims of the wholesale coal dealers parties hereto, holding claims against such delinquent member. That, after the application of the proceeds of such sale to the payment of the claims of said wholesalers, any surplus remalnlngshall be paid to the delinquent member. (9) And, In the event of a sale of his business, wholesale dealers shall decline to furnish coal to his successor, at' the' discretion of the association's directors, until the seller has paid all bills due by him to the wholesale dealers, who are parties hereto. (10) That this agreement dOes not apply to steam, hotel, restaurant, or church trade, nor to such trade as must be, necessarily, reserved by wholesale dealers as a means of protection to steam trade, and referred to In section 2 of this agreement. (11) That this agreement shall continue in full force and effect for the period of two years from date hereof, and shill apply only to said wholesale coal dealers and

UNITED STATES V. COAL DEALERS' A8S'l(.

257

l'etan coal' dealers carrying on the of.San. Fran. cisco. . . ..,' . . ' . '.. . .. 'In witness where()f, the parties (hereunto' set their' haIidii;· toe day. and year tirst above written, said Coal Dealers' Association sign:ing by its president and secretary, thereunto authorized by resplutlon, of. sal(l association duly passed, and said coal dealers their respective . . .. doal Dealers' Ass'n of CalIfornia, .. '[SIgned] " 'By P. Lynch, PreSident, " 'By E.K. Carson, Secretary· .. ·Chal'lesR. Allen. .. 'Central CoaICo., "'By J.J, McNamara. .. 'Rb. Chandler. . .. 'Geo.· Fritch, . .. 'Per 'J. H<)mer Fritch· .. 'C. Wilson & Co. .. 'Oregon ImJ,Jrovement Co., . ." 'JohnL. Howard, Manager· .. 'Oregon Coat & Navigation Co., ." 'By C, 1\1. Goodall, Vice Pres. .. 'W. G. Stafford & Co. ·, 'R. Dunsmuir &. Sons, ." " 'By C. g .. Jlouet(t "Sec. 15. Agencies or Offices. (a) Any member haVing agencies or officell other than those located at his yard, for the: sale of coal, shall be compelled to have a certificate of memberShip for eachof.said agencies or offices. (b) In the event of thefallura of .any. member· to secure a certificate of membership for each or office, as referred toLn naragraph (a) oftlJcis section, within five days. after. a' written notice. shall been sent him by the secretary, he shlill immediately cause the same to be closed, or subject himself to a fine of not less than ten (10) dollars 'nor more than one hundred (100) dollars for each agency or office that is ,\l;nown to be operate'll by him or for'his benefit. "Sec..16. Sales to Nopmember Dealel'S or Agents. (a) No member of this association shall be perinitted to sell dealers or who are nonmembers, coai . for less than consumers' prlees. · · .".

The bill further alleges that the constitution and by-laws, since their adoption, have been, and no,ware,' in full force and effect, save 8,S amended by makil).g the fee 'of membership $50() instead of $200, as is provided in article 4 of the and iby amending subdivision 3 (If the agreement, set outjn section 14. of the by-laws,by changing the. words "one dollar ($1)" to ."two dollars ($2}," where the same appears in said paragraph, and the schedule of ratea from time to time, so that the schedule of rates and rate card a.re as set forth in the bill. The terwsof the agreement between the Coal Dealers' Association and the importers and wholesale dealers in coal, as set forth in the by-laws ()f the Coal Dealers' Association, are made the subject of still further of combination, con· spiracy, andconfederatiou betweell the cqal dealers in the establish. ment and maintenance of arbitrary rates for' coal in, San Francisc9, and indepriying residents of San Francif;1co of th,e benefits of free competition between owners, importers, and dealers: in coal from British Columbia, Washington, ;md whereby the trade, traffic, and commerce in this arti<:le has .been monopolized and restrained, and dealers in coal who. have been. refused or ,were unapie to become members of the Coal Dealers' have been compelled to .desist from business, and have been restrail).ed;from their trade,. bUj3.iness,and in in:fI1ecity: 9f
F.-17 . .

