*1 al., FREIGHT, INC., et NOERR MOTOR Appellants in No. Biggs, Judge, Chief dissented. PRESIDENTS

EASTERN RAILROAD al., Appellants et CONFERENCE No. 12751. 12750, 12751.

Nos. Appeals States Court Third Circuit.

Argued June

DecidedDec. Kohn, Philadelphia, Pa.,

Harold E. Kalodner, (Philip Fine, P. Aaron M. Pa., Dilworth, Philadelphia, Paxson, Kal- Dilks, ish, Philadelphia, Pa., Kohn & brief), plaintiffs. Mungall, Jr., Philadelphia, Daniel Pa.. Watson, Jr., Philadelphia, Pa., (Seth W. brief), for Main Cent. on the R. Co. Philip Price, Philadelphia, (Bal- Pa. Spahr, lard, Ingersoll, & Andrews Phil- Pa., Hughes, Hubbard, adelphia, Blair City, Barnes, Reed, Dechert, York New & Myers Rhoads, Price, Harold B. Borne- Philadelphia, Pa., mann, Dennis P. Dono- City, Drinker, van, York Biddle & New Glock, Philadelphia, Pa., Reath, E. Carl *2 continuing Anderson, conspiracy Pa., Pittsburgh, the James B. date of the complaint alleged; damage McCracken, Montgomery, Walker to each Bockius, plaintiffs asserted, irreparable, the continuing Dan Rhoads, Morgan, Lewis & O’Brien, injury injunc- Mungall, Jr., stated an C. and iel Cornelius Pomeroy, tion Pa., Jr., Philadelphia, asked. Defendants denied the T. W. charges Saul, Maloney, complaint. Pa., Pittsburgh, the after Jr., Paul assigned Pa., date, Philadelphia, case had been Saul, trial Ewing, Remide & 1, 1956, discovery October brief), and while on for defendants. procedures pending, were some of the Judge, BIGGS, and Before Chief MC- sought per- Railroads and Conference STALEY, Circuit LAUGHLIN and Judges. mission to were and allowed file a against plaintiffs. counterclaim This engaged plaintiffs claimed that in PER CURIAM. illegal conspiracy monop- obtain injunc- for an In this antitrust action oly long freight industry haul in long forty-one damages,1 treble tion and part the same of the United States as trucking companies and their distance complaint set in out and to force the Pennsylvania association, Motor trade part Railroads out of that the trans- twenty-four Association, ma- 'Truck sued portation business in that area. jor railroads, Railroad Eastern eastern Judge The case went to trial before Byoir and Carl Presidents Conference Clary on October 1956 and lasted al- corporation, Associates, Inc. a New York many most four months. There were agency public the Con- relations witnesses and 968 exhibits. On October ference. opin- court in an exhaustive charged complaint in Plaintiffs their pages (it ion 768-841) covers 73 in 155 1953) alia, (filed April 30, inter that in plaintiffs found in favor May, 1949, Rail- the defendant or about against plaintiffs’ all the defendants on illegal conspir- upon an roads embarked acy, cause of action and the defend- civil criminal in violation and ant counterclaimants in and favor of the provisions laws of the of the antitrust plaintiffs on the counterclaim. States, destroying aimed United similarly Soundly plaintiffs evidence, and those situated based on substantial hauling competitors in field of the found as the trial court Railroads carving exclusive, freight, Byoir, contended, conspired and at and had spheres operation monopolistic in the restraint of unreasonable trade to in- freight transportation jure competitive business truckers long States, freight industry the railroads in the so haul freight monopoly part haul- have a northeastern of the United commerce; States; purpose that the de- in interstate their immediate public Railroads worked for those ends fendant was to create resentment Conference; through truckers, defendant minds Byoir general public retained defendant but in the latter the minds of those agent carry conspiracy publicity said utilized who the services the trucks effect; that thereafter Confer- a manner as to into and interfere with committees, thereof, ence, shippers members relations between its business Railroads, truckers; meeting presidents instead defendant competition long individual and other de- trustees truckers freight haul Byoir, field, with divers other Railroads fendants plaintiffs, injure destroy persons unknown to acted combined and/or thereby shippers and concert to obtain the force combination truckers in objectives conspiracy. continue The means their detriment use Railroads; complaint; adopted are detailed used and car- seq.; Clayton Act, Act, 1. Sherman 15 U.S.C.A. § § U.S.C.A. et program pri- a full to obtain that means used ried out to attain such end was objective; private injury designed marily campaign destroy that serious accomplished, definitely good the truckers was the gate will of the truckers and insti- trucking government a loss of will to the indus- and foster restrictions *3 by creating try public hostility instances that loss of and some to the truck- bringing being extreme; ers, their ac- the of the attention large destroyed leg- legislatures, proposing extent the tions to a various then public trucking crippling which truckers had confidence the islation indus- the might try fairly Railroads, and have been earned all un- and favored the light guise organi- public spirited innumerable der increased of accomplishments beneficial of truck- zations and with the defendants’ interest long transportation. ers in haul concealed.2 overwhelming The court found on evi- The record shows the defendants’ anti- conspiracy completely individual series dence that was no of trust established against conspiracies states all the various defendants named large ever-growing legal illegal volved but one con- decree.3 It shows both and goal charged having spiracy illegal objective its methods to obtain the long injure destroy injuring long haul destroying haul and/or and/or trucking trucking industry industry. injury the main and that It shows employed party apparatus soeiation, U.S.App.D.C. 355, third 2. The 102 253 F. concealing defendants, 877, while 2d thereof, manipulation in seek own adroit American Fruit Banana Co. v. United procure legislative ing and executive Co., 1909, 511, 347, 213 29 53 U.S. policy contrary public and il action is 826, urged L.Ed. below and here legal. Rail & O. Marshall v. Baltimore Railroads, application has no real Co., 1853, 14 L. 16 How. road the facts before The later decisions us. Chicago, Paul, 953; Angle M. St. v. Ed. Supreme Court United States 1, Co., 1893, 14 S.Ct. & 240, 151 U.S. O. R. 1927, Corporation, v. Sisal Sales 274 55; In Commissioner 38 L.Ed. 268, 592, 1042, U.S. 47 S.Ct. 71 L.Ed. Textile Mills Securi Revenue v. ternal Co., 1952, and Steele v. Bulova Watch 62, Cir., Corp., 1940, 117 F.2d 3 ties 280, 252, 344 U.S. L.Ed. 252 73 S.Ct. 97 272, 326, 1941, 314 62 S.Ct. affirmed U.S. clearly indicate that the Banana Com- v. Sil 249. Cf. United States 86 L.Ed. pany opinion proposition is limited to the liman, Cir., 1948, 607, certio 167 F.2d 3 the Sherman Act cannot be invoked 1948, 825, 69 S.Ct. 335 U.S. rari denied 48, against persuading foreign sovereign L.Ed. 379. 