(concurring). The modern tendency of business is toward co-operation, instead of competition. This tendency, while of earlier inception, has developed with phenomenal activity in this country during the past 20 years — especially during the past decade. Concentration of interests and unification of control have taken the place of separate and independent operation. Important industrial corporations, formerly competing, have been combined into greater companies of wider scope, and these, in turn, have been united into combinations with vast resources, embracing, as their fields of operation, whole branches of industry.
And yet this economic development toward the elimination of competition has taken place in the face of statutes and judicial decisions declaring that “competition is the life of trade” and must be preserved. Combinations to prevent competition have always been declared contrary to public policy by the courts, and Congress, in the anti-trust statute of 1890, shortly after the inception of this economic movement and in view of the “trusts” of the period, went further than the common law and made those combinations which before had only been negatively unlawful positively criminal.
In so far as combinations result from the operation of economic principles, it may be doubtful whether they should be stayed at all by legislation. It may he that the evils in the existing situation should be, left to the remedies afforded by the laws of trade. On the other hand, *712it may be that the protection of the public from the operations of combinations of capital — especially those possessing the element of oppression — requires some measure of governmental intervention. It may be that the present anti-trust statute should be amended and made applicable only to those combinations which unreasonably restrain trade — that it should draw a line between those combinations which ■work for good and those which work for evil. But these are all legislative, and not judicial, questions. It cannot be too clearly borne in mind that this court has nothing to do with the wisdom, justice, or expediency of the statute. Equally true is it that this court, in applying the statute, must follow the decisions of the Supreme Court. If the decisions of that court have been too broad, it is for that court alone to modify them. The only right and duty of this court is to take the statute as it finds it, and, as it finds it, apply it in accordance with the interpretation placed upon it by the highest judicial tribunal. That this course may lead to results believed by many persons to be prejudicial to the public welfare cannot affect our action. This court can neither refuse to enforce a constitutional act of Congress nor ignore the decisions of the Supreme Court of the United States.
In approaching the consideration of the legal questions involved in this case, the inquiry of primary importance is met at the threshold: Are the defendants so engaged in interstate commerce that they are amenable to federal laws? Only in case they are so engaged is the consideration of other questions necessary. The examination of this fundamental question may well proceed upon the theory that the allegations of the petition are true — that the defendants have combined, and by combining have obtained practical control of the tobacco industry of the country. However comprehensive or oppressive the combination may be, unless it affect interstate commerce, it is not subject to the federal anti-trust statute.
There are many definitions of interstate commerce. This from Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203, 5 Sup. Ct. 826, 828, 29 L. Ed. 158, has been repeatedly approved:
“Commerce among the states consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale, and exchange of commodities.”
The inquiry, then, is whether the record here shows “traffic1’ between citizens of different states, or the “purchase, sale, and exchange of commodities” across state lines.
The testimony discloses that the business of the defendants has three broad phases: (1) The purchase of the raw materials and supplies. (2) The manufacture of the product. (3) The disposition of the product. While the second phase — that of manufacture — does not involve interstate commerce, the other two phases seem clearly to directly involve it; and it also seems clear that the three phases are of equal importance. Unlike a mere manufacturing combination, this combination relates quite as much to the purchase of materials and the disposition of the product as to manufacture.
Leaf tobacco is purchased by the defendants’ agents in tobacco mar-*713Leí?, or directly from the grower in many different states, and is shipped by means of common carriers to factories or warehouses in other states. Licorice root for making licorice paste — necessary in prodn-mg certain kinds of tobacco — is purchased by a subsidiary corporation in foreign countries and is shipped to factories in this country. The paste, when manufactured, is sold to other of the defendants and is shipped to factories in different states. A subsidiary corporation manufactures tin foil and' sells and ships it to the different factories. Another docs the same thing with boxes, and another with cotton bags. .Still another acts strictly" as a purchasing corporation, and buys supplies in many markets, and sells and delivers them to the factories, warehouses, and offices throughout the country. The record shows constant intercommunication between the members of the combination in different states and constant shipments across state lines from one member to another as vendor and vendee.
