validity on the taxing power without having the commerce clause in mind, and thus did not introduce the limitations which appropriately would accompany and mark an exercise of commerce power. Mr. Justice Brandeis wrote a separate concurring opinion, agreeing that the statute is unconstitutional, but doubting whether the question was properly raised in the proceeding before the court.

The Sherman Law was the foundation of the civil action for triple damages in which a verdict for the plaintiffs below was set aside in United Mine Workers of America v. Coronado Coal Co.18 This was a suit by a coal company against several labor unions and their officers for damages due to violence which injured the plaintiff's plant and seriously interrupted the operation of its mines. One of the defendants was the United Mine Workers of America. The verdict against it was set aside because the Supreme Court found that there was not sufficient evidence to connect it or its officers with the wrongs complained of. The other defendants were District 21 of the United Mine Workers and its officers, 27 local unions of this district and their officers, and 67 individuals, some union men and some not. The verdict against all these defendants was set aside because the Supreme Court found that there was not sufficient evidence to warrant the jury in finding that the conspiracy was with intent to restrain or monopolize interstate commerce. The quarrel arose out of the employer's breach of contract with the local district, "his attempt to evade his obligation by a hugger-mugger of his numerous corporations," and other acts of a local character arousing resentment because of the local situation, so that the whole affair related primarily to mining and only remotely to interstate trade in coal. While seventy-five per cent of the product of the mines in question was customarily shipped in interstate commerce, this amounted to only 5,000 tons a week and could have no appreciable effect upon the price of coal generally or upon non-union competition throughout the country. The announced ambition of the United Mine Workers of America to unionize all the coal fields of the country in order, among other things, to prevent interstate trade in nonunion coal from interfering with interstate trade in union coal, was dismissed as immaterial in view of the fact that the national body

18 259 U. S. -,42 Sup. Ct. 570 (1922). See 10 CALIF. L. REV. 506; 22 COLUM. L. REV. 684; and 32 YALE L. J. 37.

had not participated in the particular local strike. While the local riot resulted in burning a car loaded with coal billed to another state, the car had served as a rampart in the fight, and its burning was only a part of the general destruction. Such are the salient facts detailed in the opinion of Chief Justice Taft to show that the issue and the results were confined to mining and did not embrace disposition of the product. "Coal mining," he says, "is not interstate. commerce, and obstruction of coal mining, though it may prevent coal from going into interstate commerce, is not a restraint of that commerce, unless the obstruction to mining is intended to restrain commerce in it, or has necessarily such a direct, material, and substantial effect to restrain it that the intent reasonably must be inferred." Here is a hint that the amount of production involved in a strike may determine whether the effect upon interstate commerce is sufficient to bring the conspiracy within the Sherman Law. From two of the chief justice's sentences, isolated from their context, one might infer that Congress might constitutionally legislate explicitly to deal with such a situation as that disclosed in the case at bar. After citing the Swift case and the decisions of the current term sustaining the Transportation Act and the Packers and Stockyards Act, he says that "if Congress deems certain recurring practices, though not really part of interstate commerce, likely to obstruct, restrain or burden it, it has the power to subject them to national supervision and restraint," and that "it has the power to punish conspiracies in which such practices are part of a plan to hinder, restrain, or monopolize interstate commerce." But this is qualified by adding that "in the latter case the intent to injure, obstruct, or restrain interstate commerce must appear as an obvious consequence of what is to be done, or be shown by direct evidence or other circumstances.' The earlier sentence speaks of recurring practices, and thus very likely excludes sporadic rows. In practice, of course, each case will depend on its own facts, and there will always be enough relation to interstate trade to bring within federal regulation any conspiracy that the court thinks ought to be embraced therein.19

19 The points covered in the text were the third and fourth considered by the court. Their determination in favor of the defendants disposed of the controversy and, as Chief Justice Taft points out, made it unnecessary to "examine the objection which the plaintiffs in error make to the sup

Another case which excluded from the Sherman Law an alleged restraint of trade on the ground that interstate commerce was not directly involved is Federal Base Ball Club v. National League,20 in which a former constituent member of one national base ball organization was deprived of a verdict and triple damages obtained in the district court against another national base ball organization which had lured away or purchased its fellow members and so broken up the organization. Mr. Justice Holmes introduces the idea that base ball exhibitions are not only not interstate commerce but also not commerce at all when he says:

"The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and states.

