286 U.S. 106 (1932), 568, United States v. Swift & Co.

Docket Nº:No. 568
Citation:286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999
Party Name:United States v. Swift & Co.
Case Date:May 02, 1932
Court:United States Supreme Court

Page 106

286 U.S. 106 (1932)

52 S.Ct. 460, 76 L.Ed. 999

United States


Swift & Co.

No. 568

United States Supreme Court

May 2, 1932

Argued March 17, 18, 1932




1. A court of equity has power to modify a continuing decree of injunction which is directed not to the protection of rights fully accrued upon facts substantially permanent, but to the supervision of future conduct in relation to changing conditions. P. 114.

2. This power, if not reserved expressly in the decree, is still inherent, and it is the same whether the decree was entered by consent or after litigation. Id.

3. The decree in this case is to be treated as a judicial act, not as a contract; the consent to it was directed to events as they then were, and was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be. P. 115.

Page 107

4. Mere size is not an offense against the Sherman Act unless it amounts to a monopoly, but size carries with it opportunity for abuse that is not to be ignored when the opportunity is proved to have been utilized in the past. P. 116.

5. By a decree entered on consent in a suit brought by the United States under the Sherman Act, a monopolistic combination of meat packers was dissolved and the units that composed it were individually enjoined from selling meat at retail, and also from continuing to trade, whether at wholesale or at retail, in "groceries" -- i.e., in certain foodstuffs and other commodities not within the meat industry. The reasons for this last provision were (1) that, because of it great size and its ownership of refrigerator cars, branch houses, and other special facilities incident to its meat business, each of the defendants was in a position to distribute groceries with substantially no increase of overhead, and, by lowering prices temporarily, could eliminate competition of rivals less fortunately situated, and (2), that, by their conduct, they had proved their disposition to do this. Upon an application, years later, to modify the injunction so as to permit wholesaling of groceries,


(1) The question is not of reviewing the decree to determine whether it was right or wrong originally, but is whether, having been made to include the collateral lines of trade with the consent of each defendant, it should now be relaxed because of changed conditions. P. 119.

(2) The changes that would justify removing this restraint would be such as did away with the reasons upon which it was founded. Id.

(3) In the absence of proof that the reasons for the restraint have vanished, or that the hardships of the decree amount to oppression, the injunction should not be modified. P. 117 et. seq.


Appeals from a decree modifying an injunction in a suit under the Sherman Law. For other phases of the same litigation, see Swift & Co. v. United States, 276 U.S. 311, and United States v. California Canneries, 279 U.S. 553. One of the present appeals was by the United States, the other two were by associations of wholesale grocers which intervened to oppose the application.

Page 109

CARDOZO, J., lead opinion

MR. JUSTICE CARDOZO delivered the opinion of the Court.

A decree of the Supreme Court of the District of Columbia has modified an earlier decree of the same court which enjoined the continuance of a combination in restraint of trade and commerce.

Separate appeals, one by the United States of America and the others by associations of wholesale grocers intervening by leave of court, have brought the case here. Judicial Code § 238, U.S.Code, Title 28, § 345.

In February, 1920, a bill was filed by the government under § 4 of the Act of July 2, 1890 (c. 647, 26 Stat. 209,

Page 110

U.S.Code, Title 15, § 4), known as the Sherman Anti-Trust Act, against the five leading meat packers in the United States to dissolve a monopoly. The packers joined as defendants were Swift & Co., Armour & Co., Wilson & Co., the Morris Packing Company, and the Cudahy Packing Company, together with their subsidiaries and also their chief officers. The charge was that, by concert of action, the defendants had succeeded in suppressing competition both in the purchase of livestock and in the sale of dressed meats, and were even spreading their monopoly into other fields of trade. They had attained this evil eminence through agreements apportioning [52 S.Ct. 461] the percentages of livestock to which the members of the combinations were severally entitled, through the acquisition and control of stockyards and stockyard terminal railroads, through the purchase of trade papers and journals whereby cattle raisers were deprived of accurate and unbiased reports of the demand for livestock, and through other devices directed to unified control. "Having eliminated competition in the meat products, the defendants next took cognizance of the competition which might be expected" from what was characterized as "substitute foods." To that end, so it was charged, they had set about controlling the supply of

fish, vegetables, either fresh or canned, fruits, cereals, milk, poultry, butter, eggs, cheese and other substitute foods ordinarily handled by wholesale grocers or produce dealers.