The tobacco products manufactured by the defendants are largely sold by traveling salesmen, who solicit orders which, in most instances, are filled by shipping the goods ordered, by means of common carriers, from factories or warehouses located in states other than those in which the orders are taken. A limited number of jobbers in different states are also controlled, as well as an important retailer operating in different states. The business of the defendants covers the whole of the United States and the disposition of their products is effected under the supervision of an office of central authority by constant interstate shipments of the different commodities from factory, warehouse, or branch, to jobber, retailer, or consumer.
These facts seem clearly to show traffic between citizens of different states, and the purchase, sale, and exchange of commodities across, state lines — to show that the defendants are directly engaged in commerce among the states and are subject to the federal anti-trust statute; and, as a practical matter, it is probable that a large part of the interstate shipments of the country are made by industrial combinations similar to that of the defendants. “Transactions between manufacturing companies in one state, through agents, with citizens of another, constitute a large part of interstate commerce.” Caldwell v. North Carolina, 187 U. S. 622, 632, 23 Sup. Ct. 229, 233 (47 L. Ed. 336). If these corporations are not so engaged in interstate commerce as to be subject to federal regulation, then Congress, under the commerce clause, has little power except over carriers.
A point is made that this combination did not engage in interstate commerce in respect of sales made by traveling salesmen, because the title to the goods sold passed to the consignee when delivery was made to the common carrier in the place of manufacture. But the defendants engaged in interstate commerce when they sent their salesmen into different states and accepted and filled the orders obtained. “The negotiation of sales of goods, which are in another state, for the purpose of introducing them into the state in which the negotiation is made", is interstate commerce.” Robbins v. Shelby Taxing District, 120 U. S. 489, 497, 7 Sup. Ct. 592, 596, 30 L. Ed. 694. The sale of goods, by sample or otherwise, in one state by a traveling salesman em*714ployed by a manufacturer located in another state, and their subsequent shipment from the latter to the former state, constitute commerce among the states, with which Congress alone has power to deal. The Supreme Court of the United States has repeatedly held that state laws taxing or imposing conditions upon such sales are unconstitutional, as trenching upon the powers of Congress. Thus the court, in Robbins v. Shelby Taxing District, supra, said:
“If ttie selling of goods by sample and the employment of drummers for that purpose injuriously affect the local interest of the state, Congress, if applied to, will undoubtedly make such reasonable regulations as the case may demand. And Congress alone can do it; for it is obvious that such regulations should be based on a uniform system applicable to the whole country, and not left to the varied, discordant, or retaliatory enactments of 40 different states. The confusion into which the commerce of the country would be thrown by being subject to state legislation on this subject would be but a repetition of the disorder which prevailed under the Articles of Confederation.”
See, also, Brennan v. Titusville, 153 U. S. 289, 14 Sup. Ct. 829, 38 L. Ed. 719; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1, 32 L. Ed. 368; Caldwell v. North Carolina, 187 U. S. 622, 23 Sup. Ct. 229, 47 L. Ed. 336; Rearick v. Pennsylvania, 203 U. S. 507, 27 Sup. Ct. 159, 51 L. Ed. 295.
Where the title to the goods sold by the salesmen technically passes cannot, therefore, be regarded as important, “commerce among the states is a practical conception, not drawn from the ‘witty diversities’ (Yelv. 33) of the law of sales” (Rearick v. Pennsylvania, supra). Moreover, the facts bring the case within the language of Swift v. United States, 196 U. S. 375, 399, 25 Sup. Ct. 276, 280, 49 L. Ed. 518:
“But the allegations of the second section, even if they import a technical passing of title at the slaughtering places, also import that the sales are to persons in other states, and that the shipments to other states are part of the transaction — ‘pursuant to such sales’ — and the third section imports that the 'same things which are sent to agents are sold by them, and sufficiently indicates that some at least of the sales are of the original packages. Moreover, the sales are by persons in one state to persons in, another.”
But still, if. the technicality is important, the record shows, as we have seen, continued shipments of raw materials and finished products across state lines from one constituent corporation to another — constant purchases of materials, supplies, and products. If the combination as a shipper is not directly engaged in interstate commerce, then as a consignee it is so engaged, and the same result is reached.
