Pacific States Paper Trade Ass'n v. Federal Trade Commission, 4 F.2d 457 (9th Cir. 1925)

*458 *459 *460 Edward J. McCutcheon, Warren Olney, Jr., and McCutcheon, Olney, Mannon & Greene, all of San Francisco, Cal., Hamblen & Gilbert, of Spokane, Wash., and Chriss A. Bell, of Portland, Or., for petitioners.

W. H. Fuller, Chief Counsel of Federal Trade Commission, of Washington, D. C., and D. N. Dougherty, of San Francisco, Cal., for respondent.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge (after stating the facts as above).

As already stated, the case was submitted to the commission on an agreed statement of facts. Outside of and in addition to the agreed statement, however, the commission made certain findings or deductions of its own. These additional findings will be accepted by the court in so far as they are based upon proper and legal inferences from the facts stipulated, but otherwise they must be disregarded. Thus, in addition to the stipulated facts as to the use made of the price lists adopted by the several local associations, in making sales in other states, the commission found that such use has a natural tendency to limit competition and fix prices in such other states. We may say at the outstart that so much of the desist order as forbids the use of these price lists in combination would be proper, if justified by the facts, but use in combination is neither stipulated nor found. There is no division of territory between the different local associations, but the members of each habitually serve a loosely defined territory, in which the bulk of their business is done, and which is regarded by them as peculiarly within the sphere of their merchandising activities. Such territory is that which is naturally tributary to the jobbing center, where the members of such associations are located and within which jobbing or wholesale dealers so located have an advantage over similar dealers elsewhere in competition with them, by reason of such factors as lower freight rates, nearness of distance, and accustomed trade channels.

The use of a price list of some kind for the information and guidance of salesmen in taking orders and making sales is almost a necessity, and it is going very far to say that the mere use, without combination or agreement, of a particular price list, which the salesmen are not bound to follow, and which differs or may differ from the price lists used by other salesmen in the same locality, has such a tendency to fix prices or limit competition as to bring it within the condemnation of the Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830). The principle involved is perhaps more important than the right to use any particular price list, but we do not think that the prohibition is justified *461 by the stipulated facts or by any proper or legal inferences therefrom.

Again the commission supplemented the stipulated facts as to mill shipments by a finding that such shipments are injected into the channels of interstate commerce and continue in such commerce until delivery to the purchaser, and the inclusion of fixed and uniform prices in the published price lists of the various local associations eliminates price competition in the purchase and sale of these products in interstate commerce. The line of demarcation between interstate commerce and intrastate commerce is not easily defined, nor is it easy to say where the former ends or the latter begins. The question has been many times before the Supreme Court, and it seems there well settled, in tax cases at least, that a sale by a wholesaler or jobber in one state to a purchaser in the same state under circumstances such as are disclosed by this record is not a subject of interstate commerce. Thus, in Ware & Leland v. Mobile County, 209 U.S. 405, 413, 28 S. Ct. 526, 529 (52 L. Ed. 855, 14 Ann. Cas. 1031), the court said:

"When the delivery was upon a contract of sale made by the broker, the seller was at liberty to acquire the cotton in the market where the delivery was required or elsewhere. He did not contract to ship it from one state to the place of delivery in another state. And though it is stipulated that shipments were made from Alabama to the foreign state in some instances, that was not because of any contractual obligation so to do. In neither class of contracts, for sale or purchase, was there necessarily any movement of commodities in interstate traffic, because of the contracts made by the brokers. These contracts are not, therefore, the subjects of interstate commerce, any more than in the insurance cases, where the policies are ordered and delivered in another state than that of the residence and office of the company. The delivery, when one was made, was not because of any contract obliging an interstate shipment, and the fact that the purchaser might thereafter transmit the subject-matter of purchase by means of interstate carriage did not make the contracts as made and executed the subjects of interstate commerce."

So here there were no contractual relations of any kind between the manufacturer and the purchaser from the wholesaler or jobber, and no agreement of any kind between the wholesaler or jobber and the purchaser that the merchandise should be shipped in interstate commerce, or at all. The seller was at liberty to fulfill the contract from merchandise on hand within the state, and adopted the method complained of as a mere matter of convenience, because time and opportunity made delivery in that way feasible and satisfactory. See also, Banker Bros. v. Pennsylvania, 222 U.S. 210, 32 S. Ct. 38, 56 L. Ed. 168, Public Utilities Commission v. Landon, 249 U.S. 236, 39 S. Ct. 268, 63 L. Ed. 577, and Ward Baking Co. v. Federal Trade Commission (C. C. A.) 264 F. 330.

It is claimed by the respondent that these cases are qualified and explained in Western Union Telegraph Co. v. Foster, 247 U.S. 105, 38 S. Ct. 438, 62 L. Ed. 1006, 1 A. L. R. 1278, Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 42 S. Ct. 106, 66 L. Ed. 239, and Lemke v. Farmers' Grain Co., 258 U.S. 50, 42 S. Ct. 244, 66 L. Ed. 458. We do not so construe them. In the Western Union Case, the New York Stock Exchange contracted with certain telegraph companies to furnish them continuous stock quotations, to be furnished by them in turn to their subscribers by ticker service, and it was held that the transmission of the quotations remained interstate commerce until they reached their final destination; but there transmission and delivery to the subscriber was a part of the service contracted for. In Dahnke-Walker Co. v. Bondurant and Lemke v. Farmers' Grain Co. it was held that, where goods are purchased in one state for transportation to another, commerce includes the purchase quite as much as the transportation. No doubt a restriction on the purchase or sale of goods which are to become or have been the subject of interstate commerce may be illegal, but before such a result can be declared it must appear that the restriction in some way tends to restrain or monopolize commerce among the states, as in Swift & Co. v. United States, 196 U.S. 375, 25 S. Ct. 276, 49 L. Ed. 518.