93 act. Okefenokee Rural Electric Member- legislation ship Corp. Light Co., attempt v. Florida Power & to influence 3. The Cir., 1954, 413, rightly 214 held 5 F.2d is the other de- action while executive important than the cision stressed the Railroads in the dis- less trial court long appeal. truck trict court and on That too is haul vilification direct authority properly hardly anything perti- industry ing nevertheless was unescapable defend nent under the instant facts. element of the found to be vital destroy complaint injure allegation conspiracy made no There ants’ and/or conspiracy assuming group. brazen ruin- was directed to Even competitor and execu his business. interference lawful, Pont, Du its later case of Crummer Co. v. this instance tive action Cir., Cir., 1955, to emanate 5 223 F.2d 238 and 5 motivation was shown entire 425, conspiracy charged. 1958, It 255 F.2d certiorari denied from the 1958, part 79 S.Ct. scheme to wreck 358 U.S. 3 L. of defendants’ monopolize competitor, no doubt that branch Ed.2d leaves but that as Ap- As such it of now in the Fifth Circuit Court for themselves. of commerce conspiracy competitor Giboney peals, a to drive a Sherman Act. violated Co., 1949, Storage Empire is a violation & Ice 336 business though, 490, 497-502, Act even as in Crum- 69 S.Ct. 93 L.Ed. Sherman mer, U.S. Krasnov, important 834; D.C. its most element was the United States objective F.Supp. 184, by secretly E.D.Pa.1956, affirmed of its 143 obtainment protection moving guise Topeka public through 21; Atchison, Fe interest & Santa 2d public Transport Railway As- authorities. Aircoach Co. v. Judge justi- BIGGS, (dissenting). public. Chief It plaintiffs and to injunctive contin- relief fies the at bar merits the attention case illegal uing defendants. activities reviewing Court. record demon- damages compensatory justifies the cognizable strates that offense has statute) plaintiff (trebled allowed proved been under Section 1 or Section Association, Pennsylvania Truck Motor Act, U.S.C.A. §§ together counsel fees. with costs and that relief therefore cannot be holding justifies of the district granted plaintiffs under Sections plaintiffs, reason the other Clayton 4 and 16 of the Act. 15 U.S.C.A. very stipulation clear and which is Moreover, §§15 and 26. reach part record, *4 are entitled the decision of the court is below disas- damages. justifies dis- nominal the applies trous for it to the Sherman Act counterclaim, which action missal governmental imposed by restraints stat- except disputed in Railroads is the legislatures utes enacted state to and argument the coun- line with that their private legis- activity procuring in in the terclaim similar content to interpretation lation. If the the court of plaintiffs’ claim. below of and be court correct the reach of the First Amendment Though plain from what we think it guarantees petition freedom might express- of will be said, be to we have well unduly least, limited and to ly suggestion extent Rail- the note that the Rights destroyed. guaranteed to the activity, spearheaded roads’ entire people by legitimate States and to the Byoir, the Tenth merely perfectly was endamaged. Heavy legislation Amendment will be public campaign relations for sanctions, civil, criminal well as impressive can in fanciful view of the imposed persons be who on seek en- in of find- documentation the record “ * * * by Congress of or actment laws of the trial court legislatures campaign objectives of States. shall entire did en- and its legis- to per- deavor deal first with appeal can what constitute a mere haps properly lature; large lobbying described as “conven- nor it a scale tional” campaign. phase law in True, antitrust relation to one activ- of legislative point case ities was at bar and at a later nature —but a in this of approach legislation, opinion rather new say application will discuss the of phase, least. guarantees other and the constitutional referred to. important campaign, more one of proves What record is the follow- designed destroy one good of vilification ing. trucking Certain interstate com- long-haul trucking will of engaged panies were economic hot dustry. Hence, rejected has Court competition twenty-four major with east- the contention of defendants ern railroads2 interstate trans- entirely their legisla- combination was long-haul portation freight. tive. 1 have determined further groups Railroads and the Truckers as acting guardian ro.ilroads were not as the avidly increasing were desirous of public welfare, have so freight respective haulage own interstate earnestly (Emphasis sup- asserted.” decreasing profits and and those of the plied.) competing group. Both Railroads and Judge Clary’s opinion soundly predi- public agencies Truckers hired relations litiga- cated the facts and law this engaged Byoir. to aid them. The ERPC tion. We accord with it. The de- engaged PMTA Allied Public Relations cree and orders district employed by Associates. The methods July 22, July 31, agencies 1958 and public 1958 will relations both the affirmed. and Railroads the Truckers left much Represented by Pennsylvania Represented by Motor Eastern Railroad Presi- (PMTA). (ERPC). Truck Association sidents Conference proceed respect to moral conscious- venient first with a discussion

