U.S. Supreme Court UNITED STATES v. SWIFT & CO., 286 U.S. 106 (1932)

[Page 286 U.S. 106, 120]

What was then solemnly adjudged as a final composition of an historic litigation will not lightly be undone at the suit of the offenders, and the composition held for nothing.

The decree should be reversed and the petitions dismissed.

The CHIEF JUSTICE, Mr. Justice SUTHERLAND and Mr. Justice STONE took no part in the consideration and decision of this case.

Mr. Justice BUTLER (dissenting).

The facts on which the District Supreme Court allowed modification of parts of the 1920 consent injunction are set forth in its findings prepared in accordance with Equity Rule 70 1/2 (28 USCA 723). They are discussed and amplified in a painstaking opinion contained in the record. I think they are sustained by the evidence and are sufficient to support the decree.

Conditions affecting competition in the lines of business carried on by defendants have changed since 1920. Indeed the government, after the introduction of evidence by appellees, formally stipulated that they 'are in active competition with each other' etc. [Footnote 1] The facts nega-

[Page 286 U.S. 106, 121]

tive any suggestion that danger of monopolistic control now exists. Each of the principal packers has suffered discouraging operating losses. One of them, retiring from business, sold its plants to another. The purchaser, in order to avoid failure, was compelled to refinance and has not earned reasonable profits in any year. Another, being embarrassed, passed into the hands of a receiver, was subsequently adjudged bankrupt and later reorganized. Only two have continued also to sustain themselves. It is shown without dispute that defendants' earnings, whether considered in relation to sales or to the worth of property invested, are low and substantially less than those of others carrying on the same lines of business. [Footnote 2]

[Page 286 U.S. 106, 123]

dence or findings pursuant to a written stipulation between the government and the defendants expressly providing that 'this stipulation shall not constitute or be considered as an admission, and the rendition or entry of the decree, or the decree itself, shall not constitute or be considered as an adjudication that the defendants, or any of them, have in fact violated any law of the United States.' And that provision was in exact words incorporated in and made a part of the decree. Thus the government consented to, and the court adopted, this provision quite as much as the defendants consented to the other parts of the decree.

The fact that defendants thereafter applied to have the decree vacated upon grounds directed only to the power of the court to enter it ought not to be regarded as militating against them or their good faith- particularly when it is recalled that this court when reviewing that proceeding, deemed the questions presented of sufficient importance to call for their argument a second time. , 48 S. Ct. 311.

I am of opinion that the facts found, taken with those conceded or established by uncontradicted evidence, justly entitle appellees to the measure of relief given below, and that the modifying decree should be affirmed.

I am authorized to say that Mr. Justice VAN DEVANTER concurs in this opinion. Footnotes

Footnote 1 Census figures in respect of slaughtering and meat packing establishments in 1921 and 1927 are as follows:

Value of Production per Year 1921 1927 $5,000 to $20,000 142 64 $20,000 to $100,000 304 267 $100,000 to $500,000 360 429 $500,000 to $1,000,000 112 163 $1,000,000 and over 266 327

Total 1184 1250

The relation between each of the defendant packers' production of meat and lard and total production of these articles in the United States during the years 1920 and 1929 are as follows:

1920 1929 Swift 13.2% 15.2% Armour (including Morris) 15.8% 14.1% Wilson 5.2% 4.3% Cudahy 4.0% 4.7%

Footnote 2 The following table groups the defendants' earnings and compares them with the combined earnings of 15 competitors from 1920 to 1929:

Percentage of Percentage of Percentage of Percentage of Defendants' Competitors' Defendants' Competitors' Earnings Earnings Earnings on Earnings on on Sales on Sales Net Worth Net Worth Year

1920 .18 .76 .88 2.48 1921 Loss 3.05 Loss .17 (Loss) 10.27 (Loss) 5.80 1922 .10 2.72 .35 10.87 1923 1.58 3.40 5.65 12.00 1924 1.77 3.39 6.46 13.28 1925 1.44 2.03 5.82 9.11 1926 1.35 2.65 5.03 12.24 1927 .63 2.07 2.49 9.83 1928 1.24 3.17 5.13 14.10 1929 1.06 2.68 4.55 14.02