1. A judgment quashing a count upon the ground of duplicity is
not appealable to this Court under the Criminal Appeals Act. P.
193.
2. The construction of an indictment by the District Court binds
this Court on an appeal under the Criminal Appeals Act. P.
308 U.S. 194.
3. A decision of the District Court holding that an indictment
failed to charge an offense under the Sherman Anti-Trust Act
because of the effect on that Act of later statutes,
held
a construction of the Sherman Act and reviewable under the Criminal
Appeals Act. P.
308 U. S.
195.
4. Repeals by implication are not favored. When there are two
Acts upon the same subject, effect should be given to both if
possible. P.
308 U. S.
198.
5. The Agricultural Marketing Agreement Act of 1937 does not
operate to repeal the Sherman Anti-Trust Act in its application to
agreements of producers, distributors and others, restricting
interstate commerce in milk, when such agreements are not
participated in or directed by the Secretary of Agriculture in
pursuance of the former Act. Pp.
308 U. S.
196-202.
With respect to interstate commerce in agricultural commodities
or their products, an agreement made with the Secretary as a party,
or an order made by him, or an arbitration award or agreement
approved by him, pursuant to the authority conferred by the
Agricultural Act and within the terms of the immunity described by
§§ 8(b) and 3(d), would be a defense to a prosecution under the
Sherman Act to the extent that the prosecution sought to penalize
what was thus validly agreed upon or directed by the Secretary.
Further than that the Agricultural Act does not go.
Page 308 U. S. 189
6. A license issued by the Secretary of Agriculture with respect
to the marketing of milk in a given area is not a defense to an
indictment under the Sherman Act for conspiracies in restraint of
that commerce, alleged to have been continued after the license had
expired. P.
308 U. S.
202.
7. An order issued under the Agricultural Marketing Agreement
Act regulating marketing of milk is not a defense to an indictment
of producers, distributors and others under the Sherman Act
charging conspiracies engaged in before the period covered by the
order. P.
308 U. S.
202.
8. The Capper-Volstead Act, in authorizing producers of
agricultural products, including dairymen, to act together in
collectively processing, preparing for market, handling and
marketing their products in interstate and foreign commerce, and to
have marketing agencies in common and make necessary agreements to
effect these purposes, did not authorize a conspiracy of dairymen
with distributors, labor officials, municipal officials, and
others, to maintain artificial and noncompetitive prices to be paid
to all producers for all fluid milk produced in Illinois and
neighboring States and marketed in the Chicago area, which would
compel independent distributors to exact a like price from their
customers and would control the supply of fluid milk permitted to
be brought to the city. P.
308 U. S. 203.
9. Under § 2 of the Capper-Volstead Act, the Secretary of
Agriculture is authorized to determine, subject to judicial review,
whether any such cooperative association monopolizes or restrains
interstate trade to such an extent that the price of any
agricultural product is unduly enhanced, and to issue a cease and
desist order. But this qualifying procedure was not intended to
replace, postpone, or prevent prosecution under § 1 of the Sherman
Act for the punishment of conspiracies by producers and others such
as are described in the last preceding paragraph. P.
308 U. S.
205.
10. Where the District Court has based its decision on a
particular construction of the underlying statute, the review here
under the Criminal Appeals Act is confined to the question of the
propriety of that construction. Distinguishing
United States v.
Curtiss-Wright Corp., 299 U. S. 304. P.
308 U. S.
206.
28 F.2d 177, in part, reversed.
APPEAL from a judgment of the District Court sustaining
demurrers and dismissing an indictment charging combination
Page 308 U. S. 190
and conspiracy in violation of § 1 of the Sherman Anti-Trust
Act. As to one of the counts, the appeal is dismissed.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The Government appeals from a judgment of the District Court
sustaining demurrers and dismissing an indictment charging
combination and conspiracy in violation of § 1 of the Sherman
Anti-Trust Act.
28 F. Supp.
177.
