Evening star., 1939-07-26
Text of Medical Opinion
Continued From First Page J

by cooperative efforts, adequate
medical care for themselves and
their dependents from doctors en-
gagged in group medical practice,
90 to restrain doctors serving on
the medical staff of the association
IN pursuit Of their callings, ~ to
restrain other doctors in the District
OF Columbia, including some of the
individual defendants, in pursuit of
their callings and 90 to restrain
Washington hospitals in the opera
ton of their businesses.
The demurrers raise basic objec-
tions to the indictment. OF first
Importance is the contention that
none of the alleged restraints has
reference to trade; that Section 3
comprehends only those occupations
in commercial life carried on in the
marts of trade activity; therefore,
that the medical profession and the
business Of the association and hos
pitals do not constitute trade"
within the purView of the statute.
Against this contention, the Gov
ernment's position is that all who
are occupied in any activity whereby
they supply moneys worth for full
money payment are engaged in
trade; that Section does cover all
such activities; therefore that the
practice of medicine and the busi-
nesses of the association and hos
pitals do fall within the scope of
the statute.
Is medical practice trade within
the meaning of section 3 of the
Sherman Act? In my opinion it is
not. I think the matter is settled
by the Supreme Court in the case of
Atlantic Cleaners & Dyers VS..
United States, 286 U. S. 427. That
case squarely presented the question
whether trade is used in narrow
sense, as importing only traffic in
the buying, selling or exchanging OF
commodities or in broader sense
1t fairly called for a definition of
the word. This the court undertook
to give. In so doing, it declared
that the word trade" was used in
Section of the Sherman Act in the
general sense attributed to it by
Justice Story in the case of the
Schooner Nymph, l SUNNI. SIG; 18
Fed Cases SOC, No. 10,388 The
court, intending to give a full and
broad meaning, adapted for it's own
| definition for trade" the language
of Justice Story in that early case,
quoting therefrom as follows:
THE argument for the claimant
insists that trade is here used in
its most restrictive sense and as
equivalent to traffic in goods, or buy
ing or selling in commerce or eX-
change. But am clearly of opinion,
that such is not the true sense of
the word, as used in the 32d section.
In the first place, the word trade
is often and, indeed, generally used
IN broader sense as equivalent to
occupation. employment or business,
whether manual or mercantile.
Whenever any occupation, employ
ment or business is carried on for
the purpose of profit, or gain, or a
livelihood not in the liberal arts or
in the learned professions, it is con-
stantly called a trade Thus, we
constantly speak of the art, mystery
or trade of housewright, a ship
wright, tailor, blacksmith and a
shoemaker, though some of these
may be and sometimes are, carried
on without buying or selling goods
Profession Expressly Excepted.
Thus we have this recent control
ling decision defining the word trade
and expressly excepting the learned
professions of which admittedly the
practice of medicine is one. The
decision is in harmony with others
rendered before and after the Clean
ers and Dyers case. See Fed Trade
Comm. VS.. Raladam, 283 U. S. 643:
Graves VS.. Minnesota, 273 U. S. 400
and Semler VS.. Board, 294 U. S.
COB. The restraint alleged against
the doctors in specifications three
and four of the charge are clearly
not within the purview of the
statute. cannot accept the re-
| flnements of thought whereby it is
argued by the Government that
the Court in quoting Justice Storey
was not defining trade but mere
ly illustrating the narrow and broad
concepts Of the word. Nor does
the decision lend any support to the
idea that by enacting Section 3
Congress intended to exercise all
its plenary power over the District
OF Columbia to prohibit restraints
against all business activities of the
citizen. The Court has simply said
that Congress meant to deal effec-
lively with the evils resulting from
contracts, combinations and con-
splracles In restraint of trade-not
all restraints upon every business
pursuit, but only those affecting
trade.
Doubtless, in the fullness of its
power over the District, Congress
could have prohibited restraints
upon all occupations of the citizen.
But there is nothing in the history
OF the legislation to suggest the
need for such a broad reach of
power and clearly it was not in
tended.
The Government has cited many
English and American cases deal
ing with restrictive covenants an
cillary to agreements by doctors
concerning the sale or conduct of
their practice, in which the courts
have applied the common law doc
trine as to contracts in restraint
of trade 1t is argued that these
cases have, in legal sense, drawn
medical practice within the orbit of
trade, giving to the word a COM
mon law meaning to include the
professions From this II is f,,rtbor