United States v. South-Eastern Underwriters Assn.

UNITED STATES v. SOUTH-EASTERN UNDER-

WRITERS ASSOCIATION et al. Argued January 11, No. 354. 1944. Decided June Attorney General Biddle, with whom Solicitor General Fahy, Assistant Attorney Berge, General and Messrs. Stern, Robert L. Frank Jr., H. Elmore, and Manuel M. Gorman were on the brief, for the United States.

Messrs. John T. Cahill and Dan MacDougald, with whom Messrs. Thurlow M. Gordon, Head, Neil C. Jer- Cise, rold VanG. and Howard C. Wood were on the brief) for appellees.

Briefs (1) filed were on behalf of the States Ala- bama, Arizona, Arkansas, Colorado, Connecticut, Dela- ware, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Ne- Mississippi, Mex- New New

braska, Jersey, New Nevada, Hampshire, Ohio, Pennsyl- York, Dakota, Oregon, New North ico, Wash- vania, Dákota, Utah, Vermont, South Tennessee, of and behalf ington, Virginia, (2) Wisconsin and West on curiae, urging affirmance. the State of as amici Virginia, the of Court. opinion the delivered Mr. Justice Black held, has whenever seventy-five years For this Court the Commerce question presented, has been the deprive of not individual Clause the Constitution does tax of power regulate specific of and activities states within foreign companies policies which sell their territories. Each state has been held to have the com- though negotiation even and execution of power of infor- contracts involved communications panies’ policy of persons, moneys, papers mation and movements and these cases, however, across state lines. Not one of all required Act Congress has involved an of grants to decide whether the issue of the Commerce Clause regulate insurance transactions stretching in Today across state lines. the first time history squarely of the Court that issue is presented must be and decided.

Appellees South-Eastern Underwriters Association —the (S. E. U. and its A.), membership nearly private fire companies, and 27 stock individuals —were alleged indicted Court for the District violations alleges Sherman Anti-Trust Act. The indictment two conspiracies. first, Act, The violation § by fixing was to restrain interstate trade and commerce non-competitive maintaining arbitrary premium and and lines”1 insurance in specified rates on fire and “allied by appellees are described “allied lines” of insurance handled navigation transportation, inland “inland and the indictment as marine, sprinkler tornado, extended leakage, explosion, and -windstorm coverage, occupancy, civil commotion insurance.” use riot and Carolina, North South Caro- Florida, Georgia, Alabama, § violation of was to second, lina, Virginia; the same lines insur- and commerce trade monopolize the same states.2 among in and ance following charges: The mem- indictment makes per E. A. controlled 90 cent of S. U. companies ber fire insurance and “allied lines” sold stock fire insurance were conspiracies the six states where continu- Both consisted of a conspiracies consummated.3 through effectuated and concert of action ing agreement only premium fixed rates conspirators E. U. A. The together boycotts commissions, employed but agents’ to force of coercion and intimidation non- types with other companies into the and to conspiracies, member insurance to buy only who needed insurance from compel persons members on E. U. A. terms. Companies E. U. A. S. not S. E. A. cut off from the opportunity members of S. U. were their their services and risks, reinsure and facilities were independent agencies defiantly sales who rep- disparaged; July 2, 1890, the Act pertinent provisions of 1 and of The §§ 2, commonly amended, 15 C. and known as as 26 Stat. §§ Act, are as follows: the Sherman Every contract, combination in the form of trust other- 1. or

“Sec. conspiracy, among or wise, in restraint trade or foreign hereby States, nations, is declared to be il- or with several any engage legal: Every person make contract or . . . who shall by any conspiracy declared 1-7 of this combination or sections title guilty illegal of a misdemeanor. . . to be shall be deemed . Every person monopolize, attempt monopo- or 2. who shall

“See. conspire any lize, person persons, combine or other or with monopolize any part among of the trade or commerce the several foreign States, nations, guilty or with shall be deemed of a mis- demeanor, . . .” proportion The indictment does not state the of fire distinguished companies, mutuals, “allied lines” sold stock from etc., in the six states But com involved. it does state “stock panies approximately premium receive income of total all 85% companies fire operating in the States.” United by were companies punished E. U. A. non-S.

resented right represent the members withdrawal needing purchased insurance who A.; persons E. U. boy- A. were threatened with E. U. from non-S. The two con- patronage. of all and withdrawal cotts rating effectively by inspection policed were spiracies together with boards states, of the six local five bureaus of all six agents certain cities states. of insurance the free play competi- kind of interference with charged exactly is appellees with which the forces tive Act which the Sherman has outlawed of conduct type commerce” among “trade or the states.4 American argued defense, otherwise. Their set have Appellees5 required been that are not demurrer, they in a has forth of business conduct established to the standards conform Act “the business of fire insurance because Sherman Sustaining demurrer, the District commerce.” is not of insurance not commerce, held that “the business it interstate”; “is not interstate com- intrastate or either trade, though might it or interstate considered merce subject laws, Federal, to local either State or where a trade authority not the relied upon.” clause is the commerce Supp. 51 F. slight- not contain the opinion Court’s does District that the indictment was held on intimation defective

est charged with appellees theory restraining nothing making but the local monopolizing contracts. 4 Comm’n, v. Trade See, g., 457, 465-468; Fashion Guild U. S. e. Socony-Vacuum Co., 150, 210-224; Oil 310 U. S. United States Adkins, 381, 394; Anthracite Coal Co. v. United Sunshine Co., 95—402; States v. Trenton Potteries 273 U. S. United States 3 Patten, States, United & Co. v. 196 U. S. 375. Swift appellees include all of the individuals and named except in the indictment the Universal Insurance Com as defendants City pany Company, Fire Marine- and the Kansas Insurance joined in the demurrer neither of which to the indictment. Dis- There not even a demurrer on that ground. was trict re- illegal Court treated the indictment as charging the straints trade total “activities of as complained constituting the business of Supp. insurance.” F. in great 713. And detail indictment total set these out activities, making of which the actual but of contracts was part. recognized As by the District insur- Court, the ance described in the not business indictment included only negotia- the execution of insurance contracts but also tions and prior events to execution of the contracts necessary innumerable transactions performance All of alleged contracts. these here- transactions, we shall after point out, chain of single constituted a continuous events, of which many were multistate character, which, none of if we accept allegations of the indict- ment, could possibly part have been continued but for that of them which moved back forth lines. across state True, many of indictment activities described which constituted chain conceptu- this of events if might, ally separated from that from they inseparable, regarded wholly local. But District con- struing the indictment did attempt metaphys- not such a ical separation. Looking at all the charged, transactions it felt compelled by previous decisions Court to hold that despite interstate character of them of many “the commerce,” business and that as a consequence this “business,” contracts and could not all, be “interstate commerce” or In “interstate trade.” other words, the District Court held the indictment bad for the (not sole reason that the entire “business of insurance” merely the part business which contracts are phys- ically executed) can never any possible under circum- “commerce,” though stances be therefore, and that even an company part conducts substantial of its lines, engaged transactions across is not among “commerce the States” within meaning

either the Anti-Trust Commerce Clause or the Sherman Act.6 say charges Therefore to that the noth indictment ing more than for monopoly restraint and the “mere mation of contract,” suggested an insurance as has been Court, this give is to it a different and narrower mean ing than did the District Court, something we cannot do — consistently Appeals with the Criminal Act which permits appeal.7 case to come here on direct two record, then, presents questions and no others: Act (1) Was Sherman intended to conduct prohibit companies fire or restrains monopolizes in- (2) the interstate fire insurance trade? If do fire so, surance transactions which stretch across con- state lines among stitute “Commerce several States” so as subject regulation make them under the 6Although the grounds District Court also two sustained additional (that of demurrer the indictment did not state facts sufficient to con offense, jurisdiction stitute federal and that the court lacked subject matter), opinion clear it makes did so because of the conclusion that “the business of insurance is not commerce.” Two grounds upon further demurrer, Fifth, Sixth, based and Tenth Amendments, were not considered the District Court. amending 1246; See Stat. 34 Stat. 18 U. S. C. United Co., v. Borden Appellees States 192-193. that contend the District Court alleging read both counts of the indictment as that sought monopolized trade restrained be was selling insurance, the business of fire that the rightly decided commerce, that such business was that judg therefore ment be should affirmed. Government denies that the Court narrowly. construed the indictment so It insists that the first count charges regardless of the indictment violation 1 of the Act § of whether the insurance business itself commerce, since that count charges practices of the fire consti tuted an unlawful restraint of interstate trade or commerce in such transportation industry purchase fields which must fire insurance. Board, post, Polish v. Labor p. C f. Alliance 643. In the view we unnecessary upon pass question. take of the case it is con We assumption appellees’ sider the case on the contention on this point is correct. that conclusion it is our Clause? Since

Commerce fire insurance to the apply to Act was intended Sherman con- discussion, first shall, we for convenience latter question. sider the

I. Con used in the do not construe words Ordinarily courts than more narrow meaning give so to them stitution in of the times parlance one had the common they hold in was written. To that which the Constitution does in the Clause word “commerce” as used Commerce just do as insurance would not include a business such have “commerce” meanings that. Whatever other included and other dictionaries, encyclopedias, that it included trade: business books of the show period cont bargained and bought sold, in which persons to modern times. meaning persisted racted.8 And this has burden is on asserts Surely, therefore, heavy him who grants which the plenary power that Commerce Clause regulate among to “Commerce the several regulate power trading does not include the States” extent that power reg to the same it includes other trades or businesses conducted across ulate lines.9 commanding

The modern insurance business holds a Built the trade and commerce our Nation. position Ogden, 1; also, Adair, Hamilton Gibbons 9 Wheat. See (N. 1937), pp. 53-63. Power to Govern Y. opinion Hamilton, stating his consti Alexander on the tutionality States, of the United would of the Bank declared that it regulate any question” power if that the federal “admit of little foreign regulation policies commerce included “the of insurance.” (Fed. 469- Ed., 1904) pp. 445, Y. Works of Alexander Hamilton N. regulate Speaking “commerce,” need federal 470. of a super said, is, indeed, evident, Hamilton had “It on earlier the most view, object, respects ficial is no there either as the interests strongly finance, superintend of trade or more demands a federal (Rev. 1901) XXII, Ed., ence.” Federalist The Federalist No. N. Y. upon the sale of contracts of indemnity, it has become largest one of the and most important branches of comm total erce.10 Its assets exceed $37,000,000,000, or the approximate equivalent of the all value of farm lands and buildings the United States.11 Its annual premium receipts $6,000,000,000, exceed more than average receipts annual revenue United States Government during the last decade.12 Included the labor force 524,000 experienced workers, insurance are almost as livings coal or many mining as their seek automobile no manufacturing.13 Perhaps modern commercial enter in all of prise directly many persons so walks life affects Insurance the insurance business. touches the does the occupation the of home, family, and business in the United States.14 every person almost figures by the Commit According gathered National Resources legal companies largest reserve life insurance tee, the three each of largest greater any of the three cor than one industrial 1935had assets Company Jersey, viz., the Oil of New porations, Standard United Corporation. Corporation, Report or the General Motors States Steel Committee, Resources President National June 1939: Economy, I, pp. 100, (U. the American Part The Structure of S. Printing Office). Government Department Commerce, of Statistical Abstract

11 U. of the United 335-342,694. States, 1942,pp. 195,335-342. 12 Ibid.,pp. Census of the 1: Sixteenth United Part United States — Summary, Ill, Eorce, pp. The Labor Vol.

States 14 ye insurance has very shown that the definite have consequence beyond influence and characteristics, with a reach of and world, ordinary the commercial that of businesses of different from . . . greater liberty pursue be asserted. Insurance which enterprise. activity is, It necessity practically a to business ... transactions, ordinary commercial essentially therefore, different from from the according of the world seen, sense and, as we have world—is of the certainly of the modem the sense earliest times — Kansas, 233 Ins. Co. v. greatest Alliance public concern.” German 389, 414-415. not separated This business is into 48 distinct territorial which function in compartments isolation from other. each Interrelationship, interdependence, integration of in all states in activities which they operate prac- aspects tical of the insurance companies’ of doing methods large A business. share of the insurance business is con- comparatively in a few companies centrated for located, financial the most centers of part, the East.15 from policyholders every part Premiums collected for flow into these invest- the United States become checks drafts flow policies payable, ment. As many policyholders states where reside. back to the a continuous and indivisible stream inter- The result is among composed the states course collections of pre- miums, policy obligations, and the payments countless communications which are essential documents negotiation policy and execution contracts. In- living many different states policyholders who dividual single separate their company in- policies own have in one assembled fund of upon blended assets terests dependent payment their equally all are makes at company The decisions which policies. charges, it insures, premiums it the risks office—the home not it pays losses makes, investments —concern happens home office where of the state people just 15 owning companies, largest legal reserve life The five their home offices have $15,000,000,000, approximately assets total Reports, as summarized City. Best’s Life York or near New in Eco Temporary National the use Monograph printed 28 for in Printing Office, (Ü. Government Committee, Appendix A nomic every state of the companies licensed in 1940). Each of these in Texas. Life Insur licensed not except them are two of Union Book, 1942-3. Year ance owning companies, marine insurance largest fire and stock The five located. Best’s similarly $550,000,000, are approximately assets of total in each does And Stocks, xxxii. Digest Insurance Ibid. every the Union. state of They to be located. concern people living beyond far boundaries of that state.

