Evening star., 1945-06-19

SO as to extend the right Of protest
to all who had been members fol
more than five years and upon
whom no right Of protest had beer
conferred by the 1900 bylaws. In
1912, after complaints to the De-
partment of Justice had brought
about an investigation, the bylaws
were again amended.
Board Free to Elect.
These bylaws, presently involved
leave the board of directors free to
elect new members unless the ap-
pellants would compete with old
members and in that event the
board cannot act at all in the alb
sence of consent by the applicant s
member competitor.
Should the old member object to
admission Of his competitor. the
application must be referred to a
regular or special meeting Of the
association.
As a prerequisite to election, he
must (a) pay to the association 10
per cent Of the total amount Of
the regular assessments received by
it from old members in the same
competitive field during the entire
period from October l, 1900, to the
first day Of the month preceding
the date of the election of the ap-
plicant (see footnote 81, Co re-
linquish any exclusive rights the
applicant may have to any news or
news picture service and when re-
quested to do so by his member
competitor in that field, must re
quire the said news or news picture
services, or any of them, to be fur
nished to such meember of members,
upon the same terms as they are
made available to the applicant"
and Co receive a majority vote Of
the regular members who vote in
person or by proxy.
These obstacles to membership,
and to the purchase Of Associated
Press news, only existed where
there was competing old member
In the same field.
The District Court found that the
bylaws in and on themselves were
contracts In restraint Of commerce
(see footnote 81 in that they con-
tanned provisions designed to stifie
competition in the newspaper pub
fishing field. (See footnote y. The
court also found that APPS restric-
tive bylaws had hindered and i'm
peded the growth of competing
newspapers. (See footnote 81.
This latter finding, as to the past
effect Of the restrictions, is chal-
lenged. We are inclined to think
that 1t is supported by undisputed
evidence, but we do not stop to la
Dor the point. For the court below
found, and we think correctly, that
the bylaws on their face, and with
out regard to their past effect, con-
stitute restraints of trade.
Course of Conduct.
Combinations are no less unlawful
because they have not as yet re-
suited in restraint. An agreement
or combination to follow course OF
conduct which will necessarily re-
strain or monopolize a part of trade
or commerce may violate the Sher-
man Act, whether it be wholly
nascent or abortive on the one hand
or successful on the other" (See
footnote 81.
For these reasons the argument,
repeated here in various forms, that
AP had not yet achieved a complete
monopoly is wholly irrelevant. Un-
disputed evidence did show, how
ever, that its bylaws had tied the
hands of all of its numerous pub
fishers, to the extent they could
not and did not sell any part of
their news so that 1t could reach
any of their nonmember COMPETE
tors. In this respect the court did
find, and that finding cannot pos
sibly be challenged, that APPS by
laws had hindered and restrained
the sale of interstate news to nom
members who competed with men,
bers.
Inability to buy news from the
largest news agency, or any one OF
its multitude of members. can have
most serious effects on the publica-
ton of competitive newspapers, both
those presently published and those
which, but for these restrictions,
might be published in the future.
(See footnote l0.
This Is illustrated by the District
Courts finding that in 26 cities of
the United States, existing news
papers already have contracts for
AP news and the same newspapers
have contracts with United Press
and international News Service
under which new newspapers would
be required to pay the contract
holders large sums to enter the field.
(See footnote ID.
Initiative Hurt.
The net effect is seriously to limit
the opportunity Of any new paper
to enter these cities. Trade re-
straints Of this character, aimed at
the destruction Of competition, tend
to block the initiative which brings
newcomers into q field Of business
and to Illustrate the free enterprise
system which 1t was the purpose Of
the Sherman Act to protect. tSee
footnote 12).
We need not again pass upon the
contention that trade in news car
ried on among the states is not In
terstate commerce, Associated Press
v. National Labor Relations Board,
301 U. S. 103, or that because APPS
activities are cooperative, that fall
outside the sphere of business, Amer
ican Medical Association v. United
States, BIT U. s. 519, 528. 1t is sig
nif1cant that when Congress has de-
sired to permit co-operatives to in
terfere with the competitive system
of business, it has done 50 expressly
by legislation. (See footnote 13).
Nor can we treat this case as
though it merely involved q re-
porter's contract to deliver his news
reports exclusively to a single news
paper, or an exclusive agreement
as to news between two newspapers
in different cities. For such trade
restraints might well be reason
able" and therefore not in violation
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