Swift Co v. United States, No. 181

CourtUnited States Supreme Court
Writing for the CourtBRANDEIS
Citation72 L.Ed. 587,48 S.Ct. 311,276 U.S. 311
Decision Date19 March 1928
Docket NumberNo. 181
PartiesSWIFT & CO. et al. v. UNITED STATES. Re

276 U.S. 311
48 S.Ct. 311
72 L.Ed. 587
SWIFT & CO. et al.

v.

UNITED STATES.

No. 181.
Reargued January 3, 4, 1928.
Decided March 19, 1928.

[Syllabus from pages 311-313 intentionally omitted]

Page 313

Messrs. Charles E. Hughes, of New York City, Conrad H. Syme, and Charles A. Doughlas, both of Washington, D. C., and Henry Veeder, and Charles J. Faulkner, Jr., both of Chicago, Ill., for Swift & Co. and others.

[Argument of Counsel from pages 313-317 intentionally omitted]

Page 317

Mr. Wm. J. Donovan, Asst. Atty. Gen., for the United States.

Page 318

Mr. Wm. C. Breed, of New York City, for National Wholesale Grocers' ass'n.

Mr. Edgar Watkins, of Atlanta, Ga., for American Wholesale Grocers' Ass'n.

Mr. Justice BRANDEIS delivered the opinion of the Court.

This case presents the question whether the consent decree entered February 27, 1920, with a view to prevent-

Page 319

ing a long-feared monopoly in meat and other food products, is void.1

On that day the United States filed in the Supreme Court of the District of Columbia, sitting in equity, a petition under section 4 of the Sherman Anti-Trust Act, July 2, 1890, c. 647, 26 Stat. 209 (15 USCA § 4), to enjoin violations of that statute and of the Clayton Act, October 15, 1914, c. 323, 38 Stat. 730, 736. It named as defendants the five leading packers; namely, Swift & Co., Armour & Co., Morris & Co., Wilson & Co., Inc., and the Cudahy Packing Company. And it joined with them 80 other corporations and 50 individuals, all but four of whom were associated with some one of the five defendants above named. The petition charged the defendants with attempting to monopolize a large proportion of the food supply of the nation and with attempting to extend the monopoly by methods set forth. It stated that the purpose of the suit was to put an end to the monopoly described and to deprive the defendants of the instrumentalities by which they were perfecting their attempts to monopolize. It sought a comprehensive injunction and also the divestiture of the instrumentalities described.

Page 320

Simultaneously with the filing of the petition, all the defendants filed answers which denied material allegations of the bill. There was filed at the same time a stipulation, signed by all the parties to the suit, which provided that the court might, without finding any fact, enter the proposed decree therein set forth. On the same day a decree in the form so agreed upon was entered. To this decree all parties filed assents. In its opening paragraph, the decree embodied a clause of the stipulation to the effect that, while the several corporations and individual defendants 'maintain the truth of their answers and assert their innocence of any violation of law in fact or intent, they nevertheless, desiring to avoid every appearance of placing themselves in a position of antagonism to the government, have consented and do consent to the making and entry of the decree now about to be entered without any findings of fact, upon condition that their consents to the entry of said decree shall not constitute or be considered an admission, and the rendition or entry of said decree, or the decree itself, shall not constitute or be considered and adjudication that the defendants or any of them have in fact violated any law of the United States.'

The decree declared, among other things, that the court had jurisdiction of the persons and the subject-matter, and 'that the allegations of the petitioner state a cause of action against the defendants under the provisions' of the Sherman Anti-Trust Act and supplementary legislation. It granted comprehensive relief in accordance with the prayer of the bill. The details will be discussed later. The decree closed with this provision:

'Eighteenth. That jurisdiction of this cause be, and is hereby, retained by this court for the purpose of taking such other action or adding at the foot of this decree such other relief, if any, as may become necessary or appro-

Page 321

priate for the carrying out and enforcement of this decree and for the purpose of entertaining at any time hereafter any application which the parties may make with respect to this decree.'

None of the original parties to the suit made any application to the court between the date of the entry of the consent decree and November 5, 1924; but three intervening petitions were filed-that of the Southern Wholesale Grocers' Association, allowed September 10, 1921, that of the National Wholesale Grocers' Association, allowed November 5, 1921, and that of the California Co-operative Canneries, allowed September 13, 1924. See California Co-op. Canneries v. United States, 55 App. D. C. 36, 299 F. 908. On November 5, 1924, two motions to vacate the decree were filed in the cause. One was by Swift & Co. and the subsidiary corporations and individual defendants associated with it; the other by Armour & Co. and the subsidiary corporations and individual defendants associated with it. The allegations of the two motions were identical; and each prayed that the consent decree be declared void. The grounds of invalidity relied upon will be stated later. On May 1, 1925, the two motions to vacate the consent decree were overruled. From the order overruling them, Swift & Co. and Armour & Co., with their respective associates, took appeals to the Court of Appeals of the District of Columbia.

