Newspaper Page Text
HU) 4 , THE Suk, SUNDAY, MARCH 27, i8tm. . - If' KQ . MONOPOLY I, NEWS! Wty K Qn's uit Against Ohioago m$f v NowB TrU8t' KMf (jAI.KI.lll BARTLETrS ARGUMENT. I wv i Kn V C""'d u, Circuit Court asked to Ba- KUj V M Jola the Mow Tnut from rnreattnc tit Be!' f;V Wemfcore from tlarlag Rem rr Tlit Din Hk IS' j Rows Mown I Do n CommoSJtr ana th Bfttvl ? Aetlen or th Hews Tnut t Be Vlolatlea fif vlr r jm r ttae xlattta r nw Bill if Tork and or Illinois "rs Trait as tha I llVj, i' Oroattot or MonopeMeo Its Attempt to Bey H J Wf i eott Too Sna Conspiracy aaa Intimidation j, p la Restraint or Trade Tha Br-Law Com . A, -J-sShktntti or Atreadj Declared Calawfal or 81 , Oa Court Wrongful Acta or Uio Tnut Clud I' I following It tho lion. Franklin Bartlett' I ' argument delivered before Judg E. Henry ' Lacombe In the United States Circuit Court for f the Southern Dlitrlct of New York tn eupport L i of the complainant's motion for a temporary In junction tn the suit brought br Tun Son Print na, ( , imr and Publishing Association against th W 1 Associated Press nnd others, tho Associated j ,1 i Preia being represented br Qen. Wager Swayno K ' and Wheclor II. Pockham ! fjr Mr. Bartlott If your Honor please, this Is ?$ an application for a writ of temporary Injuno Wr tlon against tho Associated Press and tho Dlreo Mr I trsof Associated Press restraining them jjg ji 1 from preventing the salo b tho complainant, IS; l Tub SUN Prlnttnc and Publishing Association, J l , of Its nows to any newspaper In the United ) li ) I States. Substantially It is an application for a I V 'i writ of Injunction restralnlnir them from Inter im il 7 Y ferine; In any way with the salo by The Son of &,', Us news. jV flfti"'i Wo claim that thore Is no Issu oof fact. That tf Jfl'1' t. that the answer concedes enough to entitle jt ' '! ul t0 relief, prortded our view of tho law be Vk ,' correct. But It may bo as woll to state tho XI I facts as they appear on the pleadings. Th -p I " substantial averments of the bill of complaint ( i 1 are that ths complainant. Tub Bon, Is a m fhll corporation organized and existing under L L the laws of this State; that tho Assocl- IsSt., ated Press Is a corporation organized and WjjP J J existing under tho laws of th Stat of BR? Illinois, and It is agreed that tho purposes or RW the objects of the Associated Press, as set forth Vffw In its artlclos of incorporation, ore as follows: W,ffl "To buy, gather, and accumulate information Bltlk n1 QCWB! to vend, supply, dlstrlbuto, and pub- BmVsl "Q tho Barao! to purchase, orcct, loose, operate, HHwi and sell telegraph nnd telephone lines and other HB means of transmitting news; to publish perlodl- HX cals, to make and deal in periodicals and other BT' goods, wares, and merchandise." It is claimed Hn, In tho answer that the defendant has not sought KnLw to operate or to lease or sell telegraph or tele- Ik phono lines. It Is admitted that Its principal Lt'iJE business is collecting and selllns nows, although MR, in the answer an evasive plea Is set up that it Rjvf) does not really soli nows, but that it supplies wp news for a compensation, the distinction of Ire'1 which is not very clear to my mind; but we will so Fcri consider tbst question later. As to the business MfitfJ of the Associated Press, it is conceded in the BRnjv ) fourth paragraph of the answer and It might jfl be as well to consider the facts as they appear Ji; by tho answer, that Is, as to tho material aver Hflfi ' ments of the complaint. KV Judge Lacombe Vcs, because if the foots B stand on dlsputo in the affidavit, they cannot be Hn decided in your favor on a motion for pre- Kvj liminory injunction. Bfj Qon. Swayne If your Honor please, w hove E qulto a number of answering affidavits which Ht we will present. They are at the servlco of the Ht;t gentleman and will be handed to the Court. BJ. ft Mr. Bartlett They havo not been served on BBF" t-' me yeU f The Court Well, tbo contents of the answer ing: affidavits may bo stated at the proper time, Bfe; and after tho facts are presented to me then wo HajV j' will have the argumont. Kpi tub niairr to bell ncws. Htft Mr. Bartlett My theory of the complaint fls. It matters not what answering affidavits they put in now, they havo conceded enough in their answer to entitle us to relief. Thcro Is no dls- IK9 pute about the incorporation of the complainant HM or defendant. Tho socond paragraph of the Mjji' answer seems to imply an intention to raise the Hflj! quastlon of our corporate power to sell news. I II do not know 'whether that will be serioualy K1f & argued or not, as every newspaDcr throughout tf the United States Is now engaged in selling news to some one, and I do not think that Blf this objection should apply only against Hpr TlIX SUN Printing and Publishing Associv r ti& -nl cot against any other paper. I do HJi not supposo that that contention Is seriously HF'- raised. The answer says that The Sun was in- HAi oorporated solely for tho purpose of printing B and publishing a dally newspaper that Is, The Ky ' Bon Printing and Publishing Association was omSr and not for the purpose of ot any time or in any Hway soiling the news, and that said complainant is, not and was not authorized by taw to vend news. I do not know that there Is any distinc tion be ween the right of soiling or vending your news on a printed pago or selling It prior to its publication In tbat special form. I merely ' r allude to this point en paiaant. Kj-i Tho third poragrogb of tho answer admits the Wmi purposes ot the incorporation of tho defendant, 'S tho Associated Press, as sot forth In the bill of H complaint; and this answer has been printed by K'l ths defendant, and maybe your Honor would B!.' like to follow it I Handing a copy of the answer P" to the Court H The Court Tes, if you havo an extra copy. Hft Mr. Bartlett Ob, yes, I hove a working copy. Hjj The fourth paragraph of the answer admits that HK , the principal business of the Associated Press Is H buying, gathering, and accumulating lnforma- HRI tlon and news, and vending that is, selling It Uf ( and tbat its principal place of business is in the H I city of Chicago, but that It hos property within j M this district and a resident managing agent, H ' Charles S. DIehl, so I understand no question is MH ( ' raised as to the Jurisdiction here. Then there jSWL ' this denial in the fourth paragraph of the lajT answer: '& "But this defendant denies that vending or 'mi . telling the information and nows, so bought, (7i 1 gathered, and accumulated by It, constitutes ia'iffi ' any part of the business carrl d on by it; and jfiwi avers the fact to bo that the said information jlm't "' news, so bought, gathored, and uccumu- jCii: Ited by it, is sent out and distributed to its iafil -v'! orra members solely; except in cases hereinafter lltlWi 1 mentioned, as follows, to wit: First, tn two feWm, - iao It supplies Its nows to persons or corpora- UlnX) tions, not actually members, for a small consld- R'ft ftW'" orotlon, for publication twolvo hours after the I'itWvU tuo of such news by the members of the Asso- if" Sy.ft elated Press; second, a certain portion ot its " vA'S news Is exchanged with like associations, or ji" v B "' Individuals, in foreign countries, and in J jii some coss a weekly or monthly charge is mode, YlifiV) ' addition to the news furnished by suoh for- BsHIH ,IeD affenc'CB differential rate." Bill J Now, it appears from the various exhibits at- BljjJ sached to the answer, the contracts mude in Hr '(''' series A, with the stocklmldersot the Associated ImV. Press, and series II, with other newspapers K; " members of the Associated Press but not stock- -"J. holders, that the contracts refer to tho gather iw lag and selling ot news; so this plea, we shall H argue. Is simply an evasion. EM' news ab thadk. Hfri ' The Court It Is hardly so much a denial of tlT the fact ot selling news as ot tho fact that it lu sells broadcast to over) body; It seems rather an aWaH averment that lu dealings are confined to mem- K, bersofthe the ossoolatlon; that Is. It does not KL sell as you sell Tim Sun to every man who Hj$ pomes along tho streut with two cents to buy It, B8 out that it only sells to members of its assocla- H tlon. K Mr. Bartlett Yes, to 700 newspapers in the United States and to every paper having tele- B raph service, except Tub Bon: that Is, It con- fHt trola the whole newspaper business throughout KAait (he United htates with the exception otTuic Hon. KrCa The Court It says that It Is but a small pro- w)f?3 portion of the newspapers of the United States, wrafN not to exceed ono sixth, ? Mr. Bartlett I have here an affidavit which HU contains their printed Hat I will show it to RTO1 your Honor. aPH The Court I do not know how many poser 7flDjL' there are in the United States or whether (hat Wt printed list comprises one-half or one-sixth or AMrl cno-twentleth. . & Uf, OutUttr-Wcta, I do not know that it mki '' ." ammmmmtfriT ,'zi.frlSfiSlitlSIMSrihii I make any difference In any war. for one-slxtn is a very large proportion and Includes all the eadlns papers throughout th country. But we do not st-ind on the extent of their member ship as a ground of relief at all. . . Th Court Oh, no, but I was slmplr Cndtng out what were th admltttd facts on which this motion baa to be decided.. The controverted facts w will not pay any attention to. . Mr. Bartlett In the