1. Since farmers and stockmen are widely scattered, and inured
to habits of individualism, and economically are in large measure
dependent upon contingencies beyond their control, a legislature
may reasonably believe that combinations of farmers and stockmen
restraining trade in their agricultural products and livestock
present no threat to the community, or at least that the threat is
of a different order from that of combinations of industrialists
and middlemen. P.
310 U. S.
145.
2. Since
Connolly v. Union Sewer Pipe Co., 184 U.
S. 540, was decided, an impressive legislative movement
bears witness to general acceptance of the view that the
differences between agriculture and industry call for
differentiation in the formulation of public policy. P.
310 U. S.
145.
3. The "laws" meant by the equal protection clause of the
Fourteenth Amendment are not abstractions, but are expressions of
policy arising out of specific difficulties, addressed to the
attainment of specific ends by the use of specific remedies. The
Constitution does not require things which are different in fact or
opinion to be treated in law as though they were the same. P.
310 U. S.
147.
4. A Texas penal statute punishing conspiracies in restraint of
trade but expressly inapplicable to "agricultural products or
livestock while in the hands of the producer or raiser"
held consistent with the equal protection clause of the
Fourteenth Amendment. P.
310 U. S.
149.
5. In effectuating its policy with respect to combinations in
restraint of trade, the Texas legislature, though exempting farmers
and stockmen from penal remedies applicable to others, subjected
them like others to civil penalties.
Held within
legislative discretion, and consistent with equal protection of the
laws. P.
310 U. S.
149.
132 S.W.2d 885 affirmed.
Page 310 U. S. 142
Appeal from a judgment which affirmed a judgment denying a
petition for a writ of habeas corpus and remanding the petitioner
to custody under an indictment for conspiracy.
Page 310 U. S. 143
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is an appeal under § 237(a) of the Judicial Code, as
amended, 28 U.S.C. § 344(a), to review a judgment of the Court of
Criminal Appeals of Texas sustaining the
Page 310 U. S. 144
constitutionality of a Texas antitrust law, and therefore
upholding an indictment under it. Appellant was charged with
participation in a conspiracy to fix the retail price of beer. Such
a conspiracy is made a criminal offense by Title 19, Chapter 3,
Art. 1632
et seq., of the Texas Penal Code. Because the
provisions of this law to do not "apply to agricultural products or
livestock . . . in the hands of the producer or raiser," Art. 1642,
Tigner challenged the validity of the entire statute and sought
release in the local courts by habeas corpus. His claim has been
rejected by the Texas Court of Criminal Appeals. 132 S.W.2d 885.
Essentially his contention is that the exemption granted by the
Texas statute falls within the condemnation of
Connolly v.
Union Sewer Pipe Co., 184 U. S. 540, as
offensive to "the equal protection of the laws" which the
Fourteenth Amendment safeguards. If that case controls, appellant
contends, the Texas Act cannot survive. and he must go free.
The court below recognized that the exemption was identical with
that deemed fatal to the Illinois statute involved in
Connolly's case. But it felt that time and circumstances
had drained that case of vitality, leaving it free to treat the
exemption as an exercise of legislative discretion. A similar
attitude has been reflected by the Supreme Court of Wisconsin,
Northern Wisconsin Cooperative Tobacco Pool v. Bekkedal,
182 Wis. 571, 593, 197 N.W. 936, and appears to underlie much
recent state and federal legislation. Dealing as we are with an
appeal to the Constitution, the
Connolly case ought not to
foreclose us from considering this exemption in its own
setting.
The problem, in brief, is this: may Texas promote its policy of
freedom for economic enterprise by utilizing the criminal law
against various forms of combination and monopoly, but exclude from
criminal punishment corresponding activities of agriculture?
Page 310 U. S. 145
Legislation, both state and federal, similar to that of Texas
had its origin in fear of the concentration of industrial power
following the Civil War. Law was invoked to buttress the
traditional system of free competition, free markets, and free
enterprise. Pressure for this legislation came more particularly
from those who, as producers as well as consumers, constituted the
most dispersed economic groups. [
Footnote 1] These large sections of the population --
those who labored with their hands and those who worked the soil --
were as a matter of economic fact in a different relation to the
community from that occupied by industrial combinations. Farmers
were widely scattered, and inured to habits of individualism; their
economic fate was in large measure dependent upon contingencies
beyond their control. In these circumstances, legislators may well
have thought combinations of farmers and stockmen presented no
threat to the community, or at least the threat was of a different
order from that arising through combinations of industrialists and
middlemen. At all events, legislation like that of Texas rested on
this view, curbing industrial and commercial combinations, and did
not visit the same condemnation upon collaborative efforts by
farmers and stockmen because the latter were felt to have a
different economic significance. [
Footnote 2]
Since
Connolly's case was decided, nearly forty years
ago, an impressive legislative movement bears witness to
Page 310 U. S. 146
general acceptance of the view that the differences between
agriculture and industry call for differentiation in the
formulation of public policy. The states as well as the United
States have sanctioned cooperative action by farmers; have
restricted their amenability to the antitrust laws; have relieved
their organizations from taxation.