Page 308 U. S. 191
The trade and commerce alleged to be involved is the
transportation to the Chicago market of fluid milk produced on
dairy farms in Illinois, Indiana, Michigan and Wisconsin and the
distribution of the milk in that market. The Government divides the
defendants into five groups -- (1) distributors and allied groups
which include a number of corporations described as major
distributors and their officers and agents, the Associated Milk
Dealers, Inc., a trade association of milk distributors, and its
officers and agents, and the Milk Dealers Bottle Exchange, a
corporation controlled by the major distributors; (2) the Pure Milk
Association, a cooperative association of milk producers
incorporated in Illinois, and its officers and agents; (3) the Milk
Wagon Drivers Union, Local 753, engaged in the distribution of milk
in Chicago, and certain labor officials; (4) municipal officials,
including the president of the Board of Health of Chicago and
certain subordinate officials; (5) two persons who arbitrated a
dispute between the major distributors and the Pure Milk
Association, fixing the price of milk to be paid to the members of
the association.
The indictment, which was filed in November, 1938, contains four
counts. The several defendants challenged it by demurrers and
motions to quash on various grounds. The District Court held with
respect to counts one, two and four that the production and
marketing of agricultural products, including milk, are removed
from the purview of the Sherman Act by the Agricultural Marketing
Agreement Act of 1937 (50 Stat. 246); also, with respect to all
four counts, according to the formal terms of its judgment, that
the Pure Milk Association, as an agricultural cooperative
association, its officers and agents, are exempt from prosecution
under § 1 of the Sherman Act by § 6 of the Clayton Act (15 U.S.C.
17), §§ 1 and 2 of the Capper-Volstead Act (7 U.S.C. 291,
Page 308 U. S. 192
292), and the Agricultural Marketing Agreement Act. With respect
to count three, the District Court held that it was duplicitous in
the view that it charged several separate conspiracies and also
that it did not definitely charge a restraint of interstate
commerce.
The judgment expressly overruled the demurrers and motions to
quash so far as they challenged the constitutionality of the
Sherman Act or the sufficiency of the allegations of unlawful
conspiracy, and also so far as it was contended that interstate
commerce was not involved in counts one, two and four. The court
added that it overruled all the defendants' contentions which it
had not specifically overruled or sustained. The judgment ends by
dismissing the indictment as to all defendants.
The first question presented concerns our jurisdiction. The
exceptional right of appeal given to the Government by the Criminal
Appeals Act is strictly limited to the instances specified.
[
Footnote 1] The provision
invoked here is the
Page 308 U. S. 193
one which permits review where a decision quashing or sustaining
a demurrer to an indictment or any of its counts is based upon the
"construction of the statute upon which the indictment is founded."
The decision below was not predicated upon invalidity of the
statute.
The established principles governing our review are these: (1)
Appeal does not lie from a judgment which rests on the mere
deficiencies of the indictment as a pleading, as distinguished from
a construction of the statute which underlies the indictment. (2)
Nor will an appeal lie in a case where the District Court has
considered the construction of the statute but has also rested its
decision upon the independent ground of a defect in pleading which
is not subject to our examination. In that case, we cannot disturb
the judgment, and the question of construction becomes abstract.
(3) This Court must accept the construction given to the indictment
by the District Court, as that is a matter we are not authorized to
review. (4) When the District Court holds that the indictment, not
merely because of some deficiency in pleading, but with respect to
the substance of the charge, does not allege a violation of the
statute upon which the indictment is founded, that is necessarily a
construction of that statute. (5) When the District Court has
rested its decision upon the construction of the underlying
statute, this Court is not at liberty to go beyond the question of
the correctness of that construction and consider other objections
to the indictment. The Government's appeal does not open the whole
case.
First. The first two of these principles, as the
Government concedes, preclude our review of the decision below as
to count three. For that count was held bad upon the independent
ground that it is defective as a pleading, being duplicitous and
also lacking in definiteness.
United States v. Keitel,
211 U. S. 370,
211 U. S.
397-399;
United States
v.
Page 308 U. S. 194
Carter, 231 U. S. 492,
231 U. S. 493;
United States v. Hastings, 296 U.
S. 188,
296 U. S.
192-194. The appeal as to count three must be
dismissed.
Second. After a general description of the averments of
the indictment, which was explicitly founded on § 1 of the Sherman
Act, the District Court construed counts one, two and four as
follows:
"Count 1 charges a conspiracy 'to arbitrarily fix, maintain and
control artificial and noncompetitive prices to be paid to all
producers by all distributors for all fluid milk produced on
approved dairy farms located in the states of Illinois, Indiana,
Michigan and Wisconsin,' and shipped to Chicago."
