1. A federal court of equity may enjoin state criminal
proceedings under a statute alleged to be unconstitutional when
their prevention is essential to the safeguarding of rights of
property, and when the circumstances are exceptional and the danger
of irreparable loss is both great and immediate. P. 274 U. S.
2. The injunction cannot be supported, however, insofar as it
embraces proceedings pending in the state criminal court which were
instituted before the suit was begun. P. 274 U. S.
3. The Due Process Clause of the Fourteenth Amendment imposes
upon the states the obligation of so framing their criminal
statutes that those to whom they are addressed may know what
standard of conduct is intended to be required. P. 274 U. S.
4. The Colorado Anti-Trust Law denounces and punishes
conspiracies and combinations, in restraint of trade; to fix
prices, prevent competition, etc., except when necessary in order
to enable participants to obtain a reasonable profit from products
dealt in, etc. Held
that the exception leaves the statute
without a fixed standard of guilt, rendering it void. P.
274 U. S.
Reversed in part, affirmed in part.
Appeal from a decree of the district court, three judges
sitting, permanently enjoining the appellant district attorney from
enforcing the Colorado Anti-Trust Law against the plaintiff dairy
corporations and individuals.
Page 274 U. S. 449
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a direct appeal under § 238 of the Judicial Code, as
amended by the Act of February 13, 1925, c. 229, 43 Stat. 936, from
a final decree of the United States District Court of Colorado,
three judges sitting, granting a permanent injunction against the
enforcement by a state officer of a state law on the ground of its
unconstitutionality. The bill was brought by the Frink Dairy
Company, the Windsor Farm Dairy Company, and the Climax Dairy
Company, corporations of Colorado, and H. Brown Cannon, Clarence
Frink, A. T. McClintock, and Morris Robinson, citizens and
residents of the same state, against Foster Cline, the district
attorney for the
City and County of Denver, Colorado.
The bill alleges that the suit involves for decision the
question of the validity under the Constitution of the United
States of what is known as the Colorado Anti-Trust Act, being
chapter 161 of the Session Laws of the State of Colorado for 1913,
approved April 7th of that
Page 274 U. S. 450
year. It avers that the three dairy companies have been
separately conducting for years, in Denver, Colorado, and its
vicinity, the sale and distribution of milk, butter, and all manner
of dairy products; that each has invested in its business more than
$100,000; that they are also engaged in interstate commerce, buying
and selling from without the limits of the state; that the
individual plaintiffs, Connon, Frink, and Morrison, are
respectively officers and stockholders of the three plaintiff
companies; that McClintock, the other individual plaintiff, is an
officer and stockholder of the Beatrice Creamery Company, a
corporation of Delaware, also in the dairy business in Denver; that
the individual plaintiffs, experienced dairymen, by painstaking
effort, fair dealing, and careful management, have gained thousands
of customers and a well established trade, and that their
companies, in addition to their tangible property and assets, have
good wills of great value. The bill sets out in full the Colorado
antitrust law, which punishes as a crime combinations of persons
and corporations to restrain trade or commerce, with certain
exceptions, and makes it the duty of the defendant, the district
attorney, to prosecute alleged violations thereof, and to institute
actions for forfeiture of charters of associations engaged therein.
All contracts violating the act are avoided; violation of the act
is made a good defense to a suit for merchandise that was sold in
pursuance of a combination under it, and a right of action for
damages against the combiners is given to anyone injured by the
combination. One charge of the bill, among others, is that the act
violates the Fourteenth Amendment of the Constitution in that it
deprives the plaintiffs of their liberty without due process of law
because it is indefinite and uncertain, and fails to fix any
informing standard of criminality.