be desired propaganda con- of 2. The is de- Section Truckers’ case ness. Sources light so- the use of the ficient when viewed in the Sec- both sides cealed "Monopoly” section, “third-party” technique. tion called provides: “Ev- Sherman Act. Section Both Railroads ery person monopolize, at- shall or who opin- agencies public influence desired to tempt monopolize, or con- or combine to increase their own ion order spire any persons, person with or other damage of each other monopolize any part or trade thereby procure favorable among States, or commerce the several and unfavorable themselves foreign nations, deemed shall be competing group.3 differ- There was no * * guilty of misdemeanor the methods between ence substance “ * * * monopolizing offense of means Byoir employed by Railroads for the acquire conspire to combine Rela- employed Public those Allied power competi- maintain the to exclude except the Truckers tions Associates any part tors com- from trade vigorous, vo- more was more *5 among merce the states or with several no- cal, a effective. It was and more foreign nations, provided they also have fight by The sides. both holds-barred power they able, such as a a are jus- might employed well cause methods potential group, to exclude com- actual the with to those concerned tifiable fear provided petition the field and from viability representative of form of our they purpose ex- have to the intent government. 5 power.” American Tobacco ercise States, Co. v. United Principles Law Hitherto Conventional of 1125, 1139, 90 L.Ed. 1575. 66 S.Ct. Applicable 1 and to Section Deemed a Since the Railroads have effected Suits. 2 of Act Section Sherman freight long-haul monopoly traffic or on said, destroyed the based action is As been the Truckers’ business6 has attempt monopolize conspir- Act.4 or of 2 of the an to 1 and Sherman Sections on prov- applicabil- acy monopolize necessary attempt can be to to to is discuss necessary against con- element ity A and it more them.7 sections ed of both conspiracy supplied complaint alleges example typical to Senate The 5. A3. paragraphs 12, monopoly. Gen- of 1951 of the See create Session Bill No. Pennsylvania, complaint. Assembly I assume referred 14 13 and of of eral testimony as was one at bar action to time therefore from time to Bill”, brought “Big to 2 of Sherman under Section caused Truck any point Truckers, de- which would I make no Act but troduced appear weight ficiency pleading permissible from limits in as will raised have 60,000 ap- 45,000 opinion heavy the discussion of the to in from this trucks plicability procured pounds. of Section 1 the Sherman defendants Act, A trade” section. Fine. the “restraint of Governor bill of this veto proposed bill, also similar somewhat aside, court the record 6. Proof Truckers, A-13” was “Bill are entitled to take and this court below legisla- Legislature. Jersey Similar New judicial the Railroads have notice legislatures of before the tion also out of business. not driven the detail shall not Xork and Ohio. New the various State bills in various peculiarly are un- circumstances 7. legislatures These set involved. 2 for the maintenance a Section fitted many matters, full, allied with not have before us a situa- We do case. opinions Supp. F. See 155 the court below. corporation, one even a where tion few opinion damages, 166 on attempt corporations, to eliminate it, competition so that will be all power prices, opin- unbridled over be noted that neither the left should 4. entry competitive F.Supp. 768, output, below, into 155 of the court ion may court, pinpoints section of what An entire whether field. nor that industry” “transportation con- Section 1 or called sisting is sustained under action many railroads is accused of Act. 2 of Section

