Bigelow v. Calumet & Hecla Mining Co. , 94 C.C.A. 13 ( 1909 )

LURTON, Circuit Judge.

These cases have been heard together upon the same transcript. The solution of the questions presented by one will substantially determine the other. The first and principal bill is that of Albert S. Bigelow against the Calumet & Hecla Mining Company and the Osceola Consolidated Mining Company. The complainant, Bigelow, is a citizen of Boston, Mass. The defendants are copper mining companies created under the laws of the state of Michigan. The complainant is a large stockholder in. and president of the Osceola Consolidated Mining Company. In his character as a stockholder of that company he has filed this bill to enjoin the Calumet & Hecla Company from voting shares of the capital stock of the Osceola Company owned by it, and also to enjoin it from voting certain proxies held in its interest, at the annual stockholders’ meeting for the election of a board of directors which was about to occur when the bill was filed.

The bill in the second case was filed by Mr. Bigelow in his character as a small holder of shares of the capital stock of the Calumet & Hecla Company, acquired since the starting of the first suit, for the purpose of questioning the legality of the purchase by that company of some 50,000 acres of additional copper-prodücing lands in Michigan, and also for the purpose of questioning the power of that company under its charter, as well as under the federal and state legislation against monopolies and illegal restraints of trade and commerce, and to enjoin that corporation from acquiring other mining lands or shares of stock in other mining companies and from exercising the power of voting upon any such shares already acquired.

An injunction pendente lite was granted under the first bill. The grounds for this action are found in an opinion by Judge Knappen. 155 Fed. 869. No injunction was applied for under the second bill. Upon a final hearing the bills in both cases were dismissed. Pending this appeal the injunction, which operated to preserve the status quo by preventing the election of directors pending this suit, was continued.

The essential facts are these: Both companies are Michigan corporations engaged in mining and refining copper. The properties of the two companies are contiguous and situated in the copper district of the northern peninsula of Michigan. The Calumet & Hecla Company has bought outright 22,671 shares of the capital stock of the Osceola Company, and has obtained proxies, which are held in its interest, in part with options of purchase, in an amount sufficient with its holdings to make a majority of the 100,000 shares which constitute the total capital stock of the Osceola Company. 'There is no doubt but that the purpose of the acquisition was to enable the Calumet Company to elect a majority of the directors of the Osceola Company from the board of the Calumet Company. This was avowed in circular letters soliciting proxies from the shareholders of the former company. That such company was to continue its operations as an independent company is equally clear. No other course was possible, though one should eliminate the other so far as active competition might result from the control of a majority of the shares and the exercise of the power of selecting directors incident to such stock control.

We need not consider the power at common law of such corporations to own and vote shares in similar corporations, for the reason that in Michigan the Legislature has not deemed such restrictions wise or desirable, for there have been a series of enactments relaxing the common-law rule. Comp. St. Mich. § 7012, Pub. Acts Mich. 1903, pp. 382, 383, No. 233, culminating in the act of 1905, No. 105, Pub. Acts Mich. 1905, pp. 153, 154, which provides that corporations organized under the Michigan mining law or under any other laws for refining, smelting, or manufacturing ores, metals, or minerals may “subscribe for, purchase, own or dispose of stock in any company organized under this act, or under any other laws, foreign or domestic, for the purpose of mining,, refining, smelting or manufacturing any or all kinds of ores or -minerals.” That the latter act does not so seriously interfere with the contract between the company and its shareholders as to require the shareholders’ acceptance as an amendment of the charter powers, we think clear. The amendment, while allowing a wide expansion of the business operations of such companies, is not so fundamental as to be beyond the power of the Legislature under the constitutional reservation of the power to alter or amend the general constating act under which corporations may be organized in Michigan. Attorney General v. Looker, 111 Mich. 498, 69 N. W. 929; Looker v. Maynard, 179 U. S. 46, 21 Sup. Ct. 21, 45 L. Ed. 79; Louisville Trust Company v. Railroad Co., 75 Fed. 445, 448, 22 C. C. A. 378. User of the power conferred by the amendment is evidence of acceptance, if acceptance be necessary. Miller v. Insurance Co., 92 Tenn. 167, 21 S. W. 39, 20 L. R. A. 765; Cahill v. Kalamazoo Mutual Ins. Co., 2 Doug. (Mich.) 124, 43 Am. Dec. 457. The right to vote stock so lawfully acquired is, of course, an incident to ownership. Comp. Laws Mich. § 7002. Rogers v. Railroad Co., 91 Fed. 299, 312, 33 C. C. A. 517; Taylor v. Southern Pacific R. R. Co. (C. C.) 122 Fed. 147, 151. There is nothing, therefore, in the laws of Michigan which forbids the holding or voting of these shares owned, or those for which proxies are held in the interest of the Calumet Company, unless such ownership or voting shall result in an illegal monopoly or combination in restraint of trade, either under the federal anti-trust act or the Michigan anti-monopoly act of 1899, p. 409, No. 255, and the Public Acts of Michigan of 1905, p. 507, No. 329. In view of the very broad powers expressly conferred by the state of Michigan to such corporations to buy and hold shares in similar companies, it is very clear that, if the incidental voting powers and the ownership of the shares in question is not an illegal monopoly in restraint of trade, the question of the effect upon interstate commerce aside, it was not forbidden by the laws of Michigan. We shall therefore deal with the case in its aspect under the federal act forbidding restraints and monopolies.

