C. E. Stevens Co. v. Foster & Kleiser Co.

(dissenting).

Unable to agree with either the reasoning or the result obtaining in the majority opinion, I am constrained to dissent and hereby set forth my reasons therefor.

I dissent upon the ground that the majority too narrowly applies the Sherman Anti-Trust Act by reliance on Foster &. Kleiser Co. v. Special Site Sign Co., 9 Cir., 85 F.2d 742 . I believe that case does not control here for two reasons. The first is that while the rule regarding the Congressional power over commerce has not been enlarged, the application of the exercise of the power, the anti-trust act, has been"“expanded”, as witness the Labor Board cases, cited in the majority opinion. Both the Sherman Anti-Trust Act, and the National Labor Relations Act cover not only interstate commerce, but intrastate activities which “directly” affect such commerce. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37-41 , 57 S.Ct. 615 , 81 L.Ed. 893 , 108 A.L.R. 1352 . There should be no discrimination in the application of the two acts. I do not agree with the majority in its differentiation with respect to the right and power of Congress to protect interstate commerce by means of the…

This is an appeal from an order of the District Court sustaining appellees’ demurrer to appellants’ complaint without leave to amend on the ground that no cause of action was alleged. The action was filed under Section 7 of the Sherman Anti-Trust Act (Act of July 2, 1890, Chap. 647, 26 Stat. 209 , as superseded by Act of Oct. 15, 1914, Chap. 323, § 4, 38 Stat. 731 , 15 U.S.C.A. § 15 ). 1 Both parties are engaged in advertising by means of billboards.

The ruling of the District Court was based on the decision of this court in Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir., 85 F.2d 742 , an action against the same defendant by another competitor. In that case plaintiff sought damages under Section 7 of the Sherman Anti-Trust Act based upon similar activities by the defendant therein as are alleged in the case at bar. In the Special Site Sign Company case, supra, the plaintiff, in an effort to support federal jurisdiction under the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7 , 15, alleged such interstate activities by the defendant as the shipping by it of designs, posters, lithographs, stencils and paints from one state to another. It also.alleged the'effect of outdoor…