222 specific attempt monopolize is a number of customers, of an to the Truckers’ pass anti-trucking legislation effect that result. United intent in trucking prevent 334 crease Columbia Steel costs and to 495, 531-534, 1107, 92 L.Ed. enactment of U.S. which would de proof crease those costs. The is not suffi cient in the instant case to sustain a Sec This issue which is dis- leads charge. tion 2 There is no evidence in phase positive 2 Section the in- proving this record the efforts of attempt monopo- stant case. an Can the Truckers or were liable to' long transportation lize the haul bring long-haul trucking industry freight required by Section sense showing an end. There is no that even be inferred from the evidence? optimistic the most of the Railroads or1 necessary an elements establish at- Byoir intended, expected, hoped, or even monopolize tempt in violation of Sec- destroy trucking. interstate The cir form in tion were set out in classic cumstances bar do not traverse the States, Swift Co. United imposed by limitations the Columbia 276, 279, 49 U.S. Steel Moreover, Co. decision. there is unchanged. 518, and remained proof “dangerous- whatsoever aof opinion Supreme last cited the Court probability” monopoly that a could result such “Intent almost essential to said: required by the Swift decision. Un combination, and is essential der the circumstances a cause of action attempt. acts are not sufficient Where judgment based Section falls. If the produce a result which themselves below the Railroads prevent, instance, law seeks —for *6 is to be sustained it must be under Sec require monopoly, further acts —but tion 1 of the Sherman Act. the mere of nature forces addition bring pass, an intent to result proved the Truckers have But a necessary bring pass it to in order to cognizable of action cause under Section dangerous probability produce that it 1 of the Sherman Act. Section of the happen. Peaslee, Commonwealth will prohibits “Every Sherman Act contract, * * * Mass. 59 N.E. 55. But combination or conspiracy, in consequent intent and the when that among restraint of trade or commerce dangerous * probability exist, statute, * this the several States As was many others, and like the common like said in Northern Pac. R. Co. v. United against cases, some directs itself law in States, 1958, dangerous probability well as as “Although pro 2 L.Ed.2d this completed result.” Thus it literally all-encompassing, hibition is that in addition to an is clear intent precluding courts only have construed as monopolize, prove evidence must or those contracts combinations of defendants in the activities Section ‘unreasonably’ competi restrain dangerous probability of case create say tion”. Mr. Justice Black went on to again monopoly. See agreements practices that certain or supra. Columbia Steel pernicious competition such a effect they “conclusively presumed as The court below found a fact that vigorous illegal were made the Rail be unreasonable and efforts therefore injure Byoir inquiry pre the Truckers’ without elaborate roads good as business-wise, harm to decrease the cise have caused or the busi- monopolist trying section of the to eliminate another than that of the successful transportation industry, Truckers, competition since there still would be among as far as research indicates situation that the various railroads. Further- previously transporta- ground never resulted in success- has more the interstate litigation. industry regulated industry, Even Rail- antitrust if the tion is a ful actually phase every activity had eliminated the Truck- roads almost of its con- competition completely Rail- ers’ trolled the Interstate Commerce Com- be far roads’ different mission. sought Mr. Justice main- for their use”. whether suit is ness excuse to be designates prac- kind of 1 or or Black tained Section Section then sections, have deemed to both tices courts am of the view that the which the provisions of are not be unlawful themselves the Sherman Act applicable here cites relevant cases.8 The acts because what is set following Byoir headings proved in three of this the Railroads and opinion. case at as to cause the bar category of fall within the cases where Principles Applicable Law Antitrust principle is auto- of unreasonableness Bar Under Circumstances at matically applicable. below so The court Legislative In- Where Action Was Did found.9 issue becomes: The then voked Avoided. conspiracy “un- the reasonably here combination objectives Railroads, competition”? The restrain below, the court out and found are set the Rail- record fails to demonstrate that heading discussed hereinafter under the Byoir did roads and so here. Damages”. “As to desirable quite Moreover, from the aside again point princi- state this that the foregoing, vi- restraints which constitute pal objective of both Railroads and in- those which of Section are olations to achieve conspiracies of members of an volve profits which would increase own dustry mutually follow a self-restrict- freight haulage de- from interstate own com- course area competing group. those crease petence unlawful com- in order to obtain actions of Railroads and advantages customers mercial over respect were described proved, plan here, suppliers. govern- “fomenting below as the mem- the business fellow to decrease * * * increasing mental restriction transportation in- bers of the interstate operation preventing the cost of and/or dustry, the Truckers. Furthermore carrying greater loads” joint campaign was not essence Truckers, and an unrea- was held any one Railroads act- action for competition.11 sonable restriction *7 could achieved the result alone public deemed, must be The course, interest Any Railroad could which was attained. is in be involved here as it Byoir. If the law is to be have hired every also a antitrust suit but there is changed important respects the in these right potent public interest expressly be revision effected should op- support of or individual to act Supreme not this tri- Court and legislation. public Does bunal.10 right superior in this interest latter rise sought pre- public regard interest I have But to what without Does the served the antitrust laws ? law and termed “conventional” antitrust cornering; Ad Co., United States v. Socony-Vacuum market v. Oil 8. States United supra; Pipe Co., 8, dyston 150, 811, & Steel note 1940, 210, S.Ct. 84 U.S. 60 310 Originators’ America Guild of Fashion price-fixing; 1129, United States L.Ed. supra; Comm., 8, note Co., Cir., v. Federal Trade Pipe Addyston 6 Steel v. Co., Electric 271, 1899, States v. General 1898, United U.S. E. affirmed 175 85 D.C.D.N.J.1949, F.Supp. 753, market 136, 82 96, 211, division 44 L.Ed. 20 S.Ct. Socony-Vacu division; United States v. Originators’ markets; Fashion Guild 150, Co., 1940, S. 310 U.S. 60 Comm., um Oil v. Federal Trade of America 1129, 811, price-fixing, out 84 703, L.Ed. 457, Ct. put 1941, S.Ct. 85 L. U.S. 61 312 restrictions; Para United States v. group boycotts; 949, International Ed. 131, Pictures, 1948, 68 S. 334 States, 1947, mount U.S. 332 United U.S. Salt v. Co. 1260, price-fixing 915, 92 20, tying L.Ed. 392, Ct. 12, 92 L.Ed. ar 68 S.Ct. Distilleries, Frankfort States v. rangements. 1945, 293, 661, 89 L. 324 65 S.Ct. U.S. F.Supp. page at 816. 155 9. See 951, price maintenance. Ed. resale 1913, g. Patten, v. 10. See United States e. page 333, 141, 525, 11. See 155 33 57 L.Ed. 226 S.Ct. U.S.

