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142

The Green Bag

"Upon careful reflection we are constrained to hold that the reasons given do not sustain the ruling, and that the answer to the question must be in the affirmative. "Section 1 of the act, upon which the counts are founded, is not confined to voluntary re straints, as where persons engaged in interstate trade or commerce agree to suppress competition among themselves, but includes as well involun tary restraints; as where persons not so engaged conspire to compel action by others, or to create artificial conditions, which necessarily impede or burden the due course of such trade or com merce, or restrict the common liberty to engage therein. Loewe v. Lawlor, 208 U. S. 274, 293, 301, 52L.ed.488,496,502,28Sup.Ct. Rep. 301. . . . "It well may be that running a corner tends for a time to stimulate competition; but this does not prevent it from being a forbidden re straint, for it also operates to thwart the usual operation of the laws of supply and demand, to withdraw the commodity from the normal cur rent of trade, to enhance the price artificially, to hamper users and consumers in satisfying their needs, and to produce practically the same evils as does the suppression of competition. "Of course, the statute does not apply where the trade or commerce affected is purely intra state. Neither does it apply, as this court often has held, where the trade or commerce affected is interstate, unless the effect thereon is direct, not merely indirect. But no difficulty is en countered in applying these tests in the present case when its salient features are kept in view. . . . "Bearing in mind that such was the nature, object, and scope of the conspiracy, we regard it as altogether plain that, by its necessary opera tion, it would directly and materially impede, and burden the due course of trade and com merce among the states, and therefore inflict upon the public the injuries which the anti trust act is designed to prevent." Lurton and Holmes, JJ., and the Chief Jus tice dissented, mainly on the ground, it would appear, that the counts in the indictment did not charge a corner, the majority opinion hold ing, on the contrary, that the counts were treated by the circuit court as alleging a scheme by which the market could be cornered. Lumber Middlemen Enjoined — Wholesaler's Right to Compete Freely for Consumer's Trade — Sherman Act. U. S. Judges Lacombe, Coxe, Ward, and Noyes, sitting in the federal District Court for the south ern district of New York, granted a permanent

injunction on the petition of the Government against the Eastern States Retail Lumber Dealers' Association and several other associa tions of retail lumbermen, on Jan. 9. The petition of the Government charged that the associations had formed a conspiracy among themselves for the restraint of trade, contrary to the Sherman act. They drew a sharp distinction between the wholesaler and the retailer, and they blacklisted all wholesale dealers who seemed to them to trespass on the field of the retail man. More over, it was alleged, they expelled from member ship in their associations "poachers" or retailers who invaded the territory of another retailer, and "scalpers" who cut prices, and they arbi trarily fixed the prices of lumber and lumber products. The retailers also adopted a system of "offi cial reports" to check what they considered the unfair competition of the wholesalers. These reports contained lists of the wholesale firms which had been reported as having solicited, quoted, or sold direct to consumers, and requested the members of the associations to supply, if possible, information of any such acts on the part of the wholesalers. "It is now wrell settled," said the court, "that the words 'restraint of trade' in that act are to be construed as including 'restraint of compe tition.' Full, free and untrammeled com petition in all branches of interstate commerce is the desideratum to be secured. . . . That free and unrestricted competition may be pro ductive of evils does not militate against the fact that such is the law now governing the subject. U. S. v. Freight Association, 166 U. S. 337." Consequently the court decreed that the circulation of the "official reports" was contrary to the Sherman act, and issued a permanent injunction against it. Vital Statistics. Statute Requiring Prompt Returns of Births Unconstitutional. O. The provisions of an act to establish a bureau of vital statistics, and to provide for a prompt and permanent registration of all births and deaths occurring within the state, which re quire a physician or midwife in attendance upon the birth of a child to certify, without com pensation, as to legitimacy or illegitimacy, and, if legitimate to supply information in regard to the parents of the child, are held in State v. Boone (Ohio) 39 L.R.A. (N.S.) 1015, to be an unreasonable and arbitrary exercise of the police power, and therefore unconstitutional and void.