"Count 2 charges a conspiracy 'to fix and maintain by common and
concerted action, uniform, arbitrary and noncompetitive prices for
the sale by the distributors in the city of Chicago of fluid milk
shipped into the said city from the states of Illinois, Indiana,
Michigan and Wisconsin.'"
"Count 4 charges a conspiracy 'to restrict, limit and control
and to restrain and obstruct the supply of fluid milk moving in the
channels of interstate commerce into the city of Chicago from the
states of Illinois, Indiana, Michigan and Wisconsin.'"
The District Court further summarized the allegations in these
counts as to the methods by which the alleged conspiracies were
intended to be effected. 28 F.Supp. pp. 179-181. This construction
of the indictment is binding upon this Court on this appeal.
United States v. Patten, 226 U. S. 525,
226 U. S. 535,
226 U. S. 540;
United States v. Colgate & Co., 250 U.
S. 300,
250 U. S. 301;
United States v. Schrader's Son, 252 U. S.
85,
252 U. S. 98;
United States v. Yuginovich, 256 U.
S. 450,
256 U. S. 461;
United States v. Hastings, supra, p.
296 U. S.
192.
Third. The District Court, thus construing counts one,
two and four, held as a matter of substance that, because
Page 308 U. S. 195
of the effect of the later statutes, these counts did not charge
an offense under § 1 of the Sherman Act. This was necessarily a
construction of the Sherman Act.
United States v. Patten,
supra; United States v. Birdsall, 233 U.
S. 223,
233 U. S. 230;
United States v. Kapp, 302 U. S. 214,
302 U. S. 217.
We are not impressed with the argument that the court simply
construed the later statutes. The effect of those statutes was
considered in determining whether the Sherman Act has been so
modified and limited that it no longer applies to such combinations
and conspiracies as are charged in counts one, two and four. Thus,
the Sherman Act was not the less construed because it was construed
in the light of the subsequent legislation.
We have jurisdiction under the Criminal Appeals Act to determine
whether the construction thus placed upon the Sherman Act is
correct.
Fourth. In reaching its conclusion, the District Court
referred to § 6 of the Clayton Act, §§ 1 and 2 of the
Capper-Volstead Act, and the Agricultural Adjustment Act of 1933,
as amended in 1935 and as reenacted and amended by the Agricultural
Marketing Agreement Act of 1937.
With respect to the Clayton Act, [
Footnote 2] the court said in its opinion:
"By that act labor, agricultural or horticultural cooperative
organizations were excepted from the
Page 308 U. S. 196
broad and sweeping terms of the Sherman Act. Such cooperative
organizations, in and of themselves, were not to be construed as
illegal combinations or conspiracies in restraint of trade under
the antitrust laws."
28 F. Supp. 183. But the court did not hold that, by these
provisions of the Clayton Act, either the defendants Pure Milk
Association and its officers and agents or the defendants Milk
Wagon Drivers Union, Local 753, and its officials, (albeit these
organizations were not in themselves illegal combinations or
conspiracies) were rendered immune from prosecution under the
Sherman Act for their alleged participation in the combinations and
conspiracies charged in counts one, two and four of the indictment.
The Sherman Act was not construed by the District Court as having
been limited to that extent by the Clayton Act.
The court invoked the Capper-Volstead Act, [
Footnote 3] as its judgment shows, only in
relation to certain defendants, that is, the Pure Milk Association,
an agricultural cooperative organization, and its officers and
agents. We shall consider later the effect of that statute upon the
charge against those defendants.
The court dismissed the indictment as to 11 defendants, and we
think it manifest that this ruling, in its bearing upon counts one,
two and four, was due to the effect upon the Sherman Act which the
court attributed to the Agricultural Marketing Agreement Act.
[
Footnote 4]
(1) As to that Act, the court said:
"The Court holds that, by the Agricultural Marketing Agreement
Act, the Congress has committed to the Executive
Page 308 U. S. 197
Department, acting through the Secretary of Agriculture, full,
complete and plenary power over the production and marketing, in
interstate commerce, of agricultural products, including milk."
