(dissenting).
Unable to agree with either the reasoning or the result obtaining in the majority opinion, I am constrained to dissent and hereby set forth my reasons therefor.
I dissent upon the ground that the majority too narrowly applies the Sherman Anti-Trust Act by reliance on Foster &. Kleiser Co. v. Special Site Sign Co., 9 Cir., 85 F.2d 742. I believe that case does not control here for two reasons. The first is that while the rule regarding the Congressional power over commerce has not been enlarged, the application of the exercise of the power, the anti-trust act, has been"“expanded”, as witness the Labor Board cases, cited in the majority opinion. Both the Sherman Anti-Trust Act, and the National Labor Relations Act cover not only interstate commerce, but intrastate activities which “directly” affect such commerce. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37-41, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. There should be no discrimination in the application of the two acts. I do not agree with the majority in its differentiation with respect to the right and power of Congress to protect interstate commerce by means of the National Labor Relations Act on the one hand, and the scope of the Sherman AntiTrust Act on the other. Both acts stem from the same constitutional source, each striving to protect the same kind of commerce. If possible they should each be construed to effectuate their purpose, but this cannot he done by applying diametrically opposed constructions, by seeking “mathematical or rigid formulas”,1 nor by applying distinctions based upon form and not upon substance.
In this connection, I think it should be stated that the majority’s attempt to distinguish the labor board cases, on the ground that in such cases the court was considering the power of Congress over interstate commerce, whereas here we are merely considering the scope of the anti-trust act, seems to require little discussion. It was necessary to determine the scope of the National Labor Relations Act before its constitutionality could be determined. National Labor Relations Board v. Jones & Laughlin Steel Corp., supra, 301 U.S. at page 29, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. Thus the same question was in fact considered in the labor board cases, as is presented here. The majority also state that intrastate activities, lacking an intent to violate the statute, are not within the antitrust laws “although such activities might incidentally affect interstate commerce”. The meaning of the statement is not quite clear, the phrase is broad enough to include an incidental “direct” effect upon interstate commerce, and if such meaning was intended, I think it is clearly erroneous.
The second reason why Foster & Kleiser Co. v. Special Site Sign Co., supra, is not controlling, is that when we are considering the applicability of an exercise of the Con*770gressional power over commerce, I think each case must be decided on its own facts. 3
A demurrer was sustained to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. The complaint stated a cause of action if it alleged facts showing: (1) jurisdiction in the court over the subj ect-matter; (2) ownership of a right by appellants; (3) violation of such right by appellees; and (4) damage or injury to appellants resulting from such violation. United States v. Mclntire, 9‘Cir., 101 F.2d 650, 653; United States v. Humboldt Lovelock Irr. Light & P. Co., 9 Cir., 97 F.2d 38, 42. If these elements appear in the complaint, then the demurrer was erroneously sustained.
First. That the complaint states facts showing that the trial court had jurisdiction of the cause of action is not questioned and need not be discussed.
Second. The right claimed by appellants is to carry on its business free from injury caused by a violation of the Sherman AntiTrust Act by appellees. 15 U.S.C.A. § 15. In other words,, appellants had the right to be uninjured by a violation of the Sherman Anti-Trust Act, and if they were injured by a .violation of such act by appellees, then appellees are liable. This element (i. e., the ownership of such right by appellants) of necessity appears in the complaint.
Third. To determine whether appellees injured appellants by violating the Sherman Anti-Trust Act, it is necessary to determine what is prohibited by such act, and whether appellees took any prohibited action.
Prohibitions of the act. Section 1 of the act, 15 U.S.C.A. § 1, declares illegal every “contract, combination * * * or conspiracy, in restraint of trade or commerce" and declares it to be a misdemeanor for any person to “make any such contract or engage in any such combination or conspiracy”. Section 2, 15 U.S.C.A. § 2, declares: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce * * * shall be deemed guilty of a misdemeanor * * *While the meaning of the words “contract”, “combination”, “conspiracy”, “combine”, and “conspire” is not particularly recondite, the meaning of “in restraint of trade” and “monopolize” is more obscure, and it is the meaning of the latter words with which we are concerned.
It has been said that “no statute ever passed since the foundation of the government has been the subject of more difference of opinion or the cause of more perplexity” than the act in question, 3 and that it “is necessarily vague, because, in men’s mind, the evil dreaded is vague, and like words, therefore, have been used to express it”.4
The bill introduced by Senator Sherman regarding the subject was coolly received by the judiciary committee to which it was referred, and Senator Hoar drafted the bill which' became the act in question. His statements, and the debates in Congress disclose that he intended that the words “restraint of trade” and “monopolize” should be given their technical meaning known to the common law. 5 However, in the second case under the Sherman Act to come before the Supreme Court, it held that “debates in congress are not appropriate sources of information from which to discover the méan-*771ing of the language of a statute passed by that body”. United States v. Trans-Missouri Freight Association, 166 U.S. 290, 318, 17 S.Ct. S40, 550, 41 L.Ed. 1007. Compare the statement in Federal Communications Comm. v. Pottsville Broadcasting Co., 60 S.Ct. 437, 440, 84 L.Ed. -, January-29, 1940, that “the author of a document is ordinarily the authoritative interpreter of its purposes.” If there was a committee report (a question which I am unable to determine here), and if it disclosed the intent mentioned, it is possible that such intent might yet be upheld, in view of the widespread use of such reports in the determination of Congressional intent.