fifth paragraph we find an admission that the defendant, tho Associated Press, is engaged in Interstate trade and com more of course, not in that language; and that it distributes Its news from the Northern IHilricrof Illinois and from the Southern Dis trict of New York. ... Ths Court You do not claim that news Is a subject of trsde and commerce I Mr. Bartlett We think It Is, your Honor. The Court Have you any decision In support of that (proposition, Mr. Bartlett I It Is rather startling If a telegraph despatch sent from here to Now Orleans Is a subject of trade and com merce. It may be so, but It is rather a startling proposition. Mr. Bartlott Your Honor asked for an author ity. The pritclpal case, or one of the principal cases, upon which ths defendants rel wllfbo Matthews vs. Associated Press, in ISO New York, where Judge Peckham wrote the opinion, and where a by-law ot the Associated Press was considered in the light ot it being In restraint of trade. I will try to find the words.. liefer ring to book). There its' ems tn have been as sumed hat the coUectlmr and distributing of news means trade: the Court of Appeals saldi "We do not think the by-law Improperly tends to restrain trsde, assuming that the business of collecting and distributing news would com within the definition of trodo." The Court Assuming for the purposes of that argument, of course. It is not necessary to ex press an opinion one way or another. Mr. Bartlett Yes. but the Court goes on to decide the case without any reference to that question; of course our contention is that It Is trade, and that the language of the Suprome Court of the United States in the oseof the United Statos vs. the Trans-Missouri Freight Association shows that "trade" covers every thing. Your Honor mar, however, tak a dif ferent vlow. The Court No, I think, reading that opinion, that It covers everything. Mr. Bartlott We think that that decision is a great decision, and has thrown a new light on all this question. The admission In the fifth paragraph of the answer, if your Honor- rilease. Is, that "the defendant transmits ts news from the State of Illinois and from the Northern District thereof, and from the State of New York, and from the Southern District thereof, to its members, be ing the proprietors and publishers of newspapers In the several other States of the Union;" and then lollowsn peculiar plea, which we consider immaterial; it says "that It Is substantially a mutual organization, huvlng for Its purpose the collection snd exchango of news at cost. It has nsver attempted to mnke any profits or declare any dividends." Now, that sort of reasoning would apply to any sort ot combination or pool, and I do not think that is ot any material con. sequence. TUB WnONO DONE. The Court It would help me a good deal in following; the facts as you lay thorn down If you would tell me In about twenty-five words what tho defendant has been doing of which you com plain. Does It refuse to sell its news to any members of the association f Is that tha wrong they are doing you f Or do they refuse to sell you news I Is that It f What hare they done of which you complain ! Mr. Bartlett They hove done this. In the first place they bave enacted a by-law which is in restraint of trade. The Court What does that by-law say I I do not mean the whole text of it, but what Is Its street I Mr. Bartlett It Inhibits or prohibits any newspaper belonging to th Associated Press, stockholder or member, from buying ot or sell ing to any newspaper declared to be antagonis tic. Now we say such a by-law as that Is in restraint or trade. The Court And It is claimed that your paper is nntoaronlstlc Mr. Bartlett Yos: tbey first enact a by-law, and In the second place they Incorporate or re peat that by-law In every contract, and in the third place they declare Tub Son Printing and Publisnlng Association The Court Was that in a contract made with you! Mr. Bartlett No, we have no contract, but we ore suing as n person Injured by a conspiracy or combination to commit a wrongful act against us. We are not In tho position of a covenantee suing a covenantor in an action betwoen the two parties to the contract, but we claim that wo are the victims of a malicious wrong a com bination or conspiracy to Injure us. Now, what are the successive steps which we claim have been committed by the defendant I In the first place, as I hove stated, the enact ment ot the objectionable by-law, which of Itself may not amount to anything unless used as against us; tha embodiment, in tho seo ond place, of that by-law In the various contracts mode with newspapers, and in the third place the declaration that The Son is an tagonistic, or tho plaintiff, the owner nnd pro prietor of Tub- Son, Is antagonistic, and, in the fourth place, the commission of certain overt acts in consummation of the consrlracy or for effecting an unlawful purpose by unlawful menns. We claim that the by-law itself is un lawful, and wo say that the means exerted against us are unlawful also; and I say that on the papers and affidavits it la conceded that cer tain overt acts were committed against as in reference to three newspapers, the St. Louts Globe-Democrat, the Chicago Tribune, and tho Philadelphia Record. OVEBT ACTS COMFLUNED Or. Gen. Swayno What overt acts I Mr. Bartlett Compelling these papers to cease buying any news of us. The Court That is a conclusion. What did they do t Did they send them a notice I Mr. Bartlett They cited them to appear and notified them Tho Court That further dealings with Tun Son would be ground for Mr. Bartlett Suspension, res. sir. Qen. 8wayne If tbey continued to buy of TnE Bon, then they could not buy of tho Associated Press: that you must tako your choice, either buy of us or Tub Son. Mr. Bartlett Oh, no. that they would bo lia ble to the provisions of the by-laws, suspension or fine. The Court The provision of the by-laws be ing In tbat case that they should not receive any more news from the Associated Press t Mr. Bartlett And be subject to suspension, yes. Mr. Peckham If there is any other fact, Mr. Bartlett, I would 1 ke you to state It, because the papers and affidavits are very voluminous I have tried to read them all. The Court If that is so, hadn't we better see what the answering affidavits are snd then have the argument afterward I I think the un derlying broad facts are sufficiently stated, and you may make your argument after we get at the facts from the other side. Unless tnrre Is some peculiar fact which you wish to direct my attention to I would now rather have the facts presented br the affidavits wbtob rou have not seen, or which hare been offered by the other side; then I will hear you upon your argument. As I understand, there are affidavits coming in which you have not ret seen, and of course you want to know the substance of them before you proceed with your argument. Mr. Bartlett Certainly; but thero Is one fact to which your Honor's attention should be drawn at this time, and that Is that the object of the action on the part of the Assoolated Press against Tns Son Is not Its own protection. The object Is to Injurs Tub Son, and we say the case comes within that line of cases holding t hat where the object- The Court What facts show that, Mr. Bart lett I B1QUT CLAIMED Volt TOB BON. Mr, Bartlett Because each of these newspa pers has a contract running nearly a century with the Associated Press, that is, ninety-one or filnety-tno years, during the whole corporate Ife of the Associated Press, providing that It shall receive Its nows from tho Associated Press in consideration of the payment of a certain fixed sum per week, and in consid eration of the pajment of such additional sum as may be levied, not exceeding 50 per centum of the stipend agreed upon. Theso contracts are subsisting. All of these papers to which we refer In this bill of complaint have these con tracts to-day. The news purchasod by these ropers of The Son was not the same news as hat furnished by the Associated Press. Tho purchase of the news of Tub Son, Its special nows. in no way affected or lessened tho con tract price agreed to be paid to the Associated Press; in fact, the purchase ot our news did not damage or Injure the Associated Press to tho extent of one farthing; and ret they say "you cannot bur of I be New York Son. It matters not, the effect upon this corporation, but we de clare The Son to be antagonistic, and for that reason you cannot pay them any money," Now, I do not know any cse any wbero thiit holds The Court-I suppose it is conceded that Tub Son Is antagonistic! Mr. Bartlett No, it is not; ve take th posi tion that The Son,1s not antagonistic The Court Well, I have been reading TnB Son for years back, and I Inferred tbat Its posi tion was hostile to the Associated Press for a number of years. But I cannot take Judicial notice of that fact, Mr, Peckbam N; "TheBon shines for all": it Is antagonistic to no one. Mr. Bartlett I take the broad position and at tbesame time the definite position that Tub Son does not bring this actlou because of antag onism; It merely wants to be allowed to exist, to sell its news, when it does not Interfere with any other person. W claim the right thot any Individual has. that any corporation or firm (other than Tub Son, according to tbu Associ ated Press) has to exist. W claim that we col lect our own news at great coat and that wo might be