UNITED STATES v. NATIONAL ASSOCIATION OF REAL ESTATE BOARDS ET AL.
No. 428
SUPREME COURT OF THE UNITED STATES
Argued March 31, 1950.—Decided May 8, 1950.
339 U.S. 485
William E. Leahy argued the cause for the Washington Real Estate Board et al., appellees. With him on the brief was William J. Hughes, Jr.
This is a civil action brought by the United States to enjoin appellees1 from engaging in a price-fixing conspiracy in violation of § 3 of the Sherman Act, 26 Stat. 209,
The same conspiracy was charged in a criminal proceeding.3 The criminal case was tried first. At the end of the Government‘s case the court granted the defendants’ motion for a judgment of acquittal. 80 F. Supp. 350. Appellees then moved for summary judgment in this civil suit, contending that the judgment of acquittal in the criminal case is res judicata here. That motion was denied.4
First. The fact that no interstate commerce is involved is not a barrier to this suit. Section 3 of the Sherman Act5 is not leveled at interstate activities alone. It also puts beyond the pale certain conduct purely local in character and confined to the District of Columbia. That Congress has the power so to legislate for the District by virtue of Art. I, § 8, Clause 17 of the Constitution and did so by § 3 was settled by Atlantic Cleaners & Dyers v. United States, 286 U. S. 427, 432-435.
Second. The Washington Board has adopted standard rates of commissions for its members—charges which cover the wide range of services furnished by a real estate agent. The Board‘s code of ethics provides that “Brokers should maintain the standard rates of commission adopted by the board and no business should be solicited at lower rates.” Members agree to abide by this code. The prescribed rates are used in the great majority of transactions, although in exceptional situations a lower charge is made. But departure from the prescribed rates has not caused the Washington Board to invoke any sanctions. Hence the District Court called the rate schedules “non-mandatory.”
Enough has been said to show that under our decisions an illegal price-fixing scheme has been proved, unless the
Third. The critical question is whether the business of a real estate agent is included in the word “trade” within the meaning of § 3 of the Act. The District Court, thought not. It was of the view that where personal services are involved, a combination to fix the price or compensation is legal. It seemingly was influenced by the declaration in § 6 of the Clayton Act, 38 Stat. 731,
Members of the Washington Board are entrepreneurs. Some are individual proprietors; others are banks or corporations. Some may have no employees; others have large staffs. But each is in business on his own. The fact that the business involves the sale of personal services rather than commodities does not take it out of the category of “trade” within the meaning of § 3 of the Act. The Act was aimed at combinations organized and directed to control of the market by suppression of competition “in the marketing of goods and services.” See Apex Hosiery Co. v. Leader, supra, p. 493.
Justice Story in The Nymph, 18 Fed. Cas. 506, while construing the word “trade” in the Coasting and Fishery Act of 1793, 1 Stat. 305, said,
“The argument for the claimant insists, that ‘trade’ is here used in its most restrictive sense, and as equivalent to traffic in goods, or buying and selling in commerce or exchange. But I am clearly of opinion, that such is not the true sense of the word, as used in the 32d section. In the first place, the word ‘trade’ is often, and indeed generally, used in a broader sense, as equivalent to occupation, employment, or business, whether manual or mercantile. Wherever any occupation, employment, or business is carried on for the purpose of profit, or gain, or a livelihood, not in the liberal arts or in the learned professions,
it is constantly called a trade. Thus, we constantly speak of the art, mystery, or trade of a housewright, a shipwright, a tailor, a blacksmith, and a shoemaker, though some of these may be, and sometimes are, carried on without buying or selling goods.”