That the alleged fire insurance transactions to have been monopolized by restrained and fit appellees the above de- pattern of the national insurance scribed trade is shown by ug. nearly the indictment before combining Of in and companies, foreign chartered various states coun- only tries, maintained their home in offices one of the A. 127 had operated; six states in which S. E. U. and Con- headquarters York, Pennsylvania, New or either total of During the 1931-1941 a period necticut. agents by local collected $488,000,000 premiums was of which was transmitted to home the six most states, states; during same period while offices other checks or drafts sent by was $215,000,000 paid losses agents local for companies’ from the to the home offices Local agents solicited delivery policyholders.16 sent from policy forms home prospects, offices, utilized and regular to their reports companies mail, telephone made travelling agents Special telegraph. supervised local The insurance sold operations. members S. E. U. A. all fixed local only kinds of properties, covered but steamboats, tugs, as ferries, such properties shipyards, also busses, terminals, trucks, equipment railroad warehouses, of all stock, goods and movable carried types rolling and foreign by every media of transportation. despite

Despite this, all of the fact that persons, most knowledge, common would instantly say from speaking engaged in trade a business is course such during premiums paid given collected losses amounts oper companies fire insurance period all stock 1931-1941 parties which were involved. The ating in the six states paid about alleged conspiracies probably collected to the 90% total percentage controlled they since amounts these business.

commerce, the District Court compelled felt by decisions of this Court to conclude that the insurance business can never be trade or meaning commerce within the of the Commerce Clause. We must therefore consider these decisions.

In of Vir sustaining a statute held, 1869 this Court companies, that ginia regulated foreign which Clause because statute did not offend Commerce “issuing of com policy a not a transaction insurance is Virginia, 168, 183.17 then, Paul Since merce.” Wall. cases, repeated, similar been and has statement has California, been 155 U. Hooper broadened. In 654, 655, decided in Paul re 1895, the statement was affirmed, in and the added “The business of that, surance is not commerce.” In 1913 the New York Life against tax, Insurance Company, protesting Montana urging that challenged statements, strongly these broad business, engaged at was so conducted as to be least, ¡interstate again But the Court approved commerce. held against company, say the Paul statement and ing that of insurance are not commerce at “contracts all, argument “The defect of the lies the character their business. Issuing policy of insurance is a transaction of commerce. indemnity simple against by fire, policies are contracts of loss entered corporations and assured, for a into between consideration by the latter. These contracts are not articles of commerce in paid subjects meaning They any proper of the word. are not trade and something having existence offered in the market as an barter They independent parties to them. are not commodities value shipped another, put from and then forwarded one State to be parties They personal like contracts between sale. are other up for signature and the transfer of the con completed are their though transactions, inter-state contracts are not Such sideration. policies do not take in different States. parties be domiciled agent by the contracts —until delivered not executed effect—are by the transactions, governed They are, then, local Virginia. 168,183. local Wall. law.”

544 neither nor interstate.” New York Ins. state Co. v. Life 231 Lodge County, 495, 503-504, Deer U. S. 510.18 In all cases in which Court has relied upon that “the business of proposition insurance is not com- was focused merce,” validity its attention on the of state extent to which the Commerce statutes —the Clause auto- regulate matically deprived states of the insurance had no time business. Since at at- tempted business, to control the insurance invalidation of practically equivalent the state statutes would have been engaged in granting operate blanket license to legal activities a without re- early as 1866 the straint. As insurance trade, though subject infancy,19 widespread was still abuses.20 need imperative meet the for correction To of these abuses 18 repeated upon which have generali Other cases or relied the Paul Chicago, 410, 415; Liverpool 10 Ducat v. Wall. zation are Insurance Co. Massachusetts, 566, 573; Philadelphia v. 10 Wall. Fire Assn. v. New York, 110, 118; Mitchell, 119 U. Noble v. 164 370; S. U. S. New Cravens, 389, 401; Nutting York Ins. Co. v. v. Massa Life 553; chusetts, 183 U. S. Northwestern Mutual Ins. Co. v. Wis- Life consin, Wanberg, U. National Union Fire Ins. Co. 247 S. v. 260 71, 75; Buckbee, Co., Bothwell 274, 276-277; v. Mears 275 U. U. S. Colgate Harvey, v. 296 432. For a collection and analysis Gavit, of the cases see The Commerce Clause United (Bloomington, Indiana, 1932), pp. Constitution States 134-139. expansion For statistics illustrative the tremendous of the fire 1860-1941, business between and marine insurance see New York In Report II, surance Table A. In Yol. 1860 fire and marine companies reporting Superintendent New York $44,500,000 premiums listed $13,- Insurance assets written of they 500,000. In 1941 listed $3,000,000,000, assets of almost premiums $1,150,000,000. written of Ibid. generally (Centennial Insurance Blue 1876-77), See Book Issue VI, Insurance, 1860-1869”; “Fire Patterson, c. The Insurance Com (Camb. 1927), missioner in the United pp. 519-537; Nehemkis, States Virginia, Re-examination, Georgetown Paul The Need for v. L. J. (1939). legislatures, including Virginia, that of various Virginia Paul regulatory legislation.21 upheld passed Virginia’s statutes. To uphold insurance laws of one states, including Virginia's tax Paul generali laws, other reasoning have been zation adhered to. consistently Today, however, we are asked apply this reasoning, another law, state uphold not to but to strike down an which regulate was intended Act of certain by methods of the interstate insurance com- aspects and, in business; so to narrow the doing, do panies scope regulate great power the federal activities and forth carried on back across state lines. But business legal emphasize this Court formulae decisions of past uncritically cannot ac- power uphold devised Congressional determine guides to trustworthy cepted as Furthermore, under the Commerce Clause.22 in support generalization of the given “the reasons not commerce” and can never be insurance among constitute “Commerce as to conducted so Court decisions many with are inconsistent States” regulating statutes upheld federal which have Clause.23 the Commerce under 21Ibid. 22 121-122; Binderup 111, Filburn, U. S. See, g., v. e. Wickard Wallace, v. Exchange, 263 S. Pathe U. v. Stafford 504, 516-517; & Co. Illinois, 227 U. S. 525-528; v. Bacon Swift States, 375, 400. United insurance laws upholding state decisions of this That regulate power to federal necessarily denial of constitute a do not recognized execu occasion, both insurance has, upon been Regulation of example, on the See, An Address lawyers. tives and President, Dryden, Prudential By Congress, by John F. Insurance 22, 1904, pp. Company America, delivered November Insurance those that fol Virginia], and have

12-13: “The decision \Paid consideration point involved the real lowed, did not relate to as interstate commerce regulation insurance business of the opinion qualified authori- government. ... It is the the Federal One reason advanced for the rule the Paul case has been that policies “are not commodities to be shipped or forwarded from one State to another.” But both before and since Virginia Paul v. this Court has held that Congress can regulate traffic though it consist int angibles.25 Another reason much stressed has been that insurance policies are mere personal subject contracts the laws of the state where executed. But this reason rests upon a distinction between what has been called “local” and what “interstate,” a type of mechanical crite rion which this Court has not deemed controlling measurement of power. federal Filburn, Cf. Wickard v. 317 U. 119-120; Brown, Parker v. 317 U. S. 341, may grant We insurance, that a contract of con sidered as a thing apart negotiation execution, from aspect of the giveu ties who to this have most careful consideration subject resulting implied powers of the . . . that under the Supreme Constitution the the verdict of Court would withhold constitutionality Congress declaring from of interstate an act insur- See, similarly, ance to be interstate commerce.” Insurance is Com- merce, by George Seward, President, Fidelity Casualty F. Company (1910) pp. 15-16; Huebner, of New York S. S. Federal Acad, Supervision Regulation Insurance, Annals, of Amer. of Science, (1905) Pol. and Soc. xxvi, Vol. see, g., No. 3 681-707. But e. Vance, contra: Federal Control Corporations, of Insurance 17 Green Bag (1905) 83, 89; Randolph, Opinion Proposal on the for Federal Supervision (N. 1905) pp. Insurance Y. 12-20. report of the Committee on Insurance Law of the American Association, Bar discussing constitutionality of federal supervision insurance, flatly stated Virginia that Paul v. and the Congressional cases which follow it “do not bar Reports action.” Association, xxix, American Bar (1906), pp. 538, Vol. Part 1 552-567. 24 17, supra. See Note 25See for Ogden, illustration Gibbons v. 1, 189-190, 9 Wheat. 229-

230; Telegraph Pensacola Co. v. Telegraph Western Union Co., 96 1; Lottery Case, U. S. 188 Tashiro, U. S. Jordan v. 278 U. S. 123, 127-128; Electric Bond & Share Co. v. Securities Exchange & Comm’n, 419, 432-433; 303 U. S. and American Medical Assn. v. States, United 317 U. S. 519.

547 does not itself constitute interstate commerce. Cf. Hall v. Co., ones Geiger-J U. S. But it not 557-558. does that the Court is to examine the powerless follow from this transaction, of which that contract is but a part, entire whether there be a chain events to determine order treating Only by interstate commerce.26 which becomes the states among commerce power over Congressional a “prac than as conception” rather legal aas “technical could such of business” from the course tical drawn one, States, Co. v. United & reached. a conclusion be Swift business is nationwide short, In U. it is because merely character interstate deprived nature. Were local contracts upon built sales to be said could be businesses otherwise, few rule commerce.27 engaged interstate of the result support Another reason advanced if as- any that, Virginia has been Paul which follow cases 313, 317. “The Cullen, Canning Hoopeston Co. Cf. They can interdependent. to be may be said of insurance contracts relation their the effect isolatedly, and singly, regarded not be becoming credit, the of assurance create a fund is to great power insured, possessing money of the depositories Alliance German responsibility.” great charged with thereby and Brewster, see Furst v. 389, 414. And Kansas, 233 U. S. Co. v. Ins. 493, 497-498. say: Taft had this to case, Justice Mr. Chief Appraising the Swift of the interpretation milestone in the was a “That case changes great and de recognized It Constitution. clause again the country and drew vast of this velopment the business commerce where and intrastate dividing line between permit local incidents It it to be. intended Constitution refused intrastate, movement, were great which taken alone the movement as such. supplied.] characterize Swift [Italics practical real merely clause to the fitted the commerce case Chicago growth.” Board Trade v. of modern business essence Olsen, 1, 262 S. 35. U. Co., 293 Compare Prairie Farmer Indiana Farmer’s Guide Co. v. 495, 274-277; Wdllace, 518-519. 268, v. 258 U. S. U. S. Stafford 548

pects insurance be treated as interstate commerce, “then all control from over it is taken the States legislative regulations which this Court here- has 28 tofore sustained must be declared invalid.” Accepted without qualification, that broad statement is inconsistent many with decisions of this Court. It is settled that, for Constitutional purposes, certain activities of a business may be subject intrastate therefore control, state while other activities of the same business may be inter- subject state and regulation.29 therefore to federal And there is a range wide of business and other which, activities though subject to federal regulation, are so re- intimately lated to local welfare that, the absence of Congressional action, they regulated or taxed In may by the states.30 marking out these activities the primary applied by test the Court not the is mechanical one of whether par- activity ticular affected regulation state part interstate commerce, but rather whether, each case, competing demands the state and national interests in- volved can be accommodated.31 And the fact that partic- 28 Lodge County, New York Co. Ins. v. Deer 231 495, U. S. Life 509. 29 Kentucky, See, g., e. v. 141 47, 59-61; Crutcher U. S. Atlantic Re fining Virginia, 22, 26; Co. 302 v. U. S. McGoldrick v. Berwind-White Co., 309 U. S. 30 Ogden, 1, 200, 203-210; Gibbons v. 9 Wheat. See Willson v. Black Co., 245, 250-252; Marsh 2 Bird Creek Pet. Cases, License 5 How. Opinion 504, Taney, Cooley Chief Justice 578-586; of Mr. v. Board of Wardens, 318-321; Kelly 299, 12 Washington, 1, How. v. 302 U. S. Sturges Crowninshield, 122, 9-10. Cf. 192-196; v. Wheat. Houston Moore, 1, Opinion v. Mr. Story, Wheat. Justice 48-50. Brown, 362-363; Parker v. cf. Thomp U. S. v. California son, Highway Dept. 109, 112-116; 313 U. S. Carolina State South v. Brothers, 177, 184-192, Barnwell and cases cited therein Geiger-Jones Co., footnote Hall 558-559; Bowman Chicago Ry. Co., & North Western 125 U. 482-483. That applying particular different members of the Court this test to a validity argue statute opposite reach as to its conclusions does not

