United States v. Patterson, 55 F. 605

United States v. Patterson

55 F. 605 | U.S. Circuit Court for the District of Massachusetts | 1893

PUTNAM, Circuit Judge.

I do not think there is any constitutional question in this case upon any view of this statute, or upon the face of the indictment. The right of free commerce granted by the constitution (Crandall v. Nevada, 6 Wall. 35, and the Case of State Freight Tax, 15 Wall. 232) permits broad legislation; and in no' sense is this statute as broad as the Revised Statutes (section 5508) on the principle of construction applied to the latter in U. S. v. Waddell, 112 U. S. 76, 5 Sup. Ct. Rep. 35. See Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. Rep. 617. There may be practical difficulties in applying the statute in such way as to prevent conflicts with state jurisdictions, hut these can only arise on the development of the facts at the trial of a particular case, and even then the court will have the guidance of the supreme court in Re Coy, 127 U. S. 731, 8 Sup. Ct. Rep. 1263; Cross v. North Carolina, 132 U. S. 131, 10 Snp. Ct. Rep. 47; and In re Green, 134 U. S. 377, 10 Sup. Ct. Rep. 586. Those cases show that there need not necessarily be a conflict of jurisdiction.

This statute is not one of the class where it is always sufficient to declare in the words of the enactment, as it does not set out all the elements of a crime. A contract or combination in restraint of trade may be not only not illegal, but praiseworthy; as, where parties attempt to engross the market by furnishing the best goods, or the cheapest. So that ordinarily a case cannot be made under the statute unless the means are shown to be illegal, and therefore it is ordinarily necessary to declare the means by which it is intended to engross or monopolize the market. And by the well-settled rules of pleading it is not sufficient to allege the means in general language, but, if it is claimed that the means used are illegal, enough must be set out to enable the court to see that they are so, and to enable the defense to properly prepare to meet the charge made against it.

I regard the rule laid down by the supreme court in U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. Rep. 571, as applying to this case; and I *639think the case of U. S. v. Simmonds, 96 U$. S. 360, is easily distinguished. If it is not, the later case will, of course, control. In reference to the suggestion of the counsel for the United States, as to cases at common law alleging conspiracy to prevent a man from pursuing his trade, it is sufficient to say that to conspire to prevent á man from pursuing a trade which lie is entitled to pursue is in itself illegal. But the case at bar is not at common law, and the proceedings under this statute are peculiar to the statute. I think the rules laid down in U. S. v. Hess distinguish this indictment on this point from all the cases and principles of law relied on by the United States. The allegations of what was done in pursuance of the alleged conspiracy are under this particular statute irrelevant, and cannot be laid hold of to enlarge the necessary allegations of the indictment, and are of no avail. I think it was so conceded at the argument. If not, (here is no question about the law. The foregoing considerations dispose of counts 1, 2, 3, 6, 7, 8, 11, 12, 13, 15, 16, and 17.

That the means are alleged with "reasonable precision” in the remaining counts, appears from, the practical application of the rides of pleading appropriate to this case made in U. S. v. Waddell, 112 U. S. 76, 5 Sup. Ct. Rep. 35. Some of the allegations in each count may be insufficient, but these are only surplusage.

Counts .14 and 18 seem sufficient under the second section of the ata tute, as will appear from what; I have to say hereafter. The remaining’ counts, 4, 5, 9, and 16, are laid under the first section. Counts 4 and S allege an intent to hinder and prevent all persons and corporations, except the corporation controlled by the defendants, from engaging in the trade and commerce described in the indictment, while counts 5 and 10 only allege a purpose to destroy the competition of the four corporations named, without setting or. t any purpose of engrossing or monopolizing the business as a whole, or any like purpose.

The court does not feel at all embarrassed by the use of the words "trade or commerce.” The word "commerce” is undoubtedly, in its usual sense, a larger word than “trade,” in its usual sense. Sometimes "commerce” is used to embrace less than "trade,” and sometimes "trade” is used to embrace as much as “commerce.” They are, in 'the judgment of the court, in this statute synonymous. The court is well aware of the general rule which has been several times (twice certainly) laid down by the supreme court of the United States, that in construing a statute every word must have its effect, and the consequent presumption that the statute does not use two different words for the same purpose; but this rule has its limitations, and it is a constant practice for the legislature to use synonyms. A word is used which it is thought does not perhaps quite convey the idea which, the legislature Intends, and it takes another word, which perhaps has to some a little different meaning, without intending to more than make strong the purpose of the expression in the statute.