225 legislative apply There re- is doubt that a State Act Sherman po- activity support its United States in the exercise of private or to straints legislate power health, may lice safety ? I think the decisions restraints people can- welfare of its that the Act demonstrate legislation affecting may private employed State enact in- to make such not be illegal passed if whether suc- terstate commerce law does and that activities “impede substantially not con- do flow the free or unsuccessful cessful on inter- of commerce from state state.” restraints unreasonable stitute Arizona, Southern Pacific Co. v. State of 1945, commerce. state 761, 1515, 767, 325 U.S. 65 S.Ct. 1904, 332, Smith, 195 U.S. In Olsen v. 1519, 89 L.Ed. 1915. An exercise 224, 52, 344-345, where 49 L.Ed. 25 S.Ct. police power State the enactment imposed a Texas was restraint legislation by proper ob- the State for a statute, intent held that it jective constitutionally permissible. enacting Congress Act the Sherman Stephenson Binford, 1932, 287 U.S. governmental, private, prevent 251, 276, 288, L.Ed. S.Ct. competition.12 In actions restraint of Supreme need not Court stated: “We Fruit v. United American Banana Co. [regu- consider whether the lating carriage by act [State] 213 U.S. other some truck] Supreme Court L.Ed. aspect would bad. very issue, dealt similar Costa with a enough support validity plain- that, its having Rica, by law, was in effect what ly, high- one itsof is to aims conserve corporation property confiscated of one ways. Legislature If the other or had instigation of at the a trade rival. Mr. purposes, which, additional apart, considered funda Justice said that “The Holmes power it had no constitutional why persuading a sover mental reason effective, make not have the eign power do cannot be this or that making result of the act invalid.” Cf. * * * contradic tort is a it Sproles Binford, 1982, say ju that, tion within its in terms to One risdiction, persuade unlawful it is purposes admitted sovereign bring power about result which we are here concerned was the its be de declares conduct preservation highways State an- * * * proper. sirable and It makes raising other was the of State revenues. persuasion lawful its own act. clearly appears meaning very sovereignty is that volved in instant case acted within sovereign makes law.” decree just power, their constitutional as Gov- *8 ernor Fine within his acted constitution- Brown, 1943, In Parker v. 317 U.S. power al Pennsylvania as when Chief Executive of 341, 351, 307, 313, 315, 63 S.Ct. 87 L.Ed. Bill he vetoed Senate No. passed proration California had a statute 615.13 hold To otherwise would be to among competition which restricted nullify substantially legislative State growers prices. raisin and fixed Mr. power. Chief Justice Stone stated: “The Sher- man no Act makes mention of state asserted United States v. gives such, 1927, Corp., 268, as and no it hint that was Sales 274 Sisal U.S. 47 592, 1042, intended to restrain state action or offi- 71 L.Ed. and S.Ct. Steele v. Co., 1952, 280, cial action a directed state.” 344 Bulova Watch U.S. 73 Mackay Telegraph preme Court, granting temporary 12. Cf. Radio & Co. v. a 1938, App.D.C. F.C.C., 336, junction, purpose 68 97 F.2d held that of the 641, procured private activity, State act allegedly to conserve hulls and heads of Packing 13. Cf. unprocessed shrimp, pur- Foster-Fountain Co. feigned v. was a Haydel, 1, 10-11, 1928, pose 278 U.S. 49 S. was therefore not a valid exer- 1, 147, police power. Ct. 73 L.Ed. wherein the Su- cise of State 226 252, 252, facts Electric 97 in effect over in Okefenokee Rural S.Ct. L.Ed. Corp. Membership Light Florida & decision. Power ruled American Banana Co. 418, Co., Cir., 413, 1954, 5 214 In the action was one F.2d the Steele case interesting analogy brought present an those Trade-Mark under Lanham very similar, only 1946, seq., bar and are Act of 15 1051 et save U.S.C.A. § legislative laws was involved. and was not antitrust action based alleged, however, importantly a It was an sover more act of State