tirbtight'f1'6m 1'BritishColufubia,Washfilgton, '; of t:htllJiP Is that theCol:!-l DealElt;s';A.ssocill:tion bedissolveiJ.; .and thattbeag,reement between saidassodation and the wholesale dealel'H!beset aside; and that the defendants ;be enagreeing, combining,conspiring; joined"Rijd ,prpl;libited and rules and regulationSl1nd' rates and pri<:,es,fol'.co&l. brought from' British Columbia, Washington, and Oregon to San Francisco, :forJflf!mestic)mrposes as fuel, to. hinder trade and commerce)).etweensal<I:.shites and foreign countrIes; and that all and each Of them ,be ep;i.oi:qed.;,and prohibited from entering and continuing in the combination,.assoeiation, and conspiracy to deprive the people of the city of'SalfFrancisco of such facilities, rates, and prices for coal brought fl'QmBritis)J. Columbia, Oregon, and WashingtqI;l. to ,the; city of Sari 'Francisco, in the state of California, as will be afforded by free and unrestrained competition between the imp6rters;,and dealers of said coal used from said for domestic purposes as fuel; places in said city ,of and that all and:eac,h C!f defendants bl;! enjoined and prohibited (rom, agreeing, .. combining, ,l;ll;ldcons:t>,fri.t;tgaI/d acting together to monopolize,. or li.ttempt to said trade a,Ud ,·cOmmerce in coal, between said states of· Oregon, Washington, California, and said of. Brl'tish "Colum:bia;' 'and that a.Il\and each of !3aid defendanhf be' ana frl)m agl,'eeiIig, eombip.; ing, arid conspiring and ,.acting to, prevent ,each and any pf their 'a$sociation from .importingl :; dealing, and delivering, cool from bia, Washington,and Oregon' to the city of. San Fran' ,Of in the .and commerce of tJie 'same between said 'states ,and said, f()rqign ,cp:untry at rates as shall be fixedbyeach of said defendants acting independently a'nd separat lyoniite own Two'affidavits suppot'ting theml:l:teri'aI!Rllegations of the bill were filed with the bili on 16, -1891. One of these, made by a retail caaldealel' hi San' ']'l'anC!sco, who'ii! not a member of the Ooal Association, alleged...amdng .otlJer things" that,' by reason of the, fact that tIle, constitution and 'by-Iaws of the Coal Dealers' ASsociation 'and the agreement 'be'tween' the wholesale dealers and saidassbciation the' sale'; to' hi'nY of coal brought from Washington, Oregon, and British i06lumbia except at adv.anced prices;' he had been greatly restrained and hindered in his Upon this showing; Rrder the defendantsto''Show cause, o:I}'tlJ.e;first Monda.y 'in January, 1898, why an injunction shouldnotbe:issned,as prayed for in the 'bill, pending thelitigation,and in tIie' 'meantime 'the defendants were restrained and 'prohibited from charging or collecting from persons engaged hi the retailcbaI trade in'th. city of San Francisco a price in 'excess of the salle charged arid collected from members of the Coal Dealers' Association for like' put'chases,in :quantity and'quality, of coal'iiril ported or brougbtfrOIIl "BritisbColllUlbil1, Rlldfrom the states. of Washington and Oregon. , On 'December 18, 1897, the appeared specially', and IJ;tov'ed to set as,ide. the preliminaryrestraiii. lng,order; :UpOD the grounds 'that the otdei' was witholi( notice
I , ',' .' "

Sa.le

'and'

UNITED

ASS'N.

lars in which .they are sought be restraining order, nor in an,y.particular; that the ,restraining order praCtice. of this court- in was not in accordance with the rules such cases; that the. act of July 2, comyponly known as the "Anti-Trust Act," does not' provide for any preliminary injunction or restraining order. ,The hearing of this motion was noticed for December 28, 1897, and afterwards continued to the first Monday in January, 1898, when it was heard at the same tiIIle with the order to show cause. The two matters will now be considered together. , Section 4 of the act of July 2, 1890, provides as follows:
"The severa,l circuit courts of the United States are hereby fuvested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the. several district attorneys of the Un,ited States, in their respective districts. under the direction of the attorney general, to institute prqceedings in equity to prevent and restrain such violations, Such proceedings may be by way of petition setting forth the calle alld praying that sllchviolation Shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition, the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and'before final decree, the court may at any time make such temporary restralnJng order or prohibition as shall be deemed just in the premises." ,

be probable by reason ofthe conduct of the

to the. defendants;

