243 F. 730 | D. Or. | 1917
The indictment herein charges that the defendants, during- the period between August 1, 1914, and the finding- of the indictment, knowingly and unlawfully engaged in a combination in restraint of trade and commerce among the several states, and by a second count that during the same time they engaged in a monopoly in like restraint of trade. The defendants are officers in some capacity, in control to a greater or less extent, of certain corporations and companies engaged in the manufacture of cement, and in the traffic and sale of the products in states other than where manufactured, as well as in their own states. The companies are classified as the Northern California companies, the Southern California company, the Washington companies, and the Oregon company.
A demurrer has been interposed to the indictment, by which three questions are presented, namely: That defendants are not advised of the time, place, or circumstances upon which the government relies Íor conviction; that the offense with which it is sought to charge the defendants is not so stated as to afford them, after conviction or acquittal, protection against a second indictment for the same offense; and that the court is not able to determine from the indictment whether a combination existed, or any of defendants engaged therein, or whether the restraint referred to was undue or unreasonable.
“All contracts or acts which theoretically were attempts to monopolize, yet which in practice had come to be considered as in restraint of trade in a broad sense.” And, further, it evinces “the intent not to restrain the right to make and enforce contracts, whether resulting from combination or otherwise, which did not unduly restrain interstate or foreign commerce, but to protect that commerce from being restrained by methods, whether old or new, which would constitute an interference that is an undue restraint.” And “it was intended that the standard of reason which had been applied at the-common law and in this country in dealing with subjects of the character embraced by the statute, was intended to be the measure used for the purpose of determining whether in a given case a particular act had or had not brought about the wrong against which’the statute provided.”
This, to my mind, states quite clearly the scheme and purpose of the combination. It descends to particulars, and no one need be misled into preparing his defense for something other than as alleged against him. The court knows what the charge is, without the liability of mis-
Apply the standard of reason, which counsel insist that we shall, and then inquire further whether there is an undue restraint of trade or commerce. The indictment does allege that, by reason of these things, the defendants were engaged in undue and unreasonable restraint of trade. We may put this to one side as a conclusion. There is sufficient alleged, however, from which to deduce this very conclusion. The concert of action which implies a combination for marketing their cement in particular locations, and the direct agreement between them for fixing arbitrary and noncompetitive prices for the sale of cement in Oregon, is sufficient to stamp their demeanor as in restraint of interstate trade and commerce. Such a combination is without the elements or indicia of a wholesome agreement, and cannot be so characterized. The following cases are illustrative: Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 33 Sup. Ct. 9, 57 L. Ed. 107; Eastern States Lumber Ass’n v. United States. 234 U. S. 600, 34 Sup. Ct. 951, 58 L. Ed. 1490, L. R. A. 1915A, 788.
The third objection is answered by the foregoing. The same reasoning applies to the objections to the second count.
Demurrer overruled