See, e.g.,
Capper-Volstead Act, 42 Stat. 388, 7 U.S.C. § 291; Clayton Act, 38
Stat. 730, 731, 15 U.S.C. § 17; § 101(1) of the Internal Revenue
Code, 53 Stat. 33. Such expressions of legislative policy have
withstood challenge in the courts.
Liberty Warehouse Co. v.
Burley Tobacco Growers, 276 U. S. 71.
[
Footnote 3] Congress and the
states have sometimes thought it necessary to control the supply
and price of agricultural commodities with their respective spheres
of jurisdiction, and the constitutional validity of these measures
has been sustained.
Mulford v. Smith, 307 U. S.
38;
United States v. Rock Royal Co-op.,
307 U. S. 533;
Nebbia v. New York, 291 U. S. 502.
At the core of all these enactments lies a conception of price
and production policy for agriculture very different from that
which underlies the demands made upon industry and commerce by
antitrust laws. [
Footnote 4]
These various
Page 310 U. S. 147
measures are manifestations of the fact that, in our national
economy, agriculture expresses functions and forces different from
the other elements in the total economic process. Certainly these
are differences which may be acted upon by the lawmakers. The
equality at which the "equal protection" clause aims is not a
disembodied equality. The Fourteenth Amendment enjoins "the equal
protection of the laws," and laws are not abstract propositions.
They do not relate to abstract units A, B and C, but are
expressions of policy arising out of specific difficulties,
addressed to the attainment of specific ends by the use of specific
remedies. The Constitution does not require things which are
different in fact or opinion to be treated in law as though they
were the same. And so we conclude that to write into law the
differences between agriculture and other economic pursuits was
within the power of the Texas legislature.
Connolly's case
has been worn away by the erosion of time, and we are of opinion
that it is no longer controlling.
Another feature of Texas antitrust legislation is relied on by
Tigner to invalidate the criminal statute under which he is being
prosecuted. Beginning with the first enactment in 1894, the Texas
antitrust laws have had a complicated and checkered history. At
present, there are two statutes directed at combination and
monopoly, the one under which Tigner was indicted and another
subjecting to civil penalties the same conduct at which the
challenged criminal law is aimed. Title 126, Revised Civil
Statutes, Vernon's Ann.Civ.St.Tex. art. 7426
et seq. From
such civil proceedings, which the Attorney General initiates, no
exemption is given to farmers and stockmen. Appellant urges that
the divergence between civil and criminal laws relating to the same
conduct undermines the validity of the exemption in the criminal
statute, and thus invalidates the whole of it. This argument is but
a minor variation on appellant's main theme. It amounts to a claim
that differences
Page 310 U. S. 148
substantial enough to permit substantive differentiation in
formulating legislative policy do not permit differentiation as to
remedy.
How to effectuate policy -- the adaptation of means to
legitimately sought ends -- is one of the most intractable of
legislative problems. Whether proscribed conduct is to be deterred
by
qui tam action or triple damages or injunction, or by
criminal prosecution, or merely by defense to actions in contract,
or by some, or all, of these remedies in combination, is a matter
within the legislature's range of choice. Judgment on the deterrent
effect of the various weapons in the armory of the law can lay
little claim to scientific basis. Such judgment as yet is largely a
prophecy based on meager and uninterpreted experience. How empiric
the process is of adjusting remedy to policy is shown by the
history of antitrust laws in Texas and elsewhere. The Sherman Law
originally employed the injunction at the suit of the government,
private action for triple damages, criminal prosecution, and
forfeiture. Later, the injunction was made available to private
suitors. [
Footnote 5] In the
case of combinations of common carriers, the Sherman Law is
qualified by the Interstate Commerce Act,
Keogh v. Chicago
& N.W. Ry. Co., 260 U. S. 156, and
in the case of shipping combinations, by the Merchant Marine Act,
United States Nav. Co. v. Cunard S.S. Co., 284 U.