Laying on one side, therefore, many interesting questions which have been discussed by counsel as going to the possibility of relief under these bills, we come to the application of the act of July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200). The relevant sections are the first and second. They are as follows:

“Section. 1. Every contract, combination in tbe form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding, or by both said punishments, in the discretion of the court."

“Sec. 2. Every person who shall monopolize or attempt to me opolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.”

We shall assume at the outset that the authoritative decisions of the Supreme Court have so construed this anti-trust act as to give it a broader application than the prohibition of contracts and agreements in restraint of trade at the common law. It is not essential that the restraint shall be unreasonable within the well-understood definition of an unlawful restraint before the statute. Under this act the validity of an alleged combination or contract in restraint of trade, interstate or foreign, is to be determined by the terms of the statute which forbids any such contract or combination without respect to its nature or beneficial results. We need only cite the latest utterance of that court upon the subject. Loewe v. Lawlor, 208 U. S. 274, 297, 28 Sup. Ct. 201, 52 L. Ed. 488; Northern Securities Co. v. United States, 193 U. S. 197, 331, 24 Sup. Ct. 430, 48 L. Ed. 679. But the power of Congress to legislate upon the subject, aside from the territories and the District of Columbia, is derived from its power to regulate commerce among the states and with foreign nations. It is therefore well settled that it does not apply to restraints or monopolies as such, but only to those which directly and immediately, or those which necessarily, affect commerce among the states or with foreign nations. If the law were held applicable to contracts or combinations indirectly or remotely affecting such commerce, it would substantially obliterate the distinction between interstate and intrastate commerce, the latter being as exclusively within the regulating power of the state as is the former within the power of Congress. In Hopkins v. United States, 171 U. S. 578, 594, 600, 19 Sup. Ct. 40, 45, 46, 43 L. Ed. 290, Mr. Justice Peck-ham emphasizes this obvious limitation when, speaking for the court, he said:

“There must be some direct and immediate effect upou interstate commerce in order to come within the act.”

The same discriminating justice then adds:

“An agreement may in a variety of ways affect interstate commerce, just, ns state Jegislaüon may, and yet, like it, be entirely valid, because the interference produced by the agreement or by the legislation would not bo direct. * * * Tbe act must have a reasonable construction, or else there would scarcely be an agreement or contract among business men that could not be said to have, indirectly or remotely, some bearing upon interstate commerce, and possibly-restrain it.”

This limitation of the act to those contracts and combinations which directly and immediately or necessarily affect commerce among the states is recognized in a long series of opinions. Among them are: United States v. E. C. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325; Addystone Pipe Co. v. United States, 175 U. S. 211, 242, 20 Sup. Ct. 96, 44 L. Ed. 136; Montague & Co. v. Lowry, 193 U. S. 38, 24 Sup. Ct. 307, 48 L. Ed. 608; Northern Securities Co. v. United States, 193 U. S. 197, 331, 24 Sup. Ct. 436, 48 L. Ed. 679; Loewe v. Lawlor, 208 U. S. 274, 297, 28 Sup. Ct. 301, 52 L. Ed. 488. The Knight Case, in its last analysis, is but a striking illustration of the rule that the monopoly or agreement to come within the act must directly and immediately affect interstate commerce. Confining the case to its facts, it establishes the proposition that a mere combination between manufacturers only, by which a monopoly of a product results, is not, without other special circumstances, sufficient to justify an active intervention under the act to undo a contract by which such monopoly has been brought about. That the product thus monopolized by such combination of mere manufacturers may ultimately find itself into the stream of interstate commerce is there held not to be such a special circumstance as to constitute the direct and immediate effect upon commerce among the states as to bring the agreement within the act. Subsequent cases have been distinguished from it, but it has never

been overruled. In Addystone Pipe Co. v. United States, 175 U. S. 211, 240, 20 Sup. Ct. 96; 107, 44 L. Ed. 136, it was said:

