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Argument for Appellants.

244 U.S.

spiracy has been frequently applied in the case of strikes. [Citing numerous authorities.]

If the means employed are calculated and intended to restrain interstate trade, it is immaterial that they are to be performed or operate entirely within the limits of one State. Loewe v. Lawlor, supra; United States v. Reading Co., supra; Swift & Co. v. United States, 196 U. S. 375; Northern Securities Co. v. United States, 193 U. S. 197; United States v. Terminal R. R. Assn., 227 U. S. 683.

The case at bar is undistinguishable in principle from the cases of Montague v. Lowry, 193 U. S. 38; Loewe v. Lawlor, supra; Eastern States Retail Lumber Dealers' Assn. v. United States, 234 U. S. 600, and Lawlor v. Loewe, 235 U. S. 522. The judges in the lower court entertained no doubt as to the applicability of the Anti-Trust Law. Irving v. Neal, 209 Fed. Rep. 471; Paine v. Neal, 212 Fed. Rep. 259 (case at bar)..

The complainants, being irreparably injured in their property rights by acts in violation of the Anti-Trust Law, are entitled to an injunction. The jurisdiction of the District Court was invoked both on account of diversity of citizenship and the Anti-Trust Law. The complainants appealed to its general equitable powers to protect them from irreparable injury to their property rights by unlawful and criminal acts. To deny the power and duty of the chancellor to protect property rights from irreparable injury due to criminal acts, involves an overthrow of fundamental principles and unfortunate consequences which would be far-reaching. If the Federal Anti-Trust Law supersedes all other law relative to combinations which restrain interstate trade and is to be construed as denying the right of an injunction to a private party, then persons irreparably injured in their property rights by such criminal acts, which were exclusively in restraint of interstate trade, would be deprived of their property without due process of law. The federal statute is only

244 U. S.

Argument for Appellants.

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declaratory of the common law without adding to or subtracting from the substantive offense; it specifies the remedies of treble damages, confiscation, and injunction by the government, which were not available under the common law, and, by making restraints which were purely subjective in their nature affirmatively unlawful, entitles a private party suffering damage therefrom to all available civil remedies. Since the law does not lay down any new rule as to combinations which are legal or illegal, the remedies which it prescribes are cumulative and do not exclude common-law remedies.

The law should be construed with a view to suppressing the mischief and advancing the remedy for which it is obviously designed, and to carry with it all the incidents and available remedies which usually accompany such statutes. Upon this question, however, the lower courts are in disagreement.

The cases holding that parties injured by acts in violation of this law are entitled to an injunction under general equitable principles are as follows: Bigelow v. Calumet & Hecla Mining Co., 155 Fed. Rep. 877; affd. 167 Fed. Rep. 721; United States v. Addyston Pipe & Steel Co., 85 Fed. Rep. 279; Mannington v. Hocking Valley Ry. Co., 183 Fed. Rep. 140; De Koven v. Lake Shore & Michigan Southern Ry. Co., 216 Fed. Rep. 955; Hitchman Coal & Coke Co. v. Mitchell, 202 Fed. Rep. 512; Walsh v. Association of Plumbers (Mo.), 71 S. W. Rep. 455. [Counsel then cited contrary decisions of the lower federal courts, a number of which are mentioned in the dissenting opinion.]

It is our contention that under general principles any person specially injured in his property rights by criminal or unlawful acts is entitled to the usual and appropriate civil remedies to protect him therefrom, and that there is nothing in the Sherman Act which deprives him of that right or contracts the power of the District Court to grant

Argument for Appellants.

244 U.S.

him injunctive relief. Hayes v. Michigan Central R. R. Co., 111 U. S. 228; Willy v. Mulledy, 78 N. Y. 314; Mairs v. Baltimore & Ohio R. R. Co., 175 N. Y. 413; Huda v. American Glucose Co., 154 N. Y. 481; Angle v. Chicago & St. Paul Co., 151 U. S. 2; Bitterman v. Louisville & Nashville R. R. Co., 207 U. S. 206; 1 Rev. Swift's Dig., side page 553; In re Debs, 158 U. S. 593, 594; Cooper v. Whittingham, 15 Ch. Div. 501; Parker v. Barnard, 135 Massachusetts, 120; Hayes v. Porter, 22 Maine, 371; Toledo A. A. & N. M. Ry. Co. v. Penn Co., 54 Fed. Rep. 730; HardieTynes Mfg. Co. v. Cruse (Ala.), 66 So. Rep. 657; Thomas v. N.O. & T. P. Ry. Co., 62 Fed. Rep. 821.

The fact that Congress has since given a private individual the right to an injunction, by the Clayton Act, seems to indicate what was its intention under the original act.

