278 HARVARD LAW REVIEW. cial case might be larceny ; but in the absence of evidence it should not be presumed that such was the case. At all events, the courts should resist the pressure put upon them by the prosecution to recog- nize in any form this fiction of constructive grand larceny. The Case of the Kansas City Live Stock Exchange. — The decision of the Trans-Missouri Freight Case, that the Anti-Trust Act of 1890 for- bade all combinations in restraint of trade, however reasonable, is chiefly limited by the fact that the act can apply only to combinations over which Congress has jurisdiction, and cannot affect the workings of traffic within a State as opposed to interstate commerce. This limitation was considered by the Federal Supreme Court in Hopkins v. United States, Advance Sheets, No. 210, October Term, 1898. The combination complained of was the Kansas City Live Stock Exchange, an association of commission mer- chants interested in the Kansas City stockyards. Their business con- sisted in selling on commission the live stock which was sent to the stockyards from many markets and many States. Rules were drawn up for the association ; one of them prescribed the rates to be charged, an- other forbade the members to have any dealings with persons who did not conform to the rules. The Circuit Court thought that this associa- tion came within the act, and granted an injunction against it ; the Su- preme Court, however, takes the opposite view, and the injunction is dissolved. In holding that the association was not engaged in interstate commerce the court is consistent with former decisions. Emert v. Missouri, 156 U. S. 296. It is an adequate reason that if the shipper himself for whom the commission merchant acted had come within the State and there sold his cattle, his act in itself could not have been one of inter- state commerce. There is no necessity of invoking the other explana- tion suggested by the court, that even if the sale itself were an act of interstate commerce, the act of the agent in negotiating it might not be included in the category. The further reasoning of the court, however, has wider scope than seems entirely sound. In support of the decision cases are cited in which State statutes were held not to interfere with the com- merce clause ; it is assumed that in all of them the point decided was merely that the business affected was not interstate commerce. If this assumption is correct, it necessarily follows that the same kinds of busi- ness are beyond the control of the Anti-Trust Act, or of any federal stat- ute. Yet some of these cases belong to the class where State statutes are supported in spite of the fact that they regulate commerce between States, where the regulation is not of a kind demanding uniformity and the States are allowed to exercise concurrent control until Congress shall act. Sherlock v. Ailing, 93 U. S. 103. States may pass rules for pilots, and regulate charges for whajfage ; they may fix a standard of fitness for engineers of locomotives crossing their territory, and require licenses to be taken out ; but in these matters the United States confessedly might also act and supersede the State statutes. Cooky v. Board of Wardens of Philadelphia, 12 Howard, 299; Packet Co. v. Catlettsburg, 105 U. S. 559 ; Nashville, etc., Ry. Co. v. Alabama, 128 U. S. 96. And if wharfin- gers or pilots should combine as to rates, or engineers as to terms of ser- vice, these combinations would concern interstate commerce even though they might be subject to State legislation ; they would then come under the Anti-Trust Act, and, however reasonable, they would be doomed.
