Amicus Curiae Brief — United States v. Swift & Co.

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6 - so cee 4

x

and to ‘the consuming public, we ‘submit the ‘follow-

ae ing points: | : ‘.:

r a’: sc ° % it, _

: SUMMARY: OF ARGUMEN f.

_@ -A. The record herein proves the absehce of any .

monopoly by the defendant companies in the-buy- —”

ing of livestock, or in the sale of the products

» thereof.» ae a ee ee

~ B. The record herein ‘discloses the-improbability, if y

' - mot indeed, the: impossibility of any. food mo-

nopaly by the ‘defendant companies. .

C. The record herein diselbsés that the distributive |

facilities, ‘equipment, and organizations of the

defendant companies can be employed more effi-

- ciently artd economically if utilized for the dis-_ .

- tribution .of food products in addition to meats-

- and meat foot ‘products. :

oe, ae FN II.

| * .. ARGUMENT.

A. 'The Record Herein: Proves the Absence of any Mo.

‘nopoly. by thé Defendant Companies in the Buying

‘ of Live @rock, ‘or in the Bale: of the Products

Thereof.

a the bill of. qpnuiiiia filed ine | in 1920, it was -

specifically charged that the defendant packing com:

. panies had achieved 4 monopoly in the meat packing «.

sbusittegs (R. 17). In 1930, the Court below stated,

after hearing the sworn testimony of a- great num-

- ber of witnesses consisting: of livestock producers, ;

So

livestock seiiniatialies men, oy der ‘buyers, officials -

the Packers and Stockyards Administration-of thé .

Department of Agriculture, many competitors. en-

gaged in the meat packing business, ‘and others: :

“Tt is conceded that there’ is today no monop- .

- oly in. the,meat pears industry. Thé parties .

have stipulated :. }

‘That the individuals, firms and tners.

tions, engaged in the meat packing business.

_ in the United States, to the number shown. °

or which may be’ shown by evidence. in this

ease, owned and controlled independently of

each other, are in active competition with each

- other in the purchase of livestock and*in the. Pea

sales ,of their products in the various geo-

graphical .localities and districts within “the

United States in whicl#they ne asset

chase and sell.’. (R. 1043.) ~ -

, er Se ¥ *. . * y& * .

“The testimony is uncontradicted that the

~ four present groups. of defendants are indepen--

dently owned and controlled and are in active

competition in the purchase and sale of live-.

stock and the. sale of meat products. (R:- 1044.)

* oe a ae oe °-*¢.

But in “the instant case no one of the defen? »

dant groups has anything like a control of the

‘ business. The business of each is far less than’

. that of its combined competitors. The great

- weight of ‘the testimony is-that. no combination

‘or agreement in restraint of trade exists - be-

tween them.’ (R. a, ica he ai

‘ The above. shubetinentn; from ‘the opinion. of ~

Court below, are based upon definite positive fing. ~

. ings . fact; ssid — by the’ —s in the

record. ‘In such evidence appears the testimony,

| (oral or by stipulation), of ninety-five livestock pro-

ducers, who are. thoroughly familiar with conditions

as they actually exist in the marketing of livestock.

_ These witnesses are tlie leaders of the livestock in-

dustry in the United’ States. Practically all $f them

are officers, directors, or representatives of various

National and State livestock organizations. Among

such witnesses were the asia

J. Elmer Brock; Pigs, , Wyoming ‘Stockgrow-

ers’ Association, Buffalo, Wyoming; R.

‘ Brown, Missouri Farm Bureau® Federation;

Dan D. Casement, Manhattan, Kansas; Kenneth

Chalmers, ‘Colorado Wool Growers Assn; James

Cook, Northwestern Co- -op. L. S. Shippers’ As-

sociation, Clearwater, Minn.; J: M. Coyner,

Secretary? Winconsin Livestock & Meat Im-

provement. Council, Chairman, Committee of

National Swine Growers’ ‘Assn. on Register of

- Performance for Swine,’ Madison, Wisconsin;

' \E, L. Dafa, Parkman, Wyoming; B. F.. Davis,

Colorado Stockgrowers. Assn., Pres., -Colorado ;

Farm Bureau, Past Secty., Wyoming Stock-

growers, Denver, Colorado; Dr. George M. Bab- | - .

eock, Rock Island, Illingis ; A. E. De Ricqles,

‘Denver, Colorado; T. J. Drumheller, Washing-

ton Wool Growers’ Assn.;°W: I.: Drummond, ©

American Farm Congress, Kansas City, Mo.;

. KarF Elijah, Eastern Iowa L..S. Marketing As

sociation; Knute Espe,. lowa Cooperative Live -

Stock Shippers Assn,; H. W. Farr, Pres., Ne-

y ‘ braska-Colorado Lamb Feeders Assn., Greeley, as

Colorado; Dr. I. L: Gotthelf, Pres., ‘Saguache.. |

Lamb Feeders’ Assn., Saguache, Colorado; Rob- _ -

ert Graham, -Pres., Nebraska Stockgrowers’

Assn., Alliance, Neb.; Mac. Hall, Denver, Colo-

rado; -F. YW. Harding, Gen. Executive, “‘Ameri- |

e

a

9

can Shorthorn Breeders Assn., Chicago, Ill;

Mr. Harris, Coop. Auction Yards, Ky. ; Dan

Hildebrand, « Nebraska Improved Live Stock

Breeders Assn., and Nebraska Cattle Feeders

Assn.; Harry Hopley, Pres.; Interstaté Organ-. .

ization. of Meat.: roducer s, ‘Atlantic, Ia.; Pro-

fessor E. H. Hostetler, No. Carolina Agricul-

‘tural College, Secty, Southern Livestock As-

sociation, Raleigh, N.. C.; J. W. Hudelson,

Pomona. Kansas; A. A. J ohns (Senator), Ari-

zona Wool Growers’ Association, Prescott,

Ariz.; Ben Kemper, Denver, Colo.; R. M. Kle-

berg, ‘Corpus Christi, Texas; R. P: Lamont, Jr.,

Pres., ‘American ‘Hereford Breeders ; Assn., .