"To what extent he should act, the quantum of regulation, is
solely one for his judgment and decision. If conditions require, he
must act; if they do not require action, then all marketing
conditions are deemed satisfactory, and the purpose of the act is
effectuated. Nonaction by the Secretary of Agriculture, in any
given marketing area, is equivalent to a declaration that the
policy of the act, in that area, is being carried out. If the
policy of the act, in any given milk area, is being violated, it
becomes the duty of the Secretary of Agriculture to intervene and
invoke the powers conferred upon him by the act."
"It results, from what has been said, that the power of
regulation, supervision and control of the milk industry, in any
given milk shed, is, by the Agricultural Marketing Agreement Act of
1937, vested exclusively in the Secretary of Agriculture. It
follows further that the Secretary of Agriculture cannot, by his
own action or inaction, divest himself of this power so long as the
statute remains in force. The marketing of the agricultural
products, including milk, covered by the Agricultural Marketing
Agreement Act, is removed from the purview of the Sherman Act. In
other words, so far as the marketing of agricultural commodities,
including milk, is concerned, no indictment will lie under section
1 of the Sherman Act."
28 F.Supp. p. 187.
It will be observed that the District Court attributes this
effect to the Agricultural Marketing Agreement Act
per se,
that is, to its operation in the absence, and without regard to the
scope and particular effect, of any marketing agreements made by
the Secretary of Agriculture or of any orders issued by him
pursuant to the Act. In the opinion of the court below, the
existence of the authority
Page 308 U. S. 198
vested in the Secretary of Agriculture, although unexercised,
wholly destroys the operation of § 1 of the Sherman Act with
respect to the marketing of agricultural commodities.
We are of the opinion that this conclusion is erroneous. No
provision of that purport appears in the Agricultural Act. While
effect is expressly given, as we shall see, to agreements and
orders which may validly be made by the Secretary of Agriculture,
there is no suggestion that, in their absence, and apart from such
qualified authorization and such requirements as they contain, the
commerce in agricultural commodities is stripped of the safeguards
set up by the Anti-Trust Act and is left open to the restraints,
however unreasonable, which conspiring producers, distributors and
their allies may see fit to impose. We are unable to find that such
a grant of immunity by virtue of the inaction, or limited action,
of the Secretary has any place in the statutory plan. We cannot
believe that Congress intended to create "so great a breach in
historic remedies and sanctions." [
Footnote 5]
It is a cardinal principle of construction that repeals by
implication are not favored. When there are two acts upon the same
subject, the rule is to give effect to both if possible.
United States v.
Tynen, 11 Wall. 88,
78 U. S. 92;
Henderson's
Tobacco, 11 Wall. 652,
78 U. S. 657;
General Motors Acceptance Corp. v. United States,
286 U. S. 49,
286 U. S. 61,
286 U. S. 62.
The intention of the legislature to repeal "must be clear and
manifest."
Red Rock v. Henry, 106 U.
S. 596,
106 U. S. 601,
106 U. S. 602.
It is not sufficient, as was said by Mr. Justice Story in
Wood v. United
States, 16 Pet. 342,
41 U. S. 362,
41 U. S.
363,
"to establish that subsequent laws cover some or even all of the
cases provided for by [the prior act]; for they may be merely
affirmative, or cumulative, or auxiliary."
There
Page 308 U. S. 199
must be
"a positive repugnancy between the provisions of the new law and
those of the old, and even then the old law is repealed by
implication only
pro tanto, to the extent of the
repugnancy."
See also Posados v. National City Bank, 296 U.
S. 497,
296 U. S.
504.
The Sherman Act is a broad enactment prohibiting unreasonable
restraints upon interstate commerce, and monopolization or attempts
to monopolize, with penal sanctions. The Agricultural Act is a
limited statute with specific reference to particular transactions
which may be regulated by official action in a prescribed manner.
The Agricultural Act [
Footnote
6] declares it to be the policy of Congress,
"through the exercise of the powers conferred upon the Secretary
of Agriculture under this chapter, to establish and maintain such
orderly marketing conditions for agricultural commodities in
interstate commerce as will establish prices to farmers at a level
that will give agricultural commodities a purchasing power with
respect to articles that farmers buy, equivalent to the purchasing
power of agricultural commodities in the base period"
described. To carry out that policy, a particular plan is set
forth. Farmers and others are not permitted to resort to their own
devices and to make any agreements or arrangements they desire,
regardless of the restraints which may be inflicted upon commerce.