549 interstate business activity long ular of an or have phases regulated recognized or taxed by been states has been why, in the strong a reason continued absence of conflict- ing Congressional action, the state and tax regulatory be declared laws should valid.32 the question

The real answer to before us is to be found Clause in the Commerce itself and in great some it. interpret Many cases which decisions make vivid the meaning and of that broad true clause. It is interstate subject regulation by carry commerce lot Case, Lottery tery tickets from state to state. 188 U. S. transport 321, 355. So also is interstate commerce to a carrier, from Louisiana to Texas a common woman States, Hoke United 308, 320-323; carry v. 227 U. S. quarts a state line automobile five private across United consumption, intended whiskey personal Simpson, stolen States v. 465; 252 U. S. to drive a auto Dakota, Brooks United v. mobile from Iowa South States, ranging 436-439. Diseased cattle 432, 267 U. S. Thornton commerce, are in Florida Georgia between and States, 414, and the transmission v. United 425; 271 U. S. telegraph line between impulse over an electrical subject para- Florida is intercourse Alabama Pensacola Co. v. jmount Telegraph regulation, federal Co., only, 11. Not Telegraph 1, 96 U. S. Union Western though non-com commerce be may transactions then, illegal though mercial; they may judg differences against itself. Such the test the correctness of problem must a Constitutional solution of ment are inevitable where competing ob Constitutional depend upon considered evaluation Co., v. Berwind-White See, e. McGoldrick jectives. g., 309 U. S. 183; Lines, Greyhound 309 U. S. 48, 59; McCarroll v. Dixie D Gwin, Arkansas, White & Prince v. 397; uckworth cf. U. S. Henneford, 434, 442. Wardens, Cooley 299; v. Board New York 12 How. See, g., e. County, Lodge cf. Bowman Ins. v. Deer Co. U. Life Ry. Co., Chicago & North Western 465, 482-483. though they

sporadic, do utilize common carriers concern flow anything tangible more than elec- and trons information. These activities having already been held to constitute interstate commerce, and persons in them engaged having therefore subject been held regulation, it federal would indeed be difficult now to hold no any activities of can company ever con- subject stitute interstate commerce so as to make it such of the con- regulation; which, part —activities legitimate of a duct and useful enterprise, commercial operations embrace integrated many states and great of quantities transmission of involve money, documents, and communications across of dozens lines. precise boundary

The between national power and state yet been, commerce has never and over doubtless never by single abstract be, can delineated definition.33 The widely general description part of that accepted most subject to the federal is power which is commerce in 1824 Chief Justice Marshall by Gibbons given “Commerce, undoubtedly, 189-190: Ogden, Wheat. something more: it is intercourse. It traffic, but is is nations, intercourse between the commercial and describes Lottery Case, Walling, Kirschbaum Co. 321, 363; cf. S.U. recognized difficulty by particular was 520. This tbe though Papers: laws, penned “All new with Federalist of the authors passed on and most skill, the fullest mature greatest technical and equivocal, deliberation, as more less obscure are considered meaning liquidated par a series of ascertained their until adjudications. Here, then, . . are three discussions ticular .. vague object, definitions: indistinctness of the and incorrect sources conception, inadequateness of the vehicle organ imperfection degree obscurity. produce a certain Any must one of these of ideas. boundary the federal and delineating the between Convention, effect of them experienced the full all.” must have jurisdictions State (Rev. 1901), Ed., pp. N. Y. XXXVI, The Federalist No. Federalist 193-194.

lOlO nations, all its branches. . . . Commerce is parts said, it “concerns more than interstate, he when States Id., ques- ever decision of this Court has one.” 194. No comprehensive description tioned this as too accept a subject matter of the Commerce Clause.34 To recognized, has comprehensive, less description necessary full Congress of that deprive would power duty govern discharge Constitutional to enable it among the states.35 Clause Congress the Commerce confined to the purpose in The Federalist to be declared is. inter- proper harmony “maintenance of securing the con- among purpose But its States.”36 course authority negative with the fined to empowering ordinary ingredients is intercourse: its most “Commerce one of although “And Maryland, 12 446. Brown v. Wheat. is traffic.” than a cen sense, for more traffic in this narrower commerce includes it embraces recognized in broad sense tury judicially a has been and intercourse.” activity every of commercial and business phase 123, 127-128. Tashiro, 278 U. S. Jordan trade in “comprehends purposes intercourse the Commerce sale, purchase, transportation, including forms, the any and all its Missouri, 91 U. exchange commodities. . . .” Welton different persons between or communication And “intercourse 280. through mails, is correspondence the States, by means of especially Constitution, meaning of the among the States within really relates to communication where . . . such intercourse making of contracts regular, and to continuous business matters of appertaining to such etc., transportation books, papers, and the 91, 107. Pigg, 217 S.U. International Textbook Co. v. business.” Telegraph Co., Telegraph Union Pensacola Co. v. Western See requisite to power ought every government “A contain in itself to care, and to objects to its accomplishment of the committed the full responsible, free it is for which complete of the trusts execution good and to the public regard control, to every other but a from supra, 154. Federalist, XXX, The No. people.” Federalist sense of the Federalist, supra, XLI; The XL; Federalist No. Federalist No. pp. 220,231. deemed of commerce regulations against legislate

to state granted The power interest. the national inimical to legislate It power is power. positive is a reaching across which, transactions concerning one; more states than people affect boundaries, —to their lim- states, with the individual affairs which govern gov- fully capable jurisdictions, are ited territorial the rules to determine power This federal erning.37 loose lines was essential weld across state intercourse its continued Nation; indivisible confederacy single, into a welfare of essential to the equally is existence Nation.38 interpreting the Commerce responsibility

Our basic inter- govern power make certain that Clause is to remains where the Constitution among the course states held this Court from the power, it. That placed exer- available to be Congress, is beginning, vested Federalist, supra, XXIII, The 121: Compare Federalist No. safety? guardian of the common be constituted “Shall Union revenues, necessary purpose? The armies, to this Are fleets and pass laws, empowered to and to government of the must be all Union regulations relation to them. The same must be which have make all every commerce, other respect and to matter to which the case each jurisdiction permitted . Not to confer in to extend. . . end, degree to the would be violate case commensurate improvidently prudence propriety, and the most obvious rules of great to hands which disabled to trust the interests of the nation vigor managing from them with and success.” Georgetown (1943), Law 66. 32 Journal See Note 38 powers by the conferred Commerce Clause “are not confined when to the of commerce . . . known or in use instrumentalities progress adopted, they keep pace with the of the Constitution was but developments country, adapt of time and themselves to the new government They for the of the circumstances. . . . were intended they relate, to all times and under all circum which at Telegraph Co., Telegraph Union Pensacola Co. v. Western stances.” XLIII, Federalist, Compare Federalist No. supra, 248. Congress welfare

cised for the national shall deem enterprise of kind which necessary. any No commercial lines has been held to be conducts its activities across state Congress under wholly beyond regulatory power make exception the Commerce Clause. We cannot an the business of insurance.

II. come then to the contention, earnestly pressed upon . We did not intend in the by appellees, us Sher- man Act to over the power exercise trade.

Certainly language the Act’s affords no basis for Declared in illegal “every contract, § contention. is or otherwise, combination the form of trust or con- among spiracy, restraint of trade or commerce make “every person” several States . . who shall .”; a contract or con- engage such or such a combination is deemed is spiracy guilty of a misdemeanor. Section not less or sweeping. “Every person” monopolizes, who to other attempts “any per- or with monopolize, conspires monopolize, “any part son” of the trade or of a among is, guilty the several deemed likewise, States” Language comprehensive misdemeanor. more is difficult carefully to conceive. its face it studied at- On shows engaged tempt bring every person within Act monopolize might business whose activities restrain among the commercial intercourse states. general

A Act all combinations of application of the organized to commercial capital suppress business and impulses competition harmony spirit with “monopo “Trusts” and gave times it birth. fix Their period.39 lies” were terror of Wheel, strongest farmers’ A one of the historian of the organizations say origin: ques “The ’80’s, about its had this gave ques- asked, been to the This tion has often what rise Wheel? 554 independent to crush small production, restrict

prices, to the few to traders, large power concentrate and many, but some of numerous evils detriment of the were of trusts organized opponents The ascribed to them/40 all business combina at the destruction of complete aimed intent, or potential had possessed power, tions which needed people destroy competition whatever Monopoly! Monopoly asked, easily as . . tion is answered . as servants, politically, financially and people aspires to make golden altar that we socially, that we offer on its all demands and bodies, liberty, country, unre souls, lives, and common have, are and complaint.” Morgan, History servedly of the without Wheel and Slaughter- Scott, Compare (Fort 1889), p. 56. and Alliance Kan. Dissenting opinions Cases, (1873), 36 of Justices Field House 16 Wall. 101-110, Bradley, pp. 83, 111, 119-121. 40 Hosiery Leader, Apex 469, 491-493, 497-498; v. 310 U. S. See Co. 58; States, 1, v. 221 U. United States Standard Oil Co. v. United S. Freight Assn., also Trans-Missouri 166 U. S. 322-325. See Lasky Corp. States, United 282 Paramount Famous v. U. S. 42-43. opposition monopolization to the Nor limited was trusts Ingalls

“goods At the instance of Senator of Kansas and services.” designed to the bill tax out of an amendment was added Sherman Cong. dealing contracts. 21 existence the business in futures Rec. Ingalls adopted by 2613. amendment The was Senate without bill, Subsequently amended, Id. was record vote. the Sherman Judiciary redrafted Committee which Senate used substan tially language sweeping same broad which Sections today. language With the Act contain Sherman bill had support Ingalls proponents Ingalls of Senator and other Cong. Rec. 3153. And amendment. see United States v. Patten, 525; Howell, Chicago 353; Peto 2d v. 101 F. cf. Olsen, Wallace, 262 U. Board Trade Stafford See, generally, Ashby, Sphinx (Des 1890) The ; Riddle of the Moines Morgan, History (Fort Scott, 1889); of the Wheel Alliance Kan. Buck, Granger (Camb. 1913); Cloud, Monopolies Movement (Davenport, People 1873); Weaver, and the Iowa A to Action Call (Des 1931). 1892); Hicks, Populist Moines (Minneapolis Revolt great strength wanted.41 was So of the anti-trust the issue of monopolies forces trusts and became non-partisan. question was not whether they should be but how abolished, purpose could best be accomplished.42

Combinations of insurance were not exempt from public against hostility the trusts. Between 1885 twenty-three and 1912 states enacted laws forbidding in- surance When, 1911, combinations.43 one of these state

