Herald Company v. Harper, 68 C 269.

• Decision Date: 25 November 1968
• Docket Number: No. 68 C 269.,68 C 269.
• Citation: 293 F. Supp. 1101
• Parties: The HERALD COMPANY, a Corporation, d/b/a Globe-Democrat Publishing Company, Plaintiff, v. Roy W. HARPER, Presiding Judge, James H. Meredith and John K. Regan, Associate Judges, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

293 F. Supp. 1101

The HERALD COMPANY, a Corporation, d/b/a Globe-Democrat Publishing Company, Plaintiff, v. Roy W. HARPER, Presiding Judge, James H. Meredith and John K. Regan, Associate Judges, Defendants.

No. 68 C 269.

United States District Court E. D. Missouri, E. D.

November 25, 1968.

Lon Hocker, Hocker, Goodwin & MacGreevy, St. Louis, Mo., for plaintiff.

Veryl L. Riddle, U. S. Atty., Jim Shoemake, Asst. U. S. Atty., St. Louis, Mo., for defendants.

Bartley, Siegel & Bartlett and Donald S. Siegel, Clayton, Mo., and Gray L. Dorsey, St. Louis, Mo., for intervenor Albrecht.

MEMORANDUM AND ORDER DISMISSING PLAINTIFF'S COMPLAINT

DUNCAN, Senior District Judge.

This is an action instituted under Title 28 U.S.C. § 2282 seeking an interlocutory and permanent injunction restraining the enforcement, operation and execution of Title 15 U.S.C. § 15, which provides:

"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."

The plaintiff's action contends that the portion of the statute providing for the recovery of treble damages is repugnant to some ten provisions of the Constitution of the United States.¹

This action was inspired on behalf of the plaintiff as a result of the mandate of the United States Court of Appeals for the Eighth Circuit dated June 6, 1968, under an order dated May 16, 1968, in a cause entitled Lester T. Albrecht v. The Herald Company, No. 18161 of said court.

The above action, instituted by Albrecht to recover damages for an alleged violation of the Sherman Act (15 U.S.C. § 1), was tried to a jury and resulted in a verdict for the defendant. The judgment was affirmed by the Court of Appeals, Albrecht v. Herald Co., 367 F.2d 517 (8th Cir. 1966). The Supreme Court heard the case on certiorari and reversed, holding that the undisputed facts showed a combination in restraint of trade. Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968). The case was remanded to the Court of Appeals under directions to order the District Court to set aside the verdict and judgment and to proceed to a determination of the case in accordance with the mandate. Under the decision of the Supreme Court, which was carried out by the Court of Appeals in its mandate to the District Court, nothing remained except to determine the amount of damages.

When the case was returned from the Supreme Court, the Herald Company (respondent in the Supreme Court action) sought without success to challenge the constitutionality of the treble damage provision before the Court of Appeals in its remand hearing. When that effort failed and the Court of Appeals issued its mandate to the District Court to proceed with the trial of damages, this action was instituted.

The issue before this court is whether or not there is involved a substantial constitutional question justifying the empaneling of a three-judge court under 28 U.S.C. § 2282, which authorizes the bringing of a suit to enjoin the enforcement of a Federal statute. If a constitutional question is presented, a three-judge court must be empaneled for hearing and determining the question of the constitutionality of the statute which is attacked by the complaint. The threshold determination of whether or not a substantial constitutional question is involved is the responsibility of the District Judge before whom the action is pending. California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938).

The United States District Attorney in St. Louis on behalf of the defendants, has filed a Motion to Dismiss on the ground that the defendants are acting in their judicial and official capacity and are immune from suit. Lester T. Albrecht, who has been allowed to intervene in this action, has filed a Motion to Dismiss on two grounds: first, that the question of the constitutionality of the statute was ruled on by the Supreme Court in its decision reversing the Court of Appeals and is now res judicata, and second, that there is no substantial constitutional question involved. In view of the court's ruling on intervenor's motion, we think it is not necessary to rule on the defendants' Motion to Dismiss.