no irrepftrable. inju.ry

J3howD; to

to

Under section 718 of the Revised Statutes, the court or judge is' authorized, whenever notice is given of a motion for. an injl1nction, to grant an order restraining the act sought to be enjoined until the decision upon the motion, where there appears to be danger of irreparable injury from delay. fuso far as the language of the antitrustaet differs from the provisions of the Statutes, it appears to have been the intention of congress to pro'ide a more direct and su:mmary proceeding in reaching the mischief which it was the pUI'p()Se of the statute to remedy than had prevailed before under the general rules of equity practice. I am therefore clearly of the opinion that, under section 4 of the anti-trust aet, a restraining order maybe issued by the court or judge without notice, under the circumstances sanctioned by the' established usages of equity practice. That practice reqUires, as a general rule, that notice of' an application for a temporary restraining as well as for an injunction, sMlIbe given to tIle person against whom.it is .desired; but in ve)'y pressing cases, where the misc;hiefsought to be preveuted is serious, imminent, and irremediable, the will grant a ing order without notice, and they will d'o s() where the piereact of giving notice to the defendant of the intention to make the appli-, cation might of itself be productive of the mischief inducing him to accelerate the act iu 'order that ib:uightbe completed before the time for'making the application has arrived, Fost. ,Fed. in the btU Prac. § 231. In the present case there is no that the ,retail .coal or' .of'San whose benefit It may ,be .assumed irreparable injury by' delay; butfM' anti-trust 3:C{' not, in' terml\,

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.';'-'

::

...

85 FEiriEtiAL

REPORTElR.

l'equiredeven rules. dfequity 'praCtice in a case invalvmg a question of. monopolY' and restraint of trade. Barthet v.City of New. orleans, 24 .F.'(\(l. 563; U. S. v. Addyston Pipe & Steel 00., 78 Fed. 712,716.' If will not be necessary, however, to pass definitely upon this question in this case, since it is my purpose to consider and.deter:tnine, without further delay, the questions presented upon the order to show cause why an injunction should not issue pending the litigation. But, before proceeding to that feature 'of the case, 'tl:\.ere is a. further objection to be noticed. It is contended that, as 'the Coal Dealers' Association is an unincorporated company, it cannot be brought into court by making it a party defendant by that name. In equity, the action must be against the individuals comprising such an association; but there is this exception: Where the parties are numerous, some of them maybe brought in as representing the whole association. The title· of. this case is against "The Coal Dealers' Association of Cali· fornia,and All the Members of Said Association," and also against 17 individuals, who are designated as "Members and Officers of said Association." The return of the marshal shows that all these in· dividual$i have been ,served; .that the president of the association has been served as an individual, and as president of the association; and he has appeared in the capacity of president in the affidavit filed by him, 'as has a,lso the secretary of the association. This, I think, is sufficient, tinder the rule requiring sufficient parties, to represent all the adverse, interests in th,e Buit. , In response· to the or,Cier to show calIse, affidavits have been interposed' by the defendants for the purpose of disproving the equity upon which the motion is' founded; also, a demurrer to the bill and parol to its sufficiency." Theaffrdavits tend to show that tj:lestatement in the bill, that 800,000 tOIls of coal are used antlUl111y 'as fuel for domestic purposes!?j the inhabitants of San not tr?e;,tl).at the number of tons so used does not probablyexl:!eed 40o,oooibhs, and the amount imported and brought into SaliFdlncisco' annually. from Columbia, Washington, and': Oi'egon'r ,and. usedfQr domestic' purposes" is not in excess of 300,000 that defendants na'rried in the bill as wholes;lle dealers ,importers ()f coal are not all, the wholesale .dealers who handle, ap-d sell coal used in San Francisco for domestic purpos¢s; that tp:e Black Diamond Coal Company is a cor· poration. which handIes;' brings, and imports and sells coal used as fuel for'dohiestic purposes, and that this corporation is not assocIated wihiahy ofthe no", a 'W;irty to the agreement with of California; that,the price and cost of minirl:g.ltnd)rilIisporting COllI from British Columbia, Washington, and Otegon have' liot been materiallycheapened within the past few years, but MV'e lately been, increased, owing to the mine owners' ability to Il,umber of miners, ,since 1;lile exodus to the Alaska, and'alilo 'by reason of. the bigh rate for trans. portfugcoal frl;)];nthe, a.bpve-nientioJ;ledplaces, due to the,greflrtdethe, 'of, the COOl ASSOCIation, and lkfore the agreement mentIOned

UNITED STATEB

v.

COAL DEALERS' ABS'N.