Pres., Western Packing Company at Denver.

Larkspur, Colo.; Fred F: McArthur,: Oakland,

~ Iowa; S. W. McClure, Idaho Wool Growers’

Assn.; Ray McElrath, Melville, Iowa; Arden _

McKee, Pres., National Swine’ Growers’ Assn. ae)

Preston, Towa; ‘Sol Mayer, Member, Sheep &

Goat Raisers’ Assn. ., San Angelo, Tex s; Jewell

Mayes, Secty, Missouri State Board o Agricul-

ture, Jefferson City, Mo.;-A. R. Mitchell, For-,

mer Pres., American Hereford Cattle ‘

Assn., Member, New Mexico Stockgrowers, Al- a

bert, N. M.:; P.O. Murphy, Co-op.:Wo

érs Assn. of S. Dakota; Floyd Nichols, Be,

Pres, Topeka, Kansas; E. A.-O’Neil, President,

_ Alabama Farm Bureau Federation; L. B. Pal-\

mer, Ohio Farm Bureau Federation; E. A. Phil-

: Dys, Secty, Montana Stockgrowers’. Assn., Hel- \_-

vena, Mont.; F. A. Phillips, Cattle & Horse Rais- |

ers Assn. of Oregon; E. ©. Rector, Ohio Live-

‘stock Co-op. Assn., Circleville, O.; Rosecoe-Rich, - |»

- Idaho: Wool Growers’ Assn. ; James A. Riggs,

Sullivan, Indiana; C. C. Roberts, Marion, O.;

- Colonel George Grant Seamon,. Taylor ville, EE.

_ J. B..Wilson, ‘National Wool Growers’ Assn.,

yoming Wool.Growers’ Association, McKin- |

: ley, Wyo.; W. H. Settle. Indiana Farm. Bureau

epee ee 10

Federation ; J. Blaine Shaum, Tarkio, Mo.;. .

Harry Snyder, Billings, Mont.; E. B. Spiller,

Secty, Texas & Southwestern "Cattle Raisers

Assn., Kort Worth, Texas; Sam G. Thompson,

Center J unction, lowa; Dan Wallace, Editor,

The Farmer, St. Paul, Minn. ; Senator Nate C.

‘Warren, Member, Nebraska-Colorado Lamb

Feeders’ Assn., Fort Collins, Colo.; C. R. -

. White, American Farm Bureau Federation;

J. D. Yaeger, Nevada State Farm Bureau Fed.

eration; James. West, V. P., Texas & South-

western | Cattle Raisers Association, Houston, -

Texas; Hubbard Russell, Former President,

California Cattlemen’s Association, Former

‘President, Western Marketing Association, Los

Angeles, Calif. ; Senator C. H. Williams, -Pres.,

Montana Wool Growers Assn., Deer Lodge,

Mont.; Charles D. Carey, Chairman, National —

Live Stock and Meat Board, Cheyenne, Wyo.;

Senator Frank O. Horton; Former Vice- Pres.,

Wyoming Stock Growers Assn., Buffalo, Wyo.;

Charles Belden, Director, American National

. Live Stock Assn.., Pitchford, Wyo.; Field S. Bo-

hart, Former Pres., Colorado Stock Growers .

Assn., ‘Director, American National Live Stock

-. Agsn., Colorado Springs, Colo.; J. H. Nason,.

V.: P., Western-South Dakota. Stock Growers

Assn., Spearfish, S. D,; E. Ray Cowden, V. P..,

Arizona Stock Growers Assn., Director, Ameri-

can National Live Stock Assn., Phoenix, Ariz.;

| Harry Saxon, Former Pres., Arizona Stock

Growers’ Assn., Dir., American ‘Natl. Live’

Stk Assn., Wilcox, Ariz. ; ;-Wayne Thornburg, |

_ Former Vice-President, Arizona Stock Grow-

ers Assn.,. Director, American National. Live

Stock Assn., Phoenix, Ariz.;-P..S. Dorris, For-

mer Pres., California. Cattlemen” s Assn.. and of -

Western Marketing Assn., Alturas,’ Calif.; Ezra

Baer, Director, American National Live Stock

Assn., Meeker, "Colo. ; “W. S. Whinnery, Former

. P ;

11

President, Colorado Stoek Giswers. heen. Di- .

rector, American National Live Stock Assn. 29.

Lake City, Colo.; W. J. Miller, Former Pres.,

Kansas Live Stock Assn. of Topeka, Kans.; W. H.

Donald, V. P., Montana Stock Growers Assn.,

Melville, Mont. ; ‘J. A. Donoyan, Director of

Montana Stock ’ Growers Assn., and American

National Live Stock Association, Butte, Mont. ;

J. Terrett, V. P., Montana ‘Stock Growers

Assn., Brandenburg, Mont.; Dan Adamson, For-

mer Pres., Nebraska Stock Growers Assn., Di-

reetor, American National Live Stock Assn.,

Cody, Neb.; George Cristopher, Director, Ne-.