ollowod to sell our special news to other newspapers just as the other newspapers in the city of New York are allowed to sell their special despatches. The Court Do rour affidavits show that other newspapers In the city of New York, situated similarly as Tns Son, are allowed to sell to members of this organization without inter ference t Do you claim that there is a discrimi nation made against rour paper I Mr. Bartlett That Is tho very trouble; there is. The Court Do rour affidavits show that I Mr. Bartlett Yes, sir. tbey do. These other newspapers happen to be members of the Asso ciated Press; but thot is where the personal hostility comes in. The CourtWhat I am' tryins: to get at is whether It is hostility personal to Tub Son or hostility to all fb.o papers that are not zaeabani ' of th organization t Is there anything which dlJTerrntlates Its action touching TnB Son t, . Mr. JJartlett But titer hare, all th other newspapers throughout the country, every lead ing newspaper throughout ths country. . The Court The contention Is that its member ship is but one-sixth of the newspapers. . .. Mr. Bartlett Tbey have every other leading newspaper in the country. Weclalm in the first placo that that sort of by-law Is Improper and that It shows npon Its face the wrongful Intent to Injure by discriminating against particular Individuals, firms or corporations. The Court Is that by-law printed t DISCIUUIHATION AOAIN8T TUB VON. Mr. Bartlett Yes, sir; rour Honor will find it ot Article XL ThoCourt Yes. page43; I have It. Mr. Bartlett Page 43, sub-dlrlslon 8 of Arti cle XL We claim that thot Is a very different sort of by-law from a by-law providing that you shall not purchase news of a like association covering alike territory; that it Introduces an element of arbitrary Judgment, of arbitrary discretion, of wrongful Intent, which is absent in by-laws of the other character. Now as to the question which your Honor asked about discriminating against Trra Son. It appears In our affidavits. In the Urst place It appears In the bill of complaint. In the thir teenth paragraph that the special news re ferred to In this action was tho sole property of Tux Son Association, ths complainant herein, and woo not the same news furnished by the de fendant, the Associated Press, or which the As sociated Press undertook to furnish Its stock holders or subscribers, and tha payment of the stipulated sum to the complainant In no WAV or manner affected or lessened the sum or sums which the sold newspapers were obliged to pay to the Associated Press. Thot Is conceded. Only In the answer the plea Is set ud, or tho claim Is made, rathor, to bo more exact, that It might possibly tend to disrupt the de fendant association. It says: "The ultimate effect would be the building up of a rlral organ ization." Thot, of course. Is mere argument; It does not show that. How could paying us a sum of money, not lessoning the sum paid them and not interfering with their contract. In any way Injure the Associated Press I The Court They might find out after awhile that tbey got morn nows and bettor news from you and might coaso to belong to the associa tion. Mr. Francis Swayne If your Honor will wait until you bear our affidavits on tbat point it is not conceded at all. Sir. Bartlett Your nonor asked mo if tha dis crimination against Tub SON was sot forth in the bill of complaint I The Court Yes. Mr. Bartlett It Is sot np In the fifth para graph. "The Associated Press permits and al lows such newspapers to buy or purchaso any special news which may be offered for sale by the proprietors or publishers of any newspapers other than tho plaintiff. Tun Son Printing and Publishing Association." It Is stated Tn tho answer that tbey do not affirmatively permit them to do It, but In our moving affidavits It Is set forth tbat the Herald, tho World, the Morning Journal, the Times, and tho Tribune, for example, ore allowed to sell their special news, nnd the by-laws of the Associated Pross show that papers other than those declared to be antagonlstlo are allowed to sell their special news. The third paragraph of Article XL. entitled "Duty of Members, says: "Tho news which members shall furnish as herein required shall bo all such news as Is spontaneous In Its origin, but shall not Include any news that is not spon taneous in its origin, but which has originated through deliberate and Individual enterprise on the port of tho newspapers first securing the same. Such original news shall be held to bo individual and special to that newspaper." The particular by-law we objeot to Is sub division 8 of Article XL. becauso we know to our cost the meaning ot tho word antagonlstlo, that Is, as used In the denunciatory resolutions of the Associated Press, but I Uko It that the third paragraph divides all nows Into two classes, that which originates through deliber ate and Individual enterprise, on the part of the newspaper, and, second, tbat which Is spontane ous, but which seoms ta'carer all the rest of news. I think tho facts are sufficiently clear. Qen. Swayno then made a statement ot facta on behalf of the defendant. TWO NEW AFFIDAVITS. The Court All the facts are now stated on both sides, nnd I will hear argument. Mr. Bartlett Let me ask your Honor to what extent you are going to consider the affidavits they hove put fn. They are very voluminous, and I bave only Just soen them. The Court Of course. If a fact material and essential to the granting of relief Is really In dispute upon the affidavits, relief does not fro by way of preliminary injunction; that s a matter which Is relegated to final hear ing, where the several affiants can be subjected to cross-examination; but of course there are a great many issues of fact which are always raised on motions of this kind by affidavits which aro not material or essential to tho determination of the main question. It is not necessary to bother yourself to answer such parts of tho affidavits as are not materially nec essary to the determination of tho question one way or the other, and really It Is hardly worth while to answer thoso points that are essential, because as soon as there is a conflict on the face of the affidavits, then the Court won't act In granting a preliminary Injunction, but will have to wait until final hearing. Mr. Bartlett Our moving affidavits have been printed through the kindness of the other side, nnd your Honor will havo them before you. I submit two other affidavits: I suppose there Is no objection. I suppose I have the right to bring In affidavits on the hearing, as they bring in theirs without service. The Court Let us see what the affidavits are. Possibly there will not be any objection. Mr. Bartlett One of thess affidavits which I now have Is from the editor-ln-chlef of the Inter Ocean averring that the servlco has been cut off, showing the continued hostility of the Asso ciated Press. Oen. Swayne There is no objection to that. Mr. Bartlett And the other Is on affidavit of Mr. Ward, who ts associated with The Son In this department. Betting up that you bave cut off the servlco of tho Baltimore Ilerald. Gen. Swayne No objection to that. We do not know that thoy bave done so, and It does not Increase our responsibility if they have. Mr. Francis Swayne I suppose there will be no dispute as to that, practically, I may ask leave to answer thorn. If I conclude that it is necessary to do so. Mr. Bartlett Certainly. I do not think the defendants' affidavits make any special differ ence. In fact. In the limited time which has been granted mo to look over the affidafllts now produced by the defendants, I am of the opinion that they are absolutely immaterial. Our po sition is this: It matters not what Mr. William M. Laffan may have done In the past in con nection with the United Press, or what the United Press may have done. I think the cases all hold that the complainant is either entitled to relief on theadmlttod facts as matter of low ornot.no matter what he has done in the past. It is of no consequence; so I say that all this his tory of the United Press Is absolutely Immate rial. Suffice it to say that the United Press Is insolvent; It Is In the hands of a receiver. It ceased to exist months sgo, and all these acts have been committed not against the United Press but against Tub Son. My distinguished frlond, Ocn. Swayne, says that we have been familiar with the long con test. Now, I never bad any part in the United Press fight. Iwasnevor counsel, and Mr. Davis was counsel all through the United Press con troversy, so I really have bad nothing to do with It. We stand on the rights of Tub Son at the time of the filing of this bill of complaint. It Is as though the United Press had never existed. My claim is that It does not affect our right in this suit In equity: and whether at some time In the past, some four or fire years ago, Mr. Laffan, In conference with other newspaper men. thought that a certain by-law of some projected association would be unobjectionable or not matters not. His action does not bind The Bus. and the action nr thA opinion of ono man connected with a papor does not make any wrong right or right wrong. We say that this by-law Is wrong on Its face, and It matters not who believod In It in the past or the present, The opinions of various gentlemen connected with the newspapers and at the snme time with the United Press do not affect tho merits