The bill alleges that Foster Cline, the defendant, in his
capacity as district attorney of Denver City and
Page 274 U. S. 451
County, has been, and still is, claiming that the plaintiffs and
their competitors have been and now are acting in violation of the
antitrust law; that he has caused an information to be filed in the
criminal division of the District Court of the City and County of
Denver, in which the plaintiffs and the Beatrice Creamery Company,
a Delaware corporation, are charged with conspiracy to violate the
Anti-Trust Act; that he expects to press the case to trial; that,
since the case was instituted the grand jury has been in session,
and many witnesses summoned and questioned about the plaintiffs'
milk business; that the defendant Cline has threatened to, and,
unless restrained by the court will, institute further
prosecutions, file further informations, and attempt to procure
indictments of the plaintiffs by the grand jury, and that Cline, by
this multiplicity of criminal suits and prosecutions, as well as by
the civil suits for forfeiture of the corporate plaintiffs'
charters he has threatened to bring, has already inflicted serious
loss to the businesses and properties of the plaintiffs, and that
they will be irreparably and immeasureably damaged thereby unless
he is restrained.
A motion to dismiss was made by the defendant on the ground that
the bill presented no case for equitable relief. On the hearing
before the three judges, a preliminary injunction was issued and
the motion to dismiss was denied. The defendant standing upon his
motion to dismiss and declining to plead further, a decree for a
permanent injunction was entered, and this is an appeal from that
The first question is whether the practice and precedents in
equity justified the granting of relief by injunction where one
criminal prosecution had been begun and where many others, together
with suits for forfeiture of corporate franchises, were threatened.
The general rule is that a court of equity is without jurisdiction
to restrain criminal proceedings to try the same right that is in
Page 274 U. S. 452
before it; but an exception to this rule exists when the
prevention of such prosecutions under alleged unconstitutional
enactments is essential to the safeguarding of rights of property
and when the circumstances are exceptional and the danger of
irreparable loss is both great and immediate. Fenner v.
Boykin, 271 U. S. 240
271 U. S. 243
Packard v. Banton, 264 U. S. 140
Hygrade Provision Co. v. Sherman, 266 U.
, 266 U. S. 502
Terrace v. Thompson, 263 U. S. 197
263 U. S. 214
Ex parte Young, 209 U. S. 123
Davis & Farnum Mfg. Co. v. Los Angeles, 189 U.
, 189 U. S. 218
Dobbins v. Los Angeles, 195 U. S. 223
195 U. S. 236
195 U. S. 241
In re Sawyer, 124 U. S. 200
124 U. S. 209
124 U. S.
The affidavits in support of the bill were very full in their
showing that the district attorney, by his action and threats, had
already greatly injured their properties and their businesses. They
present a case in which the question of the validity of the act
under which, if invalid, great injuries to properties and
businesses are being unjustly inflicted should be promptly settled.
We think the basis for equitable jurisdiction is made sufficiently
It is objected, however, that the injunction cannot be supported
under the authorities insofar as it is directed against actual
proceedings pending in the criminal court. One of the district
judges below dissented from this part of the decree. Of course, the
injunction is not only against actual prosecution, but is also
against a multiplicity of future suits and the threatened
proceedings for forfeiture by which the Attorney General proposes
to end the businesses of all the plaintiffs, and the objection
would only lead to a narrowing of the decree. The majority in the
district court were influenced by a remark of this Court in
Davis & Farnum Co. v. Los Angeles, supra,
of a bill to restrain invasion of rights of property by the
enforcement of an unconstitutional law, in which the Court
Page 274 U. S. 453
"It would seem that, if there were jurisdiction in a court of
equity to enjoin the invasion of property rights through the
instrumentality of an unconstitutional law, that jurisdiction would
not be ousted by the fact that the state had chosen to assert its
power to enforce such law by indictment or other criminal
does not seem to have received the approval
of the Court in Ex parte Young, 209 U.
, where it was said:
"It is further objected (and the objection really forms part of
the contention that the state cannot be sued) that a court of
equity has no jurisdiction to enjoin criminal proceedings, by
indictment or otherwise, under the state law. This, as a general
rule, is true. But there are exceptions. When such indictment or
proceeding is brought to enforce an alleged unconstitutional
statute which is the subject matter of inquiry in a suit already
pending in a federal court, the latter court, having first obtained
jurisdiction over the subject matter, has the right, in both civil
and criminal cases, to hold and maintain such jurisdiction, to the
exclusion of all other courts until its duty is fully performed.