_braska Stock Growers Assn., Valentine, Neb.;

Vernon Metcalf, Secty, Nevada Land & Live

Stock Assn., Reno, Nevada; E. B. Mitchell;

President, Highland | Hereford. Assn., Marfa,

Texas; T. B. Masterson, Director of Texas &

Southwestern Cattle Raisers Assn., and of.

American National Live Stock Assn., Truscott,

Texas; R. M. Faddis, Director, Wyoming Stock

Growers Assn., Director, American National

Live Stock Assn., Sheridan, Wyo.; Caesar Kle-

berg, Asst. Manager, King” Ranch, Director,

Texas & Southwestern Cattle Raisers Associa-

tion, Kingsville, Texas; Ed Springer, Director,

New Mexico Stock Growers Assn.,

American National Live Stock: Assn.,

N. M.;. A. R. Modisett, ‘

Stockgrowers’ Assn., Director,

tional. Livestock Association, Rushville, -Ne-

braska. ' (R. 560-64, )

As to these witnesses, representing the livestock

industry, it was stipulated, that they were available

to the petitioning defendants as witnesses and would,

. if called to the. witness stand and sworn, ad in

substance:

‘That there is keen and active competition in

the buying of their livestock; that they, and the

members of their respective organizations, are

treated fairly, and are not subjected to unfair

trade practices, in connection with the selling

' by them and the buying by representatives of

the defendant packers, and other packers’ and

buyers, of their livestock; that they sell their

‘ stock, under competitive conditions, in the live-

stock market yards in the various sections of

the country, and directly to packers at their

private yards and to buyers engaged in direct

marketing near places of production; that based

upon their experience in the livestock industry

each of said witnesses is of opinion that there °»~

is not and cannot be a monopoly of said indus-

try; * * * that based upon the same experience

each of said persons is of opinion that his in-

dustry would be benefited if the large meat

~ packing companies were permitted to sell food-

stuffs other than; and in addition ‘to, meat food

products, to the end that the cost of distribut-.

ing ‘meats and other livestock products might

be: shared by non-meat foodstuffs handled and —

distributed by the same persons, firms and cor-

porations who engaged in’-the handling, dis-

tributing and selling of meats ;’’ (Rt. 559-60).

_- The above evidence from livestock producers and |

their representatives throughout the country stands’

uncontradicted. We submit it should be conclusive

- in support of the following findings of -fact::

‘*2. That there now exists in the meat packing

‘industry in the. United States active competi-

tion among a large number of individuals, firms

and corporations, including defendanifs herein,

in the purchase of livestock and in the selling °

of the products thereof.’’ (R. 1110.)

“7, That none of the defendants has a monop-

+ oly in the meat packing industry.’’ (R. 1111.) BS

13

In the opening statement of Counsel for ‘the Gov-

ernment, it was conceded that, ‘‘the Court has juris-

diction, upon a proper showing, to modify the de-

eree,’’ entered February 27, 1920 (R. 389). At the

same time it was stated, the intention of the Govern-

ment was ‘‘to present to the Court every justifiable

argument and fact which tends to the conclusion

that the decree should not be modified.’’ (R. 388.)

Obviously, those engaged in the raising ‘of live-

stock, and the selling of such livestock, should be

most apprehensive of any’monopoly, or dangerous

probability thereof, in the purchase and sale of

the materials upon which they are wholly, or in

large part, dependent for a livelihood. No sec-’

tion of the public would be affected .as dire¢tly,

and immediately,. by such conditions as would the

millions of farmers and ranchers throughout the —

country. The knowledge which livestock producers

have of conditions surrounding the purchase and

sale of their animals is not based upon theory, or

indeed upon social, political or econoinic bias, but

upon facts gained through experience. The courts -

have pointed out that trade competitors are the first

to feel, and the keenest to condemn; monopolistic

conditions in any industry. ._We insist that no less

the producers of the raw materials of the meat pack-

ing industry would be the first to feel, and the keen-

est to condemn, monopolistic conditions in that in-

dustry. If facts are available to show the existence

of a monopoly, or serious threat of monopoly, in

the meat packing industry, they should be :forth-

coming frem those who are vitally concerned in

maintaining an open competitive market for their

Property which must be sold.

~The reasoning of the Court in the case of United

-14

_ States vs. Keystone Watch Case Co., 218 Fed. 502,

517, seems particularly applicable herein. The

Court ‘(Cireuit Judges Buffington, Hunt and Mg-

Pherson),- in considering the action to be taken

where neither the purpose, nor ‘effect, of a course

of action had as yet been shown to be definitely un-

lawful, said: ‘ Con

‘‘In that event the nature of things compels

the court to enter the hel of prophecy, or of

probable anticipation. In such a siftuation,. »

nothing’ else can.be done. A ‘court can only

deal with the situations that are laid before it,

-and in. the case supposed it must avail itself of

whatevgt light may be had, and must exercise

its best judgment with such,aid: as may be at

hand.. But if the suit. be deferred until the

lapse of time and the actual effect of the con- '

duct complained of have permitted facts to ac-°

cumulate and have tried the project in question

by the test of experience, we can hardly doubt

that- prophecy or probable anticipation should

be considered inferior in force to the evidence '

_ ,of what has actually taken place. In this world

we must do our best with the means at our dis-

posal. Even if prophets are always in danger

of being discredited by the event, we are some-

times compelled to speculate about the future;

4&nd our duty then is to check our speculations

as much.as possible by taking account of such

probabilities as may arise from past experience

and observation. In like manner, when we are

- face to face with what has actually happened,

we may. safely lay prophecy. aside, in order to

‘accept the services of a better guide, one that .

can. be relied upon with a firmer confidence.’’