On May 28, 1926, the United States filed in that court a motion to dismiss the appeals for want of jurisdiction, contending that an appeal lay only directly to this court. On January 3, 1927, the Court of Appeals of the District entered an order dismissing the appeals. Promptly thereafter, Swift & Co., Armour & Co., and their respective associates, moved that court to stay the mandate and to transfer the appeals to this Court, pursuant to the Act of September 14, 1922, c. 305, 42 Stat. 837, incorporated in the Judicial Code as § 238(a). On

Page 322

January 31, 1927, the Court of Appeals vacated its opinion and order, and restored the case for reargument upon the question of its jurisdiction of the appeals and for argument on its jurisdiction to transfer the appeals to this court. Thereafter, having heard argument, the Court 13, 1925, c. 229, 43 Stat. 936. On October 17, court, under section 251 of the Judicial Code as existing prior to the Act of February 13, 1925, c. 229, 43 S. Stat. 936. On October 17, 1927, this court, having heard argument on the certificate, ordered that the entire record in the cause be sent here, as provided in the same section. On that record the case is before us. Many questions are presented.

An objection of the government to the jurisdiction of this court must first be considered. The Expediting Act of February 11, 1903, c. 544, 32 Stat. 823, U. S. C. tit. 15, § 29 (15 USCA § 29), provides that, from a final decree in a suit in equity brought by the government under the Anti-Trust Act, an appeal lies only directly to this court. The government suggests that under the Expediting Act no appeal lay to the Court of Appeal from the order denying the motion to vacate; that the Court of Appeals consequently was powerless to certify questions relating to the merits; that this court by ordering up the record, as provided in section 251 of the Judicial Code, did not acquire jurisdiction to decide questions which could not lawfully have been certified under that section; that the case may not be treated as here on transfer, because the Court of Appeals of the District is not a Circuit Court of Appeals within the meaning of the Act of 1922; and that this court is therefore without power to pass on the merits of the cause. Swift and Armour answer that the motions to vacate the consent decree are not subject to the provisions of the Expediting Act because they are not a part of the suit filed February 27, 1920, under the Anti-Trust Act, but constitute a new suit. Compare Stevirmac Oil

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& Gas Co. v. Dittman, 245 U. S. 210, 38 S. Ct. 116, 62 L. Ed. 248. The argument is that the original suit ended with the entry of the consent decree, or at all events, at the expiration of the term, or at the end of the 60 days from the entry of the decree allowed by the Expediting Act for an appeal. We need not inquire whether an independent suit to set aside a decree entered upon the Anti-Trust Act is subject to the provisions of the Expediting Act. The consent decree provided by paragraph eighteenth for 'entertaining at any time hereafter any application which the parties may make with respect to this decree.' Swift and Armour made these motions to vacate in the original suit; they arose out of the three proceedings for intervention filed after entry of the consent decree, and they were entitled in the original cause.

The court of Appeals of the District was therefore without jurisdiction to entertain the appeals. We think, however, that it was a Circuit Court of Appeals within the meaning of the Transfer Act; and, as the judgment appealed from was entered before the effective date of the Act of February 13, 1925, the appeals should have been transferred to this Court. Compare Pascagoula National Bank v. Federal Reserve Bank of Atlanta, 269 U. S. 537, 46 S. Ct. 119, 70 L. Ed. 400; Salinger v. United States, 272 U. S. 542, 549, 47 S. Ct. 173, 71 L. Ed. 398; Rossi v. United States, 273 U. S. 636, 47 S. Ct. 90, 71 L. Ed. 815; Timken Roller Bearing Co. v. Pennsylvania R. R. Co., 274 U. S. 181, 186, 47 S. Ct. 550, 71 L. Ed. 989. The want of a formal order of transfer would not have been fatal to our taking jurisdiction of the whole case, had it come before us on writ of error or appeal. Wagner Electric Manufacturing Co. v. Lyndon, 262 U. S. 226, 231, 43 S. Ct. 589, 67 L. Ed. 961; Waggoner Estate v. Wichita County, 273 U. S. 113, 116, 47 S. Ct. 271, 71 L. Ed. 566. It is no more so now, when we have required the record to be sent up to us. We treat the case as here.