but acting eign Department a case Road of Florida was not involved. the Sisal conspiracy it did not in violation was held that the Sherman result Act apply Power and did in Mex Act between Florida defendants what the Light Company others, prevented e., procure ico discrimi and Yucatan: i. Membership natory Mr. Justice Okefenokee Rural Electric there. making 276, page Corporation McReynoldsstated, use from 274 atU.S. along conspira page 594, “True, line feasible route for electric S.Ct. at alleged discriminating legis public highway. tors were aided acts, complaint been the defendants had lation, own but deliberate brought guilty campaign”, elsewhere, made a “smear had here about arguments and United false had conducted dis- results within the forbidden They jurisdiction as a result honest activities within the States. Department may punished refused the State Road of our courts and grant power against permit line. for the The Ameri offenses our laws.” alleged Treating expressly the facts the com- decision can Banana Co. plaint true, Appeals, Supreme the Court of I can no overruled. find dismissing suit, decision, forci- stated: “As so it Foster-Foun Court unless Keogh Chicago Packing bly 1928, Haydel, illustrated in tain Co. v. 147, Ry. 10-11, 43 S.Ct. N. W. U.S. 73 L.Ed. U.S. 183, ‘Injury holding 47, 49, implies vio- 13, supra, 67 L.Ed. note which indicates legal right.’ plaintiff had contrary of a lation American Banana that of the legal right highway to use state Co. Foster-Fountain Pack decision. The permit distinguishable Road from the State on the without case seems Co. county Department, ground appearing with- nor roads cited. But note County permission any of the Board of v. Rock out event in Commissioners, Co-op., Royal those authorities plaintiff. So decided the de long plain- attempted prevent as their stand enforce decisions fendants legally injured, has not been notwith- tiff minimum made of a Price Order14 ment by standing may irreparably Agriculture Secretary have been on the damaged.” ruling Implicit is the ground competitors en had liability legal conclusion monopolize gaged conspiracy in a by vir- Sherman Act cannot be sustained securing of the Sherman Act violation agency action of official a State tue of drafting, adoption, acceptance inspired acts of individ- however Justice Reed order. Mr. stated: uals. *9 aggran corporate “If motives ulterior (1) activities, that the Act stimulated their I conclude dizement Congress by thereby appli- not to be rendered not intended efforts governmental by way If Act and restraints the Order oth cable unlawful. by valid, or not fact that whether induced effect of the erwise (2) private give cooperatives activity monopoly private and ac- be to would by the not the as those conducted market would Sher violate tivities the Byoir justify under circum- refusal of and the or the the in Railroads Act man presented deemed cannot be junction.” stances here 246, 1937, Agreement Agricultural Marketing No. Act of under Stat. 14. Order seq. § 7 U.S.C.A. 601 et right petition] restraints follows: unreasonable “The [to constitute to monopoly * * * necessarily right Act.15 includes the under * * * to endeavor to make [one’s] * * * Issue. Constitutional opinion concerning own laws * * existing contemplated prevail *. reasoning opinion as of this If the right by Full and free exercise of this erroneous, expressed it is thus far duty; ordinarily the citizen is also his necessary to discuss constitutional important for its exercise more by questions posed circum- which are Nation than to himself. Like the IAs the decision at bar. stances and harmony heavenly bodies, course opinion of the court below read in national life is a resultant of by protection constitutional asserted struggle contending between forces. ground rejected defendants was on the expression conflicting frank opinion campaign resorting of defa- to a greatest lies promise wisdom Byoir invali- mation the Railroads governmental action; suppression guarantees dated the First ordinarily greatest lies peril.” Mr. opinion majority Amendment.16 The Justice Brandéis’ view the Gilbert I had But seems take a similar view. case became the law in Dennis v. United imagined that constitu- not hitherto States, 1951, 341 U.S. 71 S.Ct. guarantee because tional couldbe avoided 95 L.Ed. 1137. The First Amendment as- bad conduct of the individual protects “secular” causes as well as “re serting right. I do the constitutional ligious political ones”. Thomas v. Col might argued, believe so not now. lins, 1945, 516, 530-531, 323 U.S. 65 S. course, re- that a determination 315, 323, Ct. proposal 89 L.Ed. A 430. straint unreasonable obviates consti- to tax upon trucks stands the same guarantees tutional gument this ar- but to state ground religious speech as a or an un invalidity. its Cf. demonstrates popular political expression idea. The United States v. Columbia Steel integral of “bloc part sentiment” is an supra, page at 334 U.S. at 68 S.Ct. legislative process. our United States page importance The vast O., 1948, C. I. 143-144, 335 U.S. right petition, usually exercised 92 L.Ed. 1849. can There joint action, was set Mr. Justice question nobe that the “idea” that trucks dissenting opinion his Gil- Brandéis should or should not be taxed Minnesota, 1920, bert v. State importance”. States has “social 337-338, Roth v. permitted have Parenthetically, the Truckers to enter below previously reached, least, fields closed to them and result to mo at the unsual hy therefore no violation of the antitrust counterclaims asserted gained laws was involved. But business Truckers could Railroads necessity though interstate truckers of counterclaims be maintained expense substantially be at the allege of interstate the same railroads. acts of Moreover of the court be and nature as those of the character respect upon judg low in counterclaims not Railroads stating proved a valid cause of ac is based. is true that ment here “good theory” tion overlooks the conceded that the counter ad Railroads vanced the court itself the basis are without merit. This conces claims judgment. think, was, necessary My for its That there were at sion one. expressed tacks made the Truckers on the based on the view is conclusion opinion will of the Railroads is indubitable in this proved the court below so found. See a cause of action 155 F. Supp. page 803. The distinction the court at Sherman Act. But below held *10 tempted by attempts to made be the court that Truckers’ at favorable is too grasp. permissible legislation subtle for tome It seems were to be because theory based procure that under attempting the Sher to that laws competitor’s man Act is what one competitive meat positions would better their may competitor’s poison. be another relation to the in Railroads. court The explains legislation sought that the pages would 16. See 155 820-829. legis- groups States, 1957, are free access to allowed U.S. legis- legislatures respect lators and to L.Ed.2d lation, proposed. appli- pending or The prohibited persons access are to be If cation limit the of the Sherman Act to legislators because their utterances to may by public expression free of ideas personal or taste offensive to be right peti- groups, and interested tion, to away from the morals have moved far we give information, to wheth- order republican conception our Framers’ of leg- pertinent impertinent, er or their to government. concept The of form of legislatures, islators would foil the legisla- by people lack of to a access legislative processes which in a consist If ma- is essence totalitarian. in its ture conflicting large balancing part of the of contrary morals, terial to field interests and influences. In this by matter, placed an individ- obscene equivalent prohibition limitation of is the unenlightened group in- ual self or a exercising right persons if for to legislature is, it terest before State petition subject prosecution are to be course, permissible the State to of for damages