October 23, l'J21 



HARDWOOD RECORD 



19 



Hardwood Counsel Makes Strong Appeal 



Broadsides Fired by' Boyle and Todd During Rehearing of Open Competition Plan 



Case Before Supreme Court Tear Holes in Department 



of Justice "Dreadnaught" 



Under the tlioughtful eye of the distinguished new Chief Justice, 

 former President William Howard Taft, Gen. L. C. Boyle, chief 

 counsel for the appellants in the appeal of the case of the U. S. 

 Government vs. the American Column & Lumber Company, et al, 

 on October 12 let loose his heavy artillery on tlie ponderously 

 accumulated case of the Government and shot it full of holes. 

 When Gen. Boyle had "ceased firing" the Department of Justice 

 " dreadnaught " was listing heavily and leaking like a sieve, and 

 the prospect of the final justification of the Open Competition Plan, 

 as operated by 329 of the members of the American Hardwood 

 Manufacturers' Association, was never brighter. 



The occasion of Gen. Boyle's attack was the rehearing of the 

 appeal of the original defendants from the sweeping injunctions 

 against the Open Competition Plan, secured bj- the Department of 

 Justice, during A. Mitchell Palmer's administration, from the late 

 Judge McCall in the Federal Court of the Western District of Ten- 

 nessee at Memphis. 



Gen. Boyle spoke from the thirty-one pages of a supplemental 

 brief filed in the appeal, in marked contrast to the 180 pages of 

 laboriously constructed anathema against the Eddy plan of "New 

 Competition," presented by the Government attorneys to oppose 

 the lumbermen 's appeal. Due to his thorough grasp of the case 

 and his wide knowledge of the lumber industry, Gen. Boyle was 

 able to make his argument compact and decisively clean-cut. And 

 when he was interrupted, as he frequently was, by questions from 

 Chief Justice Taft or other venerable members of the Supreme 

 Court, Gen. Boyle was able to give quick, concise answers that 

 apparently pleased the court and certainly must have won some of 

 their favor. 



The lumbermen's counsel insisted that the facts should be 

 adhered to at all points in the case and condemned the deductions 

 and the far-fetched applications in which the prosecution had 

 indulged with such prodigal abandon. For instance, Gen. Boyle said 

 that the group meetings, which were among the practices enjoined, 

 "were open to the public. The buyers of hardwood products at- 

 tended, as well as members and nonmember producers. There was 

 nothing secret or under cover, all open and above board. The meet- 

 ings were poorly attended. ' ' And if, as claimed, the language used 

 in some of the speeches at these meetings indicated an illegal in- 

 tent, "then only those defendants who happened to be present 

 could have received the key word, because there was no inter- 

 communication as to what went on between those who attended 

 and those who did not attend — unless this underground conduct is 

 to be supplied by the imagination of a public prosecutor. Courts 

 do not so apply a criminal statute," Gen. Boyle said with telling 

 emphasis. 



In another instance, Gen. Boyle said that "the Government by 

 deliberate and measured cunning has selected the high price period 

 as the period of test and has done this to the end that color might 

 be given to the use and value" of letters sent out by the manager 

 of statistics, upon which the prosecution has seen fit to base its 

 complaint rather than upon facts which should have been used and 

 which apparently less prepossessed minds would most certainly 

 have selected. These letters, he pointed out, were at the utmost 

 nothing more than expressions of opinion as to current conditions 

 and could not have led nor coerced the members of the open com- 

 petition plan into illegal actions. "To say that the secretary ad- 

 vised these men to curtail (production) in the face of an extraor- 

 dinary demand, is to write him down a fool," said Gen. Boyle. "To 

 say the defendants accepted his advice, if so intended, would be 

 worse than folly. To urge that the letters were 'signals' for still 



higher prices would close the door of opportunity, unless the thou- 

 sands of producers outside th-e plan were involved in the alleged 

 conspiracy," and, "this is not claimed. The man who wrote the 

 letters," ho continued, "swears he had no sinister or illegal purpose 

 in distributing them. Those defendants who read the letters testi- 

 fied that they had no understanding that the letters were intended 

 to control or in the least interfere with the business policies of the 

 mills. From no one in or out of the association comes a word to the 

 contrary. " 



To further indicate the entirely legal and justifiable purpose of 

 the letters complained against, he said that "coincident with the 

 letters that it is urged disclose a conspiracy to 'further enhance' 

 prices, we find the secretary sending out other market letters carry- 

 ing the advice of certain of the defendants that prices for hardwood 

 products as well as all products are going too high and that in the 

 public interest the runaway market should be checked. No word 

 of complaint is raised by co-conspirators for his betrayal." 



Complainant Deviates From Facts 



Certain discrepancies in the Government's complaint, even in 

 matters of plain fact, were discovered to the court, by General 

 Boyle. One of these errors in fact was the statement of the Gov- 

 ernment counsel that though the Open Competition Plan was 

 adopted January 29, 1917, tlie first sales report was for the week 

 ending Jan. 25, 1919. The issuance of these reports, in truth, 

 began soon after the adoption of the plan in 1917, Gen. Boyle said, 

 and eighty-eight of them had been issued prior to January, 1919. 

 "The Government, however, was not interested in that period," 

 Gen. Boyle said, with an imiilication too plain to need interpre- 

 tation. 



The attention of the court was directed to the general tendency 

 of counsel for the Government to give prominence far beyond that 

 warranted by their real significance to brief sentences and phrases 

 lifted out of letters, telegrams and reports of various kinds taken 

 from the files of the defendants. As isolated and presented by 

 Government's counsel, the true meaning of these data was often 

 distorted and twisted to suit what appeared to be an unwarranted 

 prepossession, council for the appellants indicated. 



The appellants' supplemental brief insists that the metes and 

 bounds of the question at issue be not obscured by such distortions 

 and the real question thus pushed into the background. ' ' The real 

 question," the brief says, "is the right of an industry, situated as 

 this (the hardwood) industry, to create machinery such as these 

 reports, whereby vital statistics may be gathered and distributed. 

 The market letters and speeches at group meetings should not cloud 

 this important issue. If it should be held that the law forbids these 

 reports, and this independent of agreements, then this industry 

 must carry on its business in ignorance of market needs and market 

 prices, whereas, the buyer is well informed as to these matters. 

 This makes for waste and bankruptcy." 



In reply to a question put by Justice Brandeis, Gen. Boyle said 

 that the Government had abandoned its original contention that 

 the members of the open competition plan conspired to curtail pro- 

 duction, and the supplemental brief strongly urged the absolute 

 inability of the members of the plan to control prices, even had 

 they been so disposed. Such control was impossible in view of the 

 fact that the members of the plan produced but 28 per cent of the 

 hardwood output of the country. Also, prices could not have been 

 under control, because not only the comparatively few members of 

 the plan, but all hardwood producers were receiving the high prices, 

 which the prosecution desired to have considered as evidence of 



