Steers v. United States

• Decision Date: 05 December 1911
• Docket Number: 2,137.
• Citation: 192 F. 1
• Parties: STEERS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

192 F. 1

STEERS et al. v. UNITED STATES.

No. 2,137.

United States Court of Appeals, Sixth Circuit.

December 5, 1911

[Copyrighted Material Omitted]

In November, 1907, W. T. Osborne, living upon a farm near Dry Ridge, Ky., and his two tenants, Stowers and Bryant, had in their possession about four hogsheads of tobacco, being their entire crop for the season of 1906. They delivered these four hogsheads to Ramsey, the railroad station agent, at Dry Ridge, and directed shipment to Cincinnati, Ohio. Ramsey gave to Osborne a bill of lading in customary form, showing that he was the shipper, and that the 'Globe House Cincinnati, Ohio,' was the consignee. This was Tuesday November 26th. It was too late for shipment that day, and the next day there was no car available; so that on Thursday the tobacco was remaining in the railroad warehouse, awaiting transportation.

An existing association among the tobacco raisers of the vicinity, called the 'Society of Equity' or the 'Burley Society,' had pooled and was holding at its warehouses all the tobacco of its members, until such holding, with other causes, should bring about a higher price, and it was opposed to the shipment to market of any tobacco not so pooled. Osborne and his tenants did not belong to the association, and their four hogsheads of tobacco were unpooled.

During Tuesday and Wednesday, Osborne received messages to the effect that he must not ship this tobacco, and on the evening of Thursday a considerable number of men gathered in Dry Ridge with seeming reference to the matter of this shipment, and three of Osborne's acquaintances or neighbors went out to his farm to see him. They told him that there was a crowd of 50 men at Dry Ridge; that the crowd was determined this tobacco should not be shipped; and that, unless Osborne would withdraw the tobacco, it would be destroyed, and he or his property might be otherwise injured. He then determined that it might be withdrawn, and, to accomplish this result, he indorsed over the bill of lading to one of his visitors. The next morning, in seeming pursuance of some previously formed plan, a large body of men, probably 200 or 300, said to be more than had ever been seen together there before, assembled in Dry Ridge and marched to the railroad station. The indorsed bill of lading was presented, the tobacco was turned over by the station agent, and the procession, headed by four teams carrying the four hogsheads, marched away from the station, after the crowd had called the agent outside and notified him that he must not ship any unpooled tobacco. The four hogsheads were then returned to Osborne's premises and kept there by him until January 14, 1908. On this last day one of those who had been active in the proceeding notified Osborne that he was at liberty to ship the tobacco, and he did so at once.

A special grand jury considered these acts to be in violation of the congressional act, approved July 2, 1890, commonly called the 'Sherman Anti-Trust Law,' and returned an indictment against the appellants and four others. Motions to quash and demurrers were overruled, and the respondents tried upon their pleas of not guilty. The case was nolle prossed as to one respondent, the jury acquitted three, and the appellants, eight in number, were convicted and severally sentenced to pay considerable fines. They all join in this writ, and assign a large number of errors. While we have not omitted to consider each one argued, we must confine this opinion to the few which seem to us most deserving of discussion.

W. W. Dickerson (Clore, Dickerson & Clayton and Myers & Howard, on the brief), for plaintiffs in error.

E. P. Grosvenor, Sp. Asst. Atty. Gen. (James A. Fowler, Asst. Atty. Gen., and Edwin P. Morrow, U.S. Atty., on the brief), for the United States.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge (after stating the facts as above).

1. Upon their motion to quash the indictment, respondents offered to show that, proceeding under an order for the drawing of a special grand jury, the clerk, acting as jury commissioner, drew names in the ordinary way from the box used for that purpose, when the court was sitting at London, and containing the names of jurors residing in the counties from which juries were customarily drawn for service at that point. However, he did not take, as jurors, the first 28 names drawn; but, following a plan to apportion the jury approximately evenly numerically between the various counties (as, for example, to procure five jurors from each of four counties and four from each of two counties), after the drawing had given him the predetermined number of names from one county, he rejected further names from that county, and continued the drawing until he had procured such number from each county. This method of selection is said not to be in compliance with sections 800, 802, 805, 915, R.S. (U.S. Comp. St. 1901, pp. 623, 625, 626, 684), and section 2243, Ky. St. (Russell's St. Sec. 3066). No error was assigned upon this point, but it was pressed upon us on the argument.