The statutory program to be followed under the Agricultural Act
requires the participation of the Secretary of Agriculture, who is
to hold hearings and make findings. The obvious intention is to
provide for what may be found to be reasonable arrangements in
particular instances and in the light of the circumstances
disclosed. The methods which the Agricultural Act permits to attain
that result are two-fold, marketing agreements and orders. To give
validity to marketing agreements, the Secretary must be an
Page 308 U. S. 200
actual party to the agreements. § 8b. [
Footnote 7] The orders are also to be made by the
Secretary for the purpose of regulating the handling of the
agricultural commodity to which the particular order relates. §
8c(3)(4). [
Footnote 8] That the
field covered by the Agricultural Act is not coterminous with that
covered by the Sherman Act is manifest from the fact that the
former is thus delimited by the prescribed action participated in
and directed by an officer of government proceeding under the
authority specifically conferred by Congress. As to agreements and
arrangements not thus agreed upon or directed by the Secretary, the
Agricultural Act in no way impinges upon the prohibitions and
penalties of the Sherman Act, and its condemnation of private
action in entering into combinations and conspiracies which impose
the prohibited restraint upon interstate commerce remains
untouched.
It is not necessary to labor the point, for the Agricultural Act
itself expressly defines the extent to which its provisions make
the antitrust laws inapplicable. That definition is found in § 8(b)
[
Footnote 9] of the
Agricultural Adjustment Act carried into the Agricultural Marketing
Agreement Act in relation to marketing agreements, and provides as
follows:
"In order to effectuate the declared policy of this chapter, the
Secretary of Agriculture shall have the power, after due notice and
opportunity for hearing, to enter into marketing agreements with
processors, producers, associations of producers, and others
engaged in the handling of any agricultural commodity or product
thereof, only with respect to such handling as is in the current of
interstate or foreign commerce or which directly burdens,
obstructs, or affects, interstate or foreign commerce in
Page 308 U. S. 201
such commodity or product thereof. The making of any such
agreement shall not be held to be in violation of any of the
antitrust laws of the United States, and any such agreement shall
be deemed to be lawful:
Provided, That no such agreement
shall remain in force after the termination of this chapter."
Another provision is found in § 3(d) [
Footnote 10] of the Agricultural Marketing Agreement
Act, relating to awards or agreements resulting from the
arbitration or mediation by the Secretary of Agriculture or by a
designated officer or employee of the Department of Agriculture as
provided in § 3(a), [
Footnote
11] and meetings for that purpose and awards or agreements
resulting therefrom which have been approved by the Secretary of
Agriculture as provided in § 3(b). [
Footnote 12] Section 3(d) provides:
"No meeting so held and no award or agreement so approved shall
be deemed to be in violation of any of the antitrust laws of the
United States."
These explicit provisions requiring official participation and
authorizations show beyond question how far Congress intended that
the Agricultural Act should operate to render the Sherman Act
inapplicable. [
Footnote 13]
If Congress had desired to grant any further immunity, Congress
doubtless would have said so.
An agreement made with the Secretary as a party, or an order
made by him, or an arbitration award or agreement approved by him
pursuant to the authority conferred by the Agricultural Act and
within the terms of the described immunity, would, of course, be a
defense to a prosecution under the Sherman Act to the extent that
the prosecution sought to penalize what was thus validly
Page 308 U. S. 202
agreed upon or directed by the Secretary. Further than that the
Agricultural Act does not go.
We have no occasion to decide whether, in any particular case,
an indictment under the Sherman Act, by reason of its particular
terms, would be subject to demurrer, or to a motion to quash, upon
the ground that the indictment ran against the provisions of such
an agreement or order. We have no such situation here. There is
indeed a contention that there was a license (No. 30) issued by the
Secretary of Agriculture in 1934, amended in January, 1935, and in
force until March 2, 1935, which related to the marketing of milk
in the Chicago area, and hence that defendants operating under that
license were not subject to the charges of the conspiracies alleged
to have begun in January, 1935. But the allegations of the
indictment are that the unlawful conspiracies continued throughout
all the period mentioned in the indictment, that is, up to the time
of its presentment in November, 1938. This clearly imports that the
conspiracies were operative after the license came to an end, and
thus in the absence of any license. A conspiracy thus continued is,
in effect, renewed during each day of its continuance.
