BOYLE v. UNITED STATES, 259 F. 803

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

Section 1 of the Anti-Trust Act reads: “Every contract, combination in the 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.” The government charged plaintiffs in error (in four counts) with a conspiracy to restrain trade or commerce among the several states (in three counts), with a combination to restrain such trade, and (in two counts) with a contract to restrain such trade.

Plaintiffs in error contend that none of the counts set forth an offense under the statute; it being claimed, among other contentions, that the means by which the object of the conspiracy or combination was to be accomplished were not set forth. Without, considering the means that are set forth in the indictment, it is sufficient to say that the pleader was not required to set forth any means. Where the object of "the conspiracy is unlawful, as in this case, it is unnecessary to set forth the means by which the object is accomplished. Jelke v. United States, 255 Fed. 364, - C. C. A. —.

It is also claimed that the government failed to show that the object of the combination was to interfere with interstate trade; that it affirmatively appeared that the object was to prevent the installation in Chicago of certain electrical appliances, an alleged intrastate transaction. This contention is contrary to the ruling of the court in Eastern States Retail Lumber Dealers’ Association v. United States, 234 U. S. 600, 34 Sup. Ct. 951, 58 L. Ed. 1490, L. R. A. 1915A, 788; United States v. Patten, 226 U. S. 525, 33 Sup. Ct. 141, 57 L. Ed. 333; Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L.

Ed. 488, 13 Ann. Cas. 815; Lawlor v. Loewe, 235 U. S. 522, 35 Sup. Ct. 170, 59 L. Ed. 341; Montague & Co. v. Lowry, 193 U. S. 38, 24 Sup. Ct. 307, 48 L. Ed. 608.

In the first Lawlor Case the court announces the rule in the following language: “If the purposes of the combination were, as alleged, to prevent any interstate transportation at all, the fact that the means operated at one end before physical transportation commenced and at the other end after the physical transportation ended was immaterial.” There can be no question but what the "government charged the plaintiffs in error with a combination— “the nature of which is now here described, to restrain said trade and commerce of said concerns, corporations and firms located in states other than the state of Illinois, in the manner and by the means now here set forth.” Then follows a statement of the means by which the object was to be accomplished, namely: • “Said defendants were to hinder, restrain, and prevent the installation in the city of Chicago of any electrical appliances not manufactured by the members of the said association in said city of Chicago,” etc.

The object of the combination being to prevent interstate transportation (that is, prevent the shipment of switchboards, etc., from a point outside the state of Illinois to the city of Chicago), the mere fact that the means by which this object was to be accomplished was limited to interference with their installation in Chicago cannot relieve the transaction of its interstate character. Does the evidence support the verdict? It is hardly necessary to restate all of the evidence upon, which the government relied in answer to this challenge made by the plaintiffs in error.

An examination of the record convinces us that there is credible evidence in the record sufficient to support the verdict. That the parties entered into a combination, that they reduced their agreement in part to writing, is conceded. That the parties combined to restrain the shipment of commodities from points outside of the state of Illinois to the city of Chicago is fairly inferable from a part of the written agreement. The employers were anxious to avoid competition from nonunion shops. The employés desired to unionize the shops.

They agreed that: “This increase in scale is to go into effect only in case the party of the second part has succeeded before October 1, 1911, in bringing about a condition which will permit of none but union label switchboard work to be installed in the city of Chicago.” While the practices by which the second party was to bring about this result were not set forth, it is at least inferable even from this agreement alone, that outside made switchboards would not be installed in thé city of Chicago.

Plaintiffs in error, and particularly the manufacturing companies, insist, however, that the' agreement above quoted is capable of a construction consistent with their innocence; that they understood the second party was to unionize the shops outside of the city of Chicago and thereby competition from nonunion labor would be eliminated. While this is hardly the fair or rational conclusion to be drawn from this language, the contract is by no means all of the evidence in the case. The written agreement was merely a part of the evidence in the case.

Witnesses testified orally to the entire agreement and understanding of the parties, and the jury and not this court must determine the weight of this testimony. The reasons which actuated the parties to thus conspire and combine may have been and doubtless were quite different. The manufacturer was induced to enter into the agreement because of a desire to eliminate competition. He also wanted to settle his labor problem. The representatives of the unions were actuated by a different motive.