(Italics. ours. )

As a result of the trial -herein, the Court below

. was no longer compelled ‘‘to enter the field of

‘

o

15

prophecy, or probable anticipation,” —to base a de-

cree upon fear of a future wrong,—to construe

pleadings, denied or undenied. Evidence was pre-

sented under oath. Witnesses qualified. by knowl-

edge, and experience, testified as to conditions which

actually prevailed in the marketing of livestock and

sale of products thereof. Their evidence is as: to

facts which prove competition, and negative the al- .-

legations of the petition charging defendants with

monopolistic control.

As this Court said in International Shoe Co. vs..

Federal Trade Commission, 280 U.S. 291:

_ “The existence of competition is a fact dis- ;

closed by -observation rather than by the proc-

esses of logic ;’’

Attention is again called to the itetinieaint of the

Court below that: “The testimony is uncontradicted,

that the four present groups of defendants are in- -

dependently owned and controlled, and are’in active

competition in the purchase and sale ef livestock

ang the sale of meat products ;’’ (R. 1044), and that,

—‘‘It is conceded that there is today no monopoly

in the meat packing industry.” (R. 1043.)

With the above statements as to existing competi-

tive conditions fully supported by the record here-

in; with the prompt and nation wide dissemination

by the .Department of. Agriculture ‘of information

to livestock producers, both as to. livestock re-

‘ ceipts and prices; with the supervision and \regu-

lation of seventy-two posted public livestock mar-

kets throughout the country; where 4461 registered .

market dealers and agencies (R. 408), handle the.

producers’ livestock at rates and charges fixed and \

determined by the Secretary of Agriculture; with _

16° *

packers’ buying and selling transactions and. prac-

' tiees supervised and controlled by the Secretar ry of

Agriculture under the Packers and-Stockyards Act,

_ 1921; with producers cooperative salés agencies han-

dling on thesé livestock markets a dollar volume of

sales of livestock amounting to $302,894,984 in 1929

'. (R. 403) ;—we submit, the reeord conclusively dis-

proves any charge of the existence, or dangerous

probability, of a monopoly in-the purchase of live-

stock. am # ;

B. The Record: Herein Discloses the Improbability, if Not |

Indeed, the Impossibility of Any Food cided

‘by the Defendant Uompanies.

~The term “monopoly”? according to its legal mean-

ing is defined as follows: :

‘‘For one competitor to exclude all or sub-

stantially all other competitors from such .op-

portunity,—i. e. drive them from the field of

Wreely offering their goods, so as to have that

field to himself—is to monopolize according to

the legal and accurate sense of the word.” * * *-

‘*It‘is never to be lost sight of that actually

distant’ business, no matter how large, is not mo-

nopolizing.. It is excluding from the oppor-

. tunity of doing. business that is.’’ Paterson vs.

4 United States, 222 Fed. Rep. {Sixth er

/ 599, 621, 625 (Itabies: ours).

The facts’ in the record completely. disprove the .

- existence of power in these defendant companies to

exclude others from the production, manufacture,

transportation, ‘or distribution of foods. 7

As to production:- In 1925 there were in the

United States 6,371,640 farms (Pet, Ex. 31); in

that year the gross income to farmers from crops

’

ae >

and animal products amounted to $12,051,520,000.,

and the cash income amounted to $10, 160,415,009,

, (Pet. Ex. 32.) To mention only a few of these

items, and consider at the same time the millions

of people engaged in producing them, the vast areas

of their production, the stupendous financial and

other problems involved in the planting, growing,

. harvesting and marketing of these crops, is to show

the utter absurdity of any fear of monopoly in food |

production. For’example the estimated gross in- « \.

come from farm production in the United States

for. the years 1924-1928 was es. follows upon the

items mentioned below:

1924 1925 1926 ‘1927 1928

CROPS” ’ (Value in thousands of dollars: i. ¢., 000 omitted)

o Wheat ~~ 925,383 804,175 .861,799 | 875,486 764,621

' Rico _ 41,698 45,231 42,395 40,558 . 35,844

Potatoes, white 257,868 430,685 409,185 © 382,890 234,380

Sweet Potatocs 79,644 101,212 96,239 . 100,817 86,730 |

Truck crops 302,671 346,833 287,597 308,231' 326,926

Peanuts 39,883 35,732 29,304 42,015 34,435

Apples 198,644 207,785 199,066 168,929 193,189

Peaches 65,713 62,506 64,667 49,164 60,253

Pears 25,888 28,196 21,508 23,569 23,503 ~

P Grapes 69,134 65,299 - 63,621 64,493 48,160

: Cranberries 5,485 * 6,370 5,623 6,089 7,743

Strawberries 53,859 50,512 58,373 59,179 53,711

‘Other berries 28,109 28,811 32,615 36,857 31,881 2

Pecans - 4,649 7,030 = 9,772 - 4,592 4,030 —

« Oranges 91,338 89,864 104,082 118,313 142,285

* Grapefruit 7,620 16,855 11,146 19,456 18,901

Other fruits 64,510 63,283 78,816 74,468 81,466

Other nuts 12,942 19,080 12,450 20,958 . 15,818

Maple syrup and ong 9,283 7,629 9, 802 . 9,166 » 7,526

Sugar beets 59, 524 « 47,137 , 54, 964 59,455 . 50,960

Sugar cane and syrup 24, 341 29,525 20, 376 19,855 20,786

Farm gardens 295, '379 e 801,583° 284,349 266,082 303,651

ANIMAL PRODUCTS » |

a and calves . 921,682 1,002,954 . 1,010,030 1,005,770 1,124,474

1,323,975 1,666,402 1,757,626 1,506,949 1,477,721 - °

7 and lambs 133,966 152,612 155,876 150,962 171,463

Poultry (chickens) 390,991 408,088 . 445,631 449,314 457,464

Eggs 583,562 691,897 704,037 639,868 + —«717,108

Milk 1,677,561 1,758,841 1,804,605. .1 910,545 1,965,358

(Pet. Ex. 32, p. 373.)