Prout v. Starr, 188 U. S. 537
, 188 U. S.
. But the federal court cannot, of course, interfere
in a case where the proceedings were already pending in a state
court. Taylor v. Taintor,
366, 83 U. S. 370
v. Wadley, 172 U. S. 148
We therefore agree with the view of the dissenting judge that
the injunction is too broad insofar as it restrains proceedings
actually pending, and that it must be accordingly modified.
This brings us to the consideration of the constitutionality of
the Anti-Trust Act. We think that the act is so vague and uncertain
in its description of what shall constitute its criminal violations
that it is invalid under the Fourteenth Amendment. It in this
respect violates due process, and cannot be distinguished from the
Page 274 U. S. 454
of United States v. Cohen Grocery Co., 255 U. S.
. The law there under consideration was the fourth
section of the Lever Act, reenacted in 1919. Act of October 22,
1919, c. 80, § 2, 41 Stat. 297. It provided as follows:
"That it is hereby made unlawful for any person willfully . . .
to make any unjust or unreasonable rate or charge in handling or
dealing in or with any necessaries; to conspire, combine, agree, or
arrange with any other person, . . . to exact excessive prices for
any necessaries. . . . Any person violating any of the provisions
of this § upon conviction thereof shall be fined not exceeding
$5,000 or be imprisoned for not more than two years, or both."
This Court said:
"The sole remaining inquiry therefore is the certainty or
uncertainty of the text in question -- that is, whether the
"That it is hereby made unlawful for any person willfully . . .
to make any unjust or unreasonable rate or charge in handling or
dealing in or with any necessaries"
"constituted a fixing by Congress of an ascertainable standard
of guilt and are adequate to inform persons accused of violation
thereof of the nature and cause of the accusation against them.
That they are not, we are of opinion, so clearly results from their
mere statement as to render elaboration on the subject wholly
unnecessary. Observe that the section forbids no specific or
definite act. It confines the subject matter of the investigation
which it authorizes to no element essentially inhering in the
transaction as to which it provides. It leaves open, therefore, the
widest conceivable inquiry, the scope of which no one can foresee
and the result of which no one can foreshadow or adequately guard
against. In fact, we see no reason to doubt the soundness of the
observation of the court below, in its opinion, to the effect
Page 274 U. S. 455
that to attempt to enforce the section would be the exact
equivalent of an effort to carry out a statute which in terms
merely penalized and punished all acts detrimental to the public
interest when unjust and unreasonable in the estimation of the
court and jury."
The opinion cites in support of its conclusion United States
v. Reese, 92 U. S. 214
92 U. S.
-220; United States v. Brewer, 139 U.
, 139 U. S. 288
Todd v. United States, 158 U. S. 278
158 U. S. 282
United States v. Sharp,
27 Fed.Cas. 1041, 1043, No.
16,264; Chicago & Northwestern Ry. Co. v. Dey,
866, 876; Tozer v. United States,
52 F. 917, 919, 920;
United States v. Capital Traction Co.,
34 App.D.C. 592;
United States v. Pennsylvania R. Co., 242 U.
, 242 U. S.
-238; also International Harvester Co. v.
Kentucky, 234 U. S. 216
234 U. S. 221
Collins v. Kentucky, 234 U. S. 635
234 U. S. 637
American Seeding Machine Co. v. Kentucky, 236 U.
