This is a direct appeal under section 238 of the Judicial Code, as amended by the Act of February 13, 1925, c. 229, 43 Stat. 936 (Comp. St. § 1215), from a final decree of the United States District Court of Colorado, three judges sitting, granting a permanent injunction against the enforcement by a state officer of a state law on the ground of its unconstitutionality. The bill was brought by the Frink Dairy Company, the Windsor Farm Dairy Company, and the Climax Dairy Company, corporations of Colorado, and H. Brown Cannon, Clarence Frink, A. T. McClintock, and Morris Robinson, citizens and residents of the same state, against Foster Cline, the district attorney for the city and county of Denver, Colo.
The bill alleges that the suit involves for decision the question of the validity under the Constitution of the United States of what is known as the Colorado Anti-Trust Act, being chapter 161 of the Session Laws of the State of Colorado for 1913, approved April 7th of that year. It avers that the three dairy companies have been separately conducting for years, in Danver, Colo., and its vicinity, the sale and distribution of milk, butter, and all manner of dairy products; that each has invested in its business more than $100,000; that they are also engaged in interstate commerce, buying and selling from without the limits of the state; that the individual plaintiffs, Connon, Frink, and Morrison, are respectively officers and stockholders of the three plaintiff companies; that McClintock, the other individual plaintiff, is an officer and stockholder of the Beatrice Creamery Company, a corporation of Delaware, also in the dairy business in Denver; that the individual plaintiffs, experienced dairymen, by painstaking effort, fair dealing, and careful management, have gained thousands of customers and a well-established trade; and that their companies, in addition to their tangible property and assets, have good wills of great value. The bill sets out in full the Colorado anti-trust law, which punishes as a crime combinations of persons and corporations to restrain trade or commerce, with certain exceptions, and makes it the duty of the defendant, the district attorney, to prosecute alleged violations thereof, and to institute actions for forfeiture of charters of associations engaged therein. All contracts violating the act are avoided; violation of the act is made a good defense to a suit for merchandise that was sold in pursuance of a combination under it; and a right of action for damages against the combiners is given to any one injured by the combination. One charge of the bill, among others, is that the act violates the Fourteenth Amendment of the Constitution, in that it deprives the plaintiffs of their liberty without due process of law, because it is indefinite and uncertain, and fails to fix any informing standard of criminality.
The bill alleges that Foster Cline, the defendant, in his capacity as district attorney of Denver city and county, has been, and still is, claiming that the plaintiffs and their competitors have been and now are acting in violation of the anti-trust law; that he has caused an information to be filed in the criminal division of the district court of the city and county of Denver, in which the plaintiffs and the beatrice Creamery Company, a Delaware corporation, are charged with conspiracy to violate the Anti-Trust Act; that he expects to press the case to trial; that since the case was instituted the grand jury has been in session, and many witnesses summoned and questioned about the plaintiffs' milk business; that the defendant Cline has threatened to, and unless restrained by the court will, institute further prosecutions, file further informations, and attempt to procure indictments of the plaintiffs by the grand jury; and that Cline by this multiplicity of criminal suits and prosecutions, as well as by the civil suits for forfeiture of the corporate plaintiffs' charters he has threatened to bring, has already inflicted serious loss to the businesses and properties of the plaintiffs, and that they will be irreparably and immeasureably damaged thereby unless he is restrained.
A motion to dismiss was made by the defendant, on the ground that the bill presented no case for equitable relief. On the hearing before the three judges, a preliminary injunction was issued, and the motion to dismiss was denied. The defendant standing upon his motion to dismiss and declining to plead further, a decree for a permanent injunction was entered, and this is an appeal from that decree.