Through their ownership of refrigerator cars and branch houses, as well as other facilities, they were in a position to distribute "substitute foods and other unrelated commodities" with substantially no increase of overhead. Whenever these advantages were inadequate, they had recourse to the expedient of fixing prices so low over temporary periods of time as to eliminate competition by rivals less favorably situated. Through these and

Page 111

other devices, there came about, in the view of the government, an unlawful monopoly of a large part of the food supply of the nation. The prayer was for an injunction appropriate to the case exhibited by the bill.

The defendants consented to dismemberment, though answering the bill and traversing its charges. With their answer, there was filed a stipulation which provided for the entry of a decree upon the terms therein set forth, and provided also that the decree "shall not constitute or be considered as an adjudication that the defendants, or any of them, have in fact violated any law of the United States." The decree entered on February 27, 1920, enjoined the defendants from maintaining a monopoly and from entering into or continuing any combination is restraint of trade and commerce. In addition, they were enjoined, both severally and jointly, from (1) holding any interest in public stockyard companies, stockyard terminal railroads, or market newspapers, (2) engaging in, or holding any interest in, the business of manufacturing, selling or transporting any of 114 enumerated food products (principally fish, vegetables, fruit, and groceries), and 30 other articles unrelated to the meatpacking industry; (3) using or permitting others to use their distributive facilities for the handling of any of these enumerated articles, (4) selling meat at retail, (5) holding any interest in any public cold storage plant, and (6) selling fresh milk or cream. No injunction was granted in respect of the sale or distribution of poultry, butter, cheese, and eggs, though these had been included in the bill among the substitute foods which the defendants were seeking to engross. The decree closed with a provision whereby jurisdiction of the cause was retained for the purpose of taking such other action or adding at the foot such other relief "as may become necessary or appropriate for the carrying out and enforcement" thereof, "and for the purpose of entertaining at

Page 112

any time hereafter any application which the parties may make" with reference thereto.

The expectation would have been reasonable that a decree entered upon consent would be accepted by the defendants and by those allied with them as a definitive adjudication setting controversy at rest. The events that were to follow recount a different tale. In April, 1922, the California Cooperative Canneries Corporation filed an intervening petition alleging that the effect of the injunction was to interfere with the performance by Armour & Co. of a contract by which Armour had agreed to buy large quantities of California canned fruit, and praying that the decree be vacated for lack of jurisdiction. Leave to intervene was granted by the Court of Appeals of the District, which ordered "that such further proceedings thereupon be had as are necessary to determine the issue raised." In November, 1924, motions for like relief were made by Swift and by Armour, their subsidiaries and officers. The motions were denied by the Supreme Court of the District, and thereafter were considered by this Court, which upheld the consent decree in the face of a vigorous assault. Swift & Co. v. United States, 276 U.S. 311. In the meantime, however, an order had been made on May 1, 1925, by the Supreme Court of the District at the instance of the California Canneries whereby the operation of the decree as a whole was suspended "until further order of the court to be made, if at all, after a full hearing on the merits according to the usual course of chancery proceedings," see United States v. California Canneries, 279 U.S. 553, 555. This order of suspension remained in force till May, 1929, when a decision of this Court swept the obstacle aside. United States v. California Canneries, supra.

The defendants and their allies had thus been thwarted in the attempt to invalidate the decree as of the date of its entry, and again the expectation would have been reasonable that there would be acquiescence in its restraints.

Page 113

Once more, the expectation was belied by the event. The defendants, or some of them, discovered, as they thought, that, during the years that had intervened [52 S.Ct....

To continue reading