Assuming, however, that these defendants are not directly engaged in interstate commerce, and are thus beyond the reach of the federal statute, what is the situation ? Simply this: That there is no power— state or national — of practical efficiency which can reach industrial combinations, no matter how oppressive they may be. The result necessarily follows from the operation of the commerce clause of the Constitution. As we have just seen, the Supreme Court has held that state laws imposing conditions upon the sale of goods to be shipped into a state by a foreign vendor are unconstitutional, as trenching upon the powers of Congress.- If such a sale is interstate commerce to the extent that it is free from local regulation, and yet the combination male *715mg it is not so directly engaged in interstate commerce a,s to be subject to federal control, then there is a hiatus in power which leaves the combination above the law.
The business of a producing combination, in so far as it affects states other than those in which its plants are located, consists in the sale and delivery of its products. If it may sell its goods by shipment across state lines free from local laws, it may freely do business in states with whose law’s and policy it is wholly antagonistic. The police power could not be extended to reach it, Inspection laws and statutes regulating the sale of injurious articles would be ineffective. Such a combination might locate its factory over the boundary line of a state, and, operating from there, adopt the most oppressive tactics to stifle local competition. If the commerce clause ties the hands of the states, and yet fails to give Congress efficient power, its effect is to force upon the whole country the standard of the state which charters the combination or of that in which its plants are located — standards which, as limiting the power of the combination, might impose no limitation at all.
I cannot accept this conclusion. In my opinion that which the Constitution took from the states it gave to the nation. There was no loss of power in the transmission. There is no middle ground. The business of the defendants in selling their goods and buying their materials, involving interstate dealings not subject to state anti-trust statutes, is interstate commerce, subject to the federal anti-trust statute.
But it is contended that the question whether the defendants are directly engaged in interstate commerce is settled by the decision of the Supreme Court in United States v. E. C. Knight Company, 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325. I do not so regard the effect of that decision. As I view it, the opinion of the majority of the court turned upon the distinction between manufacture and commerce, and treated the case as one relating solely to manufacture within a single state. As said by the court (page 17 of 156 U. S., page 255 of 15 Sup. Ct. [39 L. Ed. 325]):
“What the law struck at was combinations, contracts, and conspiracies to monopolize trade and commerce among the several states or with foreign nations; but the contracts and acts of the defendants related exclusively to the acquisition of the Philadelphia refineries and the business of sugar refining in Pennsylvania, and bore no direct relation to commerce between the states or with foreign nations. The object was manifestly private gain in the manufacture of the commodity, but not through the control of interstate or foreign commerce.”
The object of the proceedings in that case was, not to reach the American Sugar Refining Company as an unlawful combination, but to prevent the acquisition by it of local manufacturing properties. It is true that it appeared, incidentally, that the article manufactured was intended for transportation beyond the state; but no combination relating either to the purchase and interstate shipment of raw materials or to the disposition of the finished product was shown. Upon the facts shown in this record the principles of the Addyston Pipe Case (175 U. S. 211, 20 Sup. Ct. 96, 44 L. Ed. 136) rather than those of the Knight Case, seem applicable.
*716These defendants are not a combination relating solely to manufacture, nor solely of manufacturers. As already shown, the combination embraces dealers as well as manufacturers, and producers of materials and supplies as well as of the finished tobacco products. The language of the Supreme Court in Montague & Co. v. Lowry, 193 U. S. 38, 47, 24 Sup. Ct. 307, 310, 48 L. Ed. 608, distinguishing the Knight Case, is applicable:
“It was not a combination or monopoly among manufacturers simply, but one between them and dealers in the manufactured article, which was an article of commerce between the states. United States v. E. C. Knight Company, 166 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 326, did not, therefore cover it.”
Furthermore, the recent decisions of the Supreme Court indicate that the Knight decision is inapplicable to a case like the present. Thus, in the Northern Securities Case, 193 U. S. 197, 329, 24 Sup. Ct. 436, 453, 48 L. Ed. 679, Mr. Justice Harlan said of the Knight decision:
“It was held that the agreement or arrangement there involved had reference only to the manufacture or production of sugar by those engaged Jn the alleged combination; but, if it had directly embraced interstate, or international commerce, it would then have been covered by the anti-trust act and would have been illegal.”