41Representative platforms, resolutions, etc., of anti-trust of con temporary agrarian-political following: movements are the “We de prohibiting passage mand of a . . law . formation of trusts by speculators and combinations secure control necessaries forcing purpose up prices life consumers, imposing heavy for the on (Texas penalties” Alliance, Report Farmers’ State of Committee on Depression (1888)); objects Industrial “The of the National Alliance oppose monopoly are all forms of being ... detrimental to the (National public” of the best interests Farmers’ Alliance, Constitution principle (1887)); monopolies hold to the “We that all danger ., tending people (National free ous . . enslave a . .”. Farmers’ Union, (1889)); oppose Alliance Industrial Constitution “We monopolies” (National tyranny Grange, Purposes Declaration of (1874)). platforms Republican parties both and the Democratic unqualified opposition monopolies in 1888 stated and trusts. Bran don, the Two Platforms of Great Political Parties 1856-1928. The vote in the on the report recorded House final conference on the nays, ayes, Act voting. Cong. Sherman shows no Ree. 6314. 43Four of these statutes were enacted before 1890. L. 1885, N. H. ch. 93, 289; 284, p. 1885, p. p. 231; 1887, L. Ohio No. L. Mich. 285, No. 384; 1889, 257, p. 389, 1897, 265, 481; ch. and L. Kan. p. L. Kan. ch. 1890-91, 745, p. 206; 1893, 285, p. 339; L. No. L. Maine ch. Ga. L. Mo. 1896, 1895, 237; 22, p. 31; 1896-97, 634, p. eh. L. Aa. p. L. Iowa No. 1897, 79, 347; 1428; p. 1897, 81, p. Neb. ch. L. ch. 354; L. Neb. L. 1913, 154, pp. 393, 419; 1897, 356, p. 908; Neb. ch. L. Wis. ch. Acts 644, p. 574, 1057; 683; 1902, p. Acts L. Va. ch. S. C. No. S. D. 158, p. 183; 94, p. L. 1903, ch. G. Tex. ch. Ark. Acts challenged Court, in this unsuccessfully statutes was can well that fire say: “We understand had this to together, have owners acting may companies, mercy at the matter of practically their of property deprive public have their rates, and flowing competition generally advantages from engaged fire organizations rival the business of between In to meet the evils such combina order insurance. associations, competent ap to adopt State is tions regulations that tend to substitute competi will propriate of combination or German place monopoly.” tion the Hale, Ins. v. 219 U. S. 316.44 307, Alliance Co. Congress knew, that the argue as doubtless Appellees did, that this Court had prior members to 1890 some of its subject was not commerce and was to that insurance said that we read therefore should the Act regulation, exempted that business. though expressly But as by nor of the by reports sponsors statements bilks neither any purpose exempt was to insurance companies or others ' we fail to find in the legislative And history of revealed. unequivocal of a clear and expression Act an of desire legislate only to within that area Congress previously by 1907, Ark. p. 1, 184, p. 430; Acts No. P. C. 1, as amended L. N. No. 1915, 424, p. 429, 166, p. 243; and P. L. N. C. ch. Tenn. 1905, ch. Acts 1906, 479, 1019; 5002, adopted p. 1906, Miss. Code L. 1905, ch. Miss. § 230, 78; 1909, pp. 388, 399; L. Ore. ch. Sess. L. Wash. 101, p. ch. Gen. pp. 161,195, 1915, 97, p. L. Wash. ch. 49, 278; Sess. 1911, ch. L. 354; 73, p. 224, p. Acts No. ch. La. 509. Ariz. rely solely upon organizations period pro of did farm this not The protect legislation themselves from combinations hibitory of insur companies. “In tired of the extortions of the in old-line ance appointed companies, the Territorial Alliance com surance a system put operation insur devise and mutual mittee ... eminently Report the result of which has been successful.” ance . . Companies Wardall, Alliance Insurance of Alonzo President Dakotas, Sphinx printed Ashby, (Des of the Riddle of 1890), p. Moines 363. power.45

declared this Court to be within the federal Motor Helvering Griffiths, Parker Cf. 318 U. Sales, Boat not one We have been shown in- reliable that piece evidence Act with- tended to freeze the proscription Sherman judicial defining the mold of then current decisions power. acceptable On the all the contrary, pointed only We have been one reference made to the Congressional preceding passage of insurance in the discussions flatly Act, Turpie Sherman and that is statement of Senator challenged reasoning holding was of this Court in that commerce, predicted and further in the future the Commerce. given Clause would not be such a construction: limited spoke day “The Senator from Missouri the other about [Mr. Vest] difficulty ‘commerce,’ especially contained defining the word phrase judicial in the I decision ‘interstate commerce.’ recollect one upon subject very definitely. Supreme this has decided suppose following circle commerce, I is not negations enough excluding things long all the not’commerce residuum, we should come at last which must be commerce nothing commerce, fortiori, or interstate can be else. A because it judging myself principle, from I trans- should have decided that portation is nor either. not commerce interstate commerce . . . things prediction,

“I feel inclined make the as one of the to come domain, scarcely touched, arising in this vast of cases under the Con- Congress, stitution and that merchantable laws of the mass of whole paper negotiable by merchant, place, known as the law made at one negotiable another, payable another, transcending negotia- at at in its lines, Congressional action, tion State will be remitted to and with re- spect creation, respect formation, negotiation, to its its with to all rights it, people, the and liabilities which arise under the stunned conflicting judgments with the and eternal dissonance of decisions forty-eight fifty upon or tribunals of last resort in the States the subject require Congress negotiable paper, of interstate will to act therein, that, it, and unconstitutional I now deem it or think as necessity done, legislation any will as matter and in with a such respect peculiar paper, it, personal to that the whole bulk of the and litigants inquired about, simply conditions of will not be whether but party recovery the one or the other is entitled to relief liable or against by being party him paper, reason of a to interstate commercial

558 way. Congress the That points evidence other wanted to go extent power to the utmost of its Constitutional restraining agreements trust and monopoly such as charges indictment here if little, any, admits doubt.46 negotiable payable Congress and and suable under the action of subject. may finally place upon take . . .

“Nor I think with the dis- do Senator from New York that we are charged duty obligation legislate upon from or released from our subject right of trusts because the States have a to do so.” Cong. 21 Rec. 2556-2557. And see Note infra.

46 George, Judiciary Senator a member of the Senate Committee passage, which redrafted the Act final Sherman before its stated on that, very ingeniously “The floor the Senate bill has been properly every within what is called drawn to cover case which comes Congress. power the commercial It is known that ... well great combinations, called, conspiracies, they evil of these as these monopolies, they by bill, these as are denominated consists in gathered by combination, by association, fact have there been together money large persons, and the means of numbers of combinations, conspiracies, trusts, great aggre under these or or this gated single capital by guided by single brain, is wielded hand and a acting complete harmony co-op hands and at brains least eration, way, association, by and that this this direction organized very capital, by will, of this immense amount of one large extent, wrongs perpetrated upon these have been the Ameri people.” Cong. can Rec. 3147. single

Earlier, explained, had “I do not wish to Senator Sherman trust, any particular particular out trust or combination. It is not a Cong. system House, but I aim 2457. And in at.” Rec. Stewart, delivering Representative speech preceding the last the unani- adoption present Act, provisions “. . mous stated . The of this just explicit English broad, sweeping, trust bill are as the lan- express guage can make them to over this sub- ject Cong. under the Constitution of the United States. . .” 21 . Rec.

Compare Pearson, Kidd v. 1 and United U. S. States v. E. C. Knight Addyston Pipe Co., 156 U. S. with & Steel v. United Co. States, 175 American Co., and United States v. Tobacco ours, far to make of so power to use that was purpose The system, competitive under our dual Congress could our justify Nor sufficient to economy.47 the for that Act insurance exemption into the an reading already were known that states may have Congress of 1890 business. the insurance regulating subject regulation knew that railroads were also itself, but government federal but the only by states railroad bring to the held insufficient fact has been the Sher- interpretative exemption from Trans-Mis- sought. have United States v. they man Act Assn., 290, 314-315, 320-325. Freight souri apart from what the argue that, quite further Appellees succeeding Congresses Act meant Sherman of this Court decisions accepted approved have They call is not commerce. that the business Con- times attention to fact that at various since for federal gress legislation providing refused to enact has and that reso- business, several regulation specifically the Constitution lutions amend proposing failed of insurance have regulation authorize federal although the they emphasize that, In addition passage. times, been several no amend- Act has amended Sherman specifically insur- adopted bring been ments have Government, the Act’s proscription. within ance that various members of Con- to evidence part, points 1900-1914 considered there were gress during period business, and the view expressed in the insurance “trusts” subject business should be to the anti- the insurance Senate, “It is Sherman, explaining stated, his bill to Senator Federal courts within limits their constitutional arm cheeking, they co-operate with the State courts dangerous controlling that now the most combinations curbing, and people business, property, and trade of of the United threaten Cong. Rec. 2457. States.”

560

trust laws.48 It points also out that in the Merchant Ma- Congress rine Act of 1920 specifically exempted certain of marine companies conduct insurance from the “anti- trust” laws.49

The most that can be said of all this evidence considered together is that it is inconclusive as to any point here rele- By vant. no it Congress means does show that 1890 specifically intended to exempt companies insurance from the scope all-inclusive of the Sherman Act. Nor can we significance attach the omission of in- clude its amendments to the Act express an statement that the Act covered insurance. Erom the beginning Con- gress language enough has used broad to include all busi- nesses, and never has amended the Act to define these busi- with particularity. nesses And the fact that several Con- gresses since 1890 have failed to enact proposed legislation for more or less providing comprehensive federal regula- following example, colloquy occurred during For in the House passage Clayton the debate in of the Act: recently “Mr. BARTON. had an illustration We big where in- fire company surance came into the State where companies local insurance doing business, have been not confined to the border State, prices locality in that cut immediate until we had in three States companies put business, 50 local out of or and then price put was profitable company. Might back where it was to the not this con- same dition exist where we started a wholesale house in a State where their territory might was confined to the be not a reduction of State — prices putting for that institution out of business? purpose “Mr. If the wrongfully injure Webb. is to destroy or a com- petitor, practice; this section will cover such but insurance reached, Supreme are not as the Court has held that their contracts policies are not interstate commerce. right they “Mr. BartoN. Is it not should come within the law? “Mr. Cong. Webb. Yes.” 51 Ree. 9390. appears, only So far as this was the mention of the cases during leading Clayton the discussions passage And, Act. when the Sherman Act was consideration, under the reference

to these showed cases dissatisfaction with them.- supra. See note 988,1000. (b), 41 Stat. § tion remotely suggest any of insurance does even Congress has held alone, view that of all businesses, permitted should enter into combinations of destroying competition the purpose by coercive and intimidatory practices. argued

Finally great length it is at that virtually all the the regulate states insurance business on the theory that in competition the field of insurance is detrimental both the insured, to insurers and the if that the Sherman Act applicable be held to insurance much this state regulation be destroyed. argu- will The first of this part by opinions expressed by ment is buttressed per- various in competition sons that unrestricted insurance results in injury. and public competi- financial chaos Whether is not for good thing tion is a the insurance Having Act, us to consider. to enact the Sherman if are be written into so; exceptions did to the Congress, not this Court. Act, they come from the must argument And in a similar as was said answer to that Act railroad applied the should not to Sherman be combination: history

“It is the monopolies this and in country England predictions habitually that of ruin are made by by legislation, them when it is attempted, to restrain their operations protect public against and to their exactions. . ..

“But if court gloomy even shared the forebodings which the it indulge, defendants could not to refuse respect of the legislative the action branch of the Govern- if ment what has done within the limits of its power. constitutional The suggestions of disaster to busi- have, ness we apprehend, origin their in parties zeal of are opposed who to the policy underlying the act of Con- gress or are interested the result of particular case; any rate, suggestions at imply that court ought to refuse enforcement provisions if, judgment, Congress pre-

act its was not wise scribing which the conduct as rule of interstate and governed, commerce is com- every international to be bination, commerce form, whatever restraint such monopolizing attempting monopolize such illegal. These, plainly, shall questions legislation policy belong as to another function and this court has no department, supervise legislation standpoint from the of wisdom or such Affirming decree, Northern policy. Harlan, J., . .”. States, v. United 193U. S. Securities Co. 351-352. argument the Sherman Act necessarily inval- many regulating laws regard idates insurance we far exaggerated. go permit Few states so as to private companies, supervision, agree without state rates. and fix uniform insurance Cf. Parker v. upon Brown, 341, 350-352. No states com- authorize intimidate, coerce, binations of insurance in boycott competitors and and consumers the manner any alleged, here cannot be have in right engage to such destructive busi- acquired a vested practices.50 ness

Reversed. Me. Roberts and Me. Justice Justice Reed took no in or decision of this part consideration case. dissenting: Stone, Justice Me. Chief and I do not doubted, doubt, that This has never which often across state lines attend and are transactions performance to formation and of an insur- incidental facilities interstate contract, ance as the such use this Court in the Paul v. Whether reliance on earlier statements Virginia ever be is not “commerce” could line of cases that pleaded under prosecution Act as a defense to a criminal the Sherman necessary to question suggested but one it is not is has been discuss at this time.

communication and are acts interstate transportation, subject regulation by government commerce the federal under the clause. Nor Ido doubt as presently many conducted has in such interstate aspects manifestations such effects on may subject it interstate commerce as the appropriate exercise of federal Polish Alliance v. Labor power. See Board, p. 643. post, questions

But such are not the now before us. We are not concerned here with the power Congress what to do attempted do, question it has not but with the whether in enacting the Act Sherman has asserted over the business of insurance. questions which the Government raised, has ad- visedly (cf. it would York seem New Ins. Co. v. Deer Life Lodge County, 495, 499), by in indictment interpreted as it been case, has the District Court from below, quite question, different discussed the incidental opinion, the Court’s whether use of the commerce and transportation facilities of the fire insurance conduct business renders the business meaning “commerce” within the itself Sherman Act questions the commerce clause. The here are whether entering state, the business of into contracts one insur- fire ing against property the risk of loss others, agreement commerce; itself interstate whether an fix conspiracy premium rates of such contracts and ways competition other restrict effecting policies insurance, of fire violates the Sherman Act. The court “no” questions. below has answered to both of these I right judgment think that its answer is and its be should in affirmed, both on view of the principle permanency which to the construction of the given should in respect, and the Act this which clause Sherman has all by adhered branches of consistently until now been the Government. comes here on direct the Govern appeal by