We must presume regularity in all cases where the contrary is not expressly shown, and we think the proper inference from this record is that the counties, or the part of the district, to which the drawing was confined, had been designated by the order of the court referred to or were selected with the knowledge and approval of the judge. Whether we should also infer from this record that the apportionment which the clerk made among the several counties was pursuant to an order of the court or an established practice approved by the court, or whether we should infer that the clerk's action was without any sanction of the court, we think immaterial to the disposition of this case. In the former event, there would be no irregularity. In the latter case, it is enough to say that the method adopted by the clerk would have been the natural and reasonable method for the court to adopt, had it given instructions on the subject. It did not result in any grand jurors from an unauthorized district or any incompetent grand jurors; and, if irregular at all, the overruling of a motion to quash, based thereon, would not be such a plain error, as, under rule 11 (150 F. xxvii, 79 C.C.A. xxvii), we ought to notice in the absence of any assignment.

2. Demurrer. The first ground of demurrer was that one shipment by one shipper to another state does not amount to that interstate trade, the restraint of which is forbidden. This argument is based upon the cases holding that a single transaction does not amount to trade or business under the rules governing levying a tax upon a business or engaging in business in a state; upon the holding in Packet Co. v. Bay, 200 U.S. 179, 26 Sup.Ct. 208, 50 L.Ed. 428, that an insignificant interference with interstate commerce may, under this act, be disregarded; and upon the supposed holding in the recent Standard Oil and Tobacco Cases, 221 U.S. 1, 106, 31 Sup.Ct. 502, 632, 55 L.Ed. 619, 663, to the effect that, in order to be covered by this statute, the restraint of trade must be of considerable quantity; that is, of unreasonable amount.

'Trade,' as referring to a business which must have a fixed continuance and established character in order to be in existence so as to be subject to a tax or so as to be carried on within a state, cannot be synonymous with 'trade' in the sense of commerce or traffic or transportation from one place to another; and so decisions like Cooper Mfg. Co. v. Ferguson, 113 U.S. 727, 734, 5 Sup.Ct. 739, 28 L.Ed. 1137, are not relevant.

In the Packet Company Case, the interference under consideration, aside from that dependent on the sale of the vendor's good will, was indirect, contingent, and uncertain. The court did not say that the amount of traffic was too insignificant to require action, but that this uncertain, remote, and contingent interference was insignificant. In the present case the interference was absolute and entire. All of the traffic or commerce involved was wholly stopped.

We do not find in the Standard Oil and Tobacco Cases any holding that a direct restraint of trade must affect an unreasonably great amount of commerce in order to be within the prohibition. As we read these opinions, the matter under consideration, from the standpoint of reason, was not the amount of merchandise or traffic affected by the restriction, but the character and extent of the restriction itself; and it was thought that, if such restriction reasonably pertained to lawful results, it was not of itself necessarily forbidden. These opinions contain no justification for the idea that a direct and absolute restraint, bearing no reasonable relation to lawful means of accomplishing lawful ends, can be permitted only because the volume of traffic affected is not very great.

It is true that the theory of injury to the public lies at the bottom of the statute, and that it is directed against things which tend 'to deprive the public of the advantages which flow from free competition' (Northern Securities Case, 193 U.S. 197, 332, 24 Sup.Ct. 436, 454 (48 L.Ed. 679)); but a single, private injury may well tend to this public result.

We cannot doubt that there may be a conspiracy under the act with reference to a single shipment only, and that, in so far as the rule of insignificance may exist, it does not apply to circumstances like these. This shipment was the entire crop of these three farmers for the year. It was, to them, of large relative value. It cannot be overlooked as unimportant and its shipment to Ohio did constitute 'interstate trade and commerce.' It was clearly interstate transportation; and interstate transportation is interstate commerce. U.S. v. Freight Ass'n, 166...