, 236 U. S. 662
The Colorado antitrust law denounces conspiracies and
combinations of persons and corporation first, to create and carry
out restrictions in trade or commerce preventing the full and free
pursuit of any lawful business in the state; second, to increase or
reduce the price of merchandise, products, or commodities; third,
to prevent competition in the making, transportation, sale, or
purchase of commodities or merchandise; fourth, to fix any standard
of figures whereby the price shall be controlled or established;
fifth, to make or execute any contract or agreement to bind the
participants not to sell below a common standard, or to keep the
price of the article at a fixed or graded figure, or establish or
settle the price between themselves so as to preclude a free and
unrestricted competition among themselves, or to pool, combine, or
untie any interest they may have in such business of making,
selling, or transporting that the price of the article may be
affected. The foregoing language sufficiently describes,
Page 274 U. S. 456
for purposes of a criminal statute, the acts which it intends to
punish, but the Colorado law does not stop with that. It is
accompanied by two provisos which materially affect its purport and
effect. They are as follows:
"And all such combinations are hereby declared to be against
public policy, unlawful and void; provided, that no agreement or
association shall be deemed to be unlawful or within the provisions
of this act, the object and purposes of which are to conduct
operations at a reasonable profit or to market at a reasonable
profit those products which cannot otherwise be so marketed;
provided further that it shall not be deemed to be unlawful, or
within the provisions of this act for persons, firms, or
corporations engaged in the business of selling or manufacturing
commodities of a similar or like character to employ, form,
organize, or own any interest in any association, firm, or
corporation having as its object or purpose the transportation,
marketing or delivering of such commodities. . . ."
The effect of the first proviso is that combinations, with the
purposes defined in the first, second, third, fourth, and fifth
paragraphs of § 1, and declared thereby to be unlawful and void,
are not to be regarded as unlawful if their purpose shall be to
obtain only a reasonable profit in such products or merchandise as
cannot yield a reasonable profit except by marketing them under the
combinations previously condemned. The second is like the first in
declaring that it shall not be unlawful or within the condemnatory
provisions of the act for persons engaged in the business of
selling or manufacturing commodities of a class that can only be
dealt with at a reasonable profit by such previously condemned
trust methods to employ or own interests in an association having
as its object the transportation, marketing, or delivering of such
commodities at a reasonable profit. These provisos make the
Page 274 U. S. 457
between lawfulness and criminality to depend upon, first, what
commodities need to be handled according to the trust methods
condemned in the first part of the act to enable those engaged in
dealing in them to secure a reasonable profit therefrom; second, to
determine what generally would be a reasonable profit for such a
business; and, third, what would be a reasonable profit for the
defendant under the circumstances of his particular business. It
would therefore be a complete defense for the defendant to prove in
this case that it is impossible to sell milk or milk products
except by trust methods and make a reasonable profit if he also
showed that, by such methods, he had in fact only made a reasonable
We have examined the opinions of the Supreme Court of Colorado
in reference to the construction and operation of these provisos in
the Colorado antitrust law. Campbell v. People,
213; Johnson v. People,
72 Colo. 218; People v.
73 Colo. 71, and we find nothing there which is in
conflict with our construction of them. Such an exception in the
statute leaves the whole statute without a fixed standard of guilt
in an adjudication affecting the liberty of the one accused. An
attempt to enforce the section will be to penalize and punish all
combinations in restraint of trade in a commodity when, in the
judgment of the court and jury, they are not necessary to enable
those engaged in it to make it reasonably profitable, but not
otherwise. Such a basis for judgment of a crime would be more
impracticable and complicated than the much simpler question in the
case -- whether a price charged was
unreasonable or excessive. The real issue which the proviso would
submit to the jury would be legislative, not judicial. To compel
defendants to guess on the peril of an indictment whether one or
more of the restrictions of the statute will destroy all profit
Page 274 U. S. 458
reduce it below what would be reasonable would tax the human
ingenuity in much the same way as that which this Court refused to
allow as a proper standard of criminality in International
Harvester Co. v. Kentucky, 234 U. S. 216
234 U. S.
case was a violation of a federal law, and
involved the Fifth and Sixth Amendments, the first providing that
no person shall be deprived of life, liberty, or property without
due process of law, and the second that in all criminal
prosecutions the accused shall enjoy the right to be informed of
the nature and cause of the accusation. We are now considering a
case of state legislation and threatened prosecutions in a state
court, where only the Fourteenth Amendment applies, but that
requires that there should be due process of law and this certainly
imposes upon a state an obligation to frame its criminal statutes
so that those to whom they are addressed may know what standard of
conduct is intended to be required. And such is the effect of our
cases. Connally v. General Construction Co., 269 U.
; International Harvester Co. v.
Kentucky, 234 U. S. 216
Collins v. Kentucky, 234 U. S. 364
American Seeding Machine Co. v. Kentucky, 236 U.
