Rufus Wheeler Peckham

“ Is a member of that body, to whom a cargo of grain is consigned from a Western state to be sold, engaged in interstate commerce when he performs the service of selling the article upon its arrival in New York, and transmitting the proceeds of the sale less his commissions? Is a New Orleans cotton broker, who is a member of the cotton exchange of that city, and who receives consignments of cotton from different states and sells them on 'change in New Orleans, and accounts to his consignors for the proceeds of such sales, less his commission, engaged in interstate commerce? ”

“ It is unnecessary at present to discuss the question whether there is any illegality in a combination of business men who are members of an exchange not to do business with those who are not members thereof, even if the business done were in regard to interstate commerce. The first inquiry to be made is as to the character of the business in which defendants are engaged, and, if it be not interstate commerce, the validity of this agreement not to transact their business with nonmembers does not come before us for decision. ”

“ It is also to be remarked that the effect of the agreement as to the number of solicitors to be employed by defendants can only be remote and indirect upon interstate commerce. The number of solicitors employed has no direct effect upon the number of cattle transported from state to state. The solicitors do not solicit transportation of the cattle. They are not in the interest of the transportation company, and the transportation is an incident only. They solicit a consignment of cattle to their principals, so that the latter may sell them on commission, and thus transact their local business. ”

“ The business of defendants is primarily and substantially the buying and selling, in their character as commission merchants, at the stock yards in Kansas City, live stock which has been consigned to some of them for the purpose of sale, and the rendering of an account of the proceeds arising therefrom. The sale or purchase of live stock as commission merchants at Kansas City is the business done, and its character is not altered because the larger proportion of the purchases and sales may be of live stock sent into the state from other states or from the territories. ”

“ Although communication by telegraph may be commerce, and, if carried on between different states, may be commerce among the several states, yet an agreement or by-law of the nature of the one under consideration is not a burden or a regulation of, or a duty laid upon, the telegraph company, and was clearly not entered into for the purpose of affecting in the slightest degree the company itself, or its transaction of interstate commerce. ”

“ It comprehends, as it is said, intercourse for the purposes of trade in any and all its forms, including transportation, purchase, sale, and exchange of commodities between the citizens of different states, and the power to regulate it embraces all the instruments by which such commerce may be conducted. ”

“ The state may levy a tax upon the earnings of a commission merchant which were realized out of the sales of property belonging to nonresidents, and such a tax is not one upon interstate commerce because it affects it only incidentally and remotely, although certainly. ”

“ An agreement may in a variety of ways affect interstate commerce, just as state legislation may, and yet, like it, be entirely valid, because the interference produced by the agreement or by the legislation is not direct. ”

“ Even all agreements among buyers of cattle from other states are not necessarily a violation of the act, although such agreements may undoubtedly affect that commerce.
The charges of the agent on account of his services are nothing more than charges for aids or facilities furnished the owner, whereby his object may be the more easily and readily accomplished. ”

“ The selling of an article at its destination, which has been sent from another state, while it may be regarded as an interstate sale, and one which the importer was entitled to make, yet the services of the individual employed at the place where the article is sold are not so connected with the subject sold as to make them a portion of interstate commerce ”

“ The argument of counsel in behalf of the United States, that because none of the states or territories could enact any law interfering with or abridging the right of persons in Kansas or Missouri to send prepaid telegrams of the nature in question, therefore an agreement to that effect entered into between business men as a means towards the proper transaction of their legitimate business would be void, is, as we think, entirely unsound. ”

“ The cattle owner has the use of a place for his cattle furnished by the defendants, and all the facilities arising from a market where the sales and purchases are conducted under the auspices of the association of which the defendants are members, and in a manner the least troublesome to the owners, and at the same time the most expeditious and effective. ”

“ The right of the cattle owners themselves to sell their own cattle is not affected or touched by the agreement in question, while the privilege of having their cattle sold for them at the market place frequented by defendants, and with the aid of one of them, is a privilege which they are charged for, and which is not annexed to their right to sell their own cattle. ”

“ They also object that the rule is an unlawful inhibition upon the privilege possessed by each person under the constitution to make lawful contracts in the furtherance of his business, and they allege that in this respect these members have surrendered their dominion over their own business, and permitted the exchange to establish a species of regency, and that the by-law in regard to the employment of solicitors is one which directly affects interstate commerce. ”

“ It is urged that they are active promoters of the business of selling cattle upon consignment from their owners in other states, and that in order to secure the business the defendants send their agents into other states to the owners of the cattle to solicit the business from them; that the defendants also lend money to the cattle owners, and take back mortgages upon the cattle as security for the loan ”