48 F. Supp. 260 | S.D. Ohio | 1942
The indictment charges a price fixing conspiracy in reference to fluid milk and milk products. The indictment shows that approximately 50% of this milk is shipped into- the Cincinnati area from other states, Indiana and Kentucky, and that 50% of it is Ohio milk, and when it reaches the handlers in Cincinnati the out-of-state milk is commingled with the state milk and delivered to retailers and consumers, all of whom are within the state.
According to all the authorities with which I am .familiar, when a commodity, intended for consumption entirely within the state, reaches the state of its destination and is commingled with the mass of goods within the state, its interstate journey is ended and it then loses its identity as a commodity moving in commerce between the states.- The conspiracy charged in this indictment is directed to the fixing of prices upon fluid milk which is not moving or intended to move in interstate commerce. The authorities teach that the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, may reach such a conspiracy, but only if the acts charged are such as directly and substantially affect the commerce in the commodity between the states.
We have had a variety of Congressional Acts in recent years which deal with similar situations. The discussion of them in the Darby case is very interesting. United States v. Darby, 312 U.S. 100, 120, 122, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430, Chief Justice Stone in that opinion points out that under the power granted by the commerce clause of the Constitution, article 1, § 8, cl. 3, Congress may by appropriate legislation regulate intrastate activities. When? Where they
My idea of the law is that in view of the authorities which hold that an intrastate conspiracy is not within the Sherman Act unless it directly and substantially affects interstate commerce, it is necessary in an indictment or in a civil pleading seeking relief under the Sherman Act that not merely conclusions but factual allegations be made which are sufficient to show direct and substantial impact upon interstate commerce.