Konecky v. Jewish Press
| Decision Date | 15 March 1923 |
| Docket Number | 6086. |
| Citation | 288 F. 179 |
| Parties | KONECKY v. JEWISH PRESS et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John O Yeiser and John O. Yeiser, Jr., both of Omaha, Neb., for plaintiff in error.
Henry Monsky, Carl C. Katleman, and William Grodinsky, all of Omaha, Neb., for defendants in error.
Before KENYON, Circuit Judge, and SYMES, District Judge.
Plaintiff in error, Isaac Konecky, filed in the United States District Court for the District of Nebraska a petition against the Jewish Press, a corporation, Harry A. Wolf Company, a corporation, Harry Malasock, Morris Levy, Harry Lapidus Morris Milder, William L. Holzman, Philip Sher, and Henry Monsky, defendants, alleging that he was the editor and publisher of the Jewish Bulletin, a newspaper published in the city of Omaha, and circulating weekly in the states of Nebraska and Iowa, and several other states; that the newspapers were sent by mail every week as a part of the nation's interstate commerce. Plaintiff sets forth the purpose of the newspaper and claims that defendants entered into an unlawful combination and conspiracy to destroy said paper, and to prevent its publication and the issuance of the same to any subscriber, and that in order so to do they conspired together to cripple plaintiff's earning ability, destroy his property, injure his social standing and drive him from the state of Nebraska, and sets forth very specifically various acts against him on the part of and by the several defendants, such as blackballing the plaintiff when he attempted to join a Jewish organization known as Bnai Brith, boycotting to induce Jewish subscribers to refuse to take the Jewish Bulletin, attempting to induce the county treasurer of Douglas county to discharge plaintiff from his employ, attempting to prevent the plaintiff acting as a delegate to the Jewish Welfare Federation, the publication of another paper known as the Jewish Press, the circulation of false reports to dissuade advertisers and subscribers from patronizing plaintiff's paper, the inducing of the printers of plaintiff's paper to join the conspiracy, the notification to him to vacate the premises where he lived the hiring of detectives to shadow him, and other acts which seemed to indicate personal malice toward the plaintiff.
The court sustained motions of defendants to strike various parts of this petition, and at the same time it was ordered that the cause be dismissed, at plaintiff's costs. A mere glance at the petition apprises one of the peculiar nature of this case. The theory seems to be that the acts set forth constitute a conspiracy in restraint of trade and commerce among the several states, as forbidden by section 2 of the Sherman Anti-Trust Act (Comp. St. Sec. 8821), and give a cause of action under section 7 of said act (section 8829), which provides as follows:
'Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee.'
It may be conceded that the circulation of newspapers throughout the country is interstate commerce. Blumenstock Bros. Advertising Agency v. Curtis Publishing Co., 252 U.S. 436, 40 Sup.Ct. 385, 64 L.Ed. 649; International Text-Book Co. v. Pigg, 217 U.S. 91, 30 Sup.Ct. 481, 54 L.Ed. 678, 27 L.R.A.(N.S.) 493, 18 Ann.Cas. 1103. In the oft-quoted and great case of Gibbons v. Ogden, 9 Wheat. 1, 189 (6 L.Ed. 23), Chief Justice Marshall said:
'Commerce, undoubtedly, is traffic, but it is something more-- it is intercourse.'
This court has said in Butler Bros. Shoe Co. v. United States Rubber Co., 156 F. 17, 84 C.C.A. 183:
'Importation into one state from...
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