And in Swift v. United States, 196 U. S. 375, 397, 25 Sup. Ct. 276, 279, 49 L. Ed. 518, the court said:
“Although the combination' alleged embraces restraint and monopoly of trade within a single state, its effect upon commerce among the states is not accidental, secondary, remote, or merely probable. On the allegations of the bill the latter commerce no less, perhaps even more, than commerce within a single state, is an object of attack. * * * Moreover, it is a direct object. It is that for the sake of which the several specific acts and courses of conduct are done and adopted. Therefore the case is not like United States v. E. C. Knight Co., 166 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325, where the subject-matter of the combination was manufacture and the direct object monopoly of manufacture within a state.”
See, also, Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488.
In view of the world-wide business of these defendants, of the constant reaching out for new markets in new countries, of the many different industries in many different states involved, of the constant shipments of materials from state to state, and of the control of- the disposition of the manufactured product, can it be said that the direct object of this vast combination — the dominating factor in the tobacco industry of the country — is the “monopoly of manufacture within a state” ? I must answer this question in the negative. In my opinion the defendants are engaged in interstate commerce, and that which the combination directly affects is interstate commerce.
This conclusion ends the inquiry of the greatest moment in the case. It is of much importance to many people at the present time whether the defendants have entered into an unlawful combination. It is of the most momentous importance to all .the people for all time whether the national government has power to reach industrial combinations dealing across state lines. Concede that the present statute goes too far. Concede, even, that no enactments are now necessary. Yet all must *717agree that conditions may arise in the future requiring legislative action which shall be both uniform and effective. Congress alone could take such action, and if this case shall finally establish that the power exists in Congress to take it, then, regardless of all other results, it is a good thing for the future of this country that these proceedings were instituted.
Returning, now, to the charges against these defendants, and regarding it as settled that, if a combination or monopoly within the meaning of the anti-trust statute is shown, it directly affects interstate commerce, the next inquiry is whether such a combination or monopoly is established. In determining whether a combination, within the meaning of the statute, is shown, these propositions must be accepted as established bii decisions of the Supreme Court of the United States:
(1) Every combination in restraint of interstate commerce, whether reasonable or unreasonable, is in violation of the statute. 'The present state of the law is thus summarized in the very recent case of Shawnee Compress Co. v. Anderson, 209 U. S. 423, 434, 28 Sup. Ct. 572, 575, 52 L. Ed. 865:
“And it lias been decided that not only unreasonable, but all direct, restraint of trade are prohibited, the law being thereby distinguished from the common law.”
See, also, United States v. Trans-Missouri Freight Ass’n, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007; Northern Securities Case, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679.
(2) Every combination restraining competition in interstate trade is a combination in restraint of interstate commerce. As said by Mr. Justice Harlan in the Northern Securities Case, 193 U. S. 197, 337, 24 Sup. Ct. 436, 457, 48 L. Ed. 679:
“To destroy or restrict free competition in interstate commerce was to restrain such commerce.”
And as stated by the court in National Cotton Oil Co. v. Texas, 197 U. S. 115, 129, 25 Sup. Ct. 379, 382, 49 L. Ed. 689, in speaking of the purpose of the state and federal statutes against combination:
“According to them, competition, not combination, should be the law of trade. If there is evil in this, it should be accepted as less than that which may result from the unification of interests, and the power such unification gives.”
This construction of the statute confines the duty of this court in applying it within very narrow limits. We have only to inquire whether the evidence shows a combination restraining competition. There is no necessity for going further. Other inquiries are immaterial. The combination may not reduce the prices paid to the growers of raw materials, may not increase the prices charged to consumers, may not seek to exclude all others from the field, may be free from coercion or oppression, and yet if it restrict competition, if it restrain trade, reasonably or unreasonably, it falls within the statute. The statute declares unlawful every combination in restraint of trade. It contains no words of limitation or qualification, and the Supreme Court of the *718United States has decided that the courts have no right to attach them to it.