; Waters-Pierce Oil Co. v. Texas,
212 U. S. 86
Fox v. Washington, 236 U. S. 273
Omaechevarria v. Idaho, 246 U. S. 343
Miller v. Strahl, 239 U. S. 426
Tedrow v. Lewis & Son Co., 255 U. S.
; Weeds, Inc. v. United States, 255 U.
, and Kinnane v. Detroit Creamery Co.,
255 U. S. 102
In the latest of the foregoing cases, Connally v. General
Construction Co., 269 U. S. 385
269 U. S. 391
the validity of a statute of Oklahoma providing that not more than
the current rate of per diem
wages in the locality where
the work was performed should be paid to laborers, workmen,
mechanics, prison guards, janitors in public institutions, or other
persons so employed by and on behalf
Page 274 U. S. 459
of the state, was before us. We held that the provision
contained no ascertainable standard of guilt; that it could not be
determined with any degree of certainty what sum constituted a
current wage in such locality, because the term "locality" under
the circumstances of that case was fatally vague and uncertain. We
said (p. 269 U. S.
"That the terms of a penal statute creating a new offense must
be sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties is a
well recognized requirement, consonant alike with ordinary notions
of fair play and the settled rules of law, and a statute which
either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its
meaning and differ as to its application violates the first
essential of due process of law. . . ."
"The question whether given legislative enactments have been
thus wanting in certainty has frequently been before this Court. In
some of the cases, the statutes involved were upheld; in others,
declared invalid. The precise point of differentiation in some
instances in not easy of statement, but it will be enough for
present purposes to say generally that the decisions of the court
upholding statutes as sufficiently certain rested upon the
conclusion that they employed words or phrases having a technical
or other special meaning, well enough known to enable those within
their reach to correctly apply them, Hygrade Provision Co. v.
Sherman, 266 U. S. 497
, 266 U. S.
; Omaechevarria v. Idaho, 246 U. S.
, 246 U. S. 348
, or a well
settled common law meaning, notwithstanding an element of degree in
the definition as to which estimates might differ. Nash v.
United States, 229 U. S. 373
, 229 U. S.
; International Harvester Co. v. Kentucky,
at 234 U. S. 223
, or, as
broadly stated by Mr. Chief Justice White in United States v.
Cohen Grocery Co., 255 U. S. 81
, 255 U. S.
, that, for reasons found to result either from the
Page 274 U. S. 460
of the statutes involved or the subjects with which they dealt,
a standard of some sort was afforded."
The chief authority upon which counsel for the appellant rely is
the case of Nash v. United States, 229 U.
, 229 U. S. 376
That case involved the question whether the Sherman Anti-Trust Law,
in making criminal every contract and all monopolies in restraint
of interstate trade or commerce, fixed a permissible and
ascertainable standard of guilt. It was held that it did. Because
this Colorado act is an antitrust law, punishing with even more
detail of description all combinations in restraint of trade in
Colorado, with the excepting provisos, it is supposed that the
case has direct application. and supports the claim
of validity for the act. It is first to be noted that the Court, in
its consideration of the Cohen
case, had before it the
case, and found nothing in that case inconsistent
with its Cohen
In the Nash
case, we held that the common law
precedents as to what constituted an undue restraint of trade were
quite specific enough to advise one engaged in interstate trade and
commerce what he could and could not do under the statute. In
commenting on and affirming the Nash
case, this Court said
in International Harvester Co. v. Kentucky, 234 U.
, 234 U. S.
"The conditions are as permanent as anything human, and a great
body of precedents on the civil side, coupled with familiar
practice, make it comparatively easy . . . to keep to what is
The common law precedents as to forbidden and permissible
restraints of trade were reviewed at great length by the Circuit
Court of Appeals of the Sixth Circuit in a case under the federal
Anti-Trust Act in United States v. Addyston Pipe Co.,
F. 271. It subsequently came to this Court, and is reported in
175 U. S. 175
211. The federal Anti-Trust Act declares every contract,
combination in the form of trust or otherwise
Page 274 U. S. 461
or conspiracy in restraint of interstate trade to be illegal.
and everyone taking part in it to be guilty of a misdemeanor. In
United States v. Trans-Missouri Freight Association,
166 U. S. 290
United States v. Joint Traffic Association, 171 U.