under the Sherman Act or to punish projectors such material Clayton go Act, in civil or suits under the or civil sanctions. But criminal prosecution suits, fear of such or such assuredly imposition such sanctions right persons these will not exercise the laws of the function the antitrust not petition fundamental constitu- say To an States. the United right destroyed. tional will limited or be legislator may over-persuad- dividual leg- open Sources now of information wrongly how he ed or convinced conflicting pertinent islators as to inter- commonplace should vote is state a will ests be choked-off or obliterated. right deprive but to an individual of scope Act has been of the Sherman guise protecting petition under the enlarged greatly years in recent and it private companies from restraint I is indeed a statute but cannot flexible say monopolistic practices is to trade or Congress intended it to be conceive say badly. it To far too and to much applied prohibit limit access to free go may person attempt to cre- whom legislatures legisla- inducing or to the change the laws under which he ate or by private activity. action tive Repre- to his lives if not sentatives, Senators Moreover, in exer- the instant case the True, State or National? taxing police power is a cise of State proc- may ills inhere in this democratic fine balance most delicate area legislature may propagan- ess. The preserved which must be between the material from tainted source dized and the National Government. States which is curable as this is abuse but in the two enactment Congress persons has it.17 If cured designated peculiarly fields a concern right petition deprived of to be and the of such enactment right subject to has been because abuse, liberty legislatures sanc- is the last laws flight. visibly will take rights. tuary of States’ Here another thoughtful person every provision into of the Constitution comes think legislative agree processes play. provides Tenth that the Amendment successfully delegated powers not conducted that: “The cannot be Constitution, all be conducted at unless nor United States prohibited should public States, and all it interested are re- members of injunction the court below be observed entered 17. It should requires approved legislation court. N.A. Cf. below effected publicize Alabama, v. State of Railroads A.C.P. relating “with- 2 L.Ed.2d the Truckers U.S. 1488, material participation”. Supreme disclosing inter in which the Court [own] “IV-(6)” prohibition “privacy paragraph final de- dicted See group this alone I would conclude association”. cree. require modification the form *11 respectively, surely presented served to the or to circumstances here people.” True, police power right do not State warrant limitation Congress past petition by by been has curbed Sherman Act. be- Rights by way Congress lieve of the Civil Acts and did not intend by contemplate even State taxation has been limited Con- such a result. gress where been has deemed to trench it Damages. As to again on interstate commerce. see And below, grasp The court as I con quotation from Mr. Chief Justice opinion, tents of its has concluded that opinion Brown, Stone’s in Parker su- Byoir because the Railroads and em page pra, 317 U.S. at at “Campaign barked on a against of Vilification” page 313, passed where California had damage legal the Truckers re proration statute which restricted com- sulted to them in the form of loss of petition among growers raisins “good “good will”.18 The court divided prices. principle fixed also enunci- categories: good first, will” into two will ated is central to the Tenth Amendment respect of the Truckers in to their cus always oneself, must one in- ask tomers, injury by way business, of loss of legislature above, dicated how a State and, second, good loss of the legislate effectively could without infor- public, being injury defined in terms petitions mation or affected those from disability imposition “to avoid the legislation? by argument by made crippling By burdens and restrictions”.19 the Truckers in is that State substance stipulation agreed by parties was it being only action but ne- affected only damages claimed farious conduct who induced those resulting gu Truckers were those from being State action is curbed. It would legislation.20 bernatorial veto of certain seem that action the State Single damages, subsequently trebled surely circumstances at bar must cauter- were awarded to PMTA. These were as action ize individuals. if But principally sessed on the basis of the great guaranteed by liberties the Consti- money, $217,358, spent by PMTA, reasonably, tution must through be exercised Public Allied Relations Associ “* * * plaintiffs (except plaintiff court below stated: Penn- private injury sylvania real [A] the truckers Association) Motor Truck accomplished. definitely may There was those that each of them suf- good trucking- a loss of will to the inability carry fered because of its dustry weight some instances loss more than the fixed limits F.Supp. Pennsylvania prior will was extreme.” change at laws of page (“Summary”). in the law in 1955.” position The court took the “ [Tjhe 19. The court stated: use of the stipulation quoted section of the limited * * * ‘good term will’ relates not money value of the Truckers’ claims only damage to the direct done to the but not the nature of their claims. This truckers, e., users, i. refusal truck interpretation was an erroneous of the campaign, because of the to avail them- stipulation. The Truckers called to tes- transportation selves of form of tify respective conceded that busi- (loss business), but refers also to only by leg- nesses had harmed been type injury the more subtle done the action or islative inaction that the Rail- trucking industry by discrediting entire pre- roads and had effected. At eyes general public, stipulated trial conference it was highways, users of the and eliminat- 90% the Truckers who had not testified ing- public appreciation the likelihood of give this issue would similar evidence. trucking industry sym- as such or Following agreement stipula- pathy with the truckers’ 3, supra, tion set out in Section en- gaining general would be fundamental public support tered into. The distinction made imposition to avoid the damage court between the nature of the crippling burdens and restrictions.” scope damage money-wise and the pages (“Summary”). 810-811 and also invalid does violence to the Stipulation parties. Section 3 of the is as fol- intent damages lows : “The claimed *12 230 alleged any legal measures”, based on dis- ates, measures abuse of for “defensive Truckers, cretion the court below. rests on employed PMTA to aid ground including prosecution were suit at broad that no facts of the proved laws, which, spent under PMTA the antitrust The monies bar. which justify grant- injunctive very purposes expended for could relief for the were ed. contributed which appears there PMTA.21 Truckers conclusion, damages, the issue of on expenditures made these fore that although desirable, perhaps it is reality paid for in PMTA were necessary, briefly to comment on the a mere and that PMTA Truckers approach of the below loss of court expended. agent conduit for the sums “good damage. will” as If elements of perceive no basis for I can therefore damages under be recovered Sec PMTA sums of these reimbursement (or matter, tion 1 under Section damages by way allowance of 2) conjunction of the Sherman Act PMTA. Clayton Act, 4 Section of the there proof damage. must be As to the loss below, ex Moreover, while good Truckers, will business- damages refusing pressly allow respect wise their customers as ef successful because Truckers below, quoted in defined note the court de Railroads forts of feating supra, 19 is clear there was no show it sought by Truck any by any loss of business indi ers, each allowed nonetheless vidual Trucker. None of the Truckers damages cents, of six nominal legally protected had or in could cents, eighteen

