Mr. Justice Harlan, though concurring in the decision of the two cases, dissented from the test adopted by other members of the -court and adhered to the view that any restraint be said that so far as contracts in restraint of trade are concerned the test of legality at common law and under the Sherman Act is the same, though the statute makes criminal executed transactions, and combinations which the common law might have found no way to attack. Not only contracts and combinations of ordinary traders and manufacturers are within the scope of the Act, but those of railroads,10 farmers,11 and laborers;12 but the application of the statute to farmers and laborers has been nullified by the Clayton Act.13 It is immate-ial so far as the inhibitions of the Sherman Act are concerned what form a combination in unreasonable restraint of trade whether reasonable or not was within the prohibition of the statute.
10 United States v. Trans-Missouri Freight Assoc., 166 U. S. 290,41 L. Ed. 1007, 17 S. Ct. 540; United States v. Joint Traffic Assoc., 171 U. S. 605, 43 L. Ed. 259, 19 S. Ct. 25; Northern Securities Co. v. United States, 193 U. S. 197, 48 L. Ed. 679, 24 S. Ct. 436; United States v. Union Pacific R. Co., 226 U. S. 470, 57 L. Ed. 306, 33 S. Ct. 162; Darius Cole Transp. Co. v. White Star Line, 186 Fed. 63, 108 C. C. A. 165.
11 Steers v. United States, 192 Fed. 1,112 C. C. A. 423. See also Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 46 L. Ed. 679, 22 S. Ct. 441.
12 Loewe v. Lawlor (Danbury Hatters' Case), 208 U. S. 274, 52 L. Ed. 488, 28 S. Ct. 301, 235 U. S. 522, 59 L. Ed. 341, 35 S. Ct. 170; United States v. Workingmen's Amalgamated Council, 54 Fed. 994.
13 Sec. 6. That the labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organisations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organisations from lawfully carrying out the legitimate objects thereof; nor shall such organisations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.
Section 20 provides, in substance, that in any case between an employer and employees, etc., relating to or growing out of a dispute as to the terms of employment, the United States courts shall not issue injunctions unless necessary to prevent irreparable injury to the property rights of the applicant.
This section provides further that an injunction shall not prohibit any person or persons, whether singly or in concert, from ceasing to work or persuading others to do so by peaceful means, or from attending at any place where he may lawfully be in order peacefully to communicate information or to persuade any person to abstain from working, or from ceasing to patronise or employ any party to such dispute, or persuading others thereto by peaceful and lawful means, or from paying or withholding strike benefits, or from peaceably assembling in a lawful manner and for lawful purposes. Finally, it is declared that the acts specified in this paragraph shall not be held to be violations of any law of the United States.
may take - whether it rests in harmonious understanding in contract, trust, holding company, or merger.14 Agreements to fix prices,15 by "cornering" the market,16 or otherwise; agreements to apportion or limit ouput or amount of business 17 which have a similar effect; agreements to divide territory,18 or to divide profits,19 to fix resale prices,20 to refrain from selling to an individual or a class,21 are all within the statute.22 Nor is it material that the products of the parties to a combination are protected by patents,** or copyrights,24 nor that the results of a combination have been advantageous. "The material fact is that it rests within the power of the monopoly to raise or lower prices at will, not that it has actually raised or lowered them."25
14 See Northern Securities Go. v. United States, 193 U. S. 197, 48 L. Ed. 679, 24 Sup. Ct. 436; Standard Oil Go. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 Sup. Ct. 502, Ann. Gas. 1912 D. 734; United States v. American Tobacco Go., 221 U. S. 106, 55 L. Ed. 663, 31 Sup. Ct. 632; United States v. International Harvester Go., 214 Fed. 987, 248 U. S. 588, 39 S. Ct. 5, 63 L. Ed. 9; United States v. United Shoe Machinery Go., 247 U. S. 32, 62 L. Ed. 968, 38 Sap. Ct. 473. The court in the case last cited favorably distinguished leases from sales, it may be supposed that had the finding of fact of the lower court been that the purpose and effect of the leases in question was unreasonably to restrain trade, the court would have found them obnoxious to the statute.
15 United States v. Trans-Missouri Freight Assoc., 166 U. S. 290, 41 L. Ed. 1007, 17 Sup. Ct. 540; Swift & Co. v. United States, 196 U. S. 375, 49 L. Ed. 518, 25 Sup. Ct. 276; Continental Wall Paper Go. v. Louis Voight & Sons Co., 212 U. S. 227, 53 L. Ed. 486, 29 Sup. Ct. 280; United States v. Jellico Mountain, etc., Co., 46 Fed. 432. In Baran v. Goodyear Tire Ac. Co., 256 Fed. 571, A. N. Hand, J., held it no violation of the Sherman Act or of the Clayton Act for a manufacturer of tires who did not have a monopoly, to refuse to sell to a dealer who would not maintain list prices.
16 United States v. Patten, 226 U. S. 525, 57 L. Ed. 333, 33 Sup. Gt. 141. See also G. W. McNear, Inc., v. American & British Mfg. Co. (R. I.), 107 Atl. 242.
17 Cravens v. Garter-Grume Co., 92 Fed. 479, 34 C. C. A. 479;Chesa-peake, etc., Fuel Co. v. United States, 115 Fed. 610, 53 C. G. A. 256; Gibbs v. McNeeley, 118 Fed. 120, 55 C. C. A. 70, 60 L. R. A. 152; Wheeler-Stensel Co. v. National Window-Glass, etc., Assoc., 152 Fed. 864, 81 C. G. A. 658, 10 L. R. A. (N. S.) 972; United States Tobacco Co. v. American Tobacco Co., 163 Fed. 701.
18 Addyston Pipe, etc., Co. v. United States, 175 U. S. 211, 44 L. Ed. 136, 20 S. Ct. 96; Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502; Pulp Wood Co. v. Green Bay Paper Ac. Co. (Wis.), 170 N. W. 231.
19 Addyston Pipe, etc., Go. v. United States, 175 U. S. 211, 44 L. Ed. 136, 20 S. Ct. 96; Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U. S. 227, 53 L. Ed. 486, 29 S. Ct. 280; United States v. MacAndrewB Forbes Co., 149 Fed. 823.
20 Boston Store v. American Grapho-phone Co., 246 U. S. 8, 38 S. Ct. 257, 62 L. Ed. 551; Ann. Cas. 1918 C. 447. And see supra, Sec. 1649.
21 United States v. Southern Wholesale Grocers' Assoc., 207 Fed. 434.
22 See Kales, Good and Bad Trusts, 30 Harv. L. Rev. 830.