S. 474. In its own groping efforts to deal with the
problem of monopoly, the Texas legislature has, in the course of
nearly half a century, invoked a dozen remedies. [
Footnote 6] When Iowa superimposed upon its
general antitrust law an additional penalty in the case of fire
insurance combinations, this Court sustained
Page 310 U. S. 149
the validity of the statute.
Carroll v. Greenwich Insurance
Co., 199 U. S. 401.
Legislation concerning economic combinations presents peculiar
difficulties in the fashioning of remedies. The sensitiveness of
the economic mechanism, the risks of introducing new evils in
trying to stamp out old, familiar ones, the difficulties of proof
within the conventional modes of procedure, the effect of shifting
tides of public opinion -- these and many other subtle factors must
influence legislative choice. Moreover, the whole problem of
deterrence is related to still wider considerations affecting the
temper of the community in which law operates. The traditions of a
society, the habits of obedience to law, the effectiveness of the
law enforcing agencies, are all peculiarly matters of time and
place. They are thus matters within legislative competence. To say
that the legislature of Texas must give to farmers complete
immunity or none at all is to say that judgment on these vexing
issues precludes the view that, while the dangers from combinations
of farmers and stockmen are so tenuous that civil remedies suffice
to secure deterrence, they are substantial enough not to warrant
entire disregard. We hold otherwise. Here again, we must be mindful
not of abstract equivalents of conduct, but of conduct in the
context of actuality. Differences that permit substantive
differentiations also permit differentiations of remedy. We find no
constitutional bar against excluding farmers and stockmen from the
criminal statute against combination and monopoly, and, so holding,
we conclude that there was likewise no bar against making the
exemption partial, rather than complete.
Affirmed.
MR. JUSTICE McREYNOLDS is of opinion that the judgment below
should be reversed.
[
Footnote 1]
See 2 Beard, The Rise of American Civilization, pp.
254-343; Buck, The Granger Movement,
passim; Hicks, The
Populist Revolt,
passim; Sheldon, Populism in the Old
Dominion, pp. 17-20.
Compare the letter of Mr. Justice
Miller in Fairman, Mr. Justice Miller and the Supreme Court, p. 67.
For the background of the Texas legislation,
see Finty,
Anti-Trust Legislation in Texas, a collection of articles published
in the Galveston News during the summer of 1916; Nutting, The Texas
Anti-Trust Law: A Post-Mortem, 14 Tex.L.Rev. 293.
[
Footnote 2]
See Seager and Gulick, Trust and Corporation Problems,
pp. 149-95, 339-85.
[
Footnote 3]
The state court cases are collected in
United States v. Rock
Royal Co-op., 307 U. S. 533,
307 U. S.
563-564.
See Hanna, Law of Cooperative
Marketing Associations, pp. 26-111.
Compare German Alliance
Ins. Co. v. Lewis, 233 U. S. 389,
233 U. S. 418;
International Harvester Co. v. Missouri, 234 U.
S. 199;
Aero Mayflower Transit Co. v. Georgia Public
Service Comm'n, 295 U. S. 285.
[
Footnote 4]
See, for instance, the findings and declarations of
policy embodied in the Agricultural Adjustment Act of 1938, 52
Stat. 31, 120, 202, 215, 586, 775.
Compare Seager and
Gulick,
op. cit. supra, note 2 pp. 322-23; Black, Agricultural Reform in the
United States, pp. 1-61, 337-49; Nourse, Davis and Black, Three
Years of the Agricultural Adjustment Administration,
passim; Nourse, Marketing Agreements Under the A.A.A. pp.
315-49.
Compare, as to railroad and express
consolidations, § 5(8) of the Interstate Commerce Act as amended,
41 Stat. 456, 482, 49 U.S.C. § 5(8); as to bituminous coal,
see § 4(d), pt. I of the Bituminous Coal Act of 1937, 50
Stat. 72, 77.
[
Footnote 5]
See the Sherman Law, as amended, and supplementary
enactments, in 15 U.S.C. §§ 1, 2, 4, 6, 9, 11, 15, 16, 21, 23, 25,
26.
[
Footnote 6]
See Nutting,
op. cit. supra, note 1 pp. 296-97. For the remedies now
prevailing,
see Texas Penal Code, Arts. 1635, 1637, 1638;
Revised Civil Statutes, Arts. 7428-7437, Vernon's Ann.Civ.St. arts.
7428-7437.