American Press Ass'n v. United States
| Decision Date | 25 August 1917 |
| Docket Number | 2510.,2509 |
| Parties | AMERICAN PRESS ASS'N et al. v. UNITED STATES et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Charles E. Hughes, of New York City, for appellants.
Henry S. Mitchell, of Washington, D.C., for appellees.
Before BAKER and ALSCHULER, Circuit Judges, and HUMPHREY, District judge.
On August 3, 1912, the United States began a suit against the American Press Association, a corporation, the Western Newspaper Union, a corporation, and others, engaged in furnishing country newspapers with stereotype plates and ready-print service, to enjoin the continuance of acts alleged to be in violation of the Sherman Anti-Trust Law. A consent decree was entered the same day. Among other prohibitions, the Western Newspaper Union was permanently enjoined:
'(a) From combining or attempting to combine with the American Press Association, either by purchase, stock ownership, or in any other manner; * * * (c) from selling any of its product or services at less than a fair and reasonable profit, or at cost, or less than cost, with the purpose or intent of injuring or destroying the interstate trade and commerce of the American Press Association or of any other competitors.'
On May 9, 1917, the American Press Association filed a petition in the original suit, setting forth changes in condition, on account of which it prayed for a modification of provision (a). To this petition all the parties appeared, evidence was heard, and the court found:
'That the facts set forth in the petition and the evidence introduced to support the same are immaterial; that it is contrary to the whole spirit and purpose of the Sherman Law to authorize one competitor to absorb another competitor regardless of whether such competitor is able to continue in business or not; and that the sale of such assets and business by the American Press Association to the Western Newspaper Union would be in violation of the Sherman Law.'
And thereupon the court decreed that the petition be denied. Cause No. 2509 is an appeal from that decree.
Shortly after presenting the above-mentioned petition, the American Press Association filed an 'auxiliary bill,' setting forth the same facts and asking the same relief. Parties other than the United States appeared and answered; and the United States filed a motion to dismiss, on the ground that it could not be sued by a private party without its consent. Without passing on the motion, the court dismissed the bill, for the same reasons on which the petition was denied. Cause No. 2510 is an appeal from the decree dismissing the auxiliary bill.
Whether under the stated circumstances the United States may be sued, and whether the auxiliary bill was a proper method of invoking relief, are questions that are now moot, we believe, because the identical controversy respecting facts and law, between the identical parties, was fully heard and determined on the petition in the original suit.
Facts pleaded and proved, so far as necessary for a decision, are briefly these: In 1912 the American Press Association had about 5 per cent. of the ready-print business. But it did not furnish advertisements to the country newspapers with its ready-print service, whereas the Western Newspaper Union did. The result, down to January, 1917, was that the Western Newspaper Union could and did supply ready-print at lower rates than the American Press Association could stand without loss; and the ready-print business of the latter has fallen to less than 1 per cent. In 1912 the American Press Association had a large part of the stereotype plate business. But its plate business had to bear substantially all the overhead expenses, while the Western Newspaper Union's ready-print service could carry the overhead and leave its plate business as a profitable by-product. In January, 1917, the Western Newspaper Union reduced its price on miscellaneous plate matter by one-fourth and on serials by one-third. On the American Press Association's complaint that provision (c) of the injunction was being violated, the ...
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