18 =) Se, .. ; E Sy

eee . 4 o? e c

Iti is‘a stone of common knowledge. that the sup-”

plies, and. stabihzation— of the prices, of coffee in ‘

. Brazil,-of siigar in-Cuba, and various férm\crops~’. -

an the \United ‘States, ‘have presented. insuperable

~ problems even where Governments. have come to the:

. ‘financial. aid of those’ engaged jn production \ and.

~ marketing. These bagic facts as to the produgtion

. of foods must be given. consideration in Weighing

+ the possibility of any monopoly ‘in’ foods.

‘ebedture ‘of foods,—and these. Census figures only |

»

- As to. manufacture: The Census of Manufactures

of she Department of Commerce for 1927, shows.

49,787 separate establishments engaged in the mah-

include establishments - ‘producing foods having a

factory value of $5,000: per annum, or more. ' (Pet,\

Ex. .1.) *- These: establishment employed 679,520

‘wage earners; wages amounted to $823,388,000. ;

Sst of materials $8,113,433,000.- and value of prod- | \ |

uets $91,015,860,000. Of such establishinents, 33,244 | |

- <yere éngaged.in the manufacture of yegetable prod-

_ uets having a total value. of $6,210, 130,000.’ \( Pet.

a.F

“. ues at point of manufagture, and do not include | any

\

“\

\

\

_ part of-the: vast quantities of foods prepared j in the

* homes such as canned. fruits and vegetables, butter,

cheese, and meats from farm slaughtered animals; ©

and foods not requiring such preparation, As. ane A

\. eggs, fresh vegetables, and fruits.” . Aa

-It was. stipulated {R. 574), that statistics sient |

able as to 241 companies in. the food or food prod-

é | \ uets industry show that in 1929 such lyr agonal “A

\ ‘a net.income of $445,061,209; that 134 of these com-

"panies \reported their wholesale and retail sales vol-'. ©

‘Namie for that year, and such sales amounted to.

‘ Lae ae

x. 1.). Phese figures relate ‘only: to wholesale \val-. -

> TR: . 9 ae

" .* $6,210,736,048; and it may’ be noted, that while these

figures as to net income and salés include the defen-

. “dant companies, the combined net income of. the

latter amounted to less than 644. per “cent of the -

total net income of the 241 food companies report-

ing; and further that these reports cover only 241

food manufacturers out ofa total of 49,787. sepa-

rate establishments engaged in. the manufacture of |

foods. |

In the findings of fact by the Court, it is dia :

1, That hte the ten years*~1920 to 1930;

food manufacturing and distributing concerns,

other than. defendants, have greatly grown in

volume of business, financi#] strength, and ‘earn-

ing power ;-that there has been a marked growth

(a) in the integration’of concerns dealing in |

various lines of .fgods -inte single manufactur-

' ing, selling and distributing organizations; (b) —

‘in.the integration by food concerns in the han-

dling of products from manufacturers to cén- ~

- sumers; and (c¢ the- diversification of prod-- -

; “by manufacturers, wholesalers and

4 and the trend is toward further, in-

. tegration. and diversification.”” (R. 1112.).-

As to transportation: ‘The utter impossibility of ”’

- these. defendants monopolizing the means. of food |

7 transportation appears obvious. The railroad com- *

panies with eir trackage, facilities, equipment,

and and _supetienee n transportation, are waging even. re

a Tow a’ losing battle to maintain their position against

the, thousands of motor truck lines covering the

I country. As. poi ted out in the record, ‘surfaced,

roads in the United States have. increased from

| 387 457 miles in 1921, to 662 435 ‘miles in 1929."

% |

Roads surfaced with concrete, asphalt, macadam,

and similar materials have increased from 36,038

miles in‘1921 to 112,454 miles in 1929. (R. 418.) |

The number. of trucks in use in the United States

: increased from 979,904 in 1921, to 3,379,854, in 1929

(R. 418), and the number of freight refrigerator

cars owned or controlled by railroads and private -

car companies increased gréatly from 1920 to 1930. ~

aac Ex. 17.): Farther, it wa8 stipulated:

“With valuation to Petitioners’ Exhibits 76

and 77, relating to refrigerator car equipment,

+ it was stipulated that the supply of refrigera-:)

tor cars in-the United States, whether owned *

by the defendants or other meat packers, pry :

vate car companies, or common carriers, is ad

quate to afford an ample supply of refrigerator _

cars at any time to any: who need them and are”

in a position to ° use them.” (R. 608. )

In the. findings. of: fact by the Court it is stated:

. 7, That during the past ten: years, (a) the

- increase in the number of railroad refrigerator .

ears, not owned by the: defendants, available to

_ all who néeq: to. use such equipment in their :

busiziesses, ‘has resulted in there now being am- °

ple equipment of that character for any and :

all who need them;:(b) the increase in-the use

of motor. trucks for the transportation of food.

products and the extending of the areas of their —

operation. by reason that the great inerease i '

good roads, and the ‘increase in the transport-

ing by motor trucks of products by packers

. competing with defendants and_-by’ wholesale

grocers in making deliveries to. their customers,

haye combined to“ deprive defendants of any

advantage which the ownership of refrigerator

debk

’- ears formerly gave them, and none of the de-

'fendants enjoys any ‘undue preference or. ad-

vantage by reason of its ownership of. er

erator cars.’ (R. 1113. )

As to distribution: According to the best esti- ng

_ mates available the total 1928 retail:food bill of the

‘United States was Twenty Four Billion Dollars, of

: which about Three Billion Dollars is the satiate a

value of products consumed. atthe place of produe-

tion.

