United States v. Appalachian Coals, Inc. , 1 F. Supp. 339 ( 1932 )

SOPER, Circuit Judge

(concurring).

The defendant coal producers take the view that their proposal is outside the scope of the Sherman Act because it involves a plan to rescue a basic industry from disaster. They emphasize the fact that Appalachian Coals, Inc., their common sales agent, although empowered to fix the price of all the coal mined by them, would not be able to monopolize the market or exact exorbitant prices from the consuming public; and they contend that the activities of the organization would be so beneficial to the general welfare, that the restraint of trade incidentally involved could not be considered undue or unreasonable in the eye of the law. On this ground chiefly they seek to distinguish this case from such decisions involving trade organizations as American Column & Lumber Company v. United States, 257 U. S. 377, 42 S. Ct. 114, 66 L. Ed. 284, 21 A. L. R. 1093; United States v. American Linseed Oil Co., 262 U. S. 371, 43 S. Ct. 607, 67 L. Ed. 1035; United States v. Trenton Potteries Co., 273 U. S. 392, 47 S. Ct. 377, 71 L. Ed. 700, 50 A. L. R. 989; Live Poultry Dealers’ Ass’n v. U. S. (C. C. A.) 4 F.(2d) 840.

The pronouncement of the courts that the Sherman Act was designed to forbid only unreasonable or undue restraints of trade has led to the contention that a restraint based on sound economic theory and devised in the interest of the general public is not within the prohibition of the statute; and this position finds increased support at a time like the present when productive capacity far exceeds buying power, and some restraint upon production seems desirable. We must regulate production, it is said, by some control, voluntary or governmental, with reference to the ability of the public to absorb the produet; and in like manner we must hold prices above the cost of production so as to stabilize industry and insure a fair return to the capital and labor employed. So the defendants say that, since they are unable to conduct their business successfully under prevailing competitive conditions, they should be allowed to introduce a form of group control.

This argument confounds theories held in academic or business circles with the underlying purpose of the federal statutes. Economists themselves are not agreed as to whether these acts are suited to modern affairs. But, even if enlightened opinion were unanimous that each major industry should be conducted under a central control, governing the actions of individuals in such matters as price or production, our decision of necessity would be the same. What is a reasonable restraint of commerce may not be determined for us by private authority. Our view must conform to the recognized purpose of the present law that competition shall be free. The establishment of controls over production and price is the antithesis of this economy; and it is the province of Congress and not of the courts to decide which shall prevail.