United
States v. Kissel, 218 U. S. 601,
218 U. S. 607,
608;
Hyde v. United States, 225 U.
S. 347,
225 U. S. 369;
Brown v. Elliott, 225 U. S. 392,
225 U. S. 400.
It is also said that there is a recent marketing order under date
of August 29, 1939, [
Footnote
14] which relates to the Chicago marketing area, and hence that
this cause is moot. But that order affects a period subsequent to
the time covered by the indictment. These contentions are
unavailing in relation to the question before us.
Our conclusion is that the Agricultural Adjustment Act, as
reenacted and amended by the Agricultural Marketing Agreement Act,
affords no ground for construing
Page 308 U. S. 203
the Sherman Act as inapplicable to the charges contained in
counts one, two and four.
(2) There remains the question whether the court below rightly
held that the Capper-Volstead Act [
Footnote 15] had modified the Sherman Act so as to exempt
the Pure Milk Association, a cooperative agricultural organization,
and its officers and agents from prosecution under these
counts.
As to the Capper-Volstead Act, the court said:
"This Act legalizes price-fixing for those within its purview.
To that extent, it modifies the Sherman Act. It removes from the
Sherman Act those organizations, cooperative in their nature, which
come within the purview of the Capper-Volstead Act. Prior to the
Capper-Volstead Act, farmers were treated no differently than
others under the antitrust laws, so far as price-fixing was
concerned. . . ."
"The Capper-Volstead Act does not condemn any kind of monopoly
or restraint of trade, or any price-fixing, unless such monopoly or
price-fixing unduly enhances the price of an agricultural product.
The Act then, by section 2 thereof, commits to an officer of the
executive department, the Secretary of Agriculture, the power of
regulation and visitation."
"Under this act, farmers are favored under the antitrust laws in
that they are given a qualified right, free from any criminal
liability, to combine among themselves to monopolize and restrain
interstate trade and commerce in farm products and to fix and
enhance the price thereof."
". . . The court deduces from the Capper-Volstead Act that the
Secretary of Agriculture has exclusive jurisdiction to determine
and order, in the first instance, whether or not farmer
cooperatives, in their operation, monopolize and restrain
interstate trade and commerce
Page 308 U. S. 204
'to such an extent that the price of any agricultural product is
unduly enhanced.' Until the Secretary of Agriculture acts, the
judicial power cannot be invoked."
28 F.Supp. pp. 183, 184.
We are unable to accept that view. We cannot find in the
Capper-Volstead Act, any more than in the Agricultural Act, an
intention to declare immunity for the combinations and conspiracies
charged in the present indictment. Section 6 of the Clayton Act,
enacted in 1914, [
Footnote
16] had authorized the formation and operation of agricultural
organizations provided they did not have capital stock or were
conducted for profit, and it was there provided that the antitrust
laws should not be construed to forbid members of such
organizations "from lawfully carrying out the legitimate objects
thereof." They were not to be held illegal combinations. The
Capper-Volstead Act, enacted in 1922, [
Footnote 17] was made applicable as well to
cooperatives having capital stock. The persons to whom the
Capper-Volstead Act applies are defined in § 1 as producers of
agricultural products, "as farmers, planters, ranchmen, dairymen,
nut or fruit growers." They are authorized to act together "in
collectively processing, preparing for market, handling, and
marketing in interstate and foreign commerce" their products. They
may have "marketing agencies in common," and they may make "the
necessary contracts and agreements to effect such purposes."