261

Francisco, except British Oolumbia coal, used as fuel for domestic largely in excess of the prices now charged; that in May;.1896,one month previous to the organization of the Coal Dealers' Association, British Columbia coals were $9.50 and $10 per ton, Washington coals were $8 per ton, Oregon coals $7.50 per ton; and a few months after said organization coals were reduced to $7.50 per ton, and fluctuated from that price to $8, $7, and $7.50, which is tbe highest price; Oregon coals were reduced to $7 per ton, then $6.50 and $6.25, and now is $6.55; British Oolumbia coals have not changed in price, notwithstanding the duty on coal has been increased 40 cents to 67 cents per ton; that, prior to the organization. of the Ooal Dealers' Association. there were many persons engaged in the retail coal trade in the city of San Francisco who pmcticed dishonest methods. in giving short weights, substituting lower grades of coal for better grades, and in omitting to pay the amounts due from them to the wholesale dealers, to the injury of the wholesale dealers as well as to the retail trade. It is alleged that, in order to discourage these evils. the Ooal Dealers' Association was formed and, the agreements entered into between the association and the wholesale -dealers, and it was in consideration of this partial security that the wholesale dealers agreed to sell to ,members of the association at a price less than that charged to nonmembers; that the agreement was entered into only for the purpose of dealing with and affecting coal in the state of California and city and county of San Francisco. and not for the purpose of monopolizing, conspiring, or attempting to monopolize or restrain the coal trade and commerce between British Oolumbia, Washington, Oregon, and Oalifornia. It is further alleged that no sale of coal imported from any other state or territory is made to any member. of the Coal Dealers'Association until after the same has been imported arid delivered to the wholesale dealers, and bulk broken. The af· fidavits .contain other allegations in relation to the coal business, which it will not be necessary to notice, in the view I take of t.he matters: proper to be considered on this motion. The title of the anti·trust act indicates the comprehensive scope and .purpose of the statute. It is "An act to protect trade and commerce against unlawful restraints and monopolies." It is not limit.ed Wi contracts and agreements that were unlawful at common law, nor to restraints and monopolies in violation of state statutes. In U. S.v. Trans-Missouri Freight Ass'n, 166 U. S. 290-327, 17 Sup: Ot.540, the supreme court, referring to this title, said:
"The title refers to, and includes; and was intended to include, those restraints and monopolies which are made unlawful in the body of the statute. It is to the statute itself that resort must be had to learn the meaning thereof, though a resort to the title here creates no doubt about the meaning of and does not alter the plain language contained in the text"

in the biU, the prices of all coals sold in the city and county of San

The first a.nd second sections of the act are as follows:
"Section 1. Every contract, cOlilbination in the form of trust or' otherWIse, '01' conspiracy, In. restraInt of trade or commerce among the several states, or with foreIgn nations, is hereby declared to be lllegal.Every person who, shall"make any such contract or engage in any such combination or conspiracy,s4all be

262

"

85 FEi>ERAL REPORTER.

"""

deemed guilty,ot 11 misdemeanor, iuid, on conviction shall be punished bY:fi.ne not· e;:ceedlng five thousand dOllars" or, by imprisopment not exceeding one year, or by both salli punishments, in the discretion of tPe'col,irt "Sec. 2. Every person who shall monopolize, or attempt iro' monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or. commerce, among the, several, states, or with nations, shall be deemed guilty of a mJsdemeanor,,41pd, on conviction, thereof, shall be punished b;y: fine not exceeding five thousand dollars, or by imprisonment not exceeding on,e Sear, or by both said punishments; in the discretion of the' court."

In, the Freight Ass'n Case, supra, it was that this statute, in declaring illegal every combination in the form of trust or, or conspiracy in restraint of trade or rommerce, did not .mean what its lenguage imports, but that it only meant to declare illegal any such contract which is in unreasonable restraint of trade; while leaving all others unaffected by the provisions of the act. The court discusses this question, and arrives at the conclusion that: ' ,
"Wben; therefore, the body of an act pronounces as lllegal every contract or combination in restrai.nt of trade or commerce among the several states, etc., the plainand ordinary meaning of such language is not limited to that kind of contract alone which is in unreasonable restraint of trade, but all contracts are inclUded in such language, and no exception or limitation can be added without placing in the act that Which has been omitted by congress."

stances ahd conditions, the contract or combination imposes only a fair :and reasonable restraint upon trade and commerce. The question' is; does it impose any restraint whatever? If it does, no matter hmv little or reasonable it may be, it is within the prohibition. This interpretation is in harmony with, the other provisions of the statute, which make it unlawful to monopoli7"e, or attempt to monopolize, any part of the trade or commerce among the several states or with, foreign nations. The contract under consideration in the Freight Ass'n' Case related to traffic rates for, the transportation of persons' and property, by competing common carriers by railroad; but the'doctrine of the case applies as well to articles of commercethe subject of transportation-as it does to the business of transportation itself; and the clear and positive purpt>se of the statute must be nnderstood to be that trade and commerce within the jurisdiction of the federal government shall be absolutely free,and no contract or combination will be tolerated that impedes or restricts their natural flow and volume. , Under the law as thus interpreted, two questions arise upon the facts in the'present case. First. Do the constitution and by-laws of the Coal Dealers' Association and the agreement ot,the association with the importers and wholesale dealers operate in restraint of trad¢ ahdcommerce, oJ,' monopolize any part of the trade or commerce of San Francisco? And, jf so, does this restraint Ol' mon9poly e:x,:tend to any part of the trade and commerce' carried on bet,wee,'n,Ah, state and Oregon, wash,in,'gt,on, or BritiS,h"'C ol,u,mbia? .. T4ere)spo difficulty in arriving at Ii, conclusion wfth respect to the fil"8hquestion. Theconstitution of ,the, C()al Dealers.' Asso'ciation provides, among other things, that its,object is, to furnish informat.ion

