Evening star., 1939-07-26

or mercantile pursuits carried on
for profit or gain without buying or
selling goods. The business of the
association was not of a manual or
mercantile nature. 1t was q non
profit cooperative institution whose
corporate object was to render serv-
ice in providing medical and hos
pital care for its members. The
argument for the Government that
the business of the cleaners and
dyers involved merely the sale of
service, and yet was held to be a
trade. overlooks the fact that the
very essence Of that service was the
skillful use Of labor and material.
quite equal to the art, mystery or
trade" of a tailor, blacksmith or
shoemaker, mentioned by Justice
Story in Illustration of manual and
mercantile pursuits falling within
the category of trade.
Other Federal and State decisions
bear out the conception of trade as
an occupation or pursuit of a mer-
camille character. See Semlar VS..
Board, 294 U. S. 6O8; Toxaway Hotel
Co VS.. Smathers g. Co., PIG U. S.
439; U. S. Hotel Co. VS.. Niles, 1874
Federal 235; Harms VS.. Cohen, 279
Federal 276 (as to musical COM
posers): People VS.. Klaw, LOG N. Y. s.
34l (as to the theater) Metropolitan
Co. VS.. Hammerstein, lat N. Y. S.
532 (as to grand opera) Werth VS..
Fire Insurance Companies Adjust
ment Bureau, Inc, III S. E. 255 (as
to the insurance business; Whit
comb VS.. Reid, 81 Miss. 569 (as to
dentistry, and State VS.. Mcclellan,
81 A. L. R. 527 (as to the laundry
buSlneSS).
Position Held Extreme.
The thesis of Government counsel
taken from the opinion in Brighton
College VS.. Marriott. K. B. 312, 316.
that trade" embraces all who
habitually supplies moneys worth
for money payment" and their con-
tention that the statute should be
so broadly construed represents an
extreme position which does violence
to the common understanding of
trade" rejects authoritative de-
cisions of our courts and ignores
cardinal rules of statutory con-
struction.
Their proposition encompasses all
gainful work of the citizens. Can it
be supposed if Congress had any such
drastic intention it would not have
made the purpose clear? Certainly
1t is not for the courts to stretch
an old statute to fit new uses for
which 1t was never intended. United
States VS.. GradWell, DAB U. S. 476,
488. That would be nothing short
OF judicial legislation" The charge
that members of the association
were restrained specification D is
devoid of legal substance. Their
efforts to obtain medical care is
expressed through the medium of
the. association, a corporate entity
distinct from the individual mem
bers. Upon no theory can they be
treated as engaged in the business
OF the corporation.
Finally, when the indictment is
carefully studied in all its parts.
each in relation to the others, it
is difficult to escape the conclusion
that in its substantial realities the
scheme set forth directly centered
upon various forms of restraint
to be exerted against physicians in
rendering treatment and care to
their patients, and that all else is
incidental to that design. If re-
straint upon doctors was the only
real direct and immediate effect,
any indirect effects upon the asso-
citation or hospitals would not suf-
flee to support the charges as to
them. Standard Oil Co. VS.. United
States, 283 U. S. 1853, 179; Nash VS..
United States, 229 U. S. 1878.
Sufficiency Objections.
The defendants have raised OBJ
Jections to the sufficiency of the
indictment as a pleading. These 20
mainly to the claim that many of
the allegations dealing with essential
and material features of the charge
are vague, indefinite and uncertain.
The objections are far too numerous
to deal with separately. There is
merit to many of them. The indict-
ment is afflicted with vague and un-
certain statements In some in
stances material facts are altogether
lacking. An important instance con-
Germs the charge that one purpose
OF the conspiracy was to restrain the
business Of the Washington hospi-
tails.
The indictment is barren of any
statement of the business methods
used by a single hospital in the
letting of facilities and service to
patients, This is fatal to that par
ticular Specification, for without
such facts it cannot be known
whether loss of patients through
operation of the scheme would in
juriously affect the economic well
fare of any hospital.
Moreover, the particular plan and
purpose of the conspiracy as re-
spects the hospitals is only infer
entially stated in that part which
deals with the plan and purpose of