But it was not the motive, but the common and concerted action of the parties for the unlawful purpose of restraining interstate commerce for which plaintiffs in error were indicted and convicted. Nor was the government barred by the statute of limitations. Plaintiffs in error were not tried for entering into the written contract of April 1, 1911, but were convicted of the unlawful conspiracy to restrain trade which was a continuing conspiracy or combination.

While the parties entering into such unlawful combination might have withdrawn from such combination and thereby have relieved themselves from further liability, and the statute of limitations would have begun to run from the time of such withdrawal, yet it required some affirmative act on the part of the conspirators to avoid the liability which their entry into the combination created. Hyde v. United States, 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; United States v. Kissel, 218 U. S. 601, 31 Sup. Ct. 124, 54 L. Ed. 1168.

Variance: Plaintiffs in error assert that, because the pleader charged them with combining to prevent “the installation in the city of Chicago of any electrical appliances not manufactured by said associations in the city of Chicago,” etc., there is a fatal variance because the proof merely showed that plaintiffs in error combined to prevent the installation in the city of Chicago of certain electrical appliances, to wit, switch and panel boards made by nonunion labor.

Although relied on by each plaintiff in error, and the argument in support thereof repeated in each of the briefs, this contention does not impress us other than as a “grasp at straws.” Accepting the position most favorable to plaintiffs in error, there is no variance. The government merely failed to meet its allegations as broadly as alleged. If a conspiracy to rob a post office of all its stamps were charged in an indictment, could it be seriously urged that there was a fatal variance, or even failure of proof, if the prosecution merely proved a conspiracy to rob the post office of its postage stamps?

We think not Proof tending to show plaintiffs in error interfered with interstate commerce by preventing the shipment of switchboards and panel boards into Chicago is likewise not at variance with an allegation that the parties conspired to prevent the shipment into Chicago of all ele > trical appliances. Complaint is also made because of the admission of evidence over objection. The. government introduced testimony showing that plaintiff in error Boyle on various occasions made builders pay him considerable sums of money under threat of a strike or a boycott.

For example, one witness testified that he had paid Boyle $500 to get a certain switchboard installed; another, that Boyle exacted of him $3,000 in order that he might install a certain switchboard; and still another testified that Boyle required a church to pay $200 as a penalty for installing certain electrical apparatus. Still another witness testified that Boyle exacted a payment of $20,000 in order to get immunity from strikes, etc., and a't a time when there was no difficulty whatever between the builder and the employés.

Plaintiffs in error contend that this evidence was not only inadmissible but highly prejudicial to their cause. That such testimony, if erroneously admitted, was prejudicial, must be conceded. For it requires no stretch of the imagination to conceive of a jury taking a prejudice against a party who is thus pictured in the role of a blackmailer, a highwayman, a betrayer of labor, and a leech on commerce. But the test of admissibility does not turn upon its effect upon the jury, but on its relevancy to the issues made by the charges set forth in the indictment.

The government charged a conspiracy or combination to restrain interstate commerce. A prima facie case of conspiracy was established. Boyle was one of the coconspirators. As the object of the conspiracy, switchboards and panel boards made outside of Chicago were not to find a market in the city of Chicago. This object — this interference with interstate commerce — was to be brought about by threatened strikes, by boycotts, or by the exaction of graft to prevent strikes and boycotts.

What more direct or immediate restraint upon the sale and installation of switchboards and panel boards made outside of Chicago than a burden of $3,000, or $5,000 upon the builder who sought to install them? It was as effective a means of preventing their installation in Chicago as threatened strikes. The testimony was receivable as

an act of one of the coconspirators in furtherance of the object of the conspiracy. Nor does the evidence justify the claim that the $20,000 payment was in no way connected with the installation of switchboards or panel boards. The Chicago Telephone Building was in the course of construction. The architect had specified switchboards made outside of Chicago. Boyle prevented the contractor from securing electricians.

It is true the $20,000 was paid by the builder to purchase his entire peace but included noninterference in the installation of switchboards as well as noninterference in the construction of the entire building. The items were not separated. The $20,000 was paid by checks at various times and with the understanding on the part of the builder that he could proceed without strikes or molestation. But a part of the consideration for this payment was unquestionably the permission to install switchboards that the architect designated and which the builder preferred.

The court instructed the jury that the action or statements of one of the plaintiffs in error were not binding unless the jury found that a conspiracy existed. Under these circumstances, and for the purpose for which it was offered, this testimony was admissible. Other assignments .of error were made which we have duly considered, but they do not warrant separate consideration. The judgment is affirmed.