Other than by the statements in Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A..N.S., 834, Ann. Cas.l912D, 734, the Supreme Court seems to have made no effort to distinguish between §§ 1 and 2 of the act.6 It has been suggested that the technical common law meaning of the words in §§ 1 and 2 be used. 7 Accordingly it has been argued that § 1 reaches only those restrictions placed voluntarily by one on his right to carry on his trade or calling, and that § 2 reaches involuntary restraints. 8 Such theory, however, has been rejected.9 It has also been suggested that “restraint of trade” is “the equivalent of restraint- of competition”.10 That theory .has likewise been rejected.11 It has also been suggested that the word “monopolize” in § 2, is synonymous with the common law offenses known as engrossing, forestalling and re-grating. 12 That theory seems also to have been rejected.13
What, then, is the meaning of “restraint of trade” and “monopolize” ? By the statements that those words were “synonymous” 14 and reached “voluntary” as well as “involuntary” restraints,15 the Supreme Court, as a practical matter, has, it seems, obliterated any distinction between § §1 and 2 of the act, and “has treated the prohibitions of Section 2 as substantially comprehended within the-prohibitions of Section 1.” 16 As a result of the language in Standard Oil Co. v. United States, 221 U.S. 1, 58-62, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A..N.S., 834, Ann.Cas.1912D, 734 (which, if dicta, was deliberate), it seems that about all that can be said is that the statutes prohibit (1) the means of reaching a result, and (2) any attempt to reach such result; and the result mentioned is the evil thought to arise from the acts covered by the general words “restraint of trade” and “monopolize” mentioned therein, 221 U.S. at page 52, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A..N.S., 834, Ann.Cas: 1912D, 734. Wilder Mfg. Co. v. Corn Products Refining Co., 236 U.S. 165, 174, 35 S.Ct. 398, 59 L.Ed. 520, Ann.Cas.1916A, 118.
Stating it more plainly, the statutes prohibit (1) the attempt to acquire, and (2) the acquisition of, power to fix unreasonable prices, unreasonably limit production, or unreasonably deteriorate the quality of articles, which might have a direct effect on interstate or foreign commerce. Considering the superb uncertainty and lack of precision in the rule, there seems to be justification for the statement that the “existing confusion as to the distinction between sections 1 and 2 of the act, and what the elements under each section are, would seem to invite and justify more specific statements from the Supreme Court with respect thereto”. Lynch v. Magnavox Co., 9 Cir., 94 F.2d 883, 885, 888.
While the indefiniteness of the rule has been repeatedly and consistently decried17 *772it is recognized that the application thereof may be settled only “by the traditional case-by-case method of our common law”.18 In that respect, the anti-trust statutes do not differ from any other statutes. The difficulties confronting the enforcing agency have been pointed out.19 While some of these do not concern the judiciary, the charge of indefiniteness in the statement of the rule by the courts is one of serious import and should be rectified. However, since the decisions of the Supreme Court are binding on this court, such decisions prevent an expression of independent opinion as to the meaning of the statutes. I have set forth only what I believe the Supreme Court has stated the meaning of the statutes to be.
The alleged facts. Appellants are known as “independent” owners of plants used for outdoor advertising displays. Appellees are members of an association and control 90% of the outdoor advertising in the Pacific Coast area. The complaint alleges that ap-pellees entered into a conspiracy, the purposes of which were: to prevent appellants and others from engaging in the posting business, from securing and executing contracts for national posting business, and from securing posters with which to conduct such business; to prevent lithographers from supplying posters to appellants and others; and to prevent appellants and others from securing facilities to furnish an advertising service to advertisers.
From these allegations, it can be clearly seen that the end sought by appellees was the acquisition of power whereby they could fix unreasonable prices, and unreasonably limit the number of competitors.