Among other sales outlets for foods there, are at

least. 375 ,000 retail food stores. (R. 773) ‘excluding

‘regular chain stores, and approximately 6,000 whole-

sale grocers located in 2,300 different cities. (Pet.

Ex. 88.) It was stipulated that in 1920 there were

15,000 regular chain grocery. stores in the United ..

- States having sales in that’ year of $770,000,000.,

and that by 1929 the number of stores had increased

~ to 60,000 with sales of $3,590,000,000. (R: 567.).~

These 60,000 chain stores are operated by 900 separ-

ate corporations and the,70 largest of these corpo- _

‘rations own 48,699 stores. (R. 567.): Further the -

record shows the’ existence of 551 voluntary chain

. grocery organizations with a total membership of

59,640 separate retail stores. _(R. 510.)

- It was strongly urged by all witnesses from the

livestock -industry, mostgef. whom were officers of

. the great livestock associations of «the country,

, that the Decree herein be modified so as to permit

the defendant companies to retail meats and other

. food ptoducts. Such permission was dertied and the

injunctions of the Decree prohibit such action. It —

would appear unnecessary therefore to argue the

— of any danger of a food ee by:

22

_ these ditvetnente: through control of f retail food dis-

‘ tributive outlets.

- The finding of fact by the. Court ‘wiow upon the

change in conditions in the food: ‘wnend since 1920,

is as follows: .

* 12. That since’ i920 conditions have materi-

ally changed in the methods of marketing food

_ products by reason of (a) a great increase in

the number -of regularly organized retail chain ,

food store companies; :(b) the grouping to-

gether for cooperative and concerted action of

large riumbers of wholesale and retail food

- establishments in what.are called voluntary -

chains; (c) an inereasing nuniber of combina- -

“tion food wholesaling and retailing establish-.

/meénts with the resulting reduction in such

single line establishments as grocery stores, veg-

etable and fruit stores, and, meat inarkets : (d).

the combining with grocery establishments of

departments or markets for the selling of | |

meats; and (e) the engaging by concerns re-

tailing foods on large scale in the functions

usual -to wholesale and branch house distribu-

_ tion, and: in the functions of manufacturing and )

processing meat products and other’:foods.”- /

(R. 1112.) , é 7 #

"Ana the ultimate finding of fact rw the: Court: he

t low upon a review of the testimony of the witnesses

and: other evidence is: . : ee oe

“13, That if ‘hetetients were to engage in

handling food products additional to products |

they are now: dealing in, there is no probability

that: they could. or would acquire a monopoly -

of, or control the quantity arid prices of, the

foods produced and/or consumed 3 in the United

States. 4g bas 1112.) |

hs

23

Bearing in mind ‘‘the legal and.accurate sense

of the word monopolizing”’ (Patterson vs. United

States, supra), we submit the facts in thé record

herein show conclusively the improbability, if not

indeed the impossibility, of the defendants securing

a monopoly either in producing, manufacturing,

transporting, or distributing food products; that

_ the fear of any future monopolistic control in any

of these respects by the defendants herein is not

based upon existing facts and, conditions. —

C. The Record Herein Proves that the. Distributive Fa-

| cilities, Equipment, and: Organization of the Differ-

ent Companies Can be Employed More Efficiently

and Economically if Utilized for the- Distribution .

of Food Products in Addition to Meats and aoe

' Food Products.

In the Statement of Evidence (R. 476), it is soit

ceded that the following’ named witnesses testified

as to conditons in the livestock industry over the

past eight or ten years and,

“That the existing conditions ‘us be allevi-

ated and livestock producers benefited if the

large meat packers were permitted to handle

‘at wholesale other food products in addition to

meats, so that meat. alone would. not have’ to

bear the éntire cost of distribution.” . CR. 477.) |

The ‘witnesses, whose testimony, in part, was thus

summarized, were as follows:-

Hai F. E. ais, Secretary, American National Live-

_ stock Association, Denver, Colorado. .(R: 476.)

_. WAaYLAanb ——- Presitent of the one Farm —

24

Bureau in Nebraska; President of the Nebraska

Crop Growers Association; Director of the Federal

Reserve Bank at Kansas City; Member of the Ex-

ecutive Board Nebraska Dairy Development So-

ciety; and Manager. of a 1,280 Acre farm owned by

his family, located near Bennington, N ebraska. (R.

478.) |

Wuitiam H. Tomuave, Executive Secretary, .

American Aberdeen Angus Breeders’ Association,

author of ‘‘Meat and Meat Products’’, former pro-.

fessor of Animal ndry at Pennsylvania State

College 1912- 1925, ° -and member of the National

Livestock and Meat Board since 1926. (R. 479.)

\ Murvo MacKenzir, Manager, Matador Land and

Cattle Company, Ltd., which Company is engaged

in the cattle business, operating ranches in. Texas

and Montana aggregating about 1,097,000: acres;

owning approximately 54,000 cattle and 10,000

' - sheep; Mr. MacKenzie was for two years President: *

of the Texas & Southwestern Cattle Raisers’ Asso-

ciation, and i is now an ex-officio member of its Board.

