unambiguous language used in both the acts that "it shall be
unlawful for any person engaged in commerce, in the course of
such commerce, to", etc. However, in this case there is no
allegation whatever that plaintiff's interstate business has
suffered through defendant's conduct.
Plaintiff advances the eleventh hour argument that defendant is
in fact engaged in interstate commerce in that its purchase of
raw materials in other states and its manufacture and sale of ice
cream in Illinois, constitute an uninterrupted flow of commerce.
There are many authorities to the effect that when the raw
materials from other states come to rest in defendant's
manufacturing plant to await processing, the flow of commerce is
interrupted (cf. Ewing-Von Allmen Dairy Co. v. C. and C. Ice
Cream Co., 6 Cir., 109 F.2d 898, certiorari denied 312 U.S. 689,
61 S.Ct. 618, 85 L.Ed. 1126). Defendant points to United States
v. Employing Plasterers Ass'n, 347 U.S. 186, 74 S.Ct. 452, 98
L.Ed. 618, as announcing a different rule. In that case the
Supreme Court held that a complaint under the Sherman Anti-Trust
Act, alleging a combination by a Chicago trade association of
plastering contractors, a local union of plasterers and the
union's president, to restrict and control purchase of plastering
materials shipped in from other states, could not be properly
dismissed on the basis that those materials come to rest before
the local restraints become effective. The question whether local
restraints upon purchase of materials shipped from other states,
not subjected to manufacturing processes on arrival, are
restraints upon commerce is not the same as the question whether
sale within a state of finished products manufactured within that
state from materials shipped from other states, is in commerce or
out of commerce. The fact that the materials come to rest upon
arrival in the state may indeed be irrelevant to the first
question, it is clearly relevant and controlling in the second.
Plaintiff however relies upon its allegation that defendant
makes substantial sales to a restaurant chain in Illinois which
in turn supplies railroads in interstate commerce. Such sales may
place defendant in commerce, if the question were one of federal
power to regulate its business (Santa Cruz Fruit Packing Co. v.
National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.
Ed. 954; Hamlet Ice Co. v. Fleming, 4 Cir., 127 F.2d 165). But
the Clayton and Robinson-Patman Acts require, for their
violation, that the offending person not only "engaged in
commerce" but do the prohibited acts "in the course of such
commerce". There is no allegation in plaintiff's complaint that
defendant's sales to the restaurant chain supplying railroads
involved any acts violative of the Clayton and Robinson-Patman
Acts. On the contrary the allegation of plaintiff's complaint is
that defendant launched a campaign to solicit away most of
plaintiff's customers "in the Chicago area".
Plaintiff cannot be sustained in its reliance upon section
1985(3) of the Civil Rights Act. The history of that section
shows that it was not meant to deal with the questions here
presented. As section 2 of the Act of April 20, 1871, the full
title of which was "An Act to enforce the Provisions of the
Fourteenth Amendment to the Constitution of the United States,
and for other Purposes", it was intended as a solution to
pressing problems of civil liberties following upon the Civil
War. Apart from its historical context, it has been
authoritatively interpreted, in the light of section 1 of the
original act (now 42 U.S.C.A. § 1983), as applicable only to
combinations or conspiracies "under color of state law" (Collins
v. Hardman, 341 U.S. 651, 71 S.Ct. 937, 939, 95 L.Ed. 1253). It
is not alleged here that defendant's acts, in depriving plaintiff
of its customers, were done under color of state law.
Plaintiff does not argue with respect to the National School
Lunch Act that it has a cause of action arising under that Act,
rather it argues that the existence of the Act strengthens its
case under the Clayton and Robinson-Patman
Acts. Since I hold that plaintiff has failed to state a claim
upon which relief may be granted under those Acts, plaintiff's
argument here need not be considered.
Defendant's motion to dismiss the complaint is hereby granted.
Accordingly the complaint is dismissed.
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