In looking through the record for a combination which restricts competition, it is not necessary to go far. The defendants, in their own statement of that which they have done, present such a combination. In their brief (page 132) they say that their actions fall into two classes, of which the following is the first:
“The consolidation of interests, more or less sharply competitive, through the formation of a corporation and the transfer to it of the respective properties and business of such competitors.”
A consolidation of competitive interests in this form, when a combination, as distinguished from a sale, is a combination which, restraining interstate commerce, violates the federal anti-trust statute. Whether a transaction amounts to a sale or to a combination depends upon whether the vendor parts with all interests in the business sold or merely changes the form of his investment. A bona fide sale of a plant for cash or its equivalent possesses none of the elements of combination. An exchange of one plant for an interest in united plants possesses all the elements of combination. See Davis v. A. Booth & Co., 131 Fed. 37, 65 C. C. A. 269; Bigelow v. Calumet, etc., Mining Co. (C. C.) 155 Fed. 869; also, upon the underlying principle involved, Shawnee Compress Co. v. Anderson, 209 U. S. 423, 28 Sup. Ct. 572, 52 L. Ed. 865, and the Northern Securities Case, supra.
The testimony in this case shows repeated instances where, upon the transfer of a competing business, the vendors merely changed the form of their investment. They transferred their property andi received in exchange stock in the transferee corporation. They 'exchanged large interests in a small property for small interests in a large property. Instead of standing by themselves, they combined, and, in combining, violated the federal statute.
There is no especial merit in the corporate form of combination. A corporation without statutory authority — express or incidental — to acquire property cannot take it at all. With such authority it has only the power which an individual enjoys of natural right. Both may purchase and otherwise acquire property for lawful purposes; but neither can acquire property for a purpose forbidden by law. The corporations formed by the defendants, with the ordinary power to acquire all kinds of property, had no right to acquire property in order to form an unlawful combination. The grant of power would not be construed as authorizing any such acquisition; and any grant which went further, and did attempt to authorize the formation of a combination in violation of the federal statute, would be wholly void. No state can authorize any individual or corporation to break a law of the United States. See the Northern Securities Case, supra. Upon the defendants’ own presentation of their acts, therefore, I cannot avoid the conclusion that they have, with certain exceptions, engaged in a combination contrary to the first section of the federal anti-trust statute.
In thus considering whether the defendants have combined in violation of the first section of the act, they have been treated as an asso*719ciation of corporations and individuals. But they are all dominated by the American Tobacco Company, and, in determining whether a monopoly has been created in contravention of the second section, they may properly be considered as a unit. In pursuing the latter inquiry, however, it is not necessary to go far. The violation of the first section requires the issuance of an injunction. No further relief could be granted, should the defendants be held to also violate the second section. The question of monopoly is, however, fully presented upon the briefs, and I think should not be passed over.
It appears from the record that the defendants produce 70 per cent, of the smoking tobacco made in this country, 73 per cent, of the cigarettes, 81 per cent, of the plug and twist tobacco, 81 per cent, of the fine-cut tobacco, 89 per cent, of the little cigars, and 96 per cent, of the snuff. They also make 95 per cent, of the licorice paste produced, 75 per cent, of the tin foil, and most of the tobacco extracts, boxes, and containers.
The acquisition by the defendants in taking over the various competing plants of most of the well-established and popular brands of tobacco gives them especial power to control the market. As pointed out in the defendants’ brief:
“The difficulties of establishing a brand of tobacco are numerous, but they are compensated by the value of the brand when established.”
The consumer becomes accustomed to, and buys by, a brand. It is difficult to induce him to purchase another brand. “His habit is a ‘ Bull Durham’ habit, and not a mere tobacco habit.”