The manner in which these objects were accomplished are alleged, but it is unnecessary here to relate them because the kind of means used is unimportant. The result of the means used is the thing of importance. In this connection it is alleged that appel-lees intended to restrain trade and monopolize when they formed the conspiracy and carried out the object thereof. If, by necessary operation of the conspiracy, there is an actual restraint, the statute is violated, 20 the actual intent being immaterial.21 Intent, however, is material when the acts done “tend” to reach the prohibited result. 22 If it is doubtful whether the acts actually “tend” to monopolize, it will be presumed that they do, if there is an actual intent to monopolize, 23 or if such an intent can be inferred from the extent of the control .thereby secured over the commerce affected as well as by the method which was used.24 I am not, therefore, in accord with the expressions of the majority with respect to rules regarding “intent” because if an actual restraint is accomplished, the intent with which either intrastate or interstate acts are done, is immaterial, and if the acts only “tend” to restrain, then the intent with which such acts are done is material, regardless of whether the acts are intrastate or interstate in character.
The trade or commerce affected must be interstate or international, 25 and the effect *773thereon must be direct or immediate, and not indirect or incidental.26 We must therefore determine whether accomplishment of the object of the conspiracy had such an effect here. The majority, in my opinion, has confused the “purpose” of the conspiracy with the means used to “accomplish” it. The fact that the conspiracy was accomplished by acts which if separately considered, would be intrastate, is immaterial. 27 “It is the effect upon commerce, not the source of the injury, which is the criterion”. 28 Each case presents its distinctive questions arising from facts therein involved, as to whether the effect is direct or indirect. 29
The complaint contains many allegations that the accomplishment of the conspiracy “obstructed and hindered” appellants in their business; and that "the free movement in interstate commerce of posters, lithographs, painted designs and contracts for outdoor advertising was monopolized, attempted to be monopolized, and was unreasonably restrained”. It was also alleged that “in almost every case” the poster advertising contracts were “agreements between the parties thereto to ship posters, lithographs, designs, stencils and other advertising material from one of the states of the United States to another state”. It seems apparent to me that the complaint contains sufficient allegations to show obstructions to the shipments mentioned, and therefore a decrease in interstate commerce. In view of Santa Cruz Fruit Packing Co. v.l National Labor Relations Board, supra, and Edison Co. v. National Labor Relations Board, 305 U.S. 197, 221, 59 S.Ct. 206, 83 L.Ed. 126, I think it inevitably follows that the' effect was “direct”.
Fourth. The last element of the cause of action, mentioned above, is the damage or injury to appellants resulting from the violation of the statute by appellees. I am not in accord with the holding of the majority, that there are no allegations to show that the conspiracy injured appellants’ business. The following quotation, in my opinion, clearly controverts such holding; “That the aforesaid acts * * * did constitute a monopoly * * * greatly to the damage of * * * [appellants], and that the [appellants] company was unreasonably restrained in its trade and competition with [appellees] in the outdoor advertising business * * * all of which was injurious to the [appellants] company and excluded [it] * * * from fair competition in the said trade and commerce, and because of such inability to compete in the said trade and commerce * * * the [appellants] company has been damaged in that its business was rendered unprofitable, and the profits of its said trade and commerce have diminished, and * * * [it] has suffered loss and been damaged thereby * * * ”
In addition there are other allegations of injury.
For these reasons I think the judgment should be reversed.
Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 467, 58 S.Ct. 656, 660, 82 L.Ed. 954.
Compare: Sugar Institute v. United States, 297 U.S. 553, 600, 56 S.Ct. 629, 80 L.Ed. 859; Kansas City, Ft. S. & M. R. Co. v. Secretary of State of Kansas, 240 U.S. 227,. 333, 36 S.Ct. 261, 60 L.Ed. 617; Baltic Mining Co. v. Massachusetts, 231 U.S. 68, 85, 34 S.Ct. 15, 58 L.Ed. 127; Santa Cruz Fruit Packing Co. v. National. Labor Relations Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954. It seems probable that it was upon this theory that Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A. L.R. 947, and Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160, were held to be “not controlling” in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 40, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. . See, also, Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 466, 469, 58 S.Ct. 656, 82 L.Ed. 954.
William B. Hornblower, “Anti-Trust” Legislation and Litigation (1911), 11 Col. L.Rev. 701, 702.
William F. Dana, “Monopoly” Under The National Anti-Trust Act (1894), 7 Harv.L.Rev. 338.
Robert L. Raymond, The Federal Anti-Trust Act (1910), 23 Harv.L.Rev. 353, n. 1; Edward A. Adler, Monopolizing At Common Law And Under Section Two Of The Sherman Act (1917), 31 Harv.L.Rev. 246, 247 —250. Louis B. Bondin, The Sherman Act And Labor Disputes (1939), 39 Col.L.Rev. 1283, 1285 et seq.
Clarence E. Eldridge, A New Interpretation Of The Sherman Act (1914), 13 Mich. L.Rev. 1 and 113.
Eldridge, supra, note 6; Albert M. Kales, Good And Bad Trusts (1917), 30 Harv.L.Rev. 830, 843.
Eldridge, supra, note 6.
United States v. Patten, 226 U.S. 525, 541.