trebled, because of good trucking in terest dustry will Byoir’s conduct. bad Railroads’ Cognizable injury as a whole. legally no below held the court Since cognizable under the Act to some must be damages from could ensue property”, e., “business or a violation i. legal governmental22 entirely acts right property of some or business which support nominal these foundation recognized by is law.23 The court appears. awards trucking took below al- was also counsel fee substantial A industry legal entity possessing PMTA. This to counsel for lowed cognizable general interest a kind of judgment if must fall also award belonging jointly all Truck must I be. as believe reversed suing group. ers in the at But suit joint opinion private the in- also of the suit. No bar is a antitrust am right granted junctive under Section 16 relief each whatsoever is involved and justifica- Clayton Act is must maintain and his without Trucker vindicate regard right.24 My separate is not conclusion in individual tion. own F.Supp. damages. opinion opinion per 166 21. See affirmed curiam on the 405; pages Cir., 1954, indicated has been 211 at 166-168. As F.2d Mel below 3 organiza Loew’s, Cir., Realty Inc., service PMTA is a Truckers’ v. Co. 3 rose nothing in the record denied tion. There F.2d certiorari 234 n right support main its 1 suit, “spurious”, on real or a class tain 2d 85. satisfactory No of the Truckers. behalf theory appears Clayton Co., Anderson, 24. Hess v. See which PMTA can D.C.S.D.Cal.1957, 466; Weeks 20 F.R.D. a suit be entitled to maintain be held to Cir., 1941, Co., 125 Oil 7 F. v. Bareco capacity. representative Rule See Inc., Anheuser-Busch, 84; Kainz v. 2d 23, Fed.R.Civ.Proc., Cf. U.S.C. 737; Cir., 1952, 194 Bascom F.2d of American v. Association United States Corp. Corp., D.C. Telecoin Launder D.C.N.D.Neb.1945, Railroads, 4 F.R.D. 677; S.D.N.Y.1950, Farm 9 F.R.D. 610, 516. Socony-Vaeuum Co-op. Co. Oil Oil ers pages 834-835. See Cir., 133 F.2d 101. Pictures, Harrison v. Paramount See F.Supp. 312, D.C.E.D.Pa.1953, *13 gross. good will in can be There no any evidence that There individually or was suffered any injury his

threatened reputation. or to business name his damage attempted This element

proved by Truckers was shown to lacking completely foundation. factual I must dissent. reasons stated For the judgment of the reverse the portion below save the coun-

of which denies relief under

terclaims. Banking BANK, a

ILLINOIS NATIONAL Corporation, Es Conservator of the Davenport, Davenport, and Nellie tate of Earl tiffs-Appellees, Plain America,

UNITED STATES of Defendant-Appellant.

No. 12713. Appeals

United States Court

Seventh Circuit.

Dec.