United States v. Winslow

• Decision Date: 02 March 1912
• Citation: 195 F. 578
• Parties: UNITED STATES v. WINSLOW et al. (two cases).
• Court: U.S. District Court — District of Massachusetts

195 F. 578

UNITED STATES v. WINSLOW et al. (two cases).

United States District Court, D. Massachusetts.

March 2, 1912

On Petition for Rehearing, March 21, 1912.

Asa P French, U.S. Atty., Edwin H. Abbot, Jr., Sp. Asst. U.S Atty., William S. Gregg, Sp. Asst. Atty. Gen., James A Fowler, Asst. Atty. Gen., and Oliver E. Pagan.

Charles F. Choate, Jr., of Boston (Olcott O. Partridge, of Boston, on the brief), for defendants Winslow, Hurd and Brown.

Henry F. Hurlburt and Boyd B. Jones, for defendants Barbour and Howe.

William A. Sargent, of Boston, for all defendants.

PUTNAM Circuit Judge.

These cases came before us on demurrer. They are indictments based on the act of July 2, 1890 (26 Stat. 209, c. 647), commonly known as the 'Sherman Anti-Trust Act.' No. 114 seems to be less complicated by special circumstances than No. 113. We will therefore take up that first. It contains two counts. The first is based on the second section of the act referred to, relating to monopolies, and the second on the first section, which declares illegal certain contracts and combinations or conspiracies in restraint of trade, and punishes 'every person who shall make any such contract or engage in any such combination or conspiracy. ' The second section of the act impliedly permits an indictment for building up a monopoly, as well as inaugurating it or maintaining it, and therefore may relate to a series of acts following each other, all covered into one indictment or count, without the indictment or count being chargeable with duplicity. The offense under the first section permits in one count an allegation of only a single transaction-- that is, an allegation of making one contract, or engaging in one combination or conspiracy-- so that while by virtue of the decisions of the Supreme Court in United States v. Kissel, 218 U.S. 601, 607, 31 Sup.Ct. 124, 54 L.Ed. 1168, and United States v. Barber, 219 U.S. 72, 78, 31 Sup.Ct. 209, 55 L.Ed. 99, such a combination or conspiracy, when once effected, may be continuous, yet only one contract or one conspiracy can properly be alleged in any one count. For this reason, as we go on, we will find that the second count, under the circumstances of the case, must be held invalid in law.

There is such a chaos of decisions in reference to the Sherman Anti-Trust Act, and such a chaos of understanding or misunderstanding with reference thereto, and this case apparently is regarded as of so important a character, that any conclusions a single judge may reach may prove of very little importance. It is not for the court here to judge of the possibility of a writ of error lying in these cases to the Supreme Court, but it is hoped by the court that such may be permissible. The court, moreover, cannot overlook the fact, in accordance with the practice shown in United States v. N.Y., H.H. & H.R. Co. (C.C.) 165 F. 742, decided on December 4, 1908, that the United States, under the act approved February 11, 1903 (32 Stat. 823 (U.S. Comp. St. Supp. 1909, p. 1211)), have the privilege of demanding, on a bill in equity, the constitution of a court of three judges to pass on the issues fundamentally involved here; of course, much broadened out and made much more certain as they would be on a bill in equity. Also, the court, having a right to know its own records, cannot overlook the fact that such a bill in equity is pending in this district, subject to be advanced for hearing in accordance with the statute last named. Nevertheless, the court, being appealed to as the parties have a right to appeal to it, must do its duty as best it can.

It will turn out that, notwithstanding the apparent conflict, and and as we say chaos, of decisions, there is a clear path through them all to a satisfactory determination of the fundamental question involved here. It may be found, however, that certain incidental matters are proposed as to which there is uncertainty necessarily involved by reason of the multiplicity of the allegations relating thereto; and as to these the court reserves to itself the right to appeal to Kansas v. Colorado, 185 U.S. 125, 145, 147, 22 Sup.Ct. 552, 46 L.Ed. 838. The rule there is stated with reference to suits in equity. Where the issues are raised on demurrer; but it is equally applicable, on fundamental principles, to a criminal proceeding. In complicated cases demurrers sometimes shut out the merits, and sometimes, so far as the case involved is concerned, bring before the court only a partial and inadequate view thereof. It is with great satisfaction that we may rely on the rule from Daniell stated in Kansas v. Colorado, 185 U.S.at pages 144 and 145, 22 Sup.Ct.at page 559, 46 L.Ed. 838, as follows:

