New-York tribune., 1906-12-05
TO TRY TOBACCO MEN.
GOVERNMENT SUSTAINED.
Judge Hough Dismisses Demurrer to
Indictments Under Sherman 4ct.

Judge Hough in the United States Circuit
Court yesterday handed down a long decision
overruling the demurrer interposed by the Mac
Andrews & Forbes Company, the ]. s. Young
Company, of Baltimore: Carl Jungbluth and
Howard s Young, presidents Of the corporations
named, TO the indictments returned against them
by the federal grand jury, alleging violations of
the interstate commerce acts. The conten-
, tions of the special attorneys general for the
prosecution of the cases. Henry w. Taft and
Felix H. Levy, that the indictments well
founded in law sustained.
The dernurrers were interposed by De Lancey
Nicoll and John ID. Lindsay. representing the de-
fendan: corporations. and Ernest E Baldwin
as counsel for the two individual defendants.
who alleged the indictments We're insufficient
in law and did not clearly show violation OF
the interstate commerce acts. The two de-
fendant companies subsidiary corporations
of the so-caled Tobacco Trust, and control. ii Is
alleged, the sale OF licorice paste used in the
manufacture of plug tobacco. The MacAndrews
q Forbes Company, it was charged supplied the
trust manufacturers. and the j. s. Young Com
pany. the independent manufacturers under an
agreement which. the government contended.
clearly in restraint of trade. destroying and
preventing all possible competition.
The opinion commences by saying that the
prosecution alleges violations of the Sherman
act. first by a conspiracy in restraint of trade;
second, a conspiracy in restraint of interstate
commerce. and. third through attempt to
monopolize the licorice paste industry, destroy
ing competition.
Judge Hough states at length the contention of
the defence. after recitng the alleged agree
ments between the defendants. which resulted in
the control Of the Lewis company, Of Providence,
and the verbal understanding with the Weaver
G. Sterry Company, of New York, which brought
about advance Of prices in icorice paste and
q control of the output The defence contended
that the indictments We're bad because of du-
pcity. that the defendants had been improperly
Joined, that corporation could not conspTe or
possess an evil intent necessary TO establish a
conspiracy under the law.
All Of these various contentious Judge Hough
overrules. Regarding the contention that cor
poration being artificial being, could not have
a criminal intent or enter into a conspiracy
Judge Eough says:
It long ago contended that even a civil
liability. arising from an evil intent could not
he visited upon an artificial being. This fiction
has vanished, and corporate liability on the
civil side firmly established, even for assault or
conspiracy.
TIE question of corporations inability 20
conGpi7e was OF the defences powerful con-
Ientions in support OF its demurrer. and il is TO
that phase of the case that Judge Hough. IN
his opinion, Principally directed MS alleillioi
Judge Hough says:
J. 10 easy and logical 10 as
cribe TO a corporation evil mind it is -
impute 10 it a sense of contractual obligation.
There is obvious physical difficulty in rem
Gering 4 corporation amenable 10 corporal pun
ishmcnt, but there is more intellectual diff
Guilty in considering ii capable OF homicide
larceny than in thinking of it as devising
plan 10 obtain usurious interest. The limitation
Of power does not depend upon the difficulty 0f
imputing evil intent, but upon the impossibility
Of visiting upon corporations the punishments
usually prescribed for greater crimes. The
Same law that creates the corporations may Gre
The Legislature cannot punish its own creature
because il cannot make a creature capable of
violating the law is ia my opinion making a
Fetch OF a fiction.
Relative 10 the allegation Of the defence that
one person, a corporation, being legally one
person. could not alone monopolize. Judge Iough
concludes:
Section > Of The act undoubtedly renders il
Impossible for q single pc. . 10 he punished
frGor this statute for eth r1oDonoIv or al,
attempt 10 monopolize, whe il is difficult TO
imagine one person comhin 8 and obviously
ore person cannot conSpire at. having raeaTj
for The modern use of thsa ORD monopolV as
meaning something quite different from the roval
grant or earlier law, see no reason why any
number Of persons may not enjoy a monopolv
or may not attempt TO mOnopoze Furthermore
y is 10 he remembered that when mononolv had
lts ancient meaning, the grant OF the rights was
!o} limited to one person. the grantees We're
ireouent 3 in the plural Let the demurrer be
0T-o~r-1lod ~