The case judgment dismissing ment from the District Court’s provisions Ap indictment. Under the of the Criminal for only questions open peals Act, § 18 U. S. C. construc here are whether the District Court’s decision Act, on of the commerce clause and of Sherman tions United decision, are the correct ones. rested Co., States 188, 193; United States v. Borden v. 308 U. S. Wayne Pump Co., United States v. 200, 208; Co., & 318 U. S. Swift applied below facts to which the court particular

For must look to and the Act we the Constitution Sherman it. And construed indictment as the District Court has construction, by provisions we must accept construc Act the District Court’s Appeals the Criminal by appeal on indictment is reviewable tion of the United States Appeals. but the Circuit Court Colgate States Patten, United v. 535; 226 U. S. 525, Co., States Borden Co., United & supra. U. charged out that offenses pointed The District Court fix arbitrary conspiracy indictment are by the on fire insurance sold premium rates non-competitive conspiracy means of states, named several and commerce fire monopolize trade and to restrain say: went on to The court those states. re- Act, the of the Sherman a violation “To constitute that of interstate denounced must be monopoly straint monopoly restraint and and, unless the commerce, trade or monopoly or in the indictment be restraint charged fall. indictment must commerce, interstate trade the defendants here of whether a question “It is not in interstate com- way incidental some participated the facilities of interstate instances some merce or used complained whether the activities rather commerce, but is them- constituting of as the of insurance would business commerce, selves trade or constitute interstate conducting whether amounted defendants’ method of same to restraint It monopoly or of same. is not a question to whether not Congress regulate or had or of their phases activities, some but rather whether Congress did the Sherman Act. so may engaged commerce, yet,

“Persons be in interstate if the or complained restraint itself a monopoly is not restraint or trade monopoly commerce, of interstate or may they not convicted of violation of the Sherman Act. The fact that they use the mails and instru- mentalities of communication, interstate commerce and and be subject regulations thereto, Federal relating applicable would not make the Sherman interstate Act to commerce to. or activities which were not at all.

“The whole case, depends therefore, upon question toas whether or not the inter- insurance is if commerce, so, trade or whether the trans- in actions indictment alleged constitute interstate commerce.”

In short the District Court construed the indictment as charging restraints not the incidental use of the mails other instrumentalities of commerce, nor goods moving insurance of in interstate commerce, but of insurance.” And “business the “business writing insurance” it necessarily meant business of contracts of the indictment insurance, charges only entering contracts, restraints into their such performance,1 deemed irrelevant agreement charges (a) premium It rates, (b) fix to fix an com (c) paid, adopt missions reclassifications of risks basis of on the premium (d) fixed, terms, rates are to adhere to standard con ditions, clauses, contract, (e) in the insurance to withhold reinsur ance facilities from non-members South-Eastern Underwriters appellees of the contracts negotiation and performance of interstate use and instrumentalities

“may mails in not itself It that business is commerce.” held that alleged conspiracies to interstate and that commerce, not, were without and to that business monopolize restrain in commerce and more, consequently restraint of interstate Act. not of the Sherman were violations in indictment construction of the as confined This fix to rates and otherwise conspiracy premium to a scope writing in the business of competition restrain that contracts, and to business —a construction monopolize question whether that requiring decision of the business adopted commerce —is the Government. interstate “questions states the presented” Its brief this Court follows:

“1. Whether the fire insurance business is commerce. subject fire insurance “2. Whether business is regulate constitutional of com- among the states. merce several Whether, if so, “3. the Sherman Act an is violated fix among fire insurance and agreement companies to non-competitive maintain and arbitrary rates and to trade monopolize insurance, and commerce fire in part at through boycotts part directed not agents purchasers of conspiracy deal with them.” who

Association, (f) agencies repre- to withdraw from and refuse to enter (g) boycott senting non-members, patronage and withhold from (h) non-members, disparage purchasers of insurance from non-members, (i) and facilities of to establish and services maintain police rating agreements, (j) these bureaus to and maintain to estab- agents groups purpose. for the same and maintain boards lish allegation paid commissions on There is no that otherwise than charges entering only into of The indictment thus the contracts. restraints, by contracts and in the the insurance terms of restraints competition entering boycotts, in into such contracts and in enter- ing contracts into reinsurance. unvarying

The numerous and decisions of this Court that “insurance is not commerce”2 have never denied that commerce acts interstate be incidental busi- writing and performing ness of insurance, contracts or subject that those incidental acts are to the commerce subject Our decisions on power. uniformly have ground on rested formation an insurance contract, though against even it insures risk of loss to property moving located other states interstate commerce, is commerce, although the incidents of interstate transporta- communication and tion which often attend the formation and performance commerce, an insurance contract are interstate they do not serve to render the insurance itself inter- Hooper California, commerce. state See v. 155 U. S. New York Ins. Co. Deer 655; Lodge County, v. 231 Life U. 508-9. S.

If an in company New York executes and delivers, in either that state or another, policy insuring in building against owner of a the New Jersey by fire, loss no act interstate commerce has if True, occurred. the to York owner New to procure comes the insurance or after delivery New York the policy carries to Jersey, New or sends it there mail company or messenger, such be would acts Similarly commerce. if the premiums mail pays owner to the company New 2 g., E. 168; v. 8 Wall. Virginia, Paul Ducat v. 10 Chicago, 410; Wall. Liverpool 566; Co. v. Massachusetts, Insurance 10 Wall. Philadelphia 110; Assn. v. New York, U. S. v. Hooper California, Fire 648; 367; v. Mitchell, U. S. U. S. Noble Orient Insurance Co. v. 557; 172 U. S. Daggs, Co. v. 178 U. S. New York Ins. Cravens, Life 389; Nutting 553; v. Massachusetts, 183 S.U. New York Ins. Co. Life v. Deer Lodge County, 495; 231 U. S. Northwestern Mutual Ins. Life Co. v. Wisconsin, 132; 247 U. S. National Insurance Co. Wanberg, 260 U. Bothwell Buckbee, Mears Co., See Doyle also v. Continental Ins. Co., on overruled other grounds by Terral v. Burke 257 U. S. 529. Co., Construction agent pre- Jersey New sends company’s York, or York company New sends York, or miums to New the loss insured the occurrence of Jersey on money to New But commerce would occur. of interstate acts against, Congress regulate derived, to them is not power insurance, authority regulate business from its regulate interstate communication power from its but use of the facili- And such incidental transportation. does not render the insurance commerce of interstate ties commerce. Nor is the nature of itself interstate a few transaction or such transactions single insurance regard commerce altered involving interstate not multiplied. power their number is merely because regulate interstate communication and to the insurance business is not incidental transportation because the number of insurance any or less more any Congressional great or small. transactions extend to the formation and perform- does regulate only contracts save as the may latter ance of transportation which are inter- communication affect by Congress otherwise found interstate commerce. And transactions of even affect on commerce as do not effects involve then, such marketing competition goods and restraints the reach of the not within Sherman Act. services controlling principles are the has been fully That such in the this Court numerous cases which recognized by have of insurance is not commerce that the business or as .held power. See, to the commerce for subject example, such Deer Lodge County, Ins. Co. v. supra, York New Life 508-9. peculiar are not to insurance principles

These contracts. types to other equally applicable contracts are They things events other states than that relate to or obliga- any do not contain execution, but which of their commerce. The of interstate any form engage tion engaged to them are not parties interstate commerce, commerce not necessarily is involved or pre such formation such contracts and requisite they do necessarily in their performance doing not involve business. mere interstate formation of a contract to cotton or coal and deliver or crude rubber is not in sell an interstate transaction and not involve any itself does commerce because cotton, of interstate coal and crude act foreign subjects of interstate or or commerce, rubber may fact of the contract not be performance because subsequent or precedent without some movement effected or because there sold, of the commodities interstate of the facilities of commerce incidental use in the formation of the contract. Ware transportation 405, 411-13; 209 U. S. West County, v. & Leland Mobile Revenue, 303 U. 253. 250, Bureau S. Live Stock v. ern Bondurant, Dahnke-Walker Co. v. 257 U. Compare S. underlying that conclusion principle 292. That of this Court underlying decisions the same as that is commerce, of insurance is not interstate the business and affirmed. Paul repeatedly recognized v. been has California, Hooper 155 U. 168, 183; v. S. Virginia, 8 Wall. County, supra, Mobile 411; & Leland v. 654; Ware York 128, 139; Ins. O’Malley, 219 U. S. New v. Engel Life Blumenstock Lodge County, supra, 511-12; Deer Co. v. Co., Hill 436, 443; 252 U. S. v. Publishing Curtis Bros. v. Olsen, Trade Wallace, Chicago Board v. 259 U. S. Exchange, York New Cotton 1, 32-3; Moore v. Live Stock Bureau Rev 593, 604; U. Western S. States, 171 U. enue, Hopkins United and see supra; 578, 588-9, writing the business

The conclusion rightly be otherwise could not not interstate universally accepted from the depart were to unless we making any contract which does that the act of view transaction of of an act or performance for the stipulate is not commerce itself interstate commerce. interstate though held to be true even the contract this has been And exchange communications across be effected Cravens, Co. v. 178 U. S. York Ins. lines, see New Life supra; County, Leland Mobile New & v. 389, 400; Ware County, Lodge supra, 509, Deer York Ins. Co. v. Life not be considered here for indict which need point charge the policies by ap- ment makes no that written that are effected, alleges only they are but pellees thus named in certain states. “sold” the defendants into the sale of contracts entered Undoubtedly so commerce, may be- which move interstate commodities in marketing for restraints those implements come the for that reason commodities, and when so used Securities Co. Northern Act, see within Sherman States, United States v. 338; United 193 U. S. States, Patten, Oil Co. v. United supra, 543-4; Standard Ins. Mersey Thames & Compare 168-9. States, quite 237 U. 19. But another Co. v. United S. are themselves interstate say matter to contracts their competition or that restraints as in the or are within the Sherman Act, terms conditions re- showing purpose absence effect is to in the marketing strain or serv- competition goods relate. Compare ices to which the contracts Hill v. Wallace, Chicago with Board supra, 69, Olsen, Trade v. supra, Co., Blumenstock Bros. v. Curtis 31-3; Publishing supra, with Indiana Farmer’s Co. v. Guide Prairie Farmer Moore York 293 U. v. New Cotton Co., Exchange, Patten, with States supra, supra. United In this respect insurance contracts do point not in any footing regards law stand on different the Sherman If in fact in- Act. contracts made the marketing goods struments of restraint and serv- in or affecting commerce, they ices are not more beyond the reach of the Act than contracts Sherman in which, not commodities, of the sale for —contracts commerce, may nevertheless interstate themselves in trade But of restraint. since the means used as matter of contracts subject is not the of commerce articles of writing the is only not it is evident that insurance, of there is but commerce not interstate policies insurance in competition restraining in their use little for scope affecting in or and services marketing goods commerce. for the stipulation no insurance makes

The contract of in interstate commerce commodities delivery of sale or only for It provides transaction. interstate any other event of the loss money sum payment of the necessary consequence no and is insured against, fixing premiums alleged competition on restraints have no will be restrained. We occa- interstate commerce argument which the court below re- to consider sion conspiracy charges the indictment jected, that interstate commerce be- fix affects premiums adversely insured move the commodities some instances cause communication interstate lines, or because across state incidental instances are some transportation and contracts. This is so issuing the business by the bound Dis- we are said, we have because, as both more and, indictment, construction trict Court’s commerce, interstate on such effects importantly, because reach of the not within the presently appear, will Sherman Act. formation of that the inescapable

