fixed so high that, if the purchaser paid it, he could not make any profit from re-sales. If, however, he will agree to refrain from deal ing in tobaccos made by independent con cerns, his allotment is reduced to the amount he is able to sell, and a rebate made to him 'on the aggregate price of the goods bought, so that the handling of the trust's goods be comes profitable. Plaintiff having refused to refrain from handling the goods of inde pendent manufacturers, who were com peting with the defendant, the latter refused to rediice the allotment which it had made to him or the price thereof, and plaintiff re fused to purchase defendant's goods. He was unable to procure them elsewhere, and alleged damages. The liability of the defendants is first con sidered under section one of the act, prohibit ing combinations or conspiracies in restraint of interstate commerce. The purpose of the statute, the court says, is to prevent the stifling or substantial restriction of competi tion, and the test of the legality of a combina tion tinder the act is its direct and necessary effect upon competition in interstate com merce. If this is to stifle or to substantially restrict free competition, it falls under the ban of the law; citing a large number of authorities, among them the Northern Se curities case, 120 Federal Reporter 721, 725. The court declares that the right of each competitor to fix the prices of his commodi ties and dictate the terms upon which he will sell them is indispensable to the very exist ence of competition. Strike down or stipu late away that right, and competition is not only restricted, but destroyed. Conceding, for the sake of argument, that the defendant could conspire or combine with its employe, no such combination or conspiracy would be a violation of the .law, as the two defendants have never been and never intend to be com petitors. There has never been any competi tion, actual or 'possible, between them, and her.ce no competition between them can be
restrained by their combination to conduct the trade of the defendant company. Then follows this significant utterance: "The to bacco company and its competitors were not dealing in articles of prime necessity, like corn and coal, nor were they rendering pub lic or quasi public service, like railroad and gas corporations. Each of them, therefore, had the right to refuse to sell its commod ities at any price. Each had the right to fix the prices at which it would dispose of them, and the terms upon which it would contract to sell them. Each of them had the right to determine with what persons it would make its contracts of sale." Citing In re Greene (Circuit Court), 52 Federal 104, 115; /и re Grice (Circuit Court), 79 Federal 627, 644; Walsh r. Dvvight, 58 New York Supplement 91, 93; Brown r. Rounsavell, 78 Illinois 589: Commonwealth v. Grinstead ( Kentucky), 63 Southwestern 427; Allgeyer r. Louisiana. 165 United States 578, 589, 17 Supreme Court 427, 41 Lawyers' Edition 832. There is nothing in the statute depriving any of these competitors of these rights. Had there been, the law itself would have destroyed competition more effectually than any con tracts or combinations could possibly have stifled it. As to the violation of the second section, prohibiting an attempt to monopolize inter state commerce, the court holds that its pur pose is practically identical with the first sec tion, and that no attempt to monopolize a part of commerce among the States is made illegal unless the necessary effect of that attempt is to directly and substantially restrict interstate commerce. It was not the purpose of the second section to punish the customary and universal attempts of all manufacturers and traders engaged in inter state commerce to monopolize a fair share of it in the necessary conduct and desired en largement of their trade, while their attempts leave their competitors free to make success ful endeavors of the same kind.