be in" violati'on of the act, to say that, in view of all the circum-

!tis-therefore no defense of a contract or combination, alleged to

to its rat> it9; of. coa,l made. by '" dealers; retail Q:ealers, by to consllmers, I,lnd also thE:! nl,lmes of any dealers whp 1:).ave been guilty qf violating any.ofthe rates or A dealer rules ma<le from timetj) time by the is defilled as' any person ,who engages in .the sale of coal· as regular husines,s, buying to. ,!'leU again, who shall own and operate a yaJ;<l, keeping. an Qffice\, llud displaying a sign l .. All miners anGlo shippers shall be eligible to membership in the associatio,n,providedsuc4 miner;;tp.d not make a practke of selling coal at lells pr:ices than. the retail dealers. The admittance fee· for bership is $500, but t):J.e association assumes the over found dealers :wh() are not p1embers" and imposes fines upon guilty of seIling coal in violation of card rates or rules. The :jin\'l is not to .be less than $10 nor more than $100 for the first not less than: $25 nor more than $200 for the second offense; a?d:, if the nonmember shall neglect or refuse to pay any fine within. the fixed by the grievance comIilittee, the secretary, at the expiratipn of the time, shall notify the wholesale coal dealers to .charge the person so defaulting consumers' prices fOr coal, and the wholesale dealers agree Jo comply with the-notice. Tbe bOfl,rd of coal directors of the associatiop. lilay employ. detectives .to at retail through any citizE1n. The purpose of this provision l:I-ppears to be to discover those dealers who sell coal at other than card rates. A grie-vance is prQvid to assemble whenever. requested 'd' to do so by tbeseHetary, to receive and investigate allchargel'i of violation of card rules or rates preferred against any coal dealer or agent in the city and county of Ban Francisco. It will be observed that the jurisdiction of this committee is not limited to the investigationof;charges against melQbf\fs of the Ilssociation, but includes all dealers.. Dealers in advertising coal are not permitted tp state without adding the na)lle of the coal to be. had for the .prices named,. Both names and prices to correspond exactly with 9n tbe rate card. Any circulars, posters,dodgers" cards, or signs conflicting with the card rates. or rules displayed, f<;mnd. on. the streets, or circulated in any manner w4atsoev.er, subjects the dealer or agent who caused to the penalties for selling coal in violation of card rates or rules. No dealer in coal is permitted to give more or less than. certain. weights in selling coal in· specified quantities from sacks to tons. A charge is· fixed for handling coal at place, and no premiums or presents are allowed to be offered as inducements for purchasers to buy coaL 1;he agreement with the Wbolesale del!.lers part of the by-laws of theassociation. T):J.e .wholesale dealers agree not to sell at trade rates to anv one not having an establishe.l yard, and, not to sell coal at less thai:. card rates to consumers, except in such cases as may be by agreement among the wholesale dealers themselves. They agree to char:ge two dollars per ton additional over current trade rates to who are not members ofthe Coal Dealers' A.ssopiation, and consumers' rates to dealers who any of the rules of the association.. A. schedule of rates is adppted for the different,quali· ties and. classes of coal sold in San Francisco. .

264
, It is claimed On the part of thedefendantll tliJlttMJOoal Dealers' AssoCiation is a beneficial organization;' that it protects the coal consumers from thedishones! methods of some of tlie coal dealers in giving ;short weights and' in substituting lower grades of coal for hette,p'grades; that it also protects the dealers in them to collect their bills from the retail dealers. All this may, be true,btlt it is' clear that the power Of the association ext-ends much further, and that'it has another purpose. It establishes arbitrary rates for coal,' from which the dealer is not'permitted to deviate in any particular. It stifles all colmpefition between retail dealers, restricts trade within prescribed liinits, and establishes a nibnopoly ,of the most odious character in an article ofdaBy consumption and prime necessity.' ' .. , In Nester v. Brewing Co., 16'1. Pa. S1. 473,29 Atl. 102, the supreme court affirmed the judgment nf the court of common pleas of Phila'delphia, holding that a c()mbi'riation among a number of brewers 'of1that city to control the' price ()f beer within the city was illegal, being in restroint of trade. TJ'he'agreement tinder which that combination was formed is of thes3mecharacter as the one now under considel"afioIi, and this is what tria] court had to say about it:
"'Where a price is fixed arbitrarily for which. a manufactured article may be sold; It'necessarily llmits the' productltin of that article to the amount that can be sold for that price. An increased price'put upon-,an article restricts its sale, IllJd the r ]stricted sale necel:isarily rC,dl!/ces the prpduction. It is no answer to say: 'We do not restrict y()ur prodm;tipn., You may any amount you llke. We only restrain your sale of it,l Is this not practically Ii limit to productlon? Where a pool or combination reserves the right to regulate prices, they can, by' the manipulation of prices, drive their competitors out of business, create a rnonopoly;all,d enhance at their pleasure ,the prices to consumers."