In the legislation of congress analogous to this under consideration there is a marked case of the use of synonyms. Rev. St. § 5438, *640uses the words “false, fictitious, or fraudulent;” then the words “any false bill, receipt, voucher;” then the words “agreement, combination, or conspiracy;” then the words “charge, possession, custody, or control,” mainly synonyms; while section 5-140 uses simply the word “conspire.” There would be no question that the word “conspire,” in section 5110, means all that the three corresponding synonyms, “agreement, combination, or conspiracy,” mean in section '5138. Bather as a matter of curiosity than because they particularly impress my mind, I have taken off some other instances. The Massachusetts statute cited in U. S. v. Britton, 107 U. S. 670, 2 Sup. Ct. Rep. 512, uses the words “secular labor, business, or employment.” The words “false, forged, and counterfeited” are used over and over again in U. S. v. Howell, 11 Wall. 436, 437; “peddler and hawker” are in constant use in criminal law; “drinking house or tippling house” is of frequent use in the statutes; so are “goods and chattels.” These are all referred to in Bishop on Statutory Crimes as synonymous. There is also the very special case where the criminal statute contained the words “ram, ewe, sheep, and lamb;” and it was held in Reg. v. McCulley, 2 Moody, Cr. Cas. 31, that the word “sheep” covered the two preceding words, and they might he rejected as surplusage. Sutherland on Statutory Construction says that words which are meaningless have sometimes been rejected as redundant or surplusage. Go in this statute I think the words “trade or commerce” mean substantially the same thing. But the use of the word “trade” nevertheless is significant. In my judgment, it was probably used because it was a part of the coxamon-law expression, “in restraint of trade,” as has been carefully pointed out by the counsel for the defense. This has become a fixed, well-known, common-law expression; and by the rule of interpretation as given again in Sutherland on Statutory Construction (section 253) it has been here used in the sense in which it has been used generally in the law. And these words, “in restraint of trade,” lead up directly to what I think is the true construction of this statute on this point.

I think it is useful to analyze the statute. Separating it into parts, we have — First, contract in restraint of trade; second, combination in restraint of trade; and, third, conspiracy in restraint of trade. There can be no question that the second and third parts, as thus put, receive color from the first. Moreover, it is important to note the rule that this whole statute must be taken together. The second section is limited by its terms to monopolies, and evidently has as its basis the engrossing or controlling of the market. The first section is undoubtedly in pari materia, and so has as its basis the engrossing or controlling of the market, or of lines of trade. The sixth section also leads in the same direction, because it provides for the forfeiture of property acquired pursuant to the conspiracy. Undoubtedly the word “conspiracy” in that section has reference to the same subject-matter as in the first. If the intention of the statute was that claimed by the United States, I think the natural phraseology would have been “to injure trade,” “to restrain trade.”

*641We are now at the point where the paths separate. Careless or inapt construction of the statute as bearing on this case, while it may seem to create but a small divergence here, will, if followed out logically, extend into very large Helds; because, if the proposition made by the United States is taken with its lull force, the inevitable result will be that the federal courts will be compelled lb apply this statute to all attempts to restrain commerce among the states, or commerce with foreign nations, by strikes or boycotts, and by every method oí interference by way of violence or intimidation. It is not to be presumed that congress intended thus to extend the jurisdiction of the courts of the United States without vexy clear language. Such language I do not find in the statute. Therefore Í conclude that there must be alleged in the indictment that there was a purpose to restrain trade as implied in the common-law expression, “contract in restraint of trade,” analogous to the word '“monopolize” in the second section. I think this is the basis of the statute. It must appear somewhere in the indictment that there was a conspiracy in restraint of trade by engrossing or monopolizing or grasping Ike market, and it is not sufficient simply to allege a purpose to drive certain competitors out of the field by violence, annoyance, intixnidaiioxi, or otherwise.

UometMng has been said in this connection touching the debates in congress. It is apparently settled law that we cannot take the views or purposes expressed in debate as supplying the construction of statutes. In U. S. v. Union Pac. R. Co., 91 U. S. 72-79, and elsewhere, the supreme court has laid down this rule. But this does not at all touch the question whether or not one can gather from the debates in congress, as he can from any other source, the history of the evil which the legislation was intended to remedy. The debates on this point are very instruct! \ e; but they fail to point out precisely what incidents or details of the great evil under consideration were to be reached by this legislation.

What I have already said disposes of counts 5 and 10, which do not allege any purpose except to destroy the competition of four corporations named; and they leave for consideration only the counts 4 and 9, which do allege a purpose of engrossing, monopolizing, or grasping the trade in question. Such being the case, acts of violence and intimidation may be alleged as means to accomplish the general purpose. Instead of lying outside of the statute, they may aggravate the offense. They are within the logic and spirit of the statute, which are not to be defeated by distinctions which its letter does not suggest to the ordinary mind. Violence and Intimidation are as much within the mischief of the statute as negotiations, contracts, or purchases! The former are often used to compel the latter. This line of reasoning applies to both the first and second sections, and finds a sufficient nlaee for everv word in each. I find in all the counts which I allow to stand, allegations of an intent to engross, monopolize, and grasp, and of means clearly unlawful, and adapted to accomplish this intent.

*642I have examined all the cases which have been cited to me as referring to this statute, and I believe that counsel have cited me every case which has been decided in connection with it; but none of them meet the issue which is raised here. Therefore all the expressions in them supposed to touch this case are to be regarded as mere dicta. The result is that counts 4, 9, 14, and 18 stand, and the others are quashed.