'The pursuit of this course, on occasion, is thus referred to by Mr. Daniell (p. 542): 'The court sometimes declines to decide a doubtful question of title on demurrer, in which case the demurrer will be overruled, without prejudice to any question. A demurrer may also be overruled, with liberty to the defendant to insist upon the same defense by answer, if the allegations of the bill are such that the case ought not to be decided without an answer being put in. * * * A demurrer will lie wherever it is clear that, taking the charges in the bill to be true, the bill would be dismissed at the hearing; but it must be founded on this: that it is an absolute, certain, and clear proposition that it would be so; for if it is a case of circumstances, in which a minute variation between them as stated by the bill and those established by the evidence may either incline the court to modify the relief or to grant no relief at all, the court, although it sees that the granting the modified relief at the hearing will be attended with considerable difficulty, will not support a demurrer."

The conclusion of the court, stated in 185 U.S.at page 14, 22 Sup.Ct.at page 560, 46 L.Ed 838, was as follows:

'The result is that, in view of the intricate questions arising on the record, we are constrained to forbear proceeding until all the facts are before us on the evidence. Demurrer overruled, without prejudice to any question, and leave to answer.'

There have been brought to our attention two decisions in this district, one of them, Oliver v. Gilmore (C.C.) 52 F. 562, rendered independently of any question arising under the statutes of the United States, and the other, United States v. Patterson, rendered June 1, 1893, reported in (C.C.) 55 F. 605, and again in (C.C.) 59 F. 280. As the theory of the latter case has never been approved, we will not refer to it further; but the former case, Oliver v. Gilmore, deserves some consideration, as we will state later.

The incidental questions we will dispose of now. It is objected that the respondents are joined as officers of various corporations around which this litigation gathers, that one corporation is the principal, and that the respondents are only officers or directors thereof. The indictment, however, expressly charges them as actors, and two fundamental principles are thoroughly settled. One is that neither in the civil nor the criminal law can an officer protect himself behind a corporation where he is the actual, present, and efficient actor; and the second is that all parties active in promoting a misdemeanor, whether agents or not, are principals. The rule distinguishing between directors of a corporation who are simply charged as such and directors acting an immediate, special part in the proceedings in question, was pointed out and settled by the Circuit Court of Appeals for this circuit in National Cash Register Company v. Leland, 94 F. 502, 508, 509, 37 C.C.A. 372. Although that was a civil suit for damages on account of an. Infringement of a patent right, the principles apply here as well as there.

Some questions are also made with reference to the method of setting out certain documents involved here. There are a great many documents all of the same class relied on by the United States. None of them is specifically described, nor any allegations beyond describing the substance thereof as understood by the United States. We may return to this later if we find it necessary; but all we need say at present is that, where whatever are involved are so numerous that they cannot be stated at length, or in detail, without incumbering the record to an extent beyond all practical rules of convenience, they may be stated generally. Also, as ruled by the Circuit Court of Appeals for this circuit in Pooler v. United States, 127 F. 509, 517, 62 C.C.A. 307, and by the Circuit Court in United States v. Grunberg (C.C.) 131 F. 137, 139, it is not ordinarily necessary to set out an instrument by its tenor unless it becomes directly the subject-matter of the litigation.

We will not notice particularly all the other propositions made by the respondents, which are numerous; but we will touch upon them so far as we think they require attention, grouping in our observations sometimes several minor propositions made by the respondents, classifying as far as possible those relating to similar topics.

The counts contained in each of the two indictments, which are based on the first section of the act in question, declaring illegal combinations or conspiracies in restraint of trade, are objected to, with several forms of expression of the objections, because they do not suitably charge in what manner interstate commerce was in fact unreasonably restrained. In this respect the respondents rely on expressions made by us in United States v. John Reardon & Sons Company (C.C.) 191 F. 454, 456, in reference to the same statute now under discussion, to the effect that:

'The fundamental rule, which never has been overthrown by the Supreme Court, although there are undoubtedly

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