·Thisis preci'sely the a:ttituqe of the'OoaT Dealers' Association, and Wis no answer to the charge Of arbitrary power, which it can and does exercise under its organizatiiHl', that it has not increased the price of coal in San Francisco, or' Wholly monopolized the source of supply. The terms of the organization and the agreement between the association and the wholesale clearly constitute a restraint of trade, which is injurious to the public interests, against public policy, and therefore unlawful. Arnot v. Coal Co., 68 N. Y. 558; Salt Co. v. Guthrie, 35 Oh.ioSt. 666; Carbon Co. v. McMillin, 119 N. Y. 46, 23 N. E. 530; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. S1. 173; Craft v. McConoughy, 79 IlL 346; Lumber Co. v. Hayes, 76 Cal. 387, 18 Pac. 391; Distilling & Cattle Feeding Co. v. People (Ill. Sup.) 4,1 N. E. 188; HarrowCo.v. Hench, 83 Fed. 36. ,The next' question is' as to 'whether or monopoly extends to the trade or commerce among the severa.l states or with foreign nations. In other words, do the facts in the case bring it within the jurisdiction ,of the national government, und'er the provisions' of the anti-trust act? The retail prices for coal at San Francisco established by the Coal Dealers' Association, and agreed to by the wholesale dealers, are for'different quantities of' the following named coals, used as foel for domestic purposes, namely: Wellington (Dunsmuir), Wellington (Southfield), Roslyn, Bryant, and Coos Bay. The Wellington coal is imported from British 00-

UNITED STATES V. ,COAL Dli;ALERS' ASS'N.

lumbia; the,Roslyn, Seattle, ,and Bryant; from Washington; and the Coos Bay, from Oregon. No card rate appear& to have been fixed for coal produced in this state, probably because this quality of coal is not generally used for domestic purposes. We start, then, with the fa.ct that .the article which is the subject of the controversy is the product of other states and a foreign country, and is brought from such other states, and imported from the foreign country, by dealers and importers engaged in that business, and that these dealers and importers have entered into an agreement and combination with the Coal Dealers' Association whereby the business in dealing in this,'article is regulated and its retail prices in San Francisco fixed arl>ftrarily.',['he statement of these facts seems to be sufficient to determine the question ; but it is contended very earnestly, on the part of the defendants, that the case presented by the bill is not within, the law, and that the line dividing local from federal authority excludes it from the jurisdiction of this court. What, then, is trade and commerce among the several states and with foreign nations? "Trade," in a business sense, has been defined as "the exchange of commodities for other commodities or for money; the business of buying and selling; dealing by way of sale or exchange." '.l'he word "Commerce," as used in the statute and under' the terms of the constitution, has, however, a broader meaning than the word "trade." Commerce among the states consists of intercourse and traffic between their citizens, and includes the transportation of· persons and property, and the navigation of public waters for that, purp9se, as well as the purchase, sale, and exchange of commodities. County of Mobile v. Kimball, 102 U. S. 702; Gloucester .Ferry Co. v. Pennsylvania, 114 U. So 196, 5 Sup. Ct. 826. Commerce among the states canno.t stop at the external boundary line of each state, but may be introduced into the interior. Gibbons v. Ogden, 9 Wheat. 1, 194. In I..eisy v.. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, the supreme court held that a state statute, prohibiting the sale of intoxicating liquors, except for certain plfrposes and under license from a county court, was unconstitutional and void when applied to a sale by an importer of liquors brought from another state in the original packages, because the operation of the law was repugnant to the power of congress to regulate commerce among the several states. The court, in passing upon the question, said:
"The power vested in congress 'to regulate commerce witl;r foreign nations and among the several states and wltb the Indian tribes' Is. the power to prescribe the rule by which that commerce is to be governed, and Is a power complete in Itself, acknowledging no limitations other than those prescribed in the constitution. It is co-extensive with the subject on Which it acts, and cannot be stopped at the external boundary of a state, but must enter its interior, and must be capable of authorizing the disposition of those articles w,illch It introduces, so that they may become mingled with .the mass of property within the territory entered." . ,

