United States v. French

• Decision Date: 29 March 1935
• Docket Number: No. 2691.,2691.
• Parties: UNITED STATES v. FRENCH.
• Court: U.S. District Court — Western District of Michigan

10 F. Supp. 674

UNITED STATES v. FRENCH.

No. 2691.

District Court, W. D. Michigan, S. D.

March 29, 1935.

Joseph M. Donnelly, U. S. Atty., of Grand Rapids, Mich.

Butterfield, Keeney & Amberg, of Grand Rapids, Mich., for defendant.

RAYMOND, District Judge.

In this suit petitioner seeks to enjoin alleged violation of the code of fair competition for the retail solid fuel industry, particularly of those provisions which require that each member shall make reports periodically on wages, hours of labor, tonnage, etc.; those which limit hours of labor and fix hourly rates of wages; and those which require a list disclosing prices, terms, and conditions of sales and a report of all sales, showing quantity and prices, to be filed with the divisional code authority.

Defendant urges, among other defenses, that the National Industrial Recovery Act (48 Stat. 195) is not applicable to his business because, as applied to him, it constitutes an attempted and unwarranted regulation of intrastate commerce. Other defenses are raised but discussion thereof is deemed unnecessary.

The defendant is a retailer of coal in the village of Caledonia, Mich., a community of less than five hundred inhabitants, situated about sixteen miles from the city of Grand Rapids. As one branch of a general line of merchandising and milling, he is engaged in the business of buying coal in carload lots and reselling it to customers who consume the coal for domestic purposes. The coal is shipped from mines in Ohio and Kentucky. Defendant's business is transacted principally within a radius of about six or seven miles of the village. The total sales of coal are about 2,500 tons a year. The coal is unloaded from cars into bins and stored there until sold, when it is loaded by gravity into customers' conveyances or into a truck for delivery. From two to three minutes' time is required to load a truck. Sales are for cash. Three employees use small portions of their time in assisting with this branch of defendant's business.

Petitioner contends for application of the doctrine that transactions which are a part of or which necessarily affect a well-defined current of interstate commerce in commodities are within the federal power to regulate interstate commerce. It is urged that the stream of interstate commerce in coal begins with the mining and does not come to rest until the coal is finally consumed. The following cases are cited in support of this contention: Swift & Co. v. United States, 196 U. S. 375, 25 S. Ct. 276, 49 L. Ed. 518; Board of Trade of City of Chicago v. Olsen et al., 262 U. S. 1, 43 S. Ct. 470, 67 L. Ed. 839; Stafford v. Wallace, 258 U. S. 495, 42 S. Ct. 397, 66 L. Ed. 735, 23 A. L. R. 229; Lemke v. Farmers' Grain Co., 258 U. S. 50, 42 S. Ct. 244, 66 L. Ed. 458; Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 42 S. Ct. 106, 66 L. Ed. 239; Eureka Pipe Line Co. v. Hallanan, 257 U. S. 265, 42 S. Ct. 101, 66 L. Ed. 227.

The cases principally relied upon by the government to sustain the application of the "current" or "stream of commerce" doctrine, with the result that acts essentially and obviously intrastate shall be considered as affecting interstate commerce because of the necessity arising out of present economic conditions to regulate certain industries in their entirety, are: Bedford Co. v. Stone Cutters' Association, 274 U. S. 37, 47 S. Ct. 522, 71 L. Ed. 916, 54 A. L. R. 791; Binderup v. Path? Exchange, Inc., et al., 263 U. S. 291, 44 S. Ct. 96, 68 L. Ed. 308; Greater New York Live Poultry C. of C. v. United States (C. C. A.) 47 F.(2d) 156; and Local 167, International Brotherhood of Teamsters, etc., v. United States, 291 U. S. 293, 54 S. Ct. 396, 78 L. Ed. 804. Examination of these cases brings the conclusion that they do not furnish adequate support for the doctrine here advanced. The transactions there being considered were under attack either as constituting elements of a conspiracy alleged to be unlawful under the Sherman Anti-Trust Act (15 USCA ? 1 et seq.), or as involving commodities which were moving or which it was the clear intention to transport across state lines.

Several of the cases cited relate to local activities performed in a period between the termination of one interstate journey and the beginning of a new one, e. g., Swift & Co. v. United States, supra; Binderup v. Path? Exchange, Inc., supra; Stafford v. Wallace, supra; Board of Trade of City of Chicago v. Olsen et al., supra; Lemke v. Farmers' Grain Co., supra; Dahnke-Walker Co. v. Bondurant, supra; and Eureka Pipe Line Co. v. Hallanan, supra; others to cases involving conspiracies with intent to interfere with interstate commerce in which injunctions were sought to restrain violation of the Sherman Anti-Trust Act, 26 Stat. 209, ?? 1, 2 (15 USCA ?? 1, 2; Bedford Co. v. Stone Cutters' Association, supra; Local 167, International Brotherhood of Teamsters, etc., v. United States, supra; and Greater New York Live Poultry C. of C. v. United States, supra. As to the latter class of cases, they may be disposed of by recognition of the frequently stated principle that the Sherman Act denounces every conspiracy in restraint of interstate trade, including those that are to be carried on by acts constituting intrastate commerce. Loewe v. Lawlor, 208 U. S. 274, 301, 28 S. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815; Bedford Co. v. Stone Cutters' Association, supra; Local 167, International Brotherhood of Teamsters, etc., v. United States, supra; and Greater New York Live Poultry C. of C. v. United States, supra.

In the case of Hammer v. Dagenhart, 247 U. S. 251, 272, 38 S. Ct. 529, 531, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E, 724, Mr. Justice Day said:

"Over interstate transportation, or its incidents, the regulatory power of Congress is ample, but the production of articles, intended for interstate commerce, is a matter of local regulation.

"`When the commerce begins is determined, not by the character of the commodity, nor by the intention of the owner to transfer it to another state for sale, nor by his preparation of it for transportation, but by its actual delivery to a common carrier for transportation, or the actual commencement of its transfer to another state.' Mr. Justice Jackson in Re Greene (C. C.) 52 F. 104 113. This principle has been recognized often in this court. Coe v. Errol, 116 U. S. 517, 6 S. Ct. 475, 29 L. Ed. 715; Bacon v. Illinois, 227 U. S. 504, 33 S. Ct. 299, 57 L. Ed. 615, and cases cited. If it were otherwise, all manufacture intended for interstate shipment would be brought under federal control to the practical exclusion of the authority of the states, a result certainly not...