Considering intervenor's Motion to Dismiss, we rule against him on the question of res judicata because the question of the constitutionality of the Clayton Act's treble damage provision was not decided by the Supreme Court. The question was not raised by the defendant in the trial court nor in the Court of Appeals. It was first raised in the Supreme Court by the respondent Herald Company in a motion to dismiss the writ of certiorari. The question certified to the Supreme Court on certiorari was:

"Whether as a matter of law a newspaper's action of soliciting away the customers of one of its independent-merchant carriers in order to induce him to comply with the suggested resale price and then terminating sales to him for his continued refusal to agree to comply are in violation of Section 1 of the Sherman Act."

Rule 23, subd. 1(c) of the Supreme Court provides:

"A petition for writ of certiorari shall contain in the order here indicated * * * (c) the questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of the question presented will be deemed to include every subsidiary question fairly comprised therein. Only the questions set forth in the petition or fairly comprised therein will be considered by the court." Emphasis supplied

The Supreme Court declined to make a preliminary ruling on respondent's motion² and required the parties to argue the case before the Court. The opinion in the case was filed on March 4, 1968. The Court ruled on the question which had been certified, but not on the motion to dismiss the writ of certiorari; in fact, the Court did not even mention that the constitutionality of the treble damage portion of the Clayton Act had been challenged.³ Respondent then filed a motion for rehearing, urging that the Court had left undecided its motion to dismiss. On April 8, 1968, the Court summarily overruled both of respondent's motions.⁴

Considering all the circumstances, we must reject intervenor's contention that the Supreme Court decided the constitutional question raised by the Herald Company's motion to dismiss the writ of certiorari. We think it cannot be inferred from the silence of the Supreme Court that it intended to or did rule on the constitutionality of the treble damage section of the Clayton Act.

Thus we reach the question of the substantiality of plaintiff's constitutional question. Plaintiff argues that because it has been tried by a jury and found "not guilty" of a misdemeanor (by virtue of a defendant's verdict), it cannot now be tried a second time for the purpose of determining the amount of damages.

Plaintiff also argues that it will be denied a jury trial if the court is permitted to treble the damages which have been determined by the jury. In short, plaintiff contends that the assessment of treble damages is a punishment within the meaning of criminal law so that plaintiff is entitled to the rights and protections which the Constitution affords to defendants in criminal proceedings, notwithstanding that the Clayton Act characterizes the action as a civil suit for damages to business or property.

Plaintiff's position, expressed in briefs and oral argument, seems to be that merely alleging the unconstitutionality of the Clayton Act in the complaint is sufficient to require the empaneling of a three-judge court in view of the fact that the question has not been decided by the Supreme Court. We cannot agree. Irrespective of any prior decision by the Supreme Court, plaintiff's complaint must raise a substantial constitutional question in order to justify the three-judge court procedure. Siminoff v. Murff, 164 F.Supp. 34 (S.D.N.Y.1958), rev'd on other grounds, Siminoff v. Esperdy, 267 F.2d 705 (2d Cir. 1959).

The Supreme Court has laid down two standards by which the substantiality of a constitutional question may be judged:

"The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject." California Water Service Co. v. City of Redding, supra, 304 U.S. at 255, 58 S.Ct. at 867, 82 L.Ed. 1323.

We think the lack of substantiality in the question presented by plaintiff's complaint is evident under both tests.

First, we note that 15 U.S.C. § 15 is not a new statute, having been enacted in its present form in 1914. The earlier provisions date back to 1890. Yet in spite of the age of the provisions, counsel has not cited, and our research has not disclosed any decision squarely passing on the constitutionality of treble damages. This is not through a dearth of antitrust litigation—on the contrary, the books are full of cases. A hasty survey located some sixty opinions of the Supreme Court in treble damage actions, and there are hundreds of reported cases from district courts and courts of appeal.

In addition to the antitrust cases, there have been many cases under 15 U.S.C. § 72, 17 U.S.C. §§ 1 and 101, 35 U.S.C. § 284, 38 U.S.C. § 1822 and 45 U.S.C. § 83, all of which permit treble damage actions for violations of other federal statutes. In the hundreds of cases under these statutes, no one has apparently thought to challenge the constitutionality...