, the opinions of the Court left the impression
among many that every contract in restraint of trade, no matter
whether lawful and reasonable or void and unenforceable at common
law, was within the penalty of the statute. Such a conclusion was
not necessary to the decision, and it was quite evident, when the
opinions were analyzed, that it was recognized in their text that
there were incidental restraints of trade that the statute was not
intended to cover. This was made clear by the later decision in
Cincinnati Packet Co. v. Bay, 200 U.
. The view was fully confirmed in United
States v. Standard Oil Co., 221 U. S. 1
United States v. American Tobacco Co., 221 U. S.
06, where the language of the federal statute was read
in the light of the common law, and in accordance with its reason,
and was construed not to penalize such partial restraints of trade
as at common law were not only permitted, but were promoted in the
interest of the freedom of trade itself.
The review of the many common law precedents as to due and undue
restraints of trade shows that in only one or two cases, and those
not well considered, was there left to the court or jury as a
criterion of the validity of a restraint of trade the
reasonableness of the prices fixed or the profit realized under
which involved a
scheme for fixing prices, this Court quoted with approval the
following passage from the lower court's opinion (85 F. 271,
". . . The affiants say that, in their opinion, the prices at
which pipe has been sold by defendants have been reasonable. We do
not think the issue an important
Page 274 U. S. 462
one, because, as already stated, we do not think that, at common
law, there is any question of reasonableness open to the courts
with reference to such a contract."
In the same case, the circuit court of appeals, referring to
cases in restraint of trade, said (pp. 283 and 284):
"But these cases all involved contracts in which the covenant in
restrain of trade was ancillary to the main and lawful purpose of
the contract, and was necessary to the protection of the covenantee
in the carrying out of that main purpose. They do not manifest any
general disposition on the part of the courts to be more liberal in
supporting contracts having their sole object the restraint of
trade than did the courts of an earlier time. It is true that there
are some cases in which the courts, mistaking, as we conceive, the
proper limits of the relaxation of the rule for determining the
unreasonableness of restraints of trade, have set sail on a sea of
doubt, and have assumed the power to say, in respect to contracts
which have no other purpose and no other consideration on either
side than the mutual restraint of the parties, how much restraint .
. . is in the public interest, and how much is not. The manifest
danger in the administration of justice according to so shifting,
vague, and indeterminate a standard would seem to be a strong
reason against adopting it."
This same view, when directed to the question of judging
restraints of trade by reference to reasonableness of prices
effected by the restraint, is confirmed by the latest decision of
this Court on the subject in United States v. Trenton Potteries
Co., 273 U. S. 392
where it was said:
"The aim and result of every price-fixing agreement, if
effective, is the elimination of one form of competition. The power
to fix prices, whether reasonably exercised or not, involves power
to control the market and to fix arbitrary and unreasonable prices.
The reasonable price fixed
Page 274 U. S. 463
today may, through economic and business changes, become the
unreasonable price of tomorrow. Once established, it may be
maintained unchanged because of the absence of competition secured
by the agreement for a price reasonable when fixed. Agreements
which create such potential power may well be held to be in
themselves unreasonable or unlawful restraints without the
necessity of minute inquiry whether a particular price is
reasonable or unreasonable as fixed and without placing on the
government in enforcing the Sherman law the burden of ascertaining
from day to day whether it has become unreasonable through the mere
variation of economic conditions. Moreover, in the absence of
express legislation requiring it, we should hesitate to adopt a
construction making the difference between legal and illegal
conduct in the field of business relations depend upon so uncertain
a test as whether prices are reasonable -- a determination which
can be satisfactorily made only after a complete survey of our
economic organization and a choice between rival philosophies."