(R. 480.) aes

J. BF. Waker, Bostetaey sind Field. Manager,

_ Qhio Wool. Growers Cooperative Association, Gam-

bier, Ohio, an organization comprising about 8,000

sheep. men in Ohio, Michigan and Indiana, and own-. ©

- ing, among them about’ 500,000 head of sheep ; this

, Association handled about four million pounds of

wool annually direct to the mills and ‘is affiliated’ -

‘with the Ohio Livegtock Shippers Association. (KR.

WR. RENK, Poeiisiiiaimior of ‘Aerivclinee for

the State of Wisconsin; Madison, Wisconsin; for-_ -

merly President of the American Shropshire Associ- 4

> va »

a

2

25 —

ation, American Hampshire Sheep Association, Wis-

consin Livestock Breeders Association, and . now

President of the Wisconsin Breeders and Sheep

Feeders Association. (R. 481.) |

'- .JaMEs Top, Maple Hill, Kansas, owner of a four

thousand acre ranch in Kansas. and a seventy thou-

sand acre ranch in New Mexico, where he carries

on the business .of breeding and feeding ‘livestock,

marketing about fifteen hundred head annually. (R:

482.) | |

R. N. Gunn, Buckingham, lowe, livestock farmer

with about fifteen ‘hundred acres of land in: central

Iowa; Chairman of the’ National Board: on Swine °

Production Policy; Member of the Livestock Com-

mittee of the Federal Farm Board; Director of the |

Farm Bureau Federation in Iowa: *(R. 484.)

_ W.J. Firts, Gallatin, Tennessee, livestock farmer

and President of the American Duroc Jersey Asso- .

ciation; ‘Director ‘of the National. ‘Bwine Growers

Association. (R. 485.) ae

James A. Hooper, Salt Lake City, Utah, Secre- -

tary of the Utah Wool Growers Association and

_ Manager.of Austin Brothers Association, which con- |

~ cern handles about 25,000 sheep and 2,500 cattle .on

approximately 44,000 acres of grazing land and .

markets annually 10,000 to 15 000 sheep and 1 00

head of cattle. (R. 485.) .

MERCER, Topeka, ain ‘Livestock Sani-

tary Commissioner of the State of. Kansas; Secre-

tary and General Manager of the Kansas. Livestock

Association; President of:the National Livestock -

‘show at Wichita; Director of the American Royal —

Livestock show in Kansas City, Director of the Na-

tional Livestock and Meat Board.. Kansas Live-

26

- stock, Association embracing about 11,500 members

who own approximately 80 per cent of the beef ani-

mal population and 65 per cent of the hogs and

sheep in the State of Kansas. (R. 487.)

WINCHESTER P, WinaG, Secretary of the Califor- '

_nia Wool Growers Association, San Francisco, Cali-

fornia. (R. 488.) .

The defendant packing companies use refrigera-

_tor/routé cars in handling their perishable meats

and meat food products. To obtain route car move-

ment they must pay in certain territories a mini-

mum revenue,on each car equal to a minimum weight

(usually 10,000 or 12,000 pounds) at L. C. L. rates

for the distance eovered. The record herein shows -

- that the route cars used by. the defendant companies

in shipping their meats and perishable products are

sent out, frequently, without sufficient load to make:

" up the minimum weight ; that consequently a penalty

' sufficient to make up the deficit must be borne by the

meats and meat: food products; that while freight

charges at L. C. L. rates would have to be paid on

grocery articles loaded in the route cars with the

meats, the amount of such charges would reduce (by

the amount thereof), the penalty now borne by the ~

meats alone. The amount of freight paid on such -

grocery articles by the packer would be the same as:

the amount paid by a whojesale grocer.

Nevertheless, it is argued that it would not be. mn

. the public interest to remove the penalty charge

freight burden, borne by meat shipments alone, and

have such charge applied pro rata against grocery

products occupying the unfilled space in the car.

: . .That section of the public interest consisting of

2 the livestock nico ce is iain to any such |

27

wasteful handicap against distribution, of livestock

products, and insists that every handicap against

the most economical marketing of either their ani-

mals or the products:thereof should be promptly

removed; that such action is necessary not only in

their interest as producers but in the interest of the —

great consuming ‘public. Those opposed urge that _

the Government not only countenance waste in dis- —

tribution but insist upon ‘its continuation. ‘AS was.

said by the Court below: :

‘*As-to the peddler cars it is au extreme mea-

‘sure, unless absolutely necessary, to prevent

' anyone. from making an economic use of his

facilities. The use by the packers of vacant

places in the peddler cars and in their ware-.

houses, not used for meats, by other commodi-

ties is sound. as an economic and 1 bygipess prdp-.

osition.”” (R. 1057- 58.) .

The lack of opportunity or ability on the part of

wholesale grocers to utilize refrigertor route cars

in making shipments of grocery -articles, is not an -

argument against affording packers ‘full opportu-

nity to do so where, as here, it:is conceded that the

supply of. such cars is ample. .-

We repeat, the record shows (Petitioner’s Ex-

hibit 77), that the number of refrigerator cars

owned by carriers and private car companies has

greatly increased since 1920, and it ‘was: stipulated

(R. 608), with reference to refrigerator cars, as

follows: :

“That the aaag of refrigerator cars in the

United States, whether owned by the defen-

dants or other meat packers, private ear com-

* 28

“%

anies, or common carriers, is adequate to af- .

ord an ample supply of refrigerator. carg at

any time to any- who.need tlfem and are in a

position to use them.” ., 7.