The right of these agricultural producers thus to unite in
preparing for market and in marketing their products, and to make
the contracts which are necessary for that collaboration, cannot be
deemed to authorize any combination or conspiracy with other
persons in restraint of
Page 308 U. S. 205
trade that these producers may see fit to devise. In this
instance, the conspiracy charged is not that of merely forming a
collective association of producers to market their products, but a
conspiracy, or conspiracies, with major distributors and their
allied groups, with labor officials, municipal officials, and
others, in order to maintain artificial and noncompetitive prices
to be paid to all producers for all fluid milk produced in Illinois
and neighboring States and marketed in the Chicago area, and thus,
in effect, as the indictment is construed by the court below, "to
compel independent distributors to exact a like price from their
customers," and also to control "the supply of fluid milk permitted
to be brought to Chicago." 28 F. Supp. 180-182. Such a combined
attempt of all the defendants, producers, distributors and their
allies to control the market finds no justification in § 1 of the
Capper-Volstead Act.
Nor does the court below derive its limitation of the Sherman
Act from § 1. The pith of the court's conclusion is that, under §
2, an exclusive jurisdiction with respect to the described
cooperative associations is vested, in the first instance, in the
Secretary of Agriculture, and that, until the Secretary acts, the
judicial power to entertain a prosecution under the Sherman Act
cannot be invoked. Section 2 of the Capper-Volstead Act does
provide a special procedure in a case where the Secretary of
Agriculture has reason to believe that any such association
"monopolizes" or restrains interstate trade "to such an extent that
the price of any agricultural product is unduly enhanced."
Thereupon, the Secretary is to serve upon the association a
complaint, stating his charge with notice of hearing. And if, upon
such hearing, the Secretary is of the opinion that the association
"monopolizes" or does restrain interstate trade to the extent above
mentioned, he then is to issue an order directing
Page 308 U. S. 206
the association "to cease and desist" therefrom. Provision is
made for judicial review.
We find no ground for saying that this limited procedure is a
substitute for the provisions of the Sherman Act, or has the result
of permitting the sort of combinations and conspiracies here
charged unless or until the Secretary of Agriculture takes action.
That this provision of the Capper-Volstead Act does not cover the
entire field of the Sherman Act is sufficiently clear. The Sherman
Act authorizes criminal prosecutions and penalties. The
Capper-Volstead Act provides only for a civil proceeding. The
Sherman Act hits at attempts to monopolize as well as actual
monopolization. And § 2 of the Capper-Volstead Act contains no
provision giving immunity from the Sherman Act in the absence of a
proceeding by the Secretary. We think that the procedure under § 2
of the Capper-Volstead Act is auxiliary, and was intended merely as
a qualification of the authorization given to cooperative
agricultural producers by § 1, so that, if the collective action of
such producers, as there permitted, results in the opinion of the
Secretary in monopolization or unduly enhanced prices, he may
intervene and seek to control the action thus taken under § 1. But
as § 1 cannot be regarded as authorizing the sort of conspiracies
between producers and others that are charged in this indictment,
the qualifying procedure for which § 2 provides is not to be deemed
to be designed to take the place of, or to postpone or prevent,
prosecution under § 1 of the Sherman Act for the purpose of
punishing such conspiracies.
Fifth. Having dealt with the construction placed by the
court below upon the Sherman Act, our jurisdiction on this appeal
is exhausted. We are not at liberty to consider other objections to
the indictment, or questions which may arise upon the trial with
respect to the merits
Page 308 U. S. 207
of the charge. For it is well settled that, where the District
Court has based its decision on a particular construction of the
underlying statute, the review here under the Criminal Appeals Act
is confined to the question of the propriety of that construction.
United States v. Keitel, supra; United States v. Kissel,
supra, p.
218 U. S. 606;
United States v. Miller, 223 U. S. 599,
223 U. S. 602;
United States v. Carter, supra; United States v. Colgate &
Co., supra; United States v. Schrader's Son, supra; United States
v. Hastings, supra. The case of
United States v.
Curtiss-Wright Corporation, 299 U. S. 304, is
not opposed, as there, the decision of the District Court was not
based upon a particular construction of the underlying statute, but
upon its invalidity, and the jurisdiction of this Court extended to
the consideration of the rulings of the District Court which dealt
with that question.
The limitation applicable in the instant case to the question of
the District Court's construction of the Sherman Act disposes of
the contention, urged by some of the defendants, that counts two
and four do not show such a direct restraint upon interstate
commerce as to bring the acts charged within the statute. The
District Court said in its opinion that, in view of its rulings
(above discussed) as to counts one, two and four, it was
unnecessary to decide "whether or not the allegations of the
indictment show that interstate commerce was or was not
restrained." 28 F.Supp. p. 187. In its judgment, the court formally
overruled all objections to these counts so far as the objections
rested on the ground that interstate commerce was not involved. If
these rulings be treated as dealing merely with the construction of
the indictment, they must be accepted here.