Again, to make this limitation on state authority over interstate commerce more clear, tbecourt said:
"It is only.after the importation Is completed, and the property Imported has general property of the ,,stat!!!. tllat itIJ mlngle(l witb, and. become a part of

JJ

regUlati6ns in the

Rct· upon- It,excephill' far il'!!:' mai !benecessA.r,y' lo insure s8;fety the import until thuB mingled." ,, ' , '

If ofa stafe,regulatlng tnesaleof intoxkaHng liquors, so as to prohibit their sale except for certain under license from a county court, is unconstitutional and "void when applied to a, sale by an importer of liquors bfou'ghtfrom another state in the original packages, because the law in that relatibn is in restraint of trade, aha 'commerce ,"among the several states," what shall be said oftM'chnstifution'ahilby-laws of the Coal Dealers' Association, and the! of that· association with the wholesale dealers respectIn'gthesale of imported coal in Francisco under the anti-trust act? If one is in restraint of commerce, is not the other? The claim that the coal is' not sold until imported, delivered, and bulk broken is 'not sufficient. The principle, of the original package does not apply'to the sale of coal. It must be manifest that the arbitrary rulesu'daer which the combination of wholesale and retail dealers condti'ct their business affects the sale and disposition of coal immediately upon, its arrival at San Francisco, and that" as an article of commerce, its, freedom is restrained and hampered at the point of delivery into the state, and before it has become distributed by sale, and mingled in the common mass of property in the state. But the agreement of the importers and wholesale dealers, which alone gives life jUld' force to the combination, is, directed specifically to the maintenance of card rates for certain imported coals by name; and it is this agreement, and what may be accomplished nnder it by the combination, that is to be considered, and not what the parties to it may be ,doing at any particuIartime. . In Robbins v. Taxing Dist., 121) U. S. 489., 7 Sup. Ot. 592, it was held bi'the supreme court that a 1l1w of Tennessee, requiring that all drutiuners and all persons not having a regular licensed house of business in the taxing district of county, offering for sale or selIinggo'o'ds, wares, or met-chandise therein by, sample, should pay to the county trustee the,sunlof $10 per week, or $25 per month, for stich, privilege, was" so far as it. 'to pel'sdns soliciting the sale of goollil'on 'beh:;tlf C)f individuals or firms doing business in another state, ilregulation of commerce among the several states. This case also arose before oftheanti'trnst act, and was considered as'comiiig' Within the doctrine that congress had the exclusive power to regulate commerce uuder the cdnstitutionof the U;tiited' 'States. Now, if this ·doctrine is applied to the facts of the vreserjf ease, how can it be said that the ruleS"alI,d regulations imposed by the Paal De,alers' Association upon retail ,coal dealers of San Francisco, selling;imported coal, is less an obstruction to commerce than tM law of Tennessee, imposing a lieense tax upon drummerssolidting the sale:o.f goods from another ,state? Manifestly, a cOurt could not consistently condemn the latter. and excuse the first. Suppose the state ,of, California were ,to provide, by, statute, a, fixed p:dce for the sale, at retail in San Francisco, of Wellington, Roslyn, Seattle, Bryant, and Coos Bay coal, and require that 'all retail dealers in such coals should paJ'aHcense'to the state of $500 for theprivileA'e dealing insueh coalaat the 'established rates, and, to secure the

of

UNITED STATES,

ASS'N.

