Opinion of the Court. gave the most careful attention; but also it is sustained by one of the briefs for the respondents submitted at that time, wherein, with reference to indictment No. 113, it was stated that all the machines referred to therein were expressly alleged to be covered by letters patent, while the same brief, with reference to indictment No. 114, stated only that its allegations led almost conclusively to the establishment of the proposition that the business was based on patents. According to the fixed rules of criminal pleadings, matters expressly alleged" and those allegations which lead "almost conclusively" are so wide apart that they are not in the same field at all. Indictment No. 113 alleges expressly again and again that specific machines are covered by letters patent. On this point the petition before us invites us, at large, to examine five pages, 26, 27, 28, 29, and 30, in indictment No. 114, and again three pages and again four pages, leaving us to search out what the respondents rely on. This is calling on the court for an abuse of time which counsel of the distinction and experience of those at bar should never have done. The court refuses to undertake the task, beyond turning up page 26 referred to, where there is a general charge that the corporation controlled by the respondents acquired "assets and letters patent" without any further specification. As far as the court recollects, there is nothing more definite anywhere in indictment No. 113. This, of course, is not effectual on the proposition now brought before us; and this distinction between No. 114 and No. 113 clearly justifies us in holding that there was no intention at the trial of these demurrers to bring before us the proposition now made. The respondents at that trial had their hearing and their full day at court, and must be content therewith. On the whole, we repeat that we left the indictment as to which the respondents now complain in the condition which we described in our reference to Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838; and we are not willing to be turned aside from that position by any further discussion. We must in any view deny the petition. Syllabus. UNITED STATES v. WINSLOW. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. No. 620. Argued January 10, 1913.-Decided February 3, 1913. [227 U. S., 202.] On appeals under the Criminal Appeals Act of 1907 this court has no jurisdiction to review the interpretation of the indictment by the lower court, United States v. Patten, 226 U. S. 525, and if that court has construed the count as alleging a combination of a particular date to be in violation of the Sherman Law, without regard to subsequent acts, this court cannot pass upon the validity of those acts. A combination for greater efficiency does not necessarily violate the Sherman Anti-Trust Act. Where each of several groups are carrying on a legal business of making patented machines which do not compete with each other. although the machines of all the groups are used by manufacturers of the same article, such as shoes, a combination of the several groups does not violate the Sherman Anti-Trust Act. Exclusion of competitors from making the patented article is of the very essence of the right conferred by the patent. Where the share in interstate commerce does not appear in the record, and the machines in question are not alleged to be types of all the machines used in manufacturing the article for which they are made, the Government cannot claim that a specified proportion of the business was put into a single hand. The disintegration aimed at by the Sherman Anti-Trust Act does not extend to reducing all manufacture to isolated units of the lowest degree. The Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246, is a special provision and, as it is not mentioned in the repealing section of the Judicial Code of 1911 and is not superseded by any other regulation of the matter, it was not repealed by the Judicial Code. United States, Petitioner, 226 U. S. 420. The District Court rightly held that the counts under review of the indictment against various persons for combining their businesses of [203] manufacturing patented machines for making different parts of shoes, and not competing with each other, did not constitute an offense under the Sherman Anti-Trust Act. 195 Fed. Rep. 578, affirmed. a For opinion of District Court, sustaining, in part, demurrers to indictments (195 Fed. 578), see ante, page 170. Syllabus and statements of arguments copyrighted, 1913, by The Banks Law Publishing Company. Argument for the United States. [57 L. Ed., 481."] APPEAL-BY GOVERNMENT IN CRIMINAL CASE-SCOPE OF REVIEW.— 1. The District Court's construction of the indictment must be accepted by the Federal Supreme Court when reviewing, under the act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564), a judgment sustaining a demurrer to certain counts in the indictment, which is based upon the construction of the Federal statute upon which the indictment is founded. For other cases, see Appeal and Error, I. e, in Digest Sup. Ct. 1908. MONOPOLY-RESTRAINT OF TRADE IN PATENTED ARTICLES.-2. The union in one corporation of three companies, each manufacturing a different non-competing group of patented machines collectively used for making shoes, is not forbidden by the prohibitions of the Sherman Anti-Trust Act of July 2, 1890 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), against combinations in restraint of interstate trade, although a large percentage of all the shoe machinery business may thus have been put into a single hand. For other cases, see Monopoly, II. b, in Digest Sup. Ct. 1908. APPEAL-BY GOVERNMENT IN CRIMINAL CASE-REPEAL.