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338 practice notes
  • Resident Advisory Bd. v. Rizzo, Civ. A. No. 71-1575.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 19, 1980
    ...recurrence. United States v. W. T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953); Swift & Co. v. United States, 276 U.S. 311, 326, 48 S.Ct. 311, 314, 72 L.Ed. 587 (1928); Seibert v. Sperry Rand Corp., 586 F.2d 949, 951 (2d Cir. 1978). Finally, neither private pers......
  • Miles Laboratories v. Seignious, No. 981.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 15, 1939
    ...of the court of equity, but even a threatened wrong, that has not actually occurred, is sufficient. Swift & Company v. United States, 276 U. S. 311, 48 S.Ct. 311, 72 L.Ed. 587; State of New York v. State of Illinois, 274 U.S. 488, 47 S.Ct. 661, 71 L.Ed. 1164; Standard Oil Co. of Maine v. St......
  • Disabled in Action of Penn. v. Se Penn. Transp., No. 06-5109.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 19, 2008
    ...wrong...."); United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Swift & Co. v. United States, 276 U.S. 311, 326, 48 S.Ct. 311, 72 L.Ed. 587 There is little doubt that it would have been better for all if DIA or SEPTA had sought declaratory or injunctive ......
  • Shoshone-Bannock Tribes v. Reno, SHOSHONE-BANNOCK
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 28, 1995
    ...United States v. California, 332 U.S. 19, 27-29, 67 S.Ct. 1658, 1662-64, 91 L.Ed. 1889 (1947). See also Swift v. United States, 276 U.S. 311, Page 1481 331, 48 S.Ct. 311, 316, 72 L.Ed. 587 (1928); FTC v. Claire Furnace Co., 274 U.S. 160, 174, 47 S.Ct. 553, 556, 71 L.Ed. 978 (1927). The Atto......
  • Request a trial to view additional results
333 cases
  • Resident Advisory Bd. v. Rizzo, Civ. A. No. 71-1575.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 19, 1980
    ...recurrence. United States v. W. T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953); Swift & Co. v. United States, 276 U.S. 311, 326, 48 S.Ct. 311, 314, 72 L.Ed. 587 (1928); Seibert v. Sperry Rand Corp., 586 F.2d 949, 951 (2d Cir. 1978). Finally, neither private pers......
  • Miles Laboratories v. Seignious, No. 981.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 15, 1939
    ...of the court of equity, but even a threatened wrong, that has not actually occurred, is sufficient. Swift & Company v. United States, 276 U. S. 311, 48 S.Ct. 311, 72 L.Ed. 587; State of New York v. State of Illinois, 274 U.S. 488, 47 S.Ct. 661, 71 L.Ed. 1164; Standard Oil Co. of Maine v. St......
  • Disabled in Action of Penn. v. Se Penn. Transp., No. 06-5109.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 19, 2008
    ...wrong...."); United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Swift & Co. v. United States, 276 U.S. 311, 326, 48 S.Ct. 311, 72 L.Ed. 587 There is little doubt that it would have been better for all if DIA or SEPTA had sought declaratory or injunctive ......
  • Shoshone-Bannock Tribes v. Reno, SHOSHONE-BANNOCK
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 28, 1995
    ...United States v. California, 332 U.S. 19, 27-29, 67 S.Ct. 1658, 1662-64, 91 L.Ed. 1889 (1947). See also Swift v. United States, 276 U.S. 311, Page 1481 331, 48 S.Ct. 311, 316, 72 L.Ed. 587 (1928); FTC v. Claire Furnace Co., 274 U.S. 160, 174, 47 S.Ct. 553, 556, 71 L.Ed. 978 (1927). The Atto......
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2 books & journal articles
  • Consent Decrees as an Antitrust Enforcement Device
    • United States
    • Antitrust Bulletin Nbr. 23-2, June 1978
    • June 1, 1978
    ...His au-thorityto make determinations includes the power to makeerroneous decisions as well as correct ones. United States v.Swift,276 U.S. 311 at 331-32 (1928).. . . sound policy would strongly lead us to decline . . . toassess the wisdom of the Government's judgment in negotiatingandaccept......
  • The Merger Movement in the Motion Picture Industry
    • United States
    • ANNALS of the American Academy of Political and Social Science, The Nbr. 147-1, January 1930
    • January 1, 1930
    ...Kodak Co. v. Southern placed, by law, under the supervision Photo Materials Co., 273 U. S. 359 and (1927); U. S. v. Swift and Co., 276 U. S. 311 regulation of governmental ministrative bodies. In some cases, 91 these regulatory bodies were already in the need of proper legal constraints exi......

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