This review showing what was the standard of criminality in the
federal antitrust law indicates clearly that the decision in the
case was not inconsistent with the
case, because the latter did not relate to the
reasonableness or excessiveness of prices charged for necessaries
without more as a basis for criminality, while the former plainly
did. The same reasons show that there is nothing inconsistent
between the Cohen
case and that of Waters-Pierce Oil
Co. v. Texas, 212 U. S. 86
The principle of due process of law requiring reasonable
certainty of description in fixing a standard for exacting
obedience from a person in advance has application as well in civil
as in criminal legislation, Small Co. v. American Sugar
Refining Co., 267 U. S. 233
267 U. S. 238
but the fact that it is often necessary to investigate
Page 274 U. S. 464
and decide certain questions in civil cases is not controlling
or persuasive as to whether persons may be held to civil or
criminal liability for not deciding them rightly in advance. On
questions of confiscatory rates for public utilities, for instance,
courts must examine in great detail the circumstances, and reach a
conclusion as to a reasonable profit. But this does not justify in
such a case holding the average member of society in advance to a
rule of conduct measured by his judgment and action in respect to
what is a reasonable price or a reasonable profit. It is true that,
on an issue like negligence -- i.e.,
a rule of conduct for
the average man in the avoiding injury to his neighbors -- everyone
may be held to observe it either on the civil or criminal side of
the court. It is a standard of human conduct which all are
reasonably charged with knowing and which must be enforced against
everyone in order that society can safely exist. We said in the
case (p. 229 U. S.
"But, apart from the common law as to restraint of trade thus
taken up by the statute, the law is full of instances where a man's
fate depends on his estimating rightly -- that is, as the jury
subsequently estimates it -- some matter of degree. If his judgment
is wrong, not only may he incur a fine or a short imprisonment, as
here; he may incur the penalty of death. 'An act causing death may
be murder, manslaughter, or misadventure, according to the degree
of danger attending it' by common experience in the circumstances
known to the actor. . . . 'The criterion in such cases is to
examine whether common social duty would under the circumstances,
have suggested a more circumspect conduct.' 1 East, P.C. 262."
Following the authority in the Nash
case, we sustained
in Miller v. Oregon,
per curiam, 273 U.S. 657, a
conviction of manslaughter under a statute of Oregon which made the
following rule of conduct a standard of criminality:
Page 274 U. S. 465
"Every person operating a motor vehicle on the public highways
of this state shall drive the same in a careful and prudent manner,
not to exceed thirty miles per hour, and within the limit of
incorporated cities and towns not to exceed twenty miles per hour,
and at intersections and school houses not to exceed twelve miles
per hour, and in no case at a rate of speed that will endanger the
property of another, or the life and limb of any person."
Chapter 371, General Laws of Oregon 1921, § 2, subdivision
The indictment was framed under the last clause of this statute.
Such standard for the driver of an automobile on a highway is one
to which it is neither harsh nor arbitrary to hold those criminally
who operate such a possibly dangerous instrument of locomotion, and
who are or ought to be aware of what degree of care is necessary to
avoid injury to others under the conditions that prevail on a
highway. See Hess v. Pawloski, ante,
p. 274 U. S. 352
But it will not do to hold an average man to the peril of an
indictment for the unwise exercise of his economic or business
knowledge, involving so many factors of varying effect that neither
the person to decide in advance nor the jury to try him after the
fact can safely and certainly judge the result. When to a decision
whether a certain amount of profit in a complicated business is
reasonable is added that of determining whether detailed
restriction of particular antitrust legislation will prevent a
reasonable profit in the case of a given commodity, we have an
utterly impracticable standard for a jury's decision. A legislature
must fix the standard more simply and more definitely before a
person must conform or a jury can act.
We conclude that the antitrust statute of Colorado is void, in
that those who are prosecuted and convicted under it will be denied
due process of law.
Page 274 U. S. 466
The decree of district court to enjoin proceedings which the
defendant threatens to bring under the act against the plaintiffs
should be affirmed, but the decree below is modified and reversed
so far as it purports to enjoin the defendant from proceeding
further in prosecuting the information under that act against the
plaintiffs now pending in the state criminal court.
The decree is in part reversed and in part affirmed.