United States v.
Patten, supra; United States v. Colgate & Co., supra; United
States v. Hastings, supra. But, apart from that, the District
Court certainly has not construed the Sherman Act as inapplicable
upon the ground that interstate commerce is not involved, and the
question of the bearing upon that commerce of the acts charged is
not before us. Similarly, the contention of the defendants who are
labor officials that the Sherman Act does not apply to labor unions
or labor union activities is not open on this appeal. The District
Court did not construe the Sherman Act as inapplicable to these
defendants, and the Government's appeal, under the restriction of
the Criminal Appeals Act, does not present that question.
The appeal as to count three is dismissed. The judgment is
reversed as to counts one, two and four, and the cause is remanded
to the District Court for further proceedings in conformity with
this opinion.
It is so ordered.
[
Footnote 1]
This Act (18 U.S.C. 682, Jud.Code, § 238, 28 U.S.C. 345)
provides:
"An appeal may be taken by and on behalf of the United States
from the district courts direct to the Supreme Court of the United
States in all criminal cases, in the following instances,
to-wit:"
"From a decision or judgment quashing, setting aside, or
sustaining a demurrer to, any indictment, or any count thereof,
where such decision or judgment is based upon the invalidity, or
construction of the statute upon which the indictment is
founded."
"From a decision arresting a judgment of conviction for
insufficiency of the indictment, where such decision is based upon
the invalidity or construction of the statute upon which the
indictment is founded."
"From the decision or judgment sustaining a special plea in bar,
when the defendant has not been put in jeopardy. . . ."
"Pending the prosecution and determination of the appeal in the
foregoing instances, the defendant shall be admitted to bail on his
own recognizance:
Provided, That no appeal shall be taken
by or allowed the United States in any case where there has been a
verdict in favor of the defendant."
[
Footnote 2]
Section 6 of the Clayton Act (38 Stat. 730, 15 U.S.C. 17)
provides:
"The labor of a human being is not a commodity or article of
commerce. Nothing contained in the antitrust laws shall be
construed to forbid the existence and operation of labor,
agricultural, or horticultural organizations, instituted for the
purposes of mutual help, and not having capital stock or conducted
for profit, or to forbid or restrain individual members of such
organizations from lawfully carrying out the legitimate objects
thereof; nor shall such organizations, or the members thereof, be
held or construed to be illegal combinations or conspiracies in
restraint of trade, under the antitrust laws."
[
Footnote 3]
42 Stat. 388, 7 U.S.C. 291, 292.
[
Footnote 4]
The District Court referred, in passing, to the Cooperative
Marketing Act of July 2, 1926 (44 Stat. 803, 7 U.S.C. 455), and to
the provisions of the Agricultural Adjustment Act of 1933 (48 Stat.
31), as amended in 1935 (49 Stat. 750), which was followed by the
Agricultural Marketing Agreement Act of 1937 (50 Stat. 246).
[
Footnote 5]
See General Motors Acceptance Corp. v. United States,
286 U. S. 49,
286 U. S.
61.
[
Footnote 6]
7 U.S.C. Supp. IV, 602(1).
[
Footnote 7]
7 U.S.C. Supp. IV, § 608b.
[
Footnote 8]
7 U.S.C. Supp. IV, § 608c(3), (4).
[
Footnote 9]
7 U.S.C. Supp. IV, § 608b.
[
Footnote 10]
50 Stat. 249.
[
Footnote 11]
50 Stat. 248.
[
Footnote 12]
50 Stat. 248.
[
Footnote 13]
See 77 Cong.Rec. Pt. II, p. 1977; Pt. III, p. 3117.
[
Footnote 14]
Federal Register. August 30, 1939, Order No. 41, Vol. 4, pp.
3764-3768, 3770.
[
Footnote 15]
42 Stat. 388, 7 U.S.C. 291, 292.
[
Footnote 16]
Stat. 731.
[
Footnote 17]
42 Stat. 388.