UNITED STATES V. BORDEN CO., 308 U. S. 188 (1939)

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U.S. Supreme Court

United States v. Borden Co., 308 U.S. 188 (1939)

United States v. Borden Company

No. 397

Argued November 15, 1939

Decided December 4, 1939

308 U.S. 188


1. A judgment quashing a count upon the ground of duplicity is not appealable to this Court under the Criminal Appeals Act. P. 193.

2. The construction of an indictment by the District Court binds this Court on an appeal under the Criminal Appeals Act. P. 308 U. S. 194.

3. A decision of the District Court holding that an indictment failed to charge an offense under the Sherman Anti-Trust Act because of the effect on that Act of later statutes, held a construction of the Sherman Act and reviewable under the Criminal Appeals Act. P. 308 U. S. 195.

4. Repeals by implication are not favored. When there are two Acts upon the same subject, effect should be given to both if possible. P. 308 U. S. 198.

5. The Agricultural Marketing Agreement Act of 1937 does not operate to repeal the Sherman Anti-Trust Act in its application to agreements of producers, distributors and others, restricting interstate commerce in milk, when such agreements are not participated in or directed by the Secretary of Agriculture in pursuance of the former Act. Pp. 308 U. S. 196-202.

With respect to interstate commerce in agricultural commodities or their products, an agreement made with the Secretary as a party, or an order made by him, or an arbitration award or agreement approved by him, pursuant to the authority conferred by the Agricultural Act and within the terms of the immunity described by §§ 8(b) and 3(d), would be a defense to a prosecution under the Sherman Act to the extent that the prosecution sought to penalize what was thus validly agreed upon or directed by the Secretary. Further than that the Agricultural Act does not go.

Page 308 U. S. 189

6. A license issued by the Secretary of Agriculture with respect to the marketing of milk in a given area is not a defense to an indictment under the Sherman Act for conspiracies in restraint of that commerce, alleged to have been continued after the license had expired. P. 308 U. S. 202.

7. An order issued under the Agricultural Marketing Agreement Act regulating marketing of milk is not a defense to an indictment of producers, distributors and others under the Sherman Act charging conspiracies engaged in before the period covered by the order. P. 308 U. S. 202.

8. The Capper-Volstead Act, in authorizing producers of agricultural products, including dairymen, to act together in collectively processing, preparing for market, handling and marketing their products in interstate and foreign commerce, and to have marketing agencies in common and make necessary agreements to effect these purposes, did not authorize a conspiracy of dairymen with distributors, labor officials, municipal officials, and others, to maintain artificial and noncompetitive prices to be paid to all producers for all fluid milk produced in Illinois and neighboring States and marketed in the Chicago area, which would compel independent distributors to exact a like price from their customers and would control the supply of fluid milk permitted to be brought to the city. P. 308 U. S. 203.

9. Under § 2 of the Capper-Volstead Act, the Secretary of Agriculture is authorized to determine, subject to judicial review, whether any such cooperative association monopolizes or restrains interstate trade to such an extent that the price of any agricultural product is unduly enhanced, and to issue a cease and desist order. But this qualifying procedure was not intended to replace, postpone, or prevent prosecution under § 1 of the Sherman Act for the punishment of conspiracies by producers and others such as are described in the last preceding paragraph. P. 308 U. S. 205.

10. Where the District Court has based its decision on a particular construction of the underlying statute, the review here under the Criminal Appeals Act is confined to the question of the propriety of that construction. Distinguishing United States v. Curtiss-Wright Corp., 299 U. S. 304. P. 308 U. S. 206.

28 F.2d 177, in part, reversed.

APPEAL from a judgment of the District Court sustaining demurrers and dismissing an indictment charging combination

Page 308 U. S. 190

and conspiracy in violation of § 1 of the Sherman Anti-Trust Act. As to one of the counts, the appeal is dismissed.

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