229 U.S. 373 (1913), 197, Nash v. United States

Docket Nº:No. 197
Citation:229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232
Party Name:Nash v. United States
Case Date:June 09, 1913
Court:United States Supreme Court

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229 U.S. 373 (1913)

33 S.Ct. 780, 57 L.Ed. 1232



United States

No. 197

United States Supreme Court

June 9, 1913

Argued March 18, 19, 1913




In many instances, a man's fate depends upon his rightly estimating, that is as the jury subsequently estimates it, some matter of degree, and there is no constitutional difficulty in the way of enforcing the criminal provisions of the Sherman Anti-Trust Act on the ground of uncertainty as to the prohibitions.

The Sherman Act punishes the conspiracies at which it is aimed on the common law footing, and does not make the doing of any act other than the act of conspiring a condition of liability. In this respect, it differs from § 5440, and the indictment need not aver overt acts in furtherance of the conspiracy. Brown v. Elliott, 225 U.S. 392, distinguished.

This Court can see no reason for reading into the Sherman Act more than it finds there.

It is not necessary for an indictment under the Sherman Act to allege

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or prove that all the conspirators proceeded against are traders. Loewe v. Lawlor, 208 U.S. 274.

Where the indictment under the Sherman Act allege numerous methods employed by the defendants to accomplish the purpose to restrain trade, it is not necessary, in order to convict, to prove every means alleged, but it is error to charge that a verdict may be permitted on any one of them when some of them would not warrant a finding of conspiracy.

186 F. 489 reversed.

The facts, which involve the validity of a verdict and sentence for alleged violations of the Sherman Anti-Trust Act, are stated in the opinion.

HOLMES, J., lead opinion

MR. JUSTICE HOLMES delivered the opinion of the Court.

This is an indictment in two counts -- the first for a conspiracy in restraint of trade, the second for a conspiracy to monopolize trade, contrary to the Act of July 2, 1890, c. 647, commonly known as the Sherman Act. Originally there was a third count for monopolizing, but it was held bad on demurrer, and was struck out.

The allegations of fact in the two counts are alike. Summed up in narrative form, they are as follows: the American Naval Stores Company, a West Virginia corporation having its principal office in Savannah and branch offices in New York, Philadelphia, Chicago, etc., was engaged in buying, selling, shipping, and exporting spirits of turpentine in and from Southern states to other states and abroad. Nash was the president, Shotter, chairman

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of the board of directors, Myers, vice-president, Boardman, treasurer, Deloach, secretary, and Moller, manager of the Jacksonville, Florida, branch. The National Transportation & Terminal Company, a New Jersey corporation, had warehouses and terminals for handling spirits of turpentine and naval stores at Fernandina, and other places named, in Florida, Alabama, Mississippi, etc., was engaged in storing such turpentine and rosin and issuing warehouse receipts for the same. Myers was the president, Deloach the secretary, and Moller manager of the Jacksonville branch. On May 1, 1907, it is alleged, these corporations and individuals conspired to restrain commerce in the articles named among the states and with foreign nations, the restraint to be effected in the following ways, among others: (1) by bidding down turpentine and rosin so that competitors could sell them only at ruinous prices; (2) by causing naval stores receipts [33 S.Ct. 781] that naturally would go to one port to go to another; (3) by purchasing thereafter a large part of "its" supplies at ports known as closed ports, and, with intent to depress the market, refraining from purchasing any appreciable part at Savannah, the primary market in the United States for naval stores, where purchases would tend to strengthen prices, the defendants taking the receipts at the closed ports named on a basis of the market at Savannah; (4) by coercing factors and brokers into contracts with the defendants for the storage and purchase of their receipts, and refusing to purchase from such factors and brokers unless such contracts were entered into; (5) by circulating false statements as to naval stores production and stocks on hand; (6) by issuing fraudulent warehouse receipts; (7) by fraudulently grading, regrading, and raising grades of rosins, and falsely gauging spirits of turpentine; (8) by attempting to bribe employees of competitors so as to obtain information concerning their business and stocks; (9) by inducing consumers, by payments and

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threats of boycotts, to postpone dates of delivery of contract supplies, and thus enabling defendants to postpone purchasing when to purchase would tend to strengthen the market; (10) by making tentative offers of large amounts of naval stores to depress the market, accepting contracts only for small amounts, and purchasing when the market had been depressed by the offers; (11) by selling far below cost in order to compel competitors to meet prices ruinous to everybody; (12) by fixing the price of turpentine below the cost of production -- all the foregoing being for the purpose of driving competitors out of business and restraining foreign trade, or, in the second count, of doing the same and monopolizing the trade.

The two counts before us were...

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