“The direct purpose of the combination in the Knight Case was the control of the manufacture of sugar. There was no combination or agreement, in terms, regarding the future disposition of the manufactured article; nothing looking to a transaction in the nature of interstate commerce. The probable intention on the part of the manufacturer of the sugar to thereafter dispose of it by sending it to some market in another state was held to be immaterial and not to alter the character of the combination. The various eases which have been decided in this court relating to the subject of interstate commerce, and to the difference between that and the manufacture of commodities, and also the police power of the states as affected by the commerce clause of the Constitution, were adverted to, and the case was decided upon the principle that a combination simply to control manufacture was not a violation of the act of Congress, because such a contract or combination did not directly control or affect interstate commerce, but that contracts for the sale and transportations to other states of specific articles were proper subjects for regulation because they did form part of such commerce.”

Referring to the facts in the Addystone Case as taking it out of the Knight Case, the court said:

“We think the case now before us involves contracts of the nature last above mentioned, not incidentally or collaterally, but as a direct and immediate result of the combination engaged in by the defendants.

“While no particular contract -regarding the furnishing of pipe and the price for which it should be furnished was in the contemplation of the parties to the combination at the time of its formation, yet it was their intention, as it was the purpose of the combination, to directly and by means of such combination increase the price for which all contracts for the delivery of pipe within, the territory above described should be made, and the latter result was to be achieved by abolishing all competition between the parties to the combination. The direct and immediate result of the combination was therefore necessarily a restraint upon interstate commerce in respect of articles manufactured by any of the parties to it to be transported beyond the state in which they were made.' The defendants, by reason of this combination and agreement, could only send their goods out of the state in which they were manufactured, for sale and delivery in another state, upon the terms and pursuant to the provisions of such combination. As pertinently asked by the court below, was not this a direct restraint upon interstate commerce in those goods?”

In Loewe v. Lawlor, 208 U. S. 297, 28 Sup. Ct. 305, 52 L. Ed. 488, it was said of the combination involved in the Knight Case that “the purpose of the agreement was not to obstruct or restrain commerce. The object and intention determined its legality.” Swift & Co. v. United States, 196 U. S. 375, 25 Sup. Ct. 276, 49 L. Ed. 518, was a case of a combination between fresh meat dealers, dominating a large proportion of the trade in the United States, for the purpose of regulating prices, shipments, and freight rates to the exclusion of competition. The combination was, of course, invalid within the law. The court, in its opinion by Justice Holmes, in dealing with the effect of the combination as a restraint upon commerce among the states, said that restraint of that commerce was—

“a direct object; it is that for which the said several specific acts and courses of conduct are done and adopted. Therefore the case is not like United States v. Knight Co., where the subject-matter of the combination was manufactories within a state. However likely monopoly of commerce amiong the states in the article manufactured was to follow from the agreement, it was not a necessary consequence nor a primary end. Here the subject-matter is sales, and the very point of the combination is to restrain and monopolize commerce among the states in respect to such sales.”