The conclusion seems the business others, and contracts, many like within pro- more, without doing, not, so the commerce clause of Constitution tection of control measure, excluded from state large thereby, regulation. California, supra, v. Hooper See Lodge County, supra. New York Ins. Co. Deer Life on This not seems, upon analysis, only conclusion correct rul- with the uniform complete harmony principle and formation held that ings by which this Court has per- for the stipulate do not of contract which types all likewise commerce, are of interstate formance acts of an un- the support has commerce, but it beginning with Paul broken line of decisions of this extending down to Virginia, seventy-five years ago, asked, was on elab- time. In 1913 this Court present now addressed to as are arguments, orate such briefs many cases Virginia, supra, Paul and us, to overrule York Deer Ins. Co. v. which it. New have followed Life York Ins. Co. v. Lodge County, New supra. also See Life of con- the mode Cravens, supra. Lodge In the Deer case identical was almost with ducting the insurance business strenu- (231 499-500); here at was alleged that of great here, by that reason of the size ously urged, as taken on “modern life insurance had insurance (231 international character” and essentially a national in- that the use of mails and, here, as 507); U. S. at the interstate and of the contract to the formation cident of the policies the proceeds and premiums of transmission ” among the states’ ‘a current of commerce “constitute arguments rejected, were 509). All these (231U. S. at be held not to was interstate the business of insurance which we have stated think commerce, grounds on the opinion and the the Government’s brief valid —but failed to notice. case have of entering of into insurance contracts If the business agreements that plain it seems commerce, not competition fix on or other restraints rates, premium contracts, are not entering into such violations Sher- had to point out, As we have often occasion man Act. of by the Sherman Act are com- prohibited the restraints marketing goods of or services whenever the petition in or affects occurs interstate commerce competition Leader, Apex Hosiery goods or services. See Co. v. those 495-501, and cases cited. contract not does undertake supply goods or market services there is suggestion no policies of in- surance when issued are articles of commerce or that after they their issue are sold the market if such, or, they as were, that the formation of the contract itself would interstate commerce. Hooper See California, supra; New York Ins. Co. v. Deer Lodge County, supra, 510; Life cf. Ware & County, Leland v. Mobile supra; Moore v. New Exchange, supra. York Cotton

No more does the performance an. insurance contract involving the payment of premiums the insured payment losses the insurer involve the market- ing goods or services. The indictment here, as the Dis- trict Court pointed out, charges on competition restraints in fixing the terms and conditions of contracts. if And even we assume, although the District Court did it,

not mention that the indictment also charges restraints on the performance contracts, such it is plain such performance restraints on the as well as the formation operate the contracts cannot on competition restraints marketing goods or services. Such restraints the purview within of the Sherman Act. Compare Club League, Federal v. National 259 U. S. 200, 209; Mine United Workers Co., v. Coronado Coal 344, Blumenstock 410-411; Bros. v. Co., Curtis Publishing York supra; Moore v. New Cotton Exchange, The supra. practice of law is not commerce, at nor, least the outside Columbia, District of it subject is to the Sherman Act, and not become firm does so because a law attracts clients from without the state or sends its juniors members or to. argue other states to cases, or because its clients use the interstate mails to their pay fees. Federal Club v. Na- League, supra. tional

It if strange, would be indeed, Congress, adopting the in 1890, Sherman Act more twenty years than after this supposedly Court had settled question, the consid- had ered that the business was interstate com-

574 Act contemplated or had that the Sherman was merce Nothing suggests apply legislative history it. insurance.3 that it was intended to the business of apply that legislative Congress pri materials indicate was with marily competition concerned restraints of the marketing goods sold commerce, the clearly were within federal commerce power.4 And the limited while Act is not to restraints of commerce g., e. Atlantic Dyers Cleaners & physical goods, see States, 286 U. United no to' 427, suppose S. there is reason Congress intended the Act to apply to matters in which, prevailing under decisions of this Court, commerce the contrary not involved. On was House committee, adopted bill which reporting was without change, attempt legislative is made to invade declared: “No even to authority of the several States or occupy doubtful system laws can be grounds. by No devised effectually protect which would people alone negotiation Court of this The decisions of a contract be different states is not citizens tween interstate commerce were accepted by Congress. In the course of the known debates in original bill introduced Sherman, on the Senator Senate Senator Turpie, discussing power, stated, extent of the federal commerce subject upon judicial definitely. decision very “I recollect one Supreme has decided that insurance not commerce. . . .” During Cong. subsequent debates bill on that Ree. Senator reported charge the revised bill Hoar, took who later seq., Ree. 3145 et ultimately enacted, Cong. Judiciary Committee and power, under the federal substantive denied the existence of HI, over contracts between citizens of or Article different clause § only supported could bill states, asserting that Senator Sherman’s “importation, regulation transportation, arti or sale of Cong. also statements Senator Rec. 2567. See cles. 1 . 2646,2651-2. Cong. Eustis at 21 Rec. original Cong., bill, 50th S. 51st See Senator Sherman’s Cong. 21 2562. Texts of the Cong., and at Rec. bill his statement throughout in Bills Debates amendments are set out and its various (1903). Cong., Relating 2d Trusts, 147, 57th Sess. No. to Sen. Doc.

575 and of against oppression United the trusts States evils and has no monopolies. authority deal, gen- subject with erally, the within the the States, States authority respect no to legislate have of commerce be- 5 the with foreign States or tween several nations.” again in 1905 In 1904 and President Roosevelt urged Congress carefully consider “that the whether the power Corporations of cannot the Bureau be constitutionally 6 cover interstate transactions insurance.” extended to Rep. Cong., Sess., H. R. 51st 1st also p. No. 1. See the state charge Culberson, bill, Mr. ment on floor of the House attempt any authority subject, no doubtful “There is to exercise on subjects strictly which, over con bill and alone but the is confined legislative power Con fessedly, question no about there is Cong. gress .” And see . . Rec. 4089. the statement Senator of the Committee re Edmunds, Judiciary chairman Senate which drafting passed, that in ported out bill in the form which thought that “we frame bill that bill the would a committee power, that should make clearly within our constitutional we should already, well the law were known to its definition out of terms that say far in the first instance to how would it to courts leave applicable particular its definitions as each they carry could it or Similarly Hoar, Cong. Rec. 3148. a might as it Senator case arise.” charge was of that committee who with Edmunds member Senator dealing against bill, we with offense inter stated “Now an regulate by commerce, which the or international State can any enactment, we find the States without common penal United except affording remedy, does, great thing bill that this law. principles, protected compe fair extend the common-law is to England, to international and interstate in trade in old times tition Cong. Rec. in the States.” United Report Messages Presidents, 6986-7. See Congress “so 1905, p. 5, urging that Corporations, Commissioner of present opportunity to the upon subject legislate afford an now conducted insurance as Supreme question whether Court the subject regulation.” to Federal commerce, hence (1906), a mes- Cong., 1st 333, 59th Sess. also Sen. Doc. No. See for District an insurance code sage proposing Roosevelt of President of State enclosing report a convention officers of Columbia and investigate wrongful insurance methods. called him to 576 Bar Association, American executives of in- leading and companies, joined

surance others in the request.7 providing bills for regulation Numerous federal of varioús aspects of the insurance business were introduced between 8 1906 but the judiciary 1902 and of committees both regulation and concluded that of House Senate life marine, beyond fire and insurance was business Rep. 4406, No. 59th Congressional power. Cong., Sen. Cong., Sess., 1st 2491,59th H. R. No. 12-25. Sess.; Rep. 1st question that “the The House committee stated as to passed beyond is commerce has or not insurance whether Supreme because the Court of argument, the realm of great many times for number United States has said (p. 13.)9 not commerce.” that insurance is years 7 Reports (1906); 538 See, g., 29 American Bar Association 24 e. Academy (1904) Political American and Social Sciences Annals of 69, 78-83; 26 Id. (1905) 681; Dryden, Regulation An Address on the Moody’s Magazine by Congress (1904); (1905-6) 1 of Insurance (1904) 181. seq.; et Review 38 American Law (1903); 7054, Cong., 13791, 2d H. Cong., H. R. 58th Sess. R. 58th Cong., (1904); (1904); 16274, 7277, 58th 3d H. R. Sess. S. 2d Sess. 15092, (1906); Cong., (1905); Cong., H. R. 59th 1st 58th 3d Sess. Sess. (1906). 417, Cong., 59th 1st See footnote H. Res. No. Sess. 9 infra. (1899). 1743,56th Cong., 1st Sess. also S. See 9 Compare bill, the debates the House on the 569, to establish reported Department Commerce and Labor. As by the House Foreign Commerce, pro 6 of the bill Committee on Interstate § vided for creation a bureau of insurance to “exercise such con by provided trol law” over insurance and to “fos as by collecting develop” insurance business ter, promote, compiling Rep. 2970,57th Cong., Sess., 12,15. 2d statistics. H. R. No. objected debate, provision After extended in which the was want government regulate power in federal the insurance existing Cong. regulation, continuance of as a threat to the by 868-9, 872-3, 908-11, 919-21, and in which it was insisted Rec. Cong. commerce, now, that insurance bill, proponents of reference to insurance from to strike all 876-7, Rec. amendments Cong. proposed amendment adopted. 36 Rec. A bill were companies doing business prohibit mails the use in year And when one after the decision New York Lodge County, Ins. Co. Deer supra, Congress Life Clayton Act, 38 Stat. amended the Sherman Act, Act and defined the term “commerce” as used no indication it gave questioned or desired this Court to overrule the decision of the Deer Lodge case and it. On the preceding those contrary Webb, Mr. who was charge in the in of bill the House of Representatives, companies that “insurance are stated not reached as the Court has held that their Supreme contracts policies not interstate commerce.” 51 Cong. Rec. 9390.10 in of law was Cong. violation state likewise defeated. 36 Rec. 922-3. committee then inserted adopted The conference the provision, as 6§ Act, 828, authorizing Corporations of Stat. the the Bureau of to corporations compile publish concerning doing useful information and engaged foreign and business in the United States interstate or com- corporations engaged Upon merce, “including insurance.” assur- being “simply this section authorizes information secured” ances that nothing “there is in this measure that contravenes votes and that the Cong. 2008, subject,” 36 Rec. the conference re- that of the House on adopted. provisions bill as it port The insurance were not the was report Senate, and the conference was originally passed had the Cong. adopted body debate. Rec. 2035-6. by that without legisla- Corporations study of made a Commissioner of Supreme the reported of the decisions of tion, that “in view but jurisdiction over insur- trying assume to I have not felt warranted Report investigation.” the of purpose companies ance for the Report of the Commis- Commissioner see Corporations, p. Secretary Report the 29-33; 1904, pp. Corporations, sioner of Labor, 1903, p. 26. Commerce and by inquiry Mr. an made in answer was Mr. statement Webb’s Clayton Act would 2 of the proposed section whether Barton as to the the by wholesalers, engaged in illegal if practices render certain practices of such instance to an referred Mr. Barton course of which colloquy continued: companies. committed the right they come within that should It is not Barton. “Mr. law?

Mr. Yes.” Webb. companies, related to insurance Assuming answer that Mr. Webb’s within should included expressed that such a desire seventy-five the years since Court, throughout This Virginia, has adhered to view decision Paul commerce.11 of insurance is business construction practical has ever since been Such in of the application the Government other branches Act. commerce clause the Sherman surance of the construction of the Constitution Long practical continued determining mean force in persuasive or a is of statute Case, Pocket Veto 279 U. S. ing proper application. Bros., Federal Trade Commission v. Bunte 655, 688-90; Cooper United States v. 349, 351-2; Corp., It significant fifty years U. 613-14. Act Government the enactment of Sherman since it to sought apply now has not until insurance,12 regard has continued and that Clayton Acts, not, but were noth- prohibitions Sherman carry ing done those Acts so as out that was to amend desire or require scope to reexamine federal this Court which would over insurance. 11 arising laws Anti-Trust in which this Court For cases under 602; Hopkins States, 578, v. United 171 U. S. see has so stated Publishing Co., 436, 443; Curtis 252 U. S. BlumenstockBros. v. Federal 200, 209; League, 259 U. S. Standard Oil Co. v. Club v. National United 168-9; 163, and see States, Northern Securities v. Co. 197, 372, (dissenting opinion). 377 States, 193 U. S. United See Co., 344, Mine Workers Coronado Coal also United U. S. Co., Herbert 410; Leather Workers v. & Meisel United U. S. County, Mobile 457, 470-71, relying on & Leland v. 209 U. Ware S. 405, rule cotton futures applying case the insurance to contracts delivery. calling shipment not for interstate or brought en private in the District of to suit was Columbia One join association; rate-fixing an the suit was dismissed underwriters’ ground that insurance was not commerce. Lown v. Under on the reported Assn., Sup. in 6 23,1915, writers’ Ct. D. C. June Federal Anti Decisions 1048. Trust prosecutions equity and 272 suits at have been

Over 252 criminal Act, Hamilton, the Sherman instituted United States under Action, Monograph 16, prepared Temporary Antitrust No. for the not constituting as interstate commerce. Al- though often to repeatedly asked do it declined so has pass legislation regulating and sponsor subjecting constitutional amendments it Congressional control.13

The decision repudiates long-con now rendered tinued and construction consistent of the commerce clause Sherman do that say Act. We not is in itself ground a sufficient declining join de the Court’s cision. any This Court has never committed itself rule policy that will not to the of experience “bow lessons force of reasoning” better by overruling a mis precedent. taken cases See collected Justice Bran dissenting deis’s opinion Burnet v. Coronado Oil & Gas Co., 285 406-9, 1-4, U. S. 393, earlier overruled, decision should ever be but whether a (1940) 76, 78, private National Economic over Committee 103 brought, Note, 284, (1939). have 49 Yale L. J. 296 actions been 13 8, supra, In to the bills at note see J. 31, addition H. Res. 60th Cong., (1907); 103, Cong., J. (1914); 1st Sess. S. Res. 63d 2d Sess. 194, Cong., (1914); 58, 2d Cong., H. J. Res. 63d Sess. S. J. Res. 64th (1915); 51, Cong., (1933), pro 1st 73d 1st all Sess. S. J. Res. Sess. posing constitutional amendments.