of this action, or our right of recovery: and I think that nil the many pages nf theso af fidavits reciting the proposed amalgamation between the United Press and the Associated Press have no bearing on tho question now bo fore your Honor. And that applies to all the affidavits tbat have been submitted by the de fendants to-day, THE QUESTION OV CONBriRAOT. As to the question of conspiracy we have charged that the directors, the men who made the by-law, acted wickedly and unlawfully in contemplation of law and, of course, that Is the only question ve are arguing here but further, they combined and conspired to commit an un lawful net and tn the consummation of such com blnatlonand conspiracy thiyenactod this by-law. It raises a question whether that by-law is Ian f ul or unlawful. So us to tbo embodiment In tha contract, I think the averments of the bill of complaint are perfectly clear und udequatu, Tbey are drawn with some reference to the criminal law and with the same care tbat an in dictment would be drawn. I think, that there can be no doubt about tbo pleading being good as to the sufficiency of the averments as to com bination and conspiracy. Is there any question about that, General J Oen. Swayne I will reply when my time comes. Mr. Bartlett Well, I did not understand your position exactly about that. Now as to restraint of trade. O r grounds for mukiiu this applica tion nre twofold. lit tho first place, that tho by law. Its embodiment lu the contract, and the overt acts altogether amount to and each ono separately amounts tu a restraint of trade which Is unlawful under the laws of the United States and unlawful under the laws of the Htatn of New York, and also unlawful un der the laws of the Slate of Illinois, as stated la , the bill ot complaint. All these are unlawful under the laws of the United States and undor the lows of the State of New York. Again, that a malicious wrong In the nature of a boycott, or of the some general character ot any rate, an oppressive wrong which is unlawful at common law, has been committed by the defendants against this com plainant. Tbat is, tbey havo gone too far. That whotberthe acts be In ordinary restraint of trade or not. that no such malicious wrong can be sustained. But wo aro not obliged to plead any special statute of the State of New York or of the United States, ond In any event your Honor must take into consideration the existing stat ute of ths U<od States, which refer to Terr-, i thing coming within interstate trade and com , meroe, and also yon mutt take Into considera tion the declsloa of the Bupreme Court ot th United States. Allot these questions, in fact, in suits of this character Involving such Issues, coioo within the general toplo restraint of trade, and will be found referred to in all textbooks on restraint of trade. This Is In answer to the theory of Oen. Swayne. toot I ought to hare pleaded the aot of 181)0 If I wished to refer to It or rely noon It In this suit. I do not apprehend tbat such Is the rule of law. , ... Weclalm, In the first place, that the by-laws and the conceded facts show that the Associated Press is a monopoly or combination, unlawful and in restraint or trade, and aside from the by law to which I hare drawn your Honor s atten tion, that Is, section 8 of Article XL, I call your Honor's attention to tho provisions of tho cer tificate of membership, found at page 30 of tho answer, series A, which gives the holder of the certificate of the stockholder's certificate, series A, a veto power, and which provides that no now membership shall be created In his city, or such additional territory contiguous thereto, as may be specified in his contract, without the consent In writing of all tho holders of certifi cates of series A in such city and additional ter ritory. Tire associated rrutsa a monopoly. And In connection with the by-law I call th attention of your Honor to the de islon of Judge Thayer in tho caso ot the Minneapolis ZWouns Company, appellant, vs. the Associated Press, appellee, where the opinion concludes: "If we had not reaohed the conclusion hereto fore announced thot tha bill of complaint wos properly dismissed, we should then feel com pelled to consider a further question which Is not touched by ths brief nor by the oral argu ments, and thot is whether a court of equity should In any event undertake to specifically enforco and perpetuate a monopoly ot the nows by limiting the servlco of news reports to n single newspaper lu a large city and placing it within the power of the proprietor of such nowspapor to prevent other newspapers from having access to tbo sume sort of inlornta tlon. Tho fact that counsel have not soon fit to raiso or discuss this question, and the tact tbat tho bill was dismissed on other grounds, renders it unnecessary to consider it or to express an opinion thereon," It seems to me that implies that tho Court thinks that tho Associated Press Is a monopoly. Wo sny tbat Its by-laws, tha by-laws of tho do fondant, the Associated Press, Its various con tracts and all tbo conceded facta show that It Is a monopoly, an unlawful monopoly In restraint of trado, and we say that under tho decision ot the Supreme Court In the case of the United States against tho Freight Association, the by-law which wo especially attack and the other by-luw to which I have referred, nre unlawful and come within the Inhibition of the Sherman Anti-Trust act of July 2, 1800, and I call your Honor's attention to the opinion of that Court. Tbo Court Almost everything is .Tlthln that inhibition, of course. Mr. Bartlett Your Honor has probably read with a great deal of Interest this very abld work of Albert Stlckney where he struggles hope lessly against these two decisions, that of ths Peoplo against Sheldon In the Court of Appoals in thin Btate and tbat of the United States Su premo Court In tho case of the United States against the Trans-MIssourl Freight Association. In speaking of these cases he says that thoy "hold that a mere contract which provides thot the rates or prices for traffic or merchandise, shall bo fixed by one common authority for all tbo contracting parties, und which thereby pre vents competition between the contracting par ties, there being no interference with any lawful right of any other party, unless this mere agree ment bo sucb, constitutes n crlmo." Whetbor you bring your suit In equity specifi cally under that act or not, it cannot bo that a Federal court will disregard the fact that there is such o statute. After the 2d day ot July. 1800, In so for as the Federal Jurisdiction goes, the law was that any restraint ot trade was wrong. That was the Bettled law and you can not throw It out of any case that comes before 4K rntit tub niorrr to sob. Now as to a question which has Just been asked me by Mr. Frank Swayno, whetbor this bill was brought undor that act, I say that our grounds for relief are twofold, as already Indi cated, and whether brought specifically under that act or not tho Court would be obliged to consider tbat act and also to consider tbe do clBlon of the Supreme Court of the United States by Mr. Justice Peckham In the case of the United States re. tbe Trans-Missouri Freight Association. But I say that oven technical ly this bill In equity would He under that act. What was tho question there? Tho question was. could the District At tornoy of tbo United Sta'es bring such an action not whether a party Injured could bring the action, and tho objection was raised thcro against the action brought by the District At torney of the United States. It was said there, E radically: "You cannot bring It becauso you avo no property Interest; your property has not boon Injured," and Judge Peckham said that It was not necessary that the United Htates should have a pecuniary interest. The United States District Attorney could bring tho action. But ho did not say tbnt a private party could not bring the action, and I think tho whole Intendment of the conclud ing part of his opinion Is that It mere ly authorized it. merely empowered tho United States District Attorney In the District to bring such an action, but tbat such power was not necessarily restricted. "It is oIbo reading from oplnlonl argued that the United Statos havo no standing in court to maintain this bill; tbat tbey have no pecuniary interests In the result of tho litigation or In tbe question to be decided by the court." In other words, that tho hill should have been brought by a prlvato party, t-o the only question discussed was tho power of tbe District Attorney to bring it. The opinion goes on to say: "We think tbat tho fourth section of the act Invests tho Government with full power and au thority to bring such an action as this, and, if the facts be proved, an injunction should Issue. Congress, having the control of Interstate com merce, bus also tho duty of protecting it. and it is entirely comgetent for tbat body to give the remedy by injunction as more ehiclont than any other civil remedy. The subject is fully and ably discussed In the caso -of In re Dobs, 153 U. S. 104." I do not think that it is necessary to draw ynur Honor's attention tn detail to the various parts of the opinion of tbe Supreme Court of tbe United States in the Freight Association caso. Tho Court I am reasonably familiar with It, Mr. Bartlett lint I might coll your attention to one or two passages, where the Court