The specific thing complained of in the case for decision is that one Michigan mining corporation has obtained by purchase or proxy a majority of the capital shares of another Michigan mining corporation, and purposes to exercise its voting power to place in the directory of the latter a majority of its own selection from its own board of officers. The specific relief sought is an injunction against the exercise of the voting power, and a decree compelling a disposition of the shares so held under purchase or proxy. What has the Calumet & Hecla Mining Company done or what does it threaten to do which is a violation of the anti-trust act of Congress? It has the legal right to purchase and vote shares of stock in the Osceola Company under the laws of Michigan. This we have already considered. Of course, if such stock ownership and such stock control is enough to constitute a direct and immediate or necessary restraint upon trade and commerce between the states, the sanction of the state act goes for nothing. This much is settled by the Northern Securities Case, for a state cannot give to a corporation the lawful right to do anything which is a direct restraint of commerce between the states. How, then, does the exercise of the power of stock control by one mining or manufacturing corporation over another in the same state directly and immediately or necessarily operate as a restraint of commerce among the states? Confessedly the products of these two companies are in competition in the markets, and confessedly the greater part of the product of each will, sooner or 'later, enter into the stream of interstate commerce, for the chief demand for the product is outside the state of production. But that is not enough. There was all this and more in the Knight Case. If, indeed, such stock control results in a monopoly, it is only a monopoly in manufacture in the same state, and we have again the conceded situation in the Knight Case. Unless that monopoly of manufacture in a single state of a product which goes into interstate commerce directly and immediately or necessarily interferes with or restrains that commerce, the monopoly does not come under the act of Congress. But we are unable to conclude upon this record that mere stock control of such a company by another in the same state either directly or necessarily destroys competition there, or, if it did, that it results in any such monopoly as to directly or necessarily and immediately affect commerce among the states.

The Calumet & Hecla Mining Company does not own a majority, nor anything like a majority, of the stock of the Osceola Consolidated Mining Company. If it has the power to cast a majority of votes at a stockholders’ meeting, it is because there are enough of the stockholders of the latter company willing to co-operate with it in the selection of a board. But it does not follow, if we assume for the purposes of this case that the evil is the same Whether its power of election is due to a combination of shares owned with proxies or by the ownership of a majority of all the stock, that the ownership constitutes a' legal control, - or that competition is thereby ended. A board elected by the owner of such a major-: ity would not in any legal sense be the control of ■ such majority owner, nor from such ownership .could the legal inference be drawn, that the Calumet & Hecla Company dominated the management of the Osceola Company. The two companies would still remain separate corporations, each managed presumably in its own interest. Pullman Co. v. Missouri Pacific Co., 115 U. S. 587, 596, 6 Sup. Ct. 194, 29 L. Ed. 499; Porter v. Pittsburg Bessemer Steel Co., 120 U. S. 649, 670, 7 Sup. Ct. 1206, 30 L. Ed. 830; Richmond Construction Co. v. Richmond, 68 Fed. 105, 15 C. C. A. 289, 34 L. Ed. 625. But if the presumption be, in respect to a question of restraint or monopoly under the act of Congress, that the power to determine the management of a competing corporation through ownership of a majority of shares constitutes a suppression of competi-. tion, we come to the inquiry as to whether such presumption is one of fact or law. If one of fact, as it evidently is, it is rebuttable.. We quite agree that purpose or motive is of no moment, provided, the contract or agreement directly provided for the suppression of competition, or when such a result, as a matter, of law, must nec-. essarily occur. United States v. Freight Ass’n, 166 U. S. 291, 17. Sup. Ct. 540, 41 L. Ed. 1007; Chesapeake & Ohio Fuel Co. v. United States, 115 Fed. 610, 623, 53 C. C. 256. But when the agree-, ment or combination in question does not in its terms provide for. the suppression of competition or the creation of. a monopoly, nor bring about such a ■ result as a necessary legal consequence, but re- ¡ quires further acts or conduct to bring about such an unlawful re-, suit, some evidence of an unlawful intent becomes essential, that the court may see that, if not stopped, a prohibited restraint is likely to be created. In Swift Co. v. United States, 196 U. S. 375, 25 Sup. Ct. 276, 49 L. Ed. 518, it was said by Mr. Justice Holmes , that:

“The statute gives this proceeding against combinations in restraint of, commerce among the states, and against attempts to monopolize the same., Intent is almost essential to such a combination, and is essential to such : an attempt.' Where acts are not sufficient in themselves to produce a result" which the law seeks to prevent — for instance, the monopoly — but require fur-> ther acts in addition to the mere forces of nature to bring that result to pass, . an intent to bring.it to pass is necessary in order to produce a dangerous probability that it will happen. Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N. E. 55. But when the intent and the consequent dangerous probability1 exist, .this statute, like many others and like the common law in some eases,: directs itself against the dangerous probability as well as against the complete, result.” ,

The power of stock control' which the Calumet Company has acquired may be exercised only in a legitimate and lawful way in the' interest of an economical management of both companies. In that case, it has done nothing directly affecting commerce among the" states.