Obviously there can be no element of monopoly

control as a result of the ownership or leasing of

refrigerator cars by defendant conrpaniés, where the

‘supply of such cars for use by éthers is ample, and

4 refrigerator car service is available to’ all. Ss

¢ . \It cannot be denied that no unlawful transporta-

tign preferences or advantages accrue to the defen-

dant packing companies, as shippers, through car-

riers permitting them to — meats and groceries

in the same car.

In July, 1919, the National Wholesale Grocers’

Association of the United States and the Southern

Wholesale Grocers’ Association, a) American

a

Wholesale Grocers Association), filed complaints’

with the Interstate Commerce Corizfiission wherein .

_ the Director General of railxoads as Agent for vari- .

ous carriers was made respondent. In -such com-

plaints, Interveners herein demanded that respon-

dent packing companies be forbidden to ship, ir

. route cars, commodities which were not the products

of slaughtered animais. In its decision upon such.

complaints,.after extensive hearings, the Interstate

Commerce Commission decided, under date of J une

' 22nd, 1921, that :— ;

“The complainants. did. MF ningnd -the dis-

continuance of_the packers, peddlers, or branch ,

house ears, but asked that the packers be for-

bidden to ship in such cars, commodities which

“are not the products of slaughtered “animals.

This rane, they say upon their brief, is the.

- 2

29

issue between the packers and the wholesale

grocers in this controversy, stated in one sen- |

tence.’ |

* + >. ° @ * + 5.

‘‘Upon corisideration of all the facts of rec-

ord we find that the practices of defendants

(railroad companies) in permitting the meat

packers to load ‘certain articles of/ ‘groceries in

their peddler and branch house cars is not

shown to result in undue prejudice to complain- -

ants or unduly to prefer the packers. ” (62

I. C. OC. Rep. 375.) -

Further, the record shows that refrigerator route

cars do not move either more-rapidly or frequently

than non-refrigertor vars;.that such route cars op-

erate on the regular published schedule of local

' freight trains on the lines of.the éarrier where used, |

- (R. 675.) » ;

‘Insofar as the exclusion of the defendant packing

cotnpanies from handling grocery articles is based

“upon fear of: monopoly arising from defendants

- , ownership or use of refrigerator car transportation,

the record herein conclusively establishes :

“1. The suppl of refrigerator cars is ample at all ©

times té all who’ need them: or can use them ;

2. The authority . of: the Interstaté Commerce

- Commission to regulate the use of such cars

cannot be questioned; tae.

3. The Interstate Commerce Commission has

found, since the Decree herein was entered,

that the defendant companies did not enjoy

any undue proference through loading certain

_ articles of groceries in their route cars.along:

with meats; © .

4; No expedited movement is accorded such cars.

'.. to restrict competition through discrimination, and .

' .. of meats) require distribution from ‘producer: to con-

be Surely it is not: the policy of the Anti-Trust Laws a

a place upon one set of shippers a burden ofqumnec- ,

essary: transportationsexpense ‘which must be ulti- ~

_ nately transmitted to the consumer of the manufac-

‘tured product, or borne by the. producer of the raw

- materials from which the product is manufactured.

The interests of the hundreds of thousands of live-

_ stock fa rei arid of the millions of consumers

sumer at the least cost. The theory is wholly un-

sound that, a packer ‘should not be allowed to fill/

' unused space in a refrigerator car with grocery ar-

ticles simply upon'the ground ‘that somé competitor

is not in a position to. load and ship similar cars. _ -

And yet such is the theory-of the Intervenors despite

proof: that:a = supply $f refrigerator cars is avail-

able to them t the. use -thereof for hauling both

meats and pes es in the same car is lawful, and. \

that the movemefit thereof is no more rapid or fre-

quent than the movement of other freight cars used- sy

by wholesale grocers, in making less than car load- eh

. shipments. We believe- that, ‘jurisdiction aN:

—<reourt of equity -is remedjal, not punitive’? (United

” States-vs.. American Can Company, 234 .Fed. 1019), ©

-and.-the decision of the Court below upon this point. .

will meet with full appréval in this Court. We call” -

--attention particularly to the eee — of. FF

fact by the lower Court;

aN

ae Kg, That each of the defendants salad aati

‘. -. yially reduce tlie cost of: distributing meats and

. other. livestock products if it engaged in. selling, .

- dealing in and yenepering foodstuffs other =~

| than, ‘and j in addition to, meat food p

(R. 1111.)

. 10, That each of the def ants, 6

by dealing ae 2

in’ foodstuffs other ‘than; and -in~a

‘ meat food products, would be enabled: to'so dis- = :

tribute its overhead and sales costs as to effect

economies in the distribution “of both meats and:

other livestock products and of non-meat-food

products.” . (R. 111%) - .

" elioes of these findings of. fact is oui’: in-

any manner, by any of the Appellants, either in

their Assignments of Error, or in their Statements

of Points Relied’ Upon, presénted to this Court.

IV.

CONCLUSION.

We sili respectfully submit that wesitiien:- i

tion of the Decree herein so that the “defendant.

.+ packing companies may utilize completely, and more |

- efficiently, their distributive facilities is in the in-

terests of the public and of. ‘benefit to the livestock

producers of the country, and the order of, the Court 3

_ below should: ‘be affirmed. :

" Respectfully ileal

Dayton Mosgs,

Counsel for the Texas and South- -

“western Cattle Raisers’ . Associa-

tion and the Kansas Livestock.

- Association, as Amicus: Curiae.