The complainants have suffered special damages entitling them to injunctive relief.

The defendants' combination violates $8 340 and 341 of Article 22 of the General Business Law of New York, and complainants, being irreparably injured in their property rights by such unlawful acts, are entitled to an injunction.

If the acts of the defendants constitute a misdemeanor under the terms of this state statute, then the plaintiffs are entitled to all the appropriate and usual civil remedies, even though those remedies are not prescribed by the statute. It is the settled law of New York that one who is specially injured by an act forbidden by the criminal law is entitled to civil relief. Kellogg v. Sowerby, 190 N. Y. 370; Rourke v. Elk Drug Co., 77 N. Y. Supp. 374; Dueber Co. v. Howard Co., 24 N. Y. Supp. 647; Straus v. American Publishers' Assn., 177 N. Y. 473; 193 N. Y. 496; 199 N. Y. 548; 231 U. S. 222; 85 App. Div. 446; Park & Sons v. National Druggists' Assn., 175 N. Y. 1; Locker v. American Tobacco Co., 195 N. Y. 565. The statute is little more

244 U. S.

Argument for Appellants.

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than a codification of the common law. Matter of Davies, 168 N. Y. 89; People v. American Ice Co., 120 N. Y. Supp. 443. The commodities produced by plaintiffs are included. The motive which actuates the members of the combination is immaterial, but the purpose and object of the combination is material. Kellogg v. Sowerby, 190 N. Y. 370; People v. American Ice Co., 120 N. Y. Supp. 443; Schwarcz v. International Union, 124 N. Y. Supp. 968; State v. Minneapolis Milk Co. (Minn.), 144 N. W. Rep. 417. If the plaintiffs are to prevail under this statute, it is because the acts of the defendants constitute a public offense forbidden by the statute and have resulted in injury to the plaintiffs. The character of the participants is immaterial. The fact that the defendants are endeavoring to suppress competition in the supply and price of completed articles in common use removes their combination and conduct from the case of National Protective Assn. v. Cumming, 170 N. Y. 315, and brings them within the purview of the Anti-Trust Law. Rourke v. Elk Drug Co., 77 N. Y. Supp. 375; Loewe v. Lawlor, 208 U. S. 274.

If the combination of the defendants is illegal, then every act in furtherance thereof, though otherwise innocent and constitutionally protected, becomes illegal because done in furtherance of the illegal purpose. Acts which might be innocent when done by one person may become illegal when done by a number in combination in violation of the statute. Rourke v. Elk Drug Co., 77 N. Y. Supp. 375; Locker v. American Tobacco Co., 195 N. Y. 565; Locker v. American Tobacco Co., 106 N. Y. Supp. 118 (Judge Gaynor's opinion); Walsh v. Dwight, 58 N. Y. Supp. 91.

Generally as to the application of this law to cases like the present, see People v. McFarlin, 89 N. Y. Supp. 527; Irving v. Neal, 209 Fed. Rep. 471; Paine v. Neal, 212 Fed. Rep. 259; Gill Engraving Co. v. Doerr, 214 Fed. Rep. 111. Within the meaning of this act defendants' combination

Argument for Appellants.

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(a) seeks to create and maintain a monopoly in the manufacture, production and sale of the articles in question. Their own reports show that they have already acquired a complete monopoly at higher prices of trade in wood trim on the Island of Manhattan, thereby terminating all trade in that borough with any open shops, People v. American Ice Co., 120 N. Y. Supp. 443. (b) It attempts to restrain or prevent competition in the supply and price of these articles. (c) It seeks to restrain or prevent the free pursuit of a lawful trade or business, in order thereby to create or maintain a monopoly in the production and sale of these articles. Straus v. American Publishers' Assn., supra; People v. McFarlin, 89 N. Y. Supp. 527; Cummings v. Union Blue Stone Co., 164 N. Y. 401; Arnot v. Pittston Coal Co., 68 N. Y. 558.

The restraint is not incidental to any legitimate end which the defendants seek, but is the direct purpose of the combination. The benefits sought by the defendants are the result of the restraint of trade, and the restraint of trade is not the result of the benefits or incidental to them.

The defendants' combination violates subdivision 6 of § 580 of Article 54 of the Penal Law of New York; also subdivision 5 of 8 580 of that law; also $ 530 of Article 48 of that law.

Section 582 of the Penal Law of New York is declaratory of the common law and does not legalize the defendants' acts.

A combination of traders, to promote their own interests by suppressing the competition of rivals, is illegal at common law and it is immaterial whether the combination aims at one rival or a class of rivals. If the complainants are being irreparably injured in their property rights by unlawful acts committed within the State, they would be entitled to relief regardless of the existing federal law, whether those acts were unlawful at common law or because of some state statute.

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