amount to a mandatory direction coercing the jury into finding the verdict which was recorded," which was the fifth point listed by the chief justice as pressed by the plaintiffs in error. The same attitude might have been taken toward the first two points, which, nevertheless, the court considered and decided in favor of the employer, though this in no way affected the disposition of the controversy. Thus the chief justice laid down, first, that there was not a misjoinder of parties under the procedure as authorized in Arkansas, and second, that "the unincorporated associations, the International Union [United Mine Workers of America], District No. 21, and the local unions" were "suable in their own names" as "associations exist ing under or authorized by the laws of the United States, the laws of any of the territories, the laws of any state, or the laws of any foreign country," as specified in Sections 7 and 8 of the Sherman Law. It was recognized that at common law such associations could not be sued in their own names and that liability had to be enforced against each individual member; but the opinion enumerated many federal and state statutes which gave pecial recognition to labor unions, and found that the time had come when such unions had acquired concentrated strength and the faculty of quick unit action so as to become a self-acting body with great funds to accomplish their purpose. Similar business and trade associations had been made parties to suits under the Sherman Law without question. The question was called essentially one of procedure, but it was laid down that the fact that the Arkansas court has since taken a different view "cannot under the Com formity Act operate as a limitation on the federal procedure in this pround" For a consideration of the Sherman Act as the foundation of an injun tion against strikes to get men to join a union in breach of contract, s** 15 HARV. L. REV. 459, 474.

20 259 U. S., 42 Sup. Ct. 465 (1922) For discussions prior to the decision, see 34 HARV. L. REV. 559, and 19 MICH I. Rry 107

fact that in order to give the exhibitions the leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, 155 U. S. 648, 655, the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money, would not be called trade or commerce in the commonly accepted use of those words. As it is put by the defendant, personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the states because the transportation that we have mentioned takes place. To repeat the illustrations given by the court below [the Circuit Court of Appeals], a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or the lecturer goes to another state."

There was, of course, no question that interstate commerce was involved in two cases relating to the unscrambling of mergers in which interstate railroads were ingredients. In United States v. Southern Pacific Co.21 the defendant was required to disassociate itself from the Central Pacific Railroad, with which it had been intermingled since 1885, first by becoming its lessee for a term of 99 years and later by acquiring by purchase all its stock. What was once an open constitutional issue was one no longer, since, as Mr. Justice Day observed, "it is authoritatively settled by decisions of this court that no previous contracts or combinations can prevent the application of the Sherman Act to compel the discontinuance of illegal combinations." The chief harm of the combination in question seemed to be that the Southern Pacific diverted traffic from the Central Pacific and thereby secured for itself a haul clear across the continent to the exclusion of other lines that connected with the Central Pacific. Mr. Justice McKenna dissented because he thought Congress had long since condoned the union in question.

The second railroad case is Continental Insurance Co. v. Reading Co.,22 which was an appeal from the district court from a decree entered in pursuance of a mandate from the Supreme Court in a

prior decision ordering the severance of the Reading railroad system from other railroads and from coal mines. The process required some alteration of the securities given to mortgagees of the dissolving combination in order to prevent the severed members from having such mutual interests in each other's solvency and prosperity that the economic nexus would perpetuate the combination even after the legal nexus was cut. The court expressed its desire not to vary the security of the bondholders more than necessary to carry out the purpose of the law, but it had no doubt of its power to command such shifting as it deemed in fact necessary for this purpose. Chief Justice Taft pointed out that the general mortgage covering both railroad and coal properties "was the indispensable instrument of the unlawful conspiracy to restrain interstate commerce" and that "it was the advantage of the legally improper relation between the railway and coal interests which made the security so attractive.” Therefore, the fact that the severance of the properties as security for the mortgage might impair that security could not stand in the way of preventing the perpetuation of the wrong which their union made possible.

The Federal Trade Commission Act of September 26, 1914, condemns "unfair methods of competition" without specifying what is to be deemed unfair. The Trade Commission is given authority, after a hearing, to issue orders compelling the discontinuance of such methods. Naturally, the Supreme Court would not brand as "unfair" any practice it thought too commendable or too innocuous to be constitutionally subject to explicit congressional condemnation. It follows that cases upholding the action of the Trade Commission show that any due-process objection would have been in vain. Two such cases were decided during the past term. Federal Trade Commission v. Winsted Hosiery Co.23 put an end to the use of labels containing the words "merino," "wool" or "worsted" on underwear made partly of cotton. The circuit court of appeals had accepted the contention that such labels had so long been used for articles to which sheep had contributed only a part that they had lost their

23 258 U. S. -, 42 Sup. Ct. 384 (1922). See 22 COLUM. L. REV. 593, and 20 MICH. L. REV. 122. For discussions of the same controversy, see 21 COLUM. L. REV. 721, and 20 MICH. L. REV. 781.