say: " When the net prohl bits contracts in restraint of Undo or commerce, tbe plain meaning of tbe language used Includes contracts which relate to either or both subjects. Both trade and commerce are Included so long as each relates to that which Is Interstate or foreign. Transportation of commodities among tbe several Statos or with foreign nations falls within the description of tbe words of the statute with regard to that subject, and there is also Included in that language that kind of trado In commodities among the States or with foreign notions which Is not confined to their mere transportation. It Includes their pur chase and sale. While the statute prohibits all combinations In the form of trusts or otherwise, tho limitation Is not con fined to that form alone. All combinations which aro In restraint of trade and com merce are prohibited, whether In the form of trusts or In any other form whatever. When, therefore, tbe body of an net pronounces ob Illegal every contract or combination In re straint of trade and commerce among the sev eral States. &c, the plain and ordinary mean ing of such language is not limited to that kind of contract alone which is on unreasonable re straint of trade, but oil contracts are included In such language, and no exception or limitation can be added without placing In tbe act that which has been omitted by Congress." NEWS HELD TO DE A OOU1I0OITT. As I have thislangnoga which I endeavored to find before In Mr. Stlckney's book, I will read It. On page 174 of his book on State control of trado and commerce he says: " (Jn reflection, it Is difficult to Imagine a mer chant above the grade of a retail dealer who Is not within tho condemnation of this language cf the statute" Now I xpprehend that under thot decision of the Supreme Court e crythlng Is corerod trade of any sort, commerce of any sort, business of every sort, and If collecting or selling news is not business, what Is it t If It is not a commodi ty, what is It I One might ns well say that the telephone and telegraph lines do not conduct any business. The Court Yes, you are probably right there. My Impression at first was against that propo sition; but as I think of it, I think it is trade and commerce. Mr, Ilartlettr-Ts It possible that this enormous business which has been grasped by this great corporation Is not trade and commerce I The Court Yes; It Is trade, of course; as much trade as selling a book, Tbe very Senate that passed tho law did not know what tbe words meant when they put them In. Tboy said thoy would have to leave it to tbe Court to define tbem, Mr, Bartlett I have often thought when I bave been Hitting tu the House or Representa tives that tho various members ot tho House did not know what they woro doing. Ths Court They said with great frankness, In passing tills act, that thoy did not know. Tbe Chnlrman of tbe Judiciary Committee In tne Senate was asked what was the meaning of the word "monopoly" and the moaning of (lie words "restraint of trade," as used there. nnd bo sold, " We don't know. Tbe courts will have to Inform us of that when tbo act gets there," THE OIIEATEST OF TROBTB. Mr. Bartlett-I havo in this affidavit tbe names of all the papors who at one tlmo were members of the Associated Press, and I think It Is averred tbut Ibev are only about ono-slxth ot tho nenspapcra In the United States; still they are all the leading papers and all the papers ti at bave any telegraphic service; and the rory papers that day after day denounce trusts and monopolies In this city and other cities havo combined with other parties to form a more widespread, all-embracing trust nnd monopoly than any of those trusts and monopolies upon which they animadverted. Tbe question Is, Is this monopoly so powerful tbat one newspaper, one Individual, one firm, one corporation has no roltet against Its oppressive measures! Now we will assume that dealing In news, selling nows. Is trade or commerce. It is con ceded on the ploadings that tbe defendant's news was sent from the Northern district of Illinois and from the Southern district ot New York nil over the Union, and there are other statements here, other porta of the answer ad mitting the some facts; that U, whore It I stated that tii newspapers whoso proprietor art members of the Associated Press are situated in different cities and In different 8tats or the Union and tbat "The nws thus gathered by employees Is transmitted by the wires of the I various telegraph and telephone companies to the members of the association." 1 The Court Thot is probably not trade. Do not trliunderstahd me. 1 did not mean to Indicate that I was now of opinion that what the ae fondant did, as Judge Swayne defined It, was trading. I do not suppose that is trading, where I they form a combination or copartnership or association and employ agents to gather news for themselves and use lu But what they nre Interfering with Is tha sale of the news you J rather. I do not mean to imply it is trading for ndlviduals to form on association and gel men to gather news and use It and exchange their own news, although they mar pay for It by somo system of charging It back nnd forth and equalizing. Of course, tho question Is not whether they ore trading or not, but whothor their act are Interfering with your trading. I am now very strongly ot the Impression that If you gather news ana offer it to somebody for sale, and thot person agrees to buy It and you send it. It 1 Just tbo same whether you send It over the telegraph wlro or whether you print it In a book or newspaper and send It. It is a trading act Mr. Bartlett The only point to which I was then about to refer was that If collecting and selling news be trado, then this Is a question of Interstate trade and commerce Now I do not agree with the contention of Gen. Swayne that it makes any difference whether this Is a mutual association or not; I claim tbat their acts are just as Illegal and Just as wrong. I tako tho old cose of Hooker & woodward vs. Vandewnter, In the fourth of Denlo. where tbe proprietors or various lines of boots combined to-icthor and made a sort of mutual organization to dlvido tho net earnings: "The proprletorsof five several lines of boats engaged In the buslnoss ot transporting persons and freight on tho Erie and Oswego canals en tered Into an agreement among themselves to run for the remainder of tho season of naviga tion ot certain ratos for freight and pnssngo tbenagrocd upon, but which were to boebnnged whenever tbe parties should deem It expedient, and to divide the net earnings among them selves according to certain proportions lixod In the articles. In an action on tho agreement against a party who had failed to mako payment according to tho contract, hold, that the agree ment was a conspiracy to commit nn act Injuri ous to trade, contrary to 2 it. S.. C01, section 8, and was Illegal and void." TnB ATTEMPT TO CItUSII TUB BON. I take It that a corporation claiming protec tion by reason of tho theory ot mutual organiza tion cannut avoid liability for the wrongful nets of Its directors snd that It ts just as liable to tho rules of law as though It bad no mutual rela tions, or alleged mutual relations. Now docs this ned any argument I Wo will say on July 2, 1890, sucn was the law of the United States; that is, the old law had been changed tbat an unreasonable restraint ot trado was Ille gal, that a reasonable restraint was valid that had been abrogated. Tho rulo of law, as far as It affocts Federal courts and Interstate trado and commorce. had been changed: a now rulo was established long prior to tho filing of this bill of complaint or tho com mencement of this suit in equity. Can It be doubted thot tho provisions of the by-laws to which I have referred are In restraint of trado I Your Honor Is awara that It matters not what the effect of the restraint of trado may be; whether that effect la good or bad. Tbo question Is, on its very face, does not that by-law coma within tbe prohibition of tho statute, within tha rule of tbe Supreme Court of the United States! Does not the by-law which gives a veto power to any newspaper enjoying ths rights under comracc acnes a, wn win say in junncapous, St. Louis, or New York, to keop out another paper. Is not that in restraint of trade ! Do not those two by-laws tend to show a combination, a desire to create monopoly, as Judge Thuyor says, in regard to this very by-low t The gentle man says that our position Is different. A paper tbat buys and collects its own nows at a cost of hundreds of thousands ot dollars Is told that It stands In a commercial or mercantile position whon compared with an association embracing all tho great newspapers throughout tho coun try. It seems to mo that the commercial spirit, the mercantile spirit not using those words In their better sense, in their truer sense, but using them In the sense of that spirit which moans avidity or avarlclousncss, tho drslro to gain Is shown rather by this great corporation which takes us by the throat and throttles us and says: "Yon shall not exist; wewlll crush you out of existence: we will not allow you to re coup one dollar that youexpend for tho collection of your news, becauso we do not like yon; not that it diminishes the money no take in. not that it lessens by one penny tbe amount in our treasury, but because wo do not like you, be cause some years ago you wero connected