particular ought overruling And decision to be. before in it is make precedent any duty the Court to case rejecting harm will not be in than certain more done in validity. retaining Compare rule of even dubious Helvering 400-4. Griffiths, U. S. plain

From what been said it seems our deci has not that the of insurance is commerce are sions business inconsistency no principle, not unsound and involve place doctrine. harmony accepted They or lack of with control the national beyond no of both activity field governments Dagenhart, as did Hammer v. and state years ago by three U. overruled a unanimous S. Darby, U. 117. On the United States and is contrary ruling commerce, that insurance not unaffected the restrictions which the com therefore legislation, on imposes merce clause removed regulation of that business most serious obstacle Through plenary power their states. over domestic engaged which are not foreign corporations commerce, developed have and effec the states extensive regulation business, tive often systems of a solving problems local character with regulatory impractical Congress or difficult for which would be through exercise And power. deal of the powers government of the federal view broad regulate which, though commerce, themselves matters affect interstate Fil commerce, nevertheless Wickard v. burn, Board, Polish Alliance v. Labor supra, can be no doubt of the if it there so regulate many aspects the insurance desires indictment. mentioned only effect of practical But the immediate the de- is to from the states, now rendered withdraw cision measure, regulation of insurance and confer large government, legis- adopted it on the national has no with policy regulation lative and evolved no scheme of having respect to the business insurance. action, taken the for the present substitutes, no decision varied detailed regulation over developed period years, limited aim indefinite command Act for on suppression Sherman of restraints marketing in the in competition goods or services affecting commerce, to be the courts applied by to the insurance they may. business as best

In since in- years pronouncement this Court’s regarded surance is to be settled came as doctrine, gone constitutional vast efforts have into the development regulation of schemes of state and into the organization in conformity insurance business such regulatory requirements. Vast capital amounts of in in have been invested on the reliance permanence regulation. the existing system of state system How far that is now supplanted is not, things be, nature of could not well explained the Court’s opinion. The Government admits that at statutes of least be five states will invalidated decision as conflict Act, argument with the Sherman and the in this Court many doubt whether reveals serious others not also be may inconsistent with that Act. The extent to which still other state will statutes now be invalidated in conflict with the commerce clause has not been explored any de- argument tail in the briefs and or opinion. Court’s there Certainly cannot but be as to serious doubt validity may of state taxes which now thought be to dis- criminate against interstate commerce, cf. Philadel- phia York, Fire Assn. New U. S. 110; or the extent to which right conditions imposed on the insur- ance general do state; business within the extent may regulate the state whatever as- pects the business are now for the first time to be commerce. While this Court no

regarded interstate to the inflexible rule that a state cannot longer adheres regulate in interstate commerce, appli- measure some applied requires “a presently cation of the test considera- facts and tion of all the relevant circumstances” order whether matter is an appropriate to determine one regulation regulation and whether the for local does not commerce, Brown, interstate Parker unduly burden which only 362—a determination can be made Only basis. time a case-to-case upon costly experi- give ence can the answers. against choice

Congress made the so change drastic a rejected proposals when assume national business. report over the insurance control of the the Judiciary pointed on out House Committee that “all wrongs complained subject of are of the evils and to the regulation legislative of- State power” and exclusive Congress “assuming that added: declares Supreme legislation and the Court holds the constitutional, Congress much could regulate, how legislation have? It would such would dis- what effect government by very precipitating substructure turb police power between the of the States conflict a violent regulate com- Congress power power the Federal uphold would be to ex- merce. To legislation by of the State power tinguish police Congress would admit words, corpora- In Congress. other and have the entire regu- respective States tions into 59th Cong., Sess., No. 1st Rep. R. lating H. power.” id. 18. 13,15-16. See legislate parts for such chosen

Had to affect interstate found could be business as appli- Act making the Sherman whether commerce, form, it could other some regulation byor cable to them between of conflict questions of these many resolved have regulation. and state But federal can decide only questions before it cases. particular Its action precedents seventy-five overturning years now a business such volume and of such wide governing for ramifications, loosing cannot fail to be the occasion litigation legislation, and of and national, flood state a new between state and boundary in order to establish raising questions which cannot an- power, national come, during great years to swered must be harassed regulatory every and the officers inseparable all the doubts and difficulties from a re- alignment of the distribution of our federal might well stay These considerations a reversal system. promises long-established doctrine which so of of little me advantage of harm. For these and so much considera- controlling. tions

The judgment be affirmed. should Mr. Justice Frankfurter: join

I the opinion of the Chief Justice. The relations of to business national com I merce and have no finance, doubt, afford constitutional authority appropriate regulation for by Congress of the insurance, certainly business of not to a less extent than Congressional regulation touching agriculture. See, g., e. Co., City Smith v. Kansas Title 255 U. S. Wickard Filburn, U. But the opinion of the Chief Justice leaves me without equally doubt that by the en of actment the Sherman Act 1890, Congress did not then disregard mean accepted conception of the regulation constitutional basis of the insurance And overwhelming business. the evidence is that the in of its applicability Act, contemporaneous the Sherman setting, charged such by insurance transactions as those this indictment has been confirmed modified intervening attitude and action in

Congressional fifty Congressional therefore for is warrant years. There no far-reaching which dislocations bringing about Justice and Mr. Justice of the Chief Jackson opinions adumbrate. Jackson, dissenting in part:

Mr. Justice

I. regulation development public The historical created a country has underwriting this It demon- today. this dilemma which confronts logic: been has “The law has not life strates been experience.” has under- Congress never fifty years

For one hundred Therefore regulate the business insurance. taken to against give any protection abuses public have susceptible the peculiarly states spurred the several regulate states, had it. Since 1851 every with branch necessity acquiescence building Government, up have been of the Federal discharge duty their regulation to toward systems of inhabitants.1 regulate right a state to

There never doubt was done the business domestic within foreign home was the corporation problem. state. The regulation interests resisted Such insurance state brought companies a series of cases to this The Court. regulating sought by argu- to disable the from them states ing commerce, that insurance is interstate an argument by identical with that now made almost

1 by Hampshire established New Insurance commissions were (N. (Mass. 1851, 1111); 1851 c. H. Laws Massachusetts in 1852 (R. 1852, 231); by Laws, in 1855 I. Laws c. Rhode Island October 17). 1854, p. 17, By 1890, law, when Sherman Act became § supervisory Patterson, seventeen states had established authorities. p. 536, The n. (1927), Commissioner the United Insurance States

585 foreign sought companies thus to vest Government.2 in Congress deprive and to exclusively control insurance them, regulate them, or to exclude to every power state doing them for the privilege to tax business. choice faced practical and ultimate this subject to say regu- either that insurance was

was to existing subject regulation it to no at all. lation or that was right consistently The Court states sustained enterprise. so, It did represent public interest this wisely unwisely, by resort to the doctrine insurance grant not commerce and hence unaffected is among the regulate sev- eral left free exclude states. Each state thus was foreign altogether or to admit them to do it impose. business on such conditions as saw fit to regulation The whole structure of and taxation today exists has been built upon assumption.3 The doctrine that insurance business is not commerce been in- always illogical, has criticized as unrealistic, I holdings consistent with Court. am unable other any satisfactory make distinction between insurance business as now conducted and other that are transactions held to constitute interstate commerce.4 we con- Were

2 particularly argument Company Life Insurance New York See 495, 231 496 Lodge County, in New Ins. Co. v. Deer U. S. York Life (1868). (1913), Virginia, 8 and that for Paul in Paul v. Wall. 168 3 (1868); Hooper Paul v. 8 183 v. Wall. Virginia, California, (1895); 655 164 Mitchell, 155 U. S. Noble v. U. S. 370 (1896); 389, 401 (1900); 178U. S. Cravens, Co. v. York Ins. New Life (1913); Lodge County, Ins. Co. v. Deer 231 U. 495 New York Life 274; Bothwell v. 275 U. S. Ducat v. Buckbee, Co., Chicago, Hears 410; Liverpool 10 Insurance Co. v. Wall. 10 Wall. Massachusetts, 566; Philadelphia 110; Fire Assn. v. New York, Nutting v. 183 Massachusetts, U. S. Northwestern Mutual Ins. Co. Life Wisconsin, U. S. 132. g., Champion Ames, (Idttery tickets); E. Electric Bond & Share Co. v. Securities Exchange Comm’n, U. S. 419 & (holding companies). writing a upon first question the the time

sidering that misgivings holding about I no slate, clean would have conducted commerce and where business is therefore lines is interstate commerce across state that over congressional power prevails that to regulate if trend present I have little doubt that the states. that eventually supersede will regulation federal continues of the states. to this:

The down question therefore for me settles reversing ought judiciary play role What on new nation's feet setting trend of history and what this I would consider path To answer policy? choices we have the matter.

II. reject must or approve and we Government claims, an exercise the antitrust laws constitute claim, insurance busi- congressional which reaches the true on either of two different bases. might That be ness. difference well as the theoretical is sub- practical case will show. stantial, as this commerce, If held Con activity 1. is an regulatory If at all gress paramount power. acts has that it has subject, it often has been held relation such states, “occupied field” to exclusion regulation the full measure of legislation federal defines of it is to be free.5 This activity outside agreed as to effects of the Commerce fully now not on state but at least the Court has always Clause power,6 if is held to activity considered that an be interstate burden, it,7 exclude, character a state obstruct g., Pennsylvania 5 E. v. Public Comm’n, R. Co. Service Lines, Greyhound McCarroll v. Dixie Duckworth Arkansas, S. 390. U. Brewster, Furst 282 U. and cases cited. nor a license tax on the impose privilege carrying it on in holding within the state.8 The of the Court this case brings restricting within this line of decisions power. state Although

2. an held not to be activity is commerce or in character, Congress not to be interstate nevertheless in specific reach it to activities its conduct may prohibit substantially burden or restrain interstate commerce. Filburn, Wickard 317 U. 111. When power S. this is regulation exercised it Congress, impairs only state actually regulation. so far as it conflicts with the federal Terminal Railroad Association v. Brotherhood Railroad Trainmen, congressional 318 U. S. 1. This power reach activities that are not interstate commerce interferes with only and milder, narrower, specific state more way. of overruling repeated

Instead our decisions insur- commerce, ance is not the Court could apply this case if that even it not commerce principle is the antitrust prohibit manipulation laws restrain interstate com- merce, just as we hold that the National Labor Relations if prohibits companies, Act even com- merce, engaging from practices unfair labor which affect Board, Alliance Labor post, Polish p. commerce. 643. require would Government to show that any This acts affect sought punish something it more than insurance substantially affect transportation or inter- some commodity. state Whatever problems of reconciliation state and federal authority between this present would it would not avoid them all —it would —and regulation unimpaired. the basis of leave principles of decision that I would apply case this nor complicated are neither novel be shortly put: fact,

1. As a matter modem insurance business, as Massachusetts, Alpha Portland Cement Co. v. 268 U. S. Packing Cudahy Hinkle, v. Co. 278 U. 460. and where is conducted conducted, commerce;

usually it is interstate commerce. lines, across state fact law, however, 2. In insurance has ac- contemplation pres- not based on an established doctrinal status quired fiction has purposes For ent-day facts. constitutional Court, long upon by acted established, been not commerce. states, Congress, that insurance is Court should ad- long Congress acquiesces, So reiterated frequently here carefully considered taxa- regulation the traditional rule which sustains the states. companies by tion of insurance partial either of 4. enactment of Any Congress of the insurance business would comprehensive regulations of consti- presumption us with most forceful come to fiction that insurance is not com- validity. tutional The presumption, against could not be sustained such merce presumption support for resort the facts would action. The fiction therefore congressional of the favor at action and continues congressional only must yield of Congress. the sufferance regula- Congress exerting

5. full may, also without subject, challenging without tory powers over enact regulation, details of state supplanting the basis or of the any pursuit acts insurance busi- prohibitions unduly affect or burden or substantially ness which interstate commerce. restrain to reach The antitrust should be construed laws engaged in only those who are insurance and This does re- congressional power. the latter not under in the that not com- change doctrine insurance is quire thus construed would authorize merce. statute as combinations the course insur- all prosecution or authorized required to commit acts not ance business law, intimidation, or coer- disparagement, state such interstate commerce unreasonably restrain they if cion, leave It would transportation.9 or interstate commodities regulation intact. state