-3. The Criminal Appeals Act of March 2, 1907, was not repealed by the Judicial Code of March 3, 1911 (36 Stat. at L. 1087, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 128), since the former act is not mentioned among the statutes expressly repealed by 8 297 of the Code, is not superseded by any other regulations of the matter, and is a special provision. For other cases, see Appeal and Error, I. e; Statutes, III. b, in Digest Sup. Ct. 1908. The facts, which involve the construction of the Sherman Anti-Trust Act, and determining whether the combination charged in an indictment thereunder of various manufacturers of patented shoe machinery constituted a violation thereof, are stated in the opinion. The Solicitor General for the United States: This case presents the question whether it is legal to gather together into one corporation about 80 per cent of all the interstate trade in some particular line of activity when it is • The paragraphs following, in brackets, comprise the syllabus of the case as reported in Volume 57, page 481, Lawyers Edition, Supreme Court Reports. Copyrighted, 1912, 1913, by The Lawyers Cooperative Publishing Company. Argument for the United States. done gradually by legitimate methods and without any unfair competition such as characterized the Tobacco and Standard Oil cases. If that is legal, the sooner the business world understands it the better. The indictment alleged that three separate groups of individuals (each controlling a different group of machines essential to the manufacture of shoes), combined together whereby their separate businesses were combined into one under the joint management of these individuals; that each of the separate groups controls about 70 or 80 per cent of the interstate trade in the particular kind of machines manufactured by it; and that by the combination there were placed into one hand from 70 to 80 per cent of all the business in those kinds of shoe machinery manufactured by the defendants. The constitutionality and sufficiency of the criminal provisions of the Sherman Anti-Trust Act are settled. United States v. Kissel, 218 U. S. 601; Northern Securities Co. v. United States, 193 U. S. 197, 401; Standard Oil Co. v. United States, 221 U. S. 1, 69; United States v. Swift, 188 Fed. Rep. 92. [204] Individuals are subject to indictment for acts done under the guise of a corporation where the individuals personally so dominate and control the corporation as to immediately direct its action. United States v. Swift, 188 Fed. Rep. 92, 98; United States v. McAndrews & Forbes Co., 149 Fed. Rep. 823; Crall v. Commonwealth, 103 Virginia, 855, 859, 860; People v. Clark, 8 N. Y. Crim. Rep. 179, 194, 195, 212; People v. White Lead Works, 82 Michigan, 471, 479; People v. Duke, 44 N. Y. Supp. 336, 337-339; State v. Great Works &c. Co., 20 Maine, 41; United States v. Durland, 65 Fed. Rep. 408, 415; S. C., 161 U. S. 306; Balliet v. United States, 129 Fed. Rep. 689; Fitzsimmons v. United States, 156 Fed. Rep. 477, 481; Foster v. United States, 178 Fed. Rep. 165, 173, 176-178; La Societe Anonyme &c. v. Panhard Motor Co. (1901), 2 Ch. 513, 516-517. Prior to February 7, 1899, competition with reference to the different kinds of shoe machinery was so distributed between the different groups of defendants and the Inde Argument for the United States. pendents that a shoe manufacturer had 24 different choices for obtaining shoe machinery. By the organization of the United Shoe Machinery Company and the coalescence into one of the three groups of businesses formerly carried on separately by the defendants, the variety of choice open to a shoe manufacturer for obtaining the necessary shoe machinery was reduced from 24 ways to 16 ways. The defendants then adopted what is known as the "tying" clause lease, which provided that any shoe manufacturer using any one class of machines furnished by the defendants should use for all his other machines only those furnished by the defendants; and that if he used any machine made by an Independent, the defendants would forfeit his lease and remove his machines. This form of lease immediately reduced from 16 to 2 the different ways by which a manufacturer could equip his factory, so that he had to get all his machinery from the defendants or get it all from the Independents. [205] The effect of the combination was to place from 70 to 80 per cent of all the shoe-machinery business (in so far as it related to those essential machines known as the lasting, welt-sewing, heeling, and metallic fastening machines) into one hand. This combination into one group of four non-competitive businesses (which, taken together, constitute one complete business) curtailed the customer's liberty of action by compelling him to deal with one and the same group as to all four classes of machinery, whereas formerly he could deal with four separate groups. The question presented, then, is whether the combination into one group of 75 per cent of the whole business of the country in a particular line is in such restraint of trade as to violate the Sherman law, it being conceded that the combination was not attended by any methods of unfair competition or illegitimate trade practices. Without attempting to determine exactly at what percentage of trade control a combination passes into the region of illegal restraint, the Government insists that when a combination acquires between 70 and 80 per cent of the total trade in a particular business, the line between legal and illegal combinations has been passed; and |