with another association, nowcrushod out of exist ence through our efforts," for, as stated in tho able argument of Gen. Swayne, of tho four papers who dared to resist three havo come Into camp and have succumbed to the efforts of the Associated Press. Now our plea Is only for existence. It Is a prayrr to be allowed to sell our special news to papers who are anxious to buy It. And I will say one thing, with all respect to tho Court, that I believe that if this suit lsdocldedngalnsttbo complainant, you might just as well never at tempt again to restrain any mo opoly or any combination, "because I do not know of any by law as drastic as barah, as cruel as this by-law which comos now for consideration before you. Now passing beyond the consideration of tho Federal statute and decisions, I shall endeavor to show your Houor that this sort of combina tion ana conspiracy Is shown by the admitted facts, by tbelr by-laws which tbey attach to their answer, to be Injurious to trade and commorce under the laws ot this State, that Is. Under the Penal Codo reSnactlng th old provisions of the Revised Statutes, which took effect, in'-1830, and under the deolsiOnb of the Court of. Ap peals elucidating or consiruing those provisions of tbo criminal law. It dors not mako any difference whether the question arises in a criminal cose, a case of Indictment, or In an action brought for the forfeiture of n charter. The question is. Is thli son of combination sup ported by the law of thlsStnto! Is it not un lawful in the sense of bolng even Indictable and criminal under the statutes and under tbo de cisions of our courts! In reference to that ques tion I refer to Section 108 of the Penal Codo: AN ONLAWyOL COMMNATION. "If two or more pernons conspire (subdivision 6) to commit any act injurtowf to tbe publlo health, to public morals, or to trade or comvi rcc, or for the perversion orobstructlon of justice, or of the due administration of the laws, each of them Is guilty of a misdemeanor." And I ear. taking the declsl n of The People against Fisher In tho 14tb Wendell, tho case of Hooker & Woodward vs. Vnndowatcr In the 4th Denlo, 340, the case of Stanton against Al len In 0 Denlo, 434, and threo cases In tho Court of Appeals, that there cannot remain, after an examination of those cases, any doubt in the mind of the Court as to tho unlawfulness of this combination shown by the papers. The first caso in the Court ot Appeals is Arnot vs. Tbe Plttston and Klmlra Coal Company, re ported In 08 N. Y., 058. The question was as to the validity of a contract made between tho Butler Colliery Company and the defendant, Tbe Court Thoy would not soil their coal to finvlirulv HTiTt nnnmnn Mr. Bartlett -Yea. And tbe opinion cites all of the earlier cases to which I have referred. Xt holds "that a combination to effect such a purpose Is inimical to the Interests ot the pub lic; and that all contracts designed to effect such an end are contrary to publlo policy, and therefore illegal. Is loo woll settled by adjudi cated cases to be questioned at this day." Now we come to tbe case of tbo People vs. Sheldon. But lot mo first refer to tho case of Matthews against the Associate I Press. Tbat will bo referred to by the distinguished counsel for the derendanu That was a case brought by Mntthows to have a certain by-law of tho Asso ciated Press of the State of New York declared legal. That by-law restrained a member from buying news of any association covering alike territory a llko association covering a like ter ritoryand Judge Peckham decided that that was a reasonablo by-law, nnd, ot course, slnco tbut tlmo the newspapers connected with tho Associated Press bnvo alw ays cald, " Oh, w n are all right; we luvo this decision of Alutthons agnlnst tho Associated Press, nnd so over) thing wo do Is legal," Now, tho by-law before the court Is very different in character. It is not forbidding the buying of news of any like asso ciation covering a like territory. We say that tho Matthews caso Is no authority, becauso tho by-luws differ: and that tho use of the word "antagonistic Introduces the clement of arbi trary discretion orcaprlco, Tbe Court It Is not "antagonIs'Ic."but "de clared by the directors to be antagonistic" EFFECT or TnE Br-LAW. Mr. Bartlett Yes, It leaves It open to bias, to prejudice, to ill will and to malice not necessa rily the personal malice of the drama, but tho legal malice, the malice In tho eye of tho law, for which all of ua lawyers caro far more than for the malice of tbo drama. Now this case In 130 Now York was decided in January, 18U3, anil tho by-law thencoiiBld red was: "No member of this association shnll recetvo or publish the regular news despatches of uny other news association covering n like territory and organized for a llko purpose with this asaj elation." Now, as I conceive It, that by-law Is far less objectionable than tho one now undi - consider ation. The Court As I understand this section, the members of the association cannot purchaso tbe nous that they themeo'ves gather; thoy cannot exchange the news that the) tlic-mschcs gather. Mr. Frank Swnyne Tlior do exchange nows through tho common medium of tho Asso elated Press, and thero is a provision that jour Honor spoke of by which they cannot sell spon taneous news, that Is, iBuppose, nows tbat doas not transpire breathe out to tho publlo goner ally, Mr. Bartlett They can furnith to other pa pers spontaneous news, but their special news, that is, tbe product of their deliberate and Indi vidual enterprise, tboy have n right to sell. The Court Tbey cannot sell to members of the association without express permission and written consent of tho Board of Directors, can they! It says: "No member shall furnish news to any other person, firm, or corporation engaged In tho busi ness of collecting or transmitting news except with tbe written consent of tho Board of Di rectors." Qen. Wager Swayne That means a news agency, not a newspaper. It never had any I other significance. I TtsQjurt-Then, except for tbo declaraUoa ' of antagonism, they could to and tar from any- Gen. Wager Swayne Thot Is all there I to It Slmpiy'nquestlonofselr-defonee. The OourtThatls tho weak part of your by law, I think, because thot leaves it so mnch to tho Individual determination of the Board of Directors. ... .. Mr. Peckham It cannot be any worse than tiro actual provision In the by-law against the thing to bo done. All that tho directors can do is to tiring it up to tho level of the by-law, undor the New York esse. , .i- Mr. Bartlett Thot was o verr different case. Matthews was a newspaper editor who wanted to bare the sorvlce or tho Unttod Press as well as of the Associated Press, and Judge Peckham said that these associations covered llko terri tory, and so they camo within the prohibition of the by-law. nnd tbe by-law was reasonable. The question was whether It was a reasonable re straint of tradoor not, snd ho rotors tocasos like tho Diamond Match Company vs. ltoeber nnd Leslie vs. Lorillard . . . The Court Ho dissented in the Hoebor case, didn't ho I Mr, Bartlett Yes In whloh tho strictness of the rule seemod to havo been somewhat relaxed. Tho views announced In this Matthews caso sc-em to havo been abandoned by the loomed Justice In his later decision In tho Supremo Court of tho UnttodStatos. , The Court That was construing that Fodorol statute. UNLAWFOL nESTIUINT OF TRADE. Mr. Bartlott We say thot this Matthews caso has no application. Tho by-laws differ, ths other by-law was less objectionable, and it Is not nocessary to decldo whothcr such a by-law would bo proporor not. Wo are considering a dlfforent,by-law. And I say further that this decision by tho Court of Appcnlsin tho Mntthows caso. 130 Now York, cannot be roconc lied with tho decision of tho same court in 130 New York, in tbo Peoplo vs. Sheldon, ond with tha decision ot tho same court In the caso of the Peoplo vs. tho Milk Kxchango.ln 145 Now York, whore Judgo Halght rendered the opinion. It you will examlno Mr. Stlcknoy's book you will see that he expresses his admiration ofthls de cision, but he la unable to approve tbo views ot tho same court In the two other cases to which I have just referred. Another point. If your Honor plosse. Take tho dissenting opinion In the United States vs. the Trans-MIssourl Freight Association. Ths doclslon In tha Matthews c-ibs Is udmlrod, espe cially br the dissenting Judges. That Is, they tako the saiho vlow which would seem to have been taken by Judgo Pcckhnm In tho Matthews case. Thoy said the question is not whothor it Is In restraint of trade, but whothor it is an unlawful restraint of trado and that restraint of trado really meant only an un lawful rostrnlnt. That Is tho Kubitnnco of the decision, asldo from holding the Sherman Anti Trust act bad no application whatsoever to common carriers. So far as to this decision of Judgo Peckham In tho Matthows caso, let mo add ono word. It wasavory different case. Thero whs a member of tho Associated Press suing tbe association. We do not stand In that position. We are an oppressed out side party and wo havo mude no cove nant or agreement with the Associated Press, and tho rules which might apply between convenantor and convenantco do not apply to the caso now before your Honor. Let us look at tho Sheldon case and consider the Penal Code, consider that code which declares anew u law which has existed In this