Hornblower, supra, note 2, p. 705.
Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683; Appalachian Coals, Inc., v. United States, 288 U.S. 344, 360, 53 S.Ct. 471, 77 L.Ed. 825; Thornton, Combinations In Restraint Of Trade, 333, § 147, 339a, § 150a.
Adler, supra, note 4, p. 259, 260.
Standard Oil Co. v. United States, 221 U.S. 1, 57, 61, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A..N.S., 834, Ann.Cas.l912D, 734.
Standard Oil Co. v. United States, 221 U.S. 1, 61, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A..N.S., 834, Ann.Cas.1912D, 734.
United States v. Patten, 226 U.S. 525, 541, 33 S.Ct. 141, 57 L.Ed. 333, 44 L.R.A.,N.S., 325.
See Brief For The United States On The Meaning Of The Sherman Act, in United States v. Aluminum Company of America, Equity No. 85-73, in the United States District Court for the Southern District of New York.
Annual Reports of the Attorney-General; for 1936, p. 21; for 1937, pp. 35, 39; for 1938, pp. 57, 59, 60.
Annual Report of the Attorney-General for 1939, p. 39; Thurman W. Arnold, Antitrust Activities Of The Department Of Justice (1939), 19 Ore.L.Rev. 22, 31.
See note 15.
Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 244, ,20 S.Ct. 96, 44 L.Ed. 136; Swift & Company v. United States, 196 U.S. 375, 395, 25 S.Ct. 276, 49 L.Ed. 518; United States v. Reading Co., 226 U.S. 324, 357, 33 S. Ct. 90, 57 L.Ed. 243; Bedford Cut Stone Co. v. Journeyman Stone Cutters’ Ass’n 274 U.S. 37, 46, 47 S.Ct. 522, 71 L.Ed. 916, 54 A.L.R. 791.
Standard Sanitary Mfg. Co. v. Unitéd States, 226 U.S. 20, 39, 33 S.Ct. 9, 57 L.Ed. 107; United States v. Patten, 226 U.S. 525, 541, 33 S.Ct. 141, 57 L.Ed. 333, 44 L.R.A.,N.S., 325; Thomsen v. Cayser, 243 U.S. 66, 85, 37 S.Ct. 353, 61 L.Ed. 597, Ann.Cas.1917D, 322; Paramount Famous Lasky Corp. v. United States, 282 U.S. 30, 44, 51 S.Ct 42, 75 L.Ed. 145.
United. States v. American Linseed Oil Co., 262 U.S. 371, 388, 43 S.Ct. 607, 67 L.Ed. 1035; Maple Flooring Mfrs’ Ass’n v. United States, 268 U.S. 563, 567, 45 S.Ct. 578, 69 L.Ed. 1093; Thornton, Combinations In Restraint Of Trade 417b, § 200.
Swift & Company v. United States, 196 U.S. 375, 395, 25 S.Ct. 276, 49 L. Ed. 518; Coronado Coal Co. v. U. M. Workers, 268 U.S. 295, 310, 45 S.Ct. 551, 69 L.Ed. 963.
United States v. Terminal R. R. Ass’n of St. Louis, 224 U.S. 383, 394, 32 S.Ct. 507, 56 L.Ed. 810; United States v. Reading Co., 226 U.S. 324, 357, 33 S.Ct. 90, 57 L.Ed. 243.
United States v. Joint Traffic Association, 171 U.S. 505, 568, 19 S.Ct. 25, 43 L.Ed. 259; Anderson v. United States, 171 U.S. 604, 615, 19 S.Ct. 50, 43 L. Ed. 300; United States, v. Patten, 226 *773U.S. 525, 542, 33 S.Ct. 141, 57 L.Ed. 333, 44 L.R.A.,N.S., 325; Blumenstock Bros. v. Curtis Pub. Co., 252 U.S. 436, 441, 40 S.Ct. 385. 64 L.Ed. 649.
United States v. Joint Traffic Association, 171 U.S. 505, 568, 19 S.Ct. 25, 43 L.Ed. 259; Anderson v. United States, 171 U.S. 604, 615, 19 S.Ct. 50, 43 L.Ed. 300; United States v. Patten, 226 U.S. 525, 545, 33 S.Ct. 141, 57 L.Ed. 333, 44 L.R.A.,N.S., 325.
National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, , 38, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 466, 58 S.Ct. 656, 82 L.Ed. 954.
National Labor Relations Board v. Jones & Laughlin Steel Corp., supra, 301 U.S. at page 32, 57 S.Ct. 615, at page 622, 81 L.Ed. 893, 108 A.L.R. 1352.
National Labor Relations Board v. Jones & Lauglilin Steel Corp., supra, 301 U.S. at page 32, 57 S.Ct. 615, at page 622, 81 L.Ed. 893, 108 A.L.R. 1352;. Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954.