On the other hand, that power may be a mere preparation for the doing of acts which will directly and necessarily interfere with the’’ freedom of that kind of commerce which it is the purpose of Congress to protect. When this unlawful use of the power shall result in an unlawful restraint, or further steps shall point to results directly affecting such commerce, there may be interference by the courts.

The Calumet & Hecla Mining Company vigorously deny any purpose to either bring about a monopoly, restrain competition, or diminish production, and assert that their only object was to extend their industrial life by the acquirement of an interest in the ore-producing lands of the Osceola Company and the more economical management of their own property by a friendly and mutually advantageous use of the facilities of the two companies. The. two properties are in large part contiguous. In a very convincing opinion, the judge who.heard the case below states the leading facts which made it desirable and economical that there should be, to a certain extent, a co-operation in future mining operations by the two companies, in order that certain poorer lodes underlying the conglomerate lode of the Calumet Company, which has been worked to a point where exhaustion is in sight, may be worked to the best advantage of both companies. We shall not go into the details. We refer and adopt the conclusion stated by Judge Knappen, who thus sums up the evidence relating to the motive or purpose actuating the Calumet & Hecla Mining Company:

“I am convinced, from a careful consideration of the testimony, that the controlling motive and purpose of the Calumet & Hecla Company in acquiring its interest in the mining properties mentioned was to extend its industrial life, and keep up and increase, if possible, its production and net earnings, and that the evidence fairly negatives a design thereby to reduce the output of any of the companies or artificially to increase or maintain the price of the product, or to sfifle competition between the related companies, or to prejudice other stockholders generally of either company associated, or to interfere with the integrity of either company, a common management with separate detailed organization being contemplated. The evidence does not indicate that any use of the facilities of the associated companies is contemplated, except upon terms and. in manner mutually advantageous.”

B11I it is said that the stock control of the Osceola Company will result in a monopoly. If this be so, and it be only a monopoly in mining and refining copper brought about by the combination of two companies of the same state conducting their operations side by side, it is not enough, under the Knight Case, to bring the agreement within the act, even though the fact be that the product will in large part pass ultimately into interstate commerce. In the Knight Case, the American Sugar Refining Company, if permitted to combine with the four independent refining companies at Philadelphia, would control 98 per cent, of all the sugar refining in the United States. Such a combination undoubtedly brought about a monopoly under the common law. But as it was only a monopoly in manufacture, it was held not to be a restraint of trade among the states, although the great bulk of the product was ultimately destined for commerce among the states, the effect upon such commerce being indirect. There is, in fact, no parallel between the facts of that case and this in respect to the probable results of the two combinations. In this case it is shown that the world’s production of copper in 1896 was approximately 1,600 million pounds, of which amount about 900 million pounds was produced in the United States. The production of the copper called “Lake Copper” — that is, copper produced in the Lake Superior region — was about 224 million pounds, or one-fourth of the entire product of the United States and one-eighth of the world’s product. The Calumet & Hecla Company produced, of this amount, about- 95 million pounds, and the Osceola Company about 18J4 million pounds. So far from the “control” of the smaller company by the larger resulting in a monopoly, it is evident that the combined output would be less than one-half of the product of lake copper alone, or about one-ninth of the product of the United States and about one-fifteenth of the product of the world.

But the complainant has very seriously insisted that, in the determination of the question as to whether the stock control of the Osceola Company will result in a monopoly and an unlawful sunpression of competition, every class or grade of copper should be eliminated except that particular class or grade made by the Calumet & Hecla Company and the Osceola Company and a few smaller producers, upon the contention that the product of these companies is a distinct commercial commodity, known in the market as “Best” or “Prime Lake Copper,” as distinguished from Western or electrolytic copper. The great bulk of the copper of the world is treated electrically. The purpose is to free it from impurities, for the purer it is the greater its conductivity. Arsenic is an ordinary impurity, and the presence of this in small quantities adds, or is supposed to add, to the tensile strength of the copper, for which reason copper having this slight admixture of arsenic is preferred by some makers of copper wire. Hence some manufacturers of wire specify in their purchases of copper “Best” or “Prime Lake Copper,” meaning copper not so electrically treated as to entirely eliminate this arsenical impurity. But it is demonstrated that electrolytic copper is capable of being used for every purpose for which “Best Lake Copper” can be used, and that they actively compete with each other in the markets of the world, though, as a rule, the quotations for “Best Lake” áre slightly higher than Western ,or electrolytic copper. There is no material intrinsic difference between the two kinds. The court below, upon a full review of the evidence, expert and nonexpert, reached the conclusion that neither “Lake Copper” nor “Best Lake Copper” is so far a distinct commodity as t6 justify an elimination of the electrolytic copper as a factor in a case like this. In this we entirely concur.