State ever slnco tho year 1830. Take tho early decisions of our courts and theso two rccont decisions, and it scorns to mo that your Honor will boo that any corporation which enacts such by-taws has com mitted, by tbo very enactment of such by laws certainly by the embodiment of such a by-law In Its contracts an act Injurious iu irauo ana commerce laKe tne snei don case What was the combination there! To prevent ruinous rivalry; and yot the Court held that that was Illegal. It de stroyed freo competition; that was tho reason. Can your Honor road theso by-laws and say that they do not destroy competition! Can your Honor rend tho bill of complaint herein and tbe anBwer and say that tho conceded facts do not establish tho desire, tho strenuous effort on the part of tho dof-ndunt, to crush out competition, to destroy competition to far as wo aro con cernednot only to Injure us, but to destroy us, to oxterminato us. to annihilate us, as far as our buslnoss Interests are concerned ! We huve not 1 1 consider tho question as to whether tbo business of buying, collecting, and selling news, carried on by tho Associated Press, was business Impressed with a public duty like that of a common carrier. I do not caro to dis cuss tbat question, though I might say that the true test In such cases Is tbo articles of incor poration, tbe charter, and that it might be ar gued and has been argued that whero those ar ticles of Incorporation give tha right to ereot and operate telephone and telegraph lines the corporation comes under the same rulo OB telegraph and toh phono companion, and Is assimilated to the rules applicable to common carriers. But I do not think It is necessary to decldo that point. I think It may bo said that It Is clear that tho nature Of the business, the transmission of news by telegraph and telephone oil over the country is a business In which tho public has an Interest, and if it wore a question res nora, or ret Integra, not fovcrnad by nay statute laws or any doclslons, do not.tblnk court ought to build up a com bination or monopoly which tends to crush out all competition in such an industry. Judge Andrews said in the Sheldon case, speaking of tho combination: "Tho organization was a carefully devised scheme to prevent competition In tho price of coal among the retail dealers, nnd the moral and material power of tho combination afforded a reasonable cuara.iteu that others would not en gago in tbo business in Lockport except in con formity with tho rules ot tbe exchange." AN ORGANIZATION TO PREVENT COMPETITION. Now, what is tbo Associated Press I It is woll 'known that it is an enormous concorn, and prac tically It has crushed out other organizations. There Is practically no competition in the country, I will take tho Sheldon case on another point We claim that a conspiracy or combination In the eyo of tho law has been established by tho admitted fact that the directors made this by law or continued it up to tho present timo nnd by the fact that it wus lnscrtod through tbo ac tion ot tho directors In tho various contracts made, and further that tho overt acts admitted are sufficient. Tho first head note in the Shel don case says that if the ngrcoment be illegal and ono overt act Is shown, that is suffi cient to establish tbo conspiracy: "Where an unlawful agreement Is shown and Bome act Is proved showing that the par tics bavo proceeded co act upon tho agreement, the offence Is established." Now, Gen. Swayne devoted somo timo to explaining the good nets of tho directors, and nil that sort of thing. That Is not tho issue. Wo aro considering tho ques tion of combination and conspiracy, and of a wrorcful and malicious act from a legal stand- fiolnt. That is, we are not going into the qucs lon ot tho motives which animated or In spired these directors. If a man sa)s to me: "I deslro to stop you from practicing law; i uusire to aeprlvo you or your right to earn tbo means of subsistence," It would not mako very much difference to mo what his Intent or motive wob, if he proceeded to act on that theory and to carry out his design to crush me. That is, the practical result would bo tho same to me, and I Bhould not care very much whotberhe was only guilty of legal malice, mallco In tho eye ot tbe law because of having dune somothlug unlawful, or whether he was Inspired by personal animosity. That would Ik orae not even au academic question for hy pothesis or conjecture. "Tho question here," said Judge Andrews In the Sheldon case, "does not turn on the point whether tho agreement between the retail deal ers in coal did, as matter of fact, result In Injury to tho public or to tbo community In Lockport, Tho quostlon Is. WaB tho agreement, In view ot what might bave been done under It, and tbe fact that it was an agreement the effect of which was to prevent competition among tho coal deilers, ono upon which tbe law affixes the brand of condemnation I" lie thon goes on to consider tho articles and tho by-laws, and continues: "If agreements and combinations to prevent competition In prices aro or may bo hurtful to trodo, tho only sure remedy Is to prohibit all agreements of that chtir.ictor. If tho validity of such an Hgrec-ment wus mnda to depend upon actual proof of nubile prejudice or Injury, It would be very difficult In uur caso to establish tho invalidity, ulihougb the moral evidence might be very convincing." Now, I call your Honor's attention to Judgo Halghl's opinion in tho rase of tho People vs. tho Milk Kxchange, where ho mentions with approval the People vs. Sheldon, and to Arnot vs. tho l'ittston nnd Klmlrn Coal Company and Jo thi other casus tu wblih I havo referred, that Is, to thocuaesln the 14 Wendell ond In land 5 Denlo. and inys: "Applying tho rule (bus established to tbe evidence under consideration. It oppeors to us that a caso 1 1 presented In which tho jury might have found tbat tho combination alluded to wus Inimical to trade nnd lommureo and therefore unlawful. It may be claimed that tho purpoho of tbo combination wns to reduce the price of milk, and that, It being an article ot food, such reduction was not against public poli cy. But tho price was fixed for tho benefit of the dealers, nnd not tho consumers, and tho logical effect upon tho trado or so fixing the price by the combination was to paralyzo tho production nnd limit tho supply, ami thus leaves tho dealer In a position to control tho market, and at their option to en. nance tho price to bo paid by the consumers. Ibis brings tho cose within tbu condemnation ot tho authorities to which w o havo referred." THE AUSOCIATKI) WEBS CLKAHLY A MONOPOLY. Is It not tho logical effect of any such by-law conferring such u broiddlsiretlon upon tho di rectors, to jMrulyze and crush out all competi tion In tho matter or gathering ond selling nows; and having crushed outnll competition throughout tbo United Btatos, what will be the next step I To Increnso tho aesuesments, to en hance tho prlco, for that Is wltnln tho power of the directors by theso bylaws, I sny. in the first place, that tho Associated Press Is closrly a monopoly and combination unlawful initsna '""ii,"",1 l.ue tyr-Uw' "lth 18 ""no provision embodied In the contract, and the over" acts admitted that Is. in the caseV if the Chicago Tribune tho Ht. Louis Globe democrat and the Phllndolphlu JiecorU, show thatiin crthu Foderal statute and uncfer tho dec slons of the Supremo Court of the United ?"lS.")ero,' ". unlawml restraint of trado: that tho actions of the Associated Press, the de fendants, amount, to an unlawful restraint of trade, or a . restraint of trodo which uuderiho statutes of the United States, whether it hiiSZ oMbj or wjreasoaaWe, i unlawful, to tb MHllmmmmimmimimmmm11mmlamtm.S second place, that tinder the lows of theStat of New York, as Interpreted in the cases to which I have referred, the conceded acts of tha defendants wero injurious to trodo nnd com. Let ns see about Illinois. An octlon was . brought tho other day by the Chicago Inter ' Ocean. In the moving papers you will find on affidavit of Mr. William Penn Nixon, ono ot th owners of the Chicago Inter Ocean, nnd that sets forth tho notice served by the Ass elated Press npon tho Chicago Inter Ocean, and it sets forth i the complaint made by tho Cnlcago lltrald to tbe Board of Directors of, th Associated Press, whloh rends: "Tho following havo been declared antagonistic: The StmPrin ing and Publishing Association of New York, Tub New Yoiik Son. tbo Laffan News Bureau of New York." The defendants sm in their answer or In their affidavits that among others the com. plalnant has been declared to be antagonistic They Include the various names undor which wo exist, Wo are Tns SON Printing and Pub lishing Association or wo are tho Ltffan Nows Bureau, or we are Tub New Yon Son. and the fact that we mnke up the three In varying as pects, and tbnt wo are denouncod under three dlfforent names. Is urged to show that they bav not discriminated agnlnst the complainant Now, if your Honor pleaso. the Chicago Inter Ocean filed a paper In the Supremo Court of Illinois against tho Associated Press. TOB BY-LAW DECLARED ILLEGAL. The Court As a membor of the Associated Mr. Bartlett Yes. as a member. And Judgo , Waterman made a decision which Is right Tn part and wrong In port In tbe main It helps, because wo nre not a membor of the Associated Press suing the Associated Press; sows do nol depend