No such case is presented here. The contracts in question relate solely to sales within the state by parties within the state, and so far as we can see they do not and cannot affect directly, or even remotely, commerce among the states. Practically all the paper and paper products sold in the Pacific Coast States has been the subject of interstate commerce. The commission apparently concedes that it is without power to forbid or condemn agreements fixing prices within the state where delivery is to be made from stocks within the state, but it asserts the power in this particular instance merely because of the time, place, and mode of delivery. *462 The distinction thus sought to be made is subtle to say the least.

As already stated, paragraph (e) of the order forbids the discussion of uniform terms, discounts, and prices by the Northwest Paper Dealers and the Pacific States Paper Trade Association, their officers and members, their agreeing upon prices by resolution or otherwise, or the employing of any similar device, which fixes or tends to fix the price at which paper or paper products shall be sold in interstate commerce. On first reading, it might seem that the qualifying phrase, "which fixes or tends to fix the prices at which paper or paper products shall be sold in interstate commerce," applies to the discussion of terms, discounts, and prices, as well as to any similar device, but correctly speaking it does not. Furthermore, the petitioners contend that the order, by its terms, prohibits any discussion whatever of these subjects. The commission accepts that view and seeks to uphold the order in all its breadth.

In this respect we think the order goes too far. As said by the Supreme Court in Federal Trade Commission v. Sinclair Refining Co., 261 U.S. 463, 43 S. Ct. 450, 67 L. Ed. 746: "The powers of the Commission are limited by the statutes. It has no general authority to compel competitors to a common level, to interfere with ordinary business methods or to prescribe arbitrary standards for those engaged in the conflict for advantage called competition. The great purpose of both statutes was to advance the public interest by securing fair opportunity for the play of the contending forces ordinarily engendered by an honest desire for gain. And to this end it is essential that those who adventure their time, skill and capital should have large freedom of action in the conduct of their own affairs."

Nor was it the purpose of the statutes to reduce trade organizations to the status of mere social clubs, or to restrict the conversation of members to mere idle gossip. United States v. Southern Wholesale Grocers' Ass'n (D. C.) 207 F. 434. The stipulated facts state the subjects discussed at these meetings, without more. What was said we are not informed and so far as the record discloses, the discussion may have resulted in a disagreement instead of an agreement. What is here said, of course, has no reference to the resolution fixing the price for cutting, but beyond an agreement on this single item the record is entirely silent. Our attention has been directed to numerous cases in which injunctions as broad as this have been sustained, but in all such cases agreements in restraint of trade were found to exist, and in order to prevent a repetition or recurrence of the evil the courts were warranted in forbidding acts which in and of themselves would not justify injunctive or other relief. No doubt, discussions at such meetings which tend to monopolize trade or fix prices in interstate commerce come within the prohibition of the statute, but neither court nor commission is justified in presuming the unlawful purpose without proof. The discussions in question may have had the tendency claimed, and such may have been their express object, but no such tendency or purpose appears from the stipulated facts.

Paragraph (g) of the order is directed against conspiracies and combinations to hinder or prevent any wholesaler, jobber, dealer, or consumer from purchasing paper or paper products in interstate commerce directly from the manufacturer or wholesaler thereof, or from any one else selling or desiring to sell such products, and paragraph (h) against like conspiracies and combinations to hinder or prevent by intimidation, coercion, withdrawal or threatened withdrawal of patronage or custom, either express or implied, or by promises or agreements to increase such patronage or custom, any firm, partnership, or corporation, or representative thereof from buying or selling paper and paper products in interstate commerce from or to whomsoever, or at whatsoever, prices or terms may be agreed upon between the seller and the buyer, or by combination or agreement, express or implied, to communicate, directly or indirectly, with any manufacturer, wholesaler, or dealer, or representative thereof, for the purpose of inducing, coercing, or compelling such manufacturer, wholesaler, or retail dealer not to sell paper or paper products in interstate commerce to any firm, partnership, or corporation, whether or not recognized or classified by the respondents as a legitimate dealer or otherwise entitled to such purchases.

The petitioners concede that they have no right, in combination, to resort to intimidation, or coercive measures, to enforce their demands, such as blacklisting or boycotting, but they do insist that they have a right to resort to peaceable persuasion. We are not convinced, however, that there is not an element of coercion in a demand made upon wholesalers by the representatives of dealers in 75 per cent. of the paper and paper products in a number of the states. Furthermore, as said by the Supreme Court in Duplex *463 Printing Co. v. Deering, 254 U.S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196:

"It is settled by these decisions that such a restraint produced by peaceable persuasion is as much within the prohibition as one accomplished by force or threats of force; and it is not to be justified by the fact that the participants in the combination or conspiracy may have some object beneficial to themselves or their associates which possibly they might have been at liberty to pursue in the absence of the statute."

For the foregoing reasons, paragraphs (b) and (c) of the order are reversed, paragraph (e) is reversed in so far as it forbids the mere discussion of uniform terms, discounts, and prices, and as to the remaining paragraphs the petitions are denied.

[*] Certiorari granted 45 S. Ct. 636, 69 L. Ed. ___.