When all is said which the facts justify, the acquisition of the voting power of a majority of the capital shares of the Osceola Consolidated Mining Company and its proposed exercise by the selection of a board, a majority of which to be composed of the members of the board of the Calumet & Hecla Company, is the main fact upon which the complainant must invoke the prohibition of the act of Congress. That fact is not enough. That the two companies are in a sense competitors, and that the product of their mines will ultimately go into interstate commerce, is far from making out a case of direct or necessary and immediate interference with that kind of commerce. They do not show that even a monopoly of the product will ever probably ensue, to say nothing of the utter-absence of any material evidence indicating that such a monopoly in the product of two contiguous mining companies would directly or necessarily affect commerce among the states. No express agreement is shown by which anything is to be done or left undone from which an unlawful restraint must, or will, probably happen. The case differs from all of the cases appealed to by the learned counsel for appellants in this important particular. In the Addystone .Pipe Case, the agreement specifically provided a scheme for the suppression of competition between the parties in the matter of sales of iron pipe in a large number of states through a division of territory and sham bids, the parties agreeing to divide among each other a share in the profits made by the mill to which, by their concerted effort, the particular sale was directed. In Montague v. Lowry, 193 U. S. 38, 24 Sup. Ct. 307, 48 L. Ed. 608, was involved an express agreement between manufacturers of tiles and dealers within a given territory by which the plaintiffs were unable, not being members of the combination, to procure titles without paying a great advance over those who were members of the combination. In the case of Swift & Company v. United States, 196 U. S. 375, 25 Sup. Ct. 276, 49 L. Ed. 518, the agreement involved a combination between packers and dealers in fresh meat throughout the United States for the express purpose of regulating prices, freights, and shipments and sales of live stock. Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488, involved a widespread combination among the union labor organizations to prevent the sale of hats anywhere within the United States made by a hat maker at Derby, Conn., until he should unionize his shops. In Chesapeake & Ohio Fuel Co. v. United States, 115 Fed. 610, 53 C. C. A. 256, there was an express agreement among 14 coal-mining companies engaged in interstate commerce for the purpose of fixing prices and regulating production and shipments. The cases of Continental Wall Paper Co. v. Voight, 148 Fed. 939, 78 C. C. A. 567, and John D. Park & Sons Co. v. Hartman, 153 Fed. 24, 82 C. C. A. 158, 12 L. R. A. (N. S.) 135, both being decided by this court, were cases which involved systems of contract between producers, wholesale and retail, carrying on business in every state of the Union, for the express purpose of maintaining prices and stifling competition, and were obviously cases which directly affected freedom of commerce among the states.

Li the absence of any such express terms of the agreement providing for acts directly affecting interstate commerce, complainants must by facts and circumstances show that the direct and necessary result of what has been done and threatened is to restrain interstate commerce. The burden of showing acts and circumstances which establish the fact that an unlawful result is contemplated and will ensue, unless checked, is upon those asserting the illegality of the contract assailed.

In Cincinnati, P. B. S. & P. Packet Co. v. Bay, 200 U. S. 179, 184, 26 Sup. Ct. 208, 209, 50 L. Ed. 428, it is cogently said, in respect to the question as to whether a particular combination or agreement will operate to produce an unlawful result under the antitrust law, that “a contract is not to be assumed to contemplate unlawful results unless a fair construction requires it upon the established facts.”

No unlawful object has been shown, and no such facts established, as to convince us that the necessary consequence of the combi-, nation complained of will result in any direct, immediate, or necessary restraint of interstate commerce.

Finally, the facts of the case do not bring the conduct of the Calumet & Hecla Mining Company under the condemnation of the Michigan statute against monopolies. The purchase of shares and the acquirement of the additional 50,000 acres of copper-producing lands has the sanction of the express law of Michigan, and, while the power to acquire shares or additional lands may be subject to the condition that such acquisition shall not result in monopoly or the unlawful suppression of competition, there are no such results to be feared from the acts and conduct attributable to the Calumet & Hecla Mining Company as to bring it within the Michigan act.

The decree dismissing the bill and discharging the injunction must be affirmed.