The defendants purchase the major part of all the tobacco leaf— other than that used for cigars — raised in this country. Of some important types they buy a very large proportion of the total production. Thus of hurley, used in the manufacture of plug tobacco, they bought in 1905 175,000,000 pounds out of a total crop of 240,000,000 pounds; of Virginia sun cured, used for chewing tobacco, they bought 7,400,-000 pounds out oí a crop of 8,100,000 pounds. The hold of the defendants upon the tobacco industry of the country has steadily increased since the formation of the combination. There is only one branch of the industry which they do not have within their grasp — the cigar branch; but their predominating interest in all of the other branches is not lessened by the fact that they have not as yet obtained control of this branch. To create a monopoly, it is not necessary to gather in all the branches of a great industry.
In view of these facts, and of the further fact that the assets of the defendants amount to hundreds of millions of dollars, let us, with respect to the question whether they are monopolizing trade, again test their position from their own point of view. In examining the second section of the act the defendants in their brief (page 172) say:
“The sole question is: J'o the defendants so engross tho market that they can prevent others from engaging therein freely, and thus at pleasure fix the prices either of the raw materials or of the manufactured article?”
The record shows that, to establish and popularize a brand of tobacco, the expenditure of much time and money is necessary. Whether a person of moderate capital could successfully engage in the *720manufacture of tobacco would depend entirely upon the position taken by the defendants. They might suffer him to succeed. On the other hand, they might deem it expedient to crush him, and, if they exercised the power which they possess, there could be but one result. Considering the enormous inherent and collateral power of the defendants, the record is remarkably free from acts of oppression or coercion. But still there is enough to show how a competitor can be brought to terms if occasion demands. The letters between the defendants’ officials point out most effective means for entering “upon a vigorous campaign, to be kept up until the desired end is accomplished.”
Under these conditions, I am of the opinion — in answer to the first phase of the defendants’ question — that the defendants do so engross the tobacco market that they have power “to prevent others from engaging therein freely.” The extent to which they have exercised their power is immaterial. The question presented by the defendants’ inquiry is one of the existence of power, not its exercise.
Subject to the economic limit that prices cannot be fixed so low as to deprive the grower of inducement to raise future crops, the extent of the defendants’ purchases of tobacco leaf necessarily gives them large power to fix the prices to be paid for the types which they require. Prices may be regulated — as the defendants assert — by the law of supply and demand; -but the difficulty here is that the demand for many types comes, practically, from only one source. To whom, for example, can the growers of burley or Virginia sun-cured tobacco sell their crop, if they refuse the prices offered by the defendants ? Similarly, the production by the defendants of by far the greater part of the tobacco used in this country gives the power to control the prices of the manufactured article, subject to the economic ■ limit that, if placed too high, the consumer will give up the use of tobacco. It is not a question of going to another producer. No other producer could supply the amount required. Where will the users of snuff obtain it, if they are unwilling to pay the prices charged by the defendants?
Moreover, the defendants possess an even greater power over the prices o£ raw materials and finished products than the statistics which we have noticed indicate. It is apparent from the record that they are the dominating factors in the tobacco industry. Other producers are scattered and do not act together. They are not in a position to initiate price making.
They must follow the action of the defendants. Upon these facts, I am of the opinion that the second phase of the defendants’ inquiry must, like the first, be answered in the affirmative — that the defendants do have power to determine the prices of raw materials and of the manufactured article.
Thus, applying to the defendants’ position the test of their own inquiry, it follows that they constitute a monopoly. And the same result is reached if it be sought to bring them within the description of a monopoly stated by Mr. Justice McKenna in National Cotton Oil Co. v. Texas, 197 U. S. 129, 25 Sup. Ct. 382, 49 L. Ed. 689:
“Its dominant thought now is, to quote another, ‘the motion of exclusiveness or unity’; in other words, the suppression of competition by the unifica-*721tlon of Interest or management, or, it may be, through agreement and eon-cert of action. And the purpose is so definitely the control of prices that monopoly has been defined to be ‘unified tactics with regard to prices.’ it is the power to control prices which makes the inducement of combinations and their profit. It is such power that makes it the concern of the law to prohibit or limit them.”