267

enforcement',of such a law,should im}Dosepenalties ondOO1ers who did not comply with the statute. Would there be any question as to the validity of such a statute? r!w ould it not be so plainly in violation of the constitutioIiand laws of the United States that no court would hesitate for a moment to declare it void? With what complacency, then, should the court view the terms of the agreement of the wholesale dealers with the Coal Dealers' Association, and the regulations, fees, dues, .assessments, fines, and penalties provided by the latter association,for the purpose of controlling all coal dealers engaged in dealing in these imported coals? In the Sugar Trust Case, 156 U. S. 1, 15 Sup. Ct. it was held, sUbstantially" that contracts relating to commodities, to come within the range of federal juriSdiction, must be subsequent to production, but it also said that contracts to buy, sell,or exchange goods to be transported'amollg the several states 'form part of interstate trade or COmmerce. A case entirely in point is that of U. S. v.Jellico Mountain Coal & Coke Co., 46 Fed. 432, brought under the anti-trust act, in 1891, against the member'S of the :Kashville Coal Exchange. The purpose of the agreement in that case was to establish the price of coal at Nashville, .and to change the same from time to time. Members found guilty· of selling coal at a less price than the price fixed by the exchange, either directly or indirectly, were fined 2 cents per bushel and $10 for the first offense, and 4 cents per bushel and $20 for the second offense. Owners· or operators of mines were not to sell or ship coal to any person, firm, or corporation in Nashville who were not members of the exchange, and dealers were 1I0t to buy coal,from any ,'one not a;m.ember of the e:x;change. It appeared that several miru,!;J.g in Kentucky engaged in raising coal and most of the coal dealers of Nashville had entered into this agreement. 111e court held the agreement was in restraint of trade and commerce, arid that the defendants, by the organization of the Nashville Coal Exchange, and in their operations under it, had violated' the law; and were accordingly enjoined from further violations of the law. In U.S. v. RO}i>kins, 82 Fed. 529, the Kansas City LiveStock Exchange, a voluntary unincbrporated association, adopted articles of association and rules and by-laws whereby they agreed that they would faithfully oQserve and be bound by the same. Among the rules for the govennment of the exchange were fixed rates of commissions for the transaction of business, and limitations and prohibitions upon its members in dealing with nonmembers and with of the exchange; these persons violating the rules and rules and regulations being enforced by means of fines, penalties, and assessments. Substantially, all of the business transacted in the matter of receiving, buying, selling, and handling live stock at Kansas the members of the exchange as Oity stockyards was carried commission merchants. .N. large proportion of this live stock was shipped from the states of Kansas, Nebraska, Colorado,Texas,' MisSQP.ri,: IoW,a; 'Ilnd·· Arkansas, and the territories of Oklahoma, Ariwna, and New Mexico, and was sold by the members of the exchange to the in:Kal1S3s City·. Itw,asheldthat the association

268

SIS FEDERAL . REPORTER.

was an

illegal combination to restrict, monopolize, and ,controltmde and,commerce. It is not, however, necessary. to multiply authorities; dealing 'With .this question. They are numerous, and they all' clearly establish the doctrine that commerce among the several states and with foreign nations must be absolutely free and untrammeled, ,except as it may be regulated by congress; that no state law, with certain exceptions ;not necessary to be here stated, will be allowed to interfere with it, and no contract or agreement on the part of individuals, associations, or corporations will be permitted, directly or indirectly, to hinder or restrain its natural current or volume. IIi the light of the authorities and the principles they establish, it appears to me that the constitntion and by-laws of the Coal Dealers' Association and the agreement of the wholesale dealers with that association come within the prohibitions of the act of July 2, 1890, and they are therefore nnlawful. A temporary injunction will be prepared in accordance with this opinion.
HILL et al. v. HITE et aI. (OircuIt Court of Appeals, Eighth Cir.cuit.
No. 957. 1.

MOllTGAGE EXECUTED ON SUNDAY-ARKANSAS S'fATUTE.

February 14, 1898.)

Unqer the Arkansas statute making it a misdemeanor to labor, or to compel ali. apprentice or servant to do any labor, on Sunday, other than customary household duties of daily necessity, comfort, Or charity, a mortgage and notes executed on Sunday are void. 79 Fed. 826, affirmed.

2.

FEDERAl, COURTS-FOLJ,OWING STATE DECISIONS.

The decisions of the highest court of a state as to the effect of its Sunday laws upon made and to be performed in the state wlll be followed by the federal courts. 79 Fed. 826,. affirmed.
EXECUTED ON . SUNDAY ACKNOWLEDGMENT DATED ANOTHER

8.

MORTGAGE DAY.

Where a mortgage was actually executed OIl' Sunday, iUs not validated by the fact that the certificate of acknowledgment bears date of a day prior or subsequent thereto.

4.

INVALID RENEWAL OF MORTGAGE-RIGHT TO ENFORCE ORIGlNAJ, MORTGAGE.

'Vhel'e, by reason of the invalidity of a renewal mortgage, the mortgagee has the right to enforce the antecedent mortgage, he cannot do so in a suit to foreclose the renewal mortgage.
MORTGAGE EXECUTED

G.

FORECLOSURE OF MORTGAGE-HATIFICATION OF SUNDAy-PLEADING.

ON

Where, to a mortgage sued on, the defense's set up that it was executed on Sunday, complainant cannot make a subsequent ratification available un· del' the general replication,. but must plead it by way of amendment in a suppleD;1ental bill.

Appeal frow the Circuit Court of the United States for the Eastern District of Arkansas. H. M. Hill, Thomas B. Harvey, and DeRoos Bailey'filed bi:-ief for appellants. . S. R. Oockrill and Ashley. Cockrill filed brief.for appellees.