III. follow insist we sitting Justices majority them, may logic support course. Abstract the more drastic seem of the situation and wisdom but the common sense are consequences practical It be said opposed. legal confine itself court, that it no concern of a should pro- where a constitutional theory. course, Of cases mandatory, is clear and statute congressional or a vision follow- us. But the Court now is not not for its wisdom is authority unequivocal line of overruling, an it is ing, act sustaining an are not many years. We reaching over constitutionality, we on its against attack down the Act strike use of making unprecedented think I we regulation. basis constitutional practical to consider duty bound, free, but are only are theory. of constitutional a revision consequences such former certain recognized that recently only This federal and dividing line between state to the decisions as but at the theoretically wrong, illogical and were them be- it would adhere to that time it announced same the structure had accommodated governments cause both Labor, Department Davis v. to the error. their laws of of to a common-sense course 255. It seemed re- considerations should I think similar then, and follow and destructive course following contrary a us from strain now. present that at least Count One of contends The Government interpretation the antitrust laws. Un of this indictment conforms jurisdiction to construe or Appeals Act we have no der the Criminal require My would remand to view indictment. reconstrue the Appeals for consideration in the of the Circuit Court

District Court light opinion. our of

The began ago regulate states in- nearly century and surance, regulation, while doubt of no uneven of quality, today going is a successful concern. Several states, where the greatest volume of is trans- acted, rigorous have enlightened en- legislation, with forcement and of supervision the hands experienced competent through officials. Such state trial departments, error, that ex- body have accumulated of institutional perience and indispensable good wisdom so adminis- tration. require The Court’s at very decision least will an overhauling extensive legislation relating of state to taxa- tion and supervision. legal will whole basis have be reconsidered. irretrievably What will be lost and what may salvaged no one now can say, gen- and it will take a litigation eration of to determine. the states Certainly very important lose controls and very considerable revenues.10 emphasized recklessness such a course is we when

consider legislation has not one line de- liberately designed to take over federal responsibility for important complicated enterprise.11 no There is department federal or personnel national with experience 1943, gross premiums In on companies yielded taxes aggregate $96,108,000 states an eight and the remaining esti an $26,892,000, making mated of $123,000,000. total State Tax Col 1943, pamphlet lections published by Census, Bureau p. impossible It to believe Congress, if it ever intended general regulation responsibility assume insurance, would have made purpose. antitrust laws sole manifestation only of its Its Intelligent command is to refrain from restraints of trade. regulation goes requires supervision much further. It careful to ascer protect solvency, regulation tain and be inconsistent with competition. prescribes unbridled provisions policies rate It some many beyond scope of insurance and other matters Sherman Act. requires

Also it for sanctions obedience far more effective than the $5,000 corporations prescribed by maximum fine on the laws. antitrust commonly punishable by Violation of state laws are cancellation of Congress can call for on which counsel subject in the A to thrust legislation. poorer time framing regulatory framing for Congress necessity plan for nation- upon of insurance control would be hard to find. alization Moreover, we not a hint from that it con- have responsibility to federalize plan curs insurance indication Indeed, every contrary.12 is to the supervision. business to do therein —a drastic sanction permission really com- respect. mands sanctions little applied

The antitrust law better than absurd when engaged great corporations enterprise. huge In the two related Socony-Vacuum (see Co., cases United States Oil Madison Oil corporations 150) convicted fifteen of seventeen had combined surplus reported $2,833,516,247. corporate to be capital and total $255,000,making corporate cap were a ratio of fines them fines on per addition, than of 1 cent. In surplus of less fines ital and %oo against $180,000 assessed individuals. In the were automobile (see Corp., v. General Motors financing case United States 121 F. 2d 618) Corporation, denied, General Motors three 376, cert. individuals were convicted. The wholly and no owned subsidiaries surplus reported Capital were at $20,000. then were fines per being less than of 1 cent the fine somewhat $1,047,840,321, Vsoo thereof. $5,000, permitted corporate the maximum fines were

In each case C. 1. by statute. TJ.S. § investigate agency problems was Tem The last made no recommendation Committee. It National Economic porary O’Mahoney, reviewing after chairman, Its control. Senator of federal of economic concentration problems caused carefully the business, the abuses of in the hands of the any support I would not again personally say I “Therefore said: regulation insur away with state undertake to do would law that any me or to member of suggested to never has been ance, there away thought doing any as a whole the committee TNEC or to supervision.” 26 American regulation imposing federal with state political parties have Both dominant Journal Bar Association platform con 1940,the Democratic system. In present supported the supervision all forms favor strict provision: “We tained this protection of for the States the several the insurance of that platform Republican policyholders public.” 592 urged by President,13

It to do so one the insur- by was companies.14 confirming ance decisions of this Court power over insurance have been paralleled a his- by congressional refusal to tory authority extend federal field,15although into no decision ever explicitly has power denied the do so.

year provision: contained regulation “We favor a continuance of of insurance the several States.” 13President Theodore Congress Roosevelt twice recommended that Message 1904, assume control of 6, insurance. of December Cong. 12, Message 5, 1905, Cong. of December Rec. Rec. 95. (Centennial 1876) Insurance Blue Book Issue, See VI, Ch. Fire Insurance, p. 32. 1866, House, providing In a bill was introduced in creation of a national bureau Department. of insurance in the Treasury It passed. 738, Cong., was not H. R. 39th 1st Sess. 1868,

In a bill was introduced in the proposing Senate a national passed. insurance, bureau of but never1 299,40th Cong., 2d Sess. 1892, In bill creating was introduced in the House the office of reported Commissioner of Insurance. It out of was never committee. 9629,52d Cong., H. R. 1st Sess. 1897,

In a bill was introduced in the Senate to declare that insur- companies doing incorpora- ance outside of the states of their engaged deemed tion were to be to be in interstate commerce. It was reported Cong., out of committee. S. 55th 2d Sess. Dry- After President Roosevelt’s recommendation of Senator den bill in the to establish bureau of insurance introduced a Senate Department bill died in in the of Commerce. The committee. S. Cong., 58th 3d Sess. recommendation,

After President the House Roosevelt’s second regulate Judiciary reported Congress power Committee had no Supreme practically insurance, said: “The Court have views approval business men of United States met the of the bar and Rep. 2491, being in sense.” H. R. accordance with law and common Cong., Sess., 23,1906, p. 14. 59th 1st March report. Judiciary The Senate Committee on the made a similar Sen.' Rep. 4406, Sess., Cong., 59th 1st 1914^15, the House and

In resolutions were introduced in both the effect proposing the Constitution to Senate amendment to an regulate business or commerce of should have if insurance supervision, . nationalize way to orderly legis- through but court decision is not desirable, it be on the states operates decision Judicial lation. more and anticipate, We cannot retroactively.

industry consequences upon what agree, could not likely than we to states under state law refunds, liabilities liabilities, tax follow criminal liabilities will individuals, and even or to years ago de- considerations practical decision. Such this doctrine changing from as insur- terred the if it time hand, on the other thinks Congress, ance.16 federal regulation into insurance come to take has announce the whole and scope may formulate system, date, fix a future advance, action effective of its effect injustice which surprise, all the confusion, avoid Court.17 caused action will be throughout posses- the United States and its territories or reported were not Judiciary The resolutions out of the Com- sions. 103, Cong., Sess.; Cong., 2d 194, 63d H. J. Res. 63d J. Res. mittee. S. Cong., 58, 1st Sess. Sess.; Res. 64th 2d S. J. was introduced for constitutional 1933, resolution a similar

In a Cong., in committee. 1st died S. J. Res. 73d amendment Sess. exemptions Congress by exceptions and indicated Moreover, has supervision. avoid interference with state Insurance clear intent to excepted bankrupts. are from those who become corporations super- by any under 22. Insurance issued issuer state 11 U. S. C. § (8). (a) 77c Act. 15 U. S. C. exempted from Securities § vision authority exempted supervised by from companies Insurance (17) (a) 80a-2 companies. 15 C. regulation as investment §§ (c) (3). and80a-3 Lodge County, 231 Ins. Co. v. Deer U. In York New Life require cases, therefore, would reverse the said: “To 502, the Court upon inhibition the States rule of constitutional promulgate a new us to readjustment policy change and a of their compel a and which would change urges against necessarily result laws. Such of their decision.” Congress supervision resisting pressure to federalize In champions of informed the best of some of followed the advice has

A judgment as to when the evil of a decisional error an innovation very exceeds evil of must be based on in part upon policy practical When, considerations. problem, practical such and political judgments as political can be made Government, branches part it is the of wisdom and good govern- self-restraint and ment for courts leave the Congress. initiative to

Moreover, this is the method of responsible democratic government. To force the hand of is more no public problems. interest on insurance One was Louis D. Brandéis. Speaking Policy-holders counsel for the Protective Committee of Equitable Society, Life Assurance before the Club Commercial Boston, 26, 1905, on October Mr. Brandéis said: “The sole effect of a Federal law would be—the purpose sole supra] Dryden bill note must have [see been —to free the scrutiny the careful from of the commissioners of of the States. some right It seeks to rob the State even of the protect citizens its own legalized robbery present from the to which insurance measures sub- ject citizens, by the for the terms of the bill a Federal license would right regard- secure the to do business State, within the borders of the prohibitions, regula- protective less of the State free from the State’s effrontery tions. With frankness which is unusual —and an which is among magnates bill the is introduced in common— —this president by Dryden, the John F. the of the Prudential Senate Life Company pays annual company Insurance to stockholders —the cent, paid equivalent per each dollar in on the dividends to 219.78 for mainly insuring stock; company itself the work- the which devotes ing every of expense men 37.28 cents on dollar at an of over 1904, made worst record premiums paid; company which, in the . lapsed policies. of . . and surrendered industrial supervision “Federal is also advocated Mr. James M. Beck (formerly Attorney States), Assistant of the General United argu- main Company, Insurance and his counsel for the Mutual Life supervision against appears pay, ment State be that $10,000,000, aggregate, for fees and taxes the several States necessary expense says cover the which he is as much as is of twice large proper supervision. itself, million sum but Ten dollars is a aggregate very compared aggregate assets or the small one with the function of the proper judiciary than to tie the hands Congress. of To use my at a time like office, this, and with justification little in necessity, so to dislocate the functions of the revenues states18 and to catapult Congress into immediate and responsibility undivided for supervision nation’s insurance businesses is more than I can my with reconcile view the function of this Court in our society. management. expense company Mr. paid Beck’s $1,138,663 management expenses and fees. Its

in taxes were $15,517,520, or nearly fourteen times as much. savings Our Massachusetts paid banks ending year 31, 1904, $1,627,794.46 October in the in taxes to this $80,890.02 is Commonwealth: more than the expense whole management, $1,546,904.44. which was departments subjects the insurance

“Doubtless of some States are many department In just inefficient, criticism. of the States the for corrupt. anything experience doubtless But is there in our in some departments supervision of other of business which should of Federal grounds criticism to assume that it will be freer from or on lead us department any efficient than the best insurance more the whole supervision remembered that an efficient For must be States? policy- any protect will in effect all the department of State they reside. Let us remember company of the wherever holders eighteen long years of the Interstate ineffectiveness rather abuses, the futile railroad investi- to deal with Commission Commerce Trust, Beef and the unfinished gation by Garfield Commissioner he Trust in which has since been of the Oil investigation into the affairs only to centralize still supervision would serve engaged. Federal increase still further the and to power of our Government further corporations.” powers of the wrote, in Bothwell unanimous Court v. Brandéis for a Mr. Justice (1927): “A contract of in Co.,

Buckbee, Mears U. S. having office in a corporation State surance, although with a made the interest and which resides insured which the other than joined He in other located, interstate commerce.” is is not insured Wisconsin, Ins. Co. Mutual in Northwestern decisions Life similar Wanberg, Union Fire Ins. Co. National curiae briefs with filed amicus have Thirty-five of the Union states promulgating. the Court against decision which us, protesting notes and in All Smith v. wright, 321 U. n. 665, Legal 649, see Tender Cases, 12 Wall. 553-54. especially This is the case meaning when the of the Constitution is at issue mistaken construction is one which cannot be corrected by legislative action. give To blind adherence to a rule or policy that no deci- sion this Court is to be overruled would be itself to many overrule decisions of the Court which do not accept that view. But the rule of stare decisis embodies a wise policy because it often more important a rule of be right. law settled than that it settled espe- This is cially where, so is not without here, regulatory Comm’n, Penn Dairies Milk power. Cf. Control question then is whether an

Case Details

Case Name: United States v. South-Eastern Underwriters Assn.

Court Name: Supreme Court of the United States

Date Published: Jun 5, 1944

Citation: 322 U.S. 533

Docket Number: 354

Court Abbreviation: SCOTUS