upon tbo doclslon of Jndge Waterman, A considerable partof the opinion of the learned Judgo Is devoted to tho question whether ths Associated Press was a corporation tbe business of which was impressed with a publlo duty like the buslnoss of a common carrier. He decide that such Is not the case, becauso there is no stntuto ileclnrlng.it to bo so. I doubt whether that ts the test Hogocso osay, substantially, that the non-user of tbe right ot eminent do main, or the right to operato a telephone nnd telegraph lino, mokes It a tost That may bo. I believe, however, that the artlclos of Incorpora tion aro tbe true test But as I said, wo do not depend upon that point ns to th duties Impressed upon the Associated Press. Passing from that question, there wer two other points decldod by Judgo Wa terman. One was tho , point . as to tho divisibility or the contract In which be proceeds to overrule all the English decisions and the Su preme Court of the United Statos and the law writers and to decide that a contract cannot be divided anew rule In referenco to contracts a) legod to be In restraint of trade and I shall re fer to that matter later. I do not remember that the words " divisibility of tho contract" nppoar or that an averment that the contract Is divisible nppoars anywhere In my bill of com plaint But we will argue that as a sort of old Issue, very briefly, becauso I do not propose to detain your Honor with collateral Issues. Tho Court U It is a side issue, what Is tbe ui of arguing It at all! Mr. Bartlett I will show your Honor In thrc or four minutes that such a contract is divisible It might be nrguod by tho other sldo: "It jou say that this by-law Is wrong and you expurgate the objeotlonable by-law from our contract our contracts will not remain." Merely In tbat view I shall allndo to the question. The Court Walt until you have heard their argument before you refer to the divisibility question. U they soy nothing about it you can leave it Mr. Bartlett Now, Judgo Waterman wos right on one point The Court That is consoling. Whot was tlinf Mr. Frank Swayne He dismissed their bill. Mr. Bartlett That was his decision, that ths by-law, tbe objectlonablo by-law. Is In restraint oi trade, and his decision was flatfooted. The Court That Is subdivision 8. Mr. Bartlett Yes; be dismissed the bill, Why I Because he said that tbe Illegality and unlawfulness of that one provision In tho con tract affected tbe whola contract and m uio it void, so that neither party would have roller as against the other. Or course he was mistaken on that point But tbe main Importance ot ths decision, as affecting thecise on argument. Is thnt It is a decision of tho Supreme Court of the State which Incorporated this defendant, that the by-law lu question Is unlawful. Tho Judgo says: "By the rulo of tho common law, on agree ment In general restraint ot trade Is Illegal and void, but an agreement which operates in par tial restraint of trndo only, is good, provldod It Is not unreasonable and there be a consideration to support it; the reasonableness or unreason ableness of the contract Is not a matter to be left to the Jury, but Is a question of law for th court." TUB INTER. OCEAN DECISION. Ot oourso, the question as to general restraint ot trade, or partial restraint of trade, hardly arises on this argument, except It may bo Bold that tho character of this monopoly Is shown by the unlimited tlmo that Is. unlimited in so far as wo aro all concerned of ninety-one and ninety-two years, during which thess contracts with tho various papors throughout tho United States are to go on. I say that the facts that tbe business embraces tho whole of tho country, that It is unlimited In its opera tion as to space, an I unlimited, from tbo practical standpoint as to time, show that the manifest Intent of tho combination Is to create an all-etnbracing monopoly. Judge Waterman refers to the statuto of Illinois passed Juno 20, 1893, "An acttodoflne trusts and conspiracies against trade," declaring con tracts in violation of the provisions of this act void nnd making certain acts tn violation there of misdemeanors and prescribing the punish ment therefor and matters connected therewith and containing among others the following pro visions: "Bolt onacted, &c, that a trust Is a combina tion ot capital, skill, or acts, by two or more persons, firms, corporations, or associations of persons, or of two or more of tbom. for either, any, or all of the following purposes: 1. To cre ate or carry out restrictions fn trado. S. To limit or reduce the production or Increase or re duce tbe price of merchandise or commodities. 3. To prevent competition in the manufacture, making, transportation, salo or purchase ot merchandise, produce or commodities. "Sec. 8. Any contract or agreement in viola tion ot the provisions ot this act shall be abso lutely void, and not enforceable either in law or in equity." Then ho cites the act of July 2, 1800, the Sherman Anti-Trust act of Congress, and quotes from tbe opinion of ths Supreme Court of the United States In tbo caso of tbe Trans-Missouri Freight Association. After discussing tho gen eral rulo that competition is tho life of trado. o which he gives his approval, tho learned Judg says: Whatever news mar hare been before ths Invention of printing, it is to-day a commodity baring a salable value. In the collection, trans portation and salo of which many persons ars engaged, depending thereon for a livelihood, and employing a largo amount of capital. Tbo contraot entered into between tho complainant and tbo defendant binds tbe complainant not to furnish Its special or other news to and not to receive nows from any person or corporation which shall bave been de clared by tbe Board ot Directors of tbo defendant antagonlstlo to the defendant Such a contract Is clearly in restraint of trade, nnd as It by its terms contemplates ths collec tion and transportation of news within a radius of sixty miles of Chicago It embraces Interstate commerce No reason Is given for tbe existence or such provision in restraint of trade, except that thereby competition with the defendant is f invented, nnd tha complainant Is prevented rom buying news by means and from sources which It could othorwiso lawfully avail ilsolfof. It Is urged th t tbe defendant in Its collection ot news covering tbe ontre country, and having the field exclusively to Itself, could and would furnish news at a much less rate than it would otherwise be enabled to do. Such Insistence, If sufficient, would render Inoperative all tbo statutes against trusts, combinations, ond con tracts in restraint of trado, as well as the rults of the common law. The clause of tbe contract restraining trade being Illegal, what remedy. If sny, has tbo complainant upon tho agreement as entered Into I" We consider that decision of Importance as bowing the vlow taken by tho Supreme Court of Illinois of this particular by-law, n decision that tbe by-law is In restraint ot trade, not only under tbe Federal statute to which the Court alludes, but undor tho laws of the Stato of Illinois. MAUCI0O8 ACTS AOAINBT TUB OOUPLAINANT. I have considered thus far the unlawfulness of the by-law, of tbo contract and of the acts of the defendants, under tho lows of the United States, under the laws of the Stato of New York, and under tho laws of the State of Illinois. It I e mains now to consider the question of tho malicious and wrongful acts against this com plainant, aside from the quastlon of restraint ot trade, and their unlawfulness as being in re straint of trade. It may be said to be part of tho same generul subjoot of restrain! of trade, but It is thot subdivision ft tbo restraint of trade which I oJv nccted with Instances of oppression, and oppn s slon In the ovu of the law, or tho Intent to Injur a person rather than to protect rour own Inter ests. That is our contention. Wo have a caso whore tho temporal harm of the complainant Is tho controlling principle and not tbo protection or "lvancement of the business of tho defendant. Now, your Honor has Intimated that I should not touch the question of divisibility, IhoCourt No; llio argument has taken pretty long now, nnd It may bo possible v avoid that, becauso when your adversaries arguo thoy may not sny anything upon that branch whli h It Mill bo no t sarr for you to answer. Mr. Bartlett-Posslbly your Honor will find that ono of tho decisions which recehes to JJ?1! J1'I',ro,vaJ,' Mr- Stlckner Is tho di-t.ls.i- n of the Kaullth Court of Appeal in tho case of U' ??Sul Hl"nishlp Company vs. McOregui Jifr!'.c'niey."aj'.',iuaf ' verr und law. I wdl alludo to that .briefly, because there arc citation! from the opinions there which show that w her ever the Intent is to injure another, whe-nowr tbat o ement comes In. by the common law ?n.a!ron "eai Yur 'IoBr will rcrolht tbat the question there was whether I' ,1 Proper for tho defendants to allow a ich. ?r'i, ver. ?nt" .on. 'hlpnients of tea I' I Hankow to Shanirhol. If that doclslon bo . I JI against mo. 1 say it has no boirlntf; that lu - was merely tho holding out of a robito i Vft bu Iness, and. It might bo sold to ho h-i fectlr proper within tbe ordinary rules of trade vuM "In '"onned tothlnk that the rullnjr of tho Knglith court would not bo followed in this court, because It is especially based on tho fact UMHlt not Ua policy of tbtlr law to latwfsra , ,L.-..)frn . JjjM