485 Opinion of the Court. it is constantly called a trade. Thus, we constantly speak of the art, mystery, or trade of a housewright, a shipwright, a tailor, a blacksmith, and a shoemaker, though some of these may be, and sometimes are, carried on without buying or selling goods." It is in that broad sense that "trade" is used in the Sherman Act. That has been the consistent holding of the decisions. The fixing of prices and other unreasonable restraints have been consistently condemned in case of services as well as goods. Transportation services (United States v. Freight Assn., 166 U. S. 290, 312; United States v. Joint Traffic Assn., 171 U. S. 505), cleaning, dyeing, and renovating wearing apparel (Atlantic Cleaners & Dyers v. United States, 286 U. S. 427), the procurement of medical and hospital services (American Medical Assn. v. United States, supra, 528), the furnishing of news or advertising services (Farmer's Guide Co. v. Prairie Co., 293 U. S. 268; Associated Press v. United States, 326 U. S. 1)—these indicate the range of business activities that have been held to be covered by the Act. In Atlantic Cleaners & Dyers v. United States, supra, 435, 437, the Court rejected the view that "trade" as used in § 3 should be interpreted in the narrow sense which would exclude personal services. It held, speaking through Mr. Justice Sutherland, that § 3 used the word in the broad sense in which Justice Story used it in The Nymph, supra. Chief Justice Groner made an extended analysis and summary of the problem in United States v. American Medical Assn., 72 App. D. C. 12, 16-20, 110 F. 2d 703, 707-711, where the Court of Appeals for the District of Columbia held that the practice of medicine in the District was a "trade" within the meaning of § 3 of the Act. Its conclusion was that the term included "all occupations in which men are engaged for a livelihood." We do Opinion of the Court. 339 U.S. not intimate an opinion on the correctness of the application of the term to the professions. We have said enough to indicate we would be contracting the scope of the concept of "trade," as used in the phrase "restraint of trade," in a precedent-breaking manner if we carved out an exemption for real estate brokers. Their activity is commercial and carried on for profit. The fact that no goods are manufactured or bought or sold in the process is as irrelevant here as it was in Atlantic Cleaners & Dyers v. United States, supra. No reason of policy has been advanced for reading § 3 of the Act less literally than its terms suggest. The competitive standards which the Act sought to preserve in the field of trade and commerce seem as relevant to the brokerage business as to other branches of commercial activity. Hopkins v. United States, 171 U. S. 578, and Anderson v. United States, 171 U. S. 604, are not opposed to this conclusion. It was held in those cases that commission merchants and yard traders on livestock exchanges were not engaged in interstate commerce even though the livestock moved across state lines (cf. Stafford v. Wallace, 258 U. S. 495), and therefore that the rules and agreements between the merchants and traders (which included in the Hopkins case the fixing of minimum fees) did not fall under the ban of the Sherman Act. But we are not confronted with that problem here. As noted, we are concerned here not with interstate commerce but with trade or commerce in the District of Columbia. Fourth. Appellees claim that the judgment of acquittal in the criminal action is res judicata in this action. Helvering v. Mitchell, 303 U. S. 391, is contra and rules this case. There Mitchell had been tried and acquitted of a criminal charge of wilfully attempting to evade payment of his income tax. Thereafter suit was brought to 485 Opinion of the Court. collect the taxes owed plus a 50 per cent penalty for fraudulent evasion. The acquittal in the criminal case was held not to be a bar to the collection of the penalty." "The difference in degree of the burden of proof in criminal and civil cases" was held to preclude application of the doctrine of res judicata in the civil suit. 303 U. S. 397. In the present case the motions for judgment of acquittal raised the question whether the evidence overcame all reasonable doubt of the guilt of appellees.' The ruling on them did not determine whether by the lesser degree of proof required in a civil case appellees might be found to have conspired to fix commissions. The civil action is independent of the criminal cause (Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 52) and is remedial in nature. It has been repeatedly held that though the civil suit is bottomed on the same facts, it is 6 Since the Court ruled that the 50 per cent penalty was not a criminal penalty but a civil administrative sanction (303 U. S. 398406), the case was considered distinct from Coffey v. United States, 116 U. S. 436, which held that the facts ascertained in a criminal case as between the United States and the claimant could not be again litigated between them in a civil suit which was punitive in character. The fact that in case of corporations dissolution can result from a civil suit under the antitrust laws does not make the proceeding any the less remedial. The civil suit aims to put an end to the restraint, not to impose punishment for past acts. See Schine Theatres v. United States, 334 U. S. 110, 128. 'The motions apparently were made under Rule 29 of the Federal Rules of Criminal Procedure which provides in part: "MOTION FOR JUDGMENT OF ACQUITTAL. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." Opinion of the Court. 339 U.S. not barred by the prior judgment of acquittal in the criminal case. See Stone v. United States, 167 U. S. 178; Murphy v. United States, 272 U. S. 630; Helvering v. Mitchell, supra. The result is not altered by the circumstance that the court in ruling on the sufficiency of the evidence may have started with an erroneous construction of the law. 8 Fifth. The District Court found that two of the appellees-National Association and Herbert U. Nelson did not conspire with the Washington Board to fix and prescribe the rates of commission to be charged by the members of the latter. No more particularized findings were made. Appellant asks us to set aside that ruling. The question is whether we may do so in light of Rule 52 of the Federal Rules of Civil Procedure which provides in part: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." The National Association is a nationwide, incorporated trade association of which the Washington Board is a member. Active members of the Washington Board are also members of the National Association. The National Association has a code of ethics which includes an article stating that "the schedules of fees established by the various Real Estate Boards are believed to represent fair compensation for services rendered in their communities and should be observed by every Realtor." It is provided in the by-laws of the National Association (1) that each member board shall adopt the code of ethics of the National Association as a part of its rules and regulations for violation of which disciplinary action may 8 See note 1, supra. 485 Opinion of the Court. be taken, and (2) that any member board that neglects or refuses to maintain and enforce the code of ethics with respect to the activities of its constituent members may be expelled from membership in the National Association. The appellant also points to evidence showing the activities of the National Association in developing a national schedule of commissions which, it is alleged, were influential in shaping the fees adopted by the Washington Board in 1944. Appellant relies chiefly on the code of ethics and bylaws of the National Association, as it clearly may (Associated Press v. United States, supra, pp. 8, 12), to establish the restraint of trade. But we cannot say that the District Court was "clearly erroneous" in finding that the National Association and Nelson were not laced into the conspiracy to fix the commissions in the District of Columbia. The statement in the code of ethics that the schedule of fees "should be observed" is somewhat ambiguous. It may be advisory only. The provision of the by-laws that violations of the code of ethics of the National Association should be the basis of disciplinary action against both member boards and their constituent members is aimed at thirty-five articles of the code of ethics, not selectively at the fee provision. So we are left somewhat in doubt as to the extent if any to which the National Association and Nelson were architects of the fee-fixing conspiracy or participants in it. At best their relationship to it is, on this record, a somewhat attenuated one. It is not enough that we might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. See United States v. Yellow Cab Co., 338 U. S. 338, 342; United States v. Gypsum Co., 333 U. S. 364, 394-395. We are not given those 874433 0-5036 |