It is in that broad sense that “trade” is used in the Sherman Act. That has been the consistent holding of the decisions. The fixing of prices and other unreasonable restraints have been consistently condemned in case of services as well as goods. Transportation services (United States v. Freight Assn., 166 U. S. 290, 312; United States v. Joint Traffic Assn., 171 U. S. 505), cleaning, dyeing, and renovating wearing apparel (Atlantic Cleaners & Dyers v. United States, 286 U. S. 427), the procurement of medical and hospital services (American Medical Assn. v. United States, supra, 528), the furnishing of news or advertising services (Farmer‘s Guide Co. v. Prairie Co., 293 U. S. 268; Associated Press v. United States, 326 U. S. 1) --- these indicate the range of business activities that have been held to be covered by the Act. In Atlantic Cleaners & Dyers v. United States, supra, 435, 437, the Court rejected the view that “trade” as used in § 3 should be interpreted in the narrow sense which would exclude personal services. It held, speaking through Mr. Justice Sutherland, that § 3 used the word in the broad sense in which Justice Story used it in The Nymph, supra. Chief Justice Groner made an extended analysis and summary of the problem in United States v. American Medical Assn., 72 App. D. C. 12, 16–20, 110 F. 2d 703, 707–711, where the Court of Appeals for the District of Columbia held that the practice of medicine in the District was a “trade” within the meaning of § 3 of the Act. Its conclusion was that the term included “all occupations in which men are engaged for a livelihood.” We do
Hopkins v. United States, 171 U. S. 578, and Anderson v. United States, 171 U. S. 604, are not opposed to this conclusion. It was held in those cases that commission merchants and yard traders on livestock exchanges were not engaged in interstate commerce even though the livestock moved across state lines (cf. Stafford v. Wallace, 258 U. S. 495), and therefore that the rules and agreements between the merchants and traders (which included in the Hopkins case the fixing of minimum fees) did not fall under the ban of the Sherman Act. But we are not confronted with that problem here. As noted, we are concerned here not with interstate commerce but with trade or commerce in the District of Columbia.
Fourth. Appellees claim that the judgment of acquittal in the criminal action is res judicata in this action. Helvering v. Mitchell, 303 U. S. 391, is contra and rules this case. There Mitchell had been tried and acquitted of a criminal charge of wilfully attempting to evade payment of his income tax. Thereafter suit was brought to
Fifth. The District Court found that two of the appellees—National Association and Herbert U. Nelson8—did not conspire with the Washington Board to fix and prescribe the rates of commission to be charged by the members of the latter. No more particularized findings were made. Appellant asks us to set aside that ruling. The question is whether we may do so in light of Rule 52 of the Federal Rules of Civil Procedure which provides in part:
“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”
The National Association is a nationwide, incorporated trade association of which the Washington Board is a member. Active members of the Washington Board are also members of the National Association. The National Association has a code of ethics which includes an article stating that “the schedules of fees established by the various Real Estate Boards are believed to represent fair compensation for services rendered in their communities and should be observed by every Realtor.” It is provided in the by-laws of the National Association (1) that each member board shall adopt the code of ethics of the National Association as a part of its rules and regulations for violation of which disciplinary action may
Appellant relies chiefly on the code of ethics, and by-laws of the National Association, as it clearly may (Associated Press v. United States, supra, pp. 8, 12), to establish the restraint of trade. But we cannot say that the District Court was “clearly erroneous” in finding that the National Association and Nelson were not laced into the conspiracy to fix the commissions in the District of Columbia. The statement in the code of ethics that the schedule of fees “should be observed” is somewhat ambiguous. It may be advisory only. The provision of the by-laws that violations of the code of ethics of the National Association should be the basis of disciplinary action against both member boards and their constituent members is aimed at thirty-five articles of the code of ethics, not selectively at the fee provision. So we are left somewhat in doubt as to the extent if any to which the National Association and Nelson were architects of the fee-fixing conspiracy or participants in it. At best their relationship to it is, on this record, a somewhat attenuated one.
It is not enough that we might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. See United States v. Yellow Cab Co., 338 U. S. 338, 342; United States v. Gypsum Co., 333 U. S. 364, 394–395. We are not given those
The judgment of the District Court is reversed except as to the National Association and Nelson; and as to them it is affirmed.
So ordered.
MR. JUSTICE FRANKFURTER and MR. JUSTICE CLARK took no part in the consideration or decision of this case.
MR. JUSTICE JACKSON, dissenting.
If real estate brokerage is to be distinguished from the professions or from other labor that is permitted to organize, the Court does not impart any standards for so doing.
It is certain that those rendering many kinds of service are allowed to combine and fix uniform rates of pay and conditions of service. This is true of all laborers, who may do so within or without unions and whose unions frequently do include owners of establishments that employ others, such as automobile sales agencies. See, for example, International Brotherhood of Teamsters, etc. v. Hanke, ante, p. 470. I suppose this immunity is not confined to those whose labor is manual, and is not lost because the labor performed is professional. The brokerage which is swept under the antitrust laws by this decision is perhaps a borderline activity. However, the broker furnishes no goods and performs only personal services. Capital assets play no greater part in his service than in that of the lawyer, doctor or office worker. Services of the real estate broker, if not strictly fiduciary, are at least those of a trusted agent and, oftentimes, advisory as to values and procedures. I am not persuaded that fixing uniform fees for the broker‘s labor is more offensive to the antitrust laws than fixing uniform fees for the labor of a lawyer, a doctor, a carpenter, or a plumber. I would affirm the decision of the court below.