Still another test brings us to the same conclusion. The authorities warrant the statement that a monopoly, in the modern sense, is created when, as a result of efforts to that end, previously competing businesses are so concentrated in the hands of a single person or corporation, or a few persons or corporations acting together, that they have power to practically control the prices of commodities and thus to practically suppress competition. National Cotton Oil Co. v. Texas, supra; United States v. E. C. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325; Northern Securities Case, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679; Swift v. United States, 196 U. S. 375, 25 Sup. Ct. 276, 49 L. Ed. 518; American Biscuit, etc., Co. v. Klotz (C. C.) 44 Fed. 724; United States v. Chesapeake, etc., Fuel Co. (C. C.) 105 Fed. 104; Chesapeake & O. Fuel Co. v. United States, 115 Fed. 610, 53 C. C. A. 256; People v. North River Sugar Refining Co., 54 Hun, 377, note, 3 N. Y. Supp. 401, 2 L. R. A. 33; Pocahontas Coke Co. v. Powhatan Coal, etc., Co., 60 W. Va. 508, 56 S. E. 264, 10 L. R. A. (N. S.) 268, 116 Am. St. Rep. 901; Richardson v. Buhl, 77 Mich. 658, 43 N. W. 1103, 6 L. R. A. 457; Harding v. American Glucose Co., 182 Ill. 615, 55 N. E. 577, 64 L. R. A. 738, 74 Am. St. Rep. 189; Herriman v. Menzies, 115 Cal. 16, 44 Pac. 660, 46 Pac. 730, 35 L. R. A. 318, 56 Am. St. Rep. 81; Lough v. Outenbridge, 143 N. Y. 271, 38 N. E. 292, 25 L. R. A. 674, 42 Am. St. Rep. 712; Wood v. Greenwood Hardware Co., 75 S. C. 383, 55 S. E. 973, 9 L. R. A. (N. S.) 501. And the examination of facts already made shows this concentration of power in the hands of the defendants.
It must be noted that the authorities hold that the material consideration, in determining whether a monopoly exists, is not that prices are raised and that competition is excluded, but that power exists to raise prices or to exclude competition when it is desired to do so. The validity of an organization, according to the authorities—
“is not to be tested by what lias been done under it, but by what may be done tinder it; not by its performance, but by its power of performance when fully exercised.” Pocahontas Coke Co. v. Powhatan Coal, etc., Co., supra.
Following the authorities, the necessary result is that the defendants, in possessing the power of control over the tobacco market, monopolize interstate trade and commerce within the meaning and in violation of the second section of the statute. And yet, in view of the possible results from this interpretation of the statute, I could only with hesitation unqualifiedly adopt it. An aggregation of capital or property, with power to control the market for a product, might be brought about by lawful means without the element of combination, and might carry on its operations without the element of oppression. If the mere possession of power is the test of legality, then the inquiry in that case, as in any other case, would merely relate to the present status of the aggregation: What has it power to do? — with*722out regard to its past history or its present methods. Thus a result might be declared unlawful, which was obtained by lawful means; an aggregation of capital criminal, which actually operated to the public benefit. The law that illegality depends wholly upon the power of performance may be settled; but it was not settled when the tendency towards the unification of interests was so marked as at the present time. It may be that now, in applying the second section of the statute, performance, as well as power of performance, should be considered ; that the elements of oppression and coercion should be shown to exist, to establish an unlawful monopoly. And, if these elements are to be considered, they are not sufficiently presented upon this record. It is not shown that the defendants have reduced prices to growers, nor that they have raised prices to consumers. The instances of coercion which are shown appear rather as incidental to the development of a great business than as indicative of a policy of oppression. But a judicial opinion upon the important question whether the conclusion which the authorities lead to should be adopted without qualification in construing and applying the second section should only be expressed when necessary to the rendition of a decision. There is no such necessity in this case. In view of the opinions of the other members of the court, the decree must run against the defendants under the first, and not under the second, section of the statute. Therefore, while I have felt it my duty to examine the situation under the second section, its consideration need not be carried further.
The only matters remaining relate to the decree. While not wholly adopting the views of Judges EACOMBE and COXE with respect to certain of the defendants, I concur in the results which they reach, and in their conclusion that an. injunction of the nature stated should be issued against the defendants, with the exceptions noted, but with stay pending appeal.