306

JACKSON, J., dissenting.

rendered to God does not need to be decided and collected by Caesar.

The day that this country ceases to be free for irreligion it will cease to be free for religion-except for the sect that can win political power. The same epithetical jurisprudence used by the Court today to beat down those who oppose pressuring children into some religion can devise as good epithets tomorrow against those who object to pressuring them into a favored religion. And, after all, if we concede to the State power and wisdom to single out "duly constituted religious" bodies as exclusive alternatives for compulsory secular instruction, it would be logical to also uphold the power and wisdom to choose the true faith among those "duly constituted." We start down a rough road when we begin to mix compulsory public education with compulsory godliness.

A number of Justices just short of a majority of the majority that promulgates today's passionate dialectics joined in answering them in Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203. The distinction attempted between that case and this is trivial, almost to the point of cynicism, magnifying its nonessential details and disparaging compulsion which was the underlying reason for invalidity. A reading of the Court's opinion in that case along with its opinion in this case will show such difference of overtones and undertones as to make clear that the McCollum case has passed like a storm in a teacup. The wall which the Court was professing to erect between Church and State has become even more warped and twisted than I expected. Today's judgment will be more interesting to students of psychology and of the judicial processes than to students of constitutional law.

UNITED STATES v. OREGON STATE

MEDICAL SOCIETY ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON.

No. 19. Argued January 4, 7, 1952.-Decided April 28, 1952.

Seeking to restrain alleged violations of §§ 1 and 2 of the Sherman Act, the United States brought this suit against the Oregon State Medical Society, eight county medical societies, a doctor-sponsored corporation engaged in the sale of prepaid medical care, and eight doctors who were officers in those organizations. The complaint charged that they conspired to restrain and monopolize the business of providing prepaid medical care in Oregon and conspired to restrain competition between doctor-sponsored prepaid medical plans within the State. After a trial, the District Court dismissed the complaint on the ground that the Government had failed to prove its charges. Held: The judgment is affirmed. Pp. 328-340.

1. On review, it is not the function of this Court to try the case de novo on the record. United States v. Yellow Cab Co., 338 U. S. 338. Pp. 331-332.

2. Rule 52 (a) of the Federal Rules of Civil Procedure, which provides that, where an action is tried by a court without a jury, "findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of witnesses," is peculiarly applicable in a case, such as this, where the complaining party creates a vast record of cumulative evidence as to long-past transactions, motives and purposes, the effect of which depends largely on credibility of witnesses. P. 332.

3. In an action under the Sherman Act for an injunction, the sole function of which is to forestall future violations, an examination of evidence relating to long-past transactions is justified only when it illuminates or explains the present and predicts the shape of things to come. Pp. 332-333.

4. Conduct which had been discontinued seven years previously, in the absence of a threat or likelihood of its resumption, does not warrant the issuance of an injunction. Pp. 332–334.

5. The Government having failed to prove a concerted refusal by the defendant doctors to deal with private health associations, it is unnecessary here to decide whether that would violate the antitrust laws. Pp. 334-336.

(a) Where the historic direct relationship between physician and patient is involved, there are ethical considerations which are quite different from the usual considerations prevailing in ordinary commercial matters. P. 336.

6. The trial court's refusal to find that the defendants had conspired to restrain or monopolize the business of prepaid medical care was not clearly erroneous. Pp. 336-337.

7. The trial court's finding that the sale of medical services by the doctor-sponsored organizations, as conducted in Oregon, did not constitute interstate commerce was not clearly erroneous; and the agreement between them not to compete did not fall within the prohibitions of the Sherman Act. American Medical Assn. v. United States, 317 U. S. 519, distinguished. Pp. 337-339.

8. A finding which, in the light of the record, does not leave the reviewing court with any "definite and firm conviction that a mistake has been committed," is not "clearly erroneous." P. 339. 95 F. Supp. 103, affirmed.

In a suit by the United States to restrain alleged violations of §§ 1 and 2 of the Sherman Antitrust Act, the District Court, after a trial, dismissed the complaint on the ground that the Government had failed to prove its charges. 95 F. Supp. 103. The United States appealed directly to this Court under the Expediting Act. Affirmed, p. 340.

Stanley M. Silverberg argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, J. Roger Wollenberg and Daniel M. Friedman.

Nicholas Jaureguy argued the cause for appellees. With him on the brief were Clarence D. Phillips and John J. Coughlin.

Opinion of the Court.

343 U.S.

MR. JUSTICE JACKSON delivered the opinion of the Court.

2

This is a direct appeal by the United States 1 from dismissal by the District Court of its complaint seeking an injunction to prevent and restrain violations of §§ 1 and 2 of the Sherman Act. 26 Stat. 209, as amended, 15 U.S. C. §§ 1, 2.3

Appellees are the Oregon State Medical Society, eight county medical societies, Oregon Physicians' Service (an Oregon corporation engaged in the sale of prepaid medical care), and eight doctors who are or have been at some time responsible officers in those organizations.

This controversy centers about two forms of "contract practice" of medicine. In one, private corporations organized for profit sell what amounts to a policy of insurance by which small periodic payments purchase the right to certain hospital facilities and medical attention. In the other, railroad and large industrial employers of labor contract with one or more doctors to treat their ailing or injured employees. Both forms of "contract practice," for rendering the promised medical and surgical service, depend upon doctors or panels of doctors who cooperate on a fee basis or who associate themselves with the plan on a full- or part-time employment basis.

Objections of the organized medical profession to contract practice are both monetary and ethical. Such

1 Pursuant to § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U. S. C. § 29.

295 F. Supp. 103.

3 26 Stat. 209, 15 U. S. C. § 1: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade commerce among the several States . . . is declared to be illegal...."

or

15 U. S. C. § 2: "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States . . . shall be deemed guilty of a misdemeanor . . .

326

Opinion of the Court.

practice diverts patients from independent practitioners to contract doctors. It tends to standardize fees. The ethical objection has been that intervention by employer or insurance company makes a tripartite matter of the doctor-patient relation. Since the contract doctor owes his employment and looks for his pay to the employer or the insurance company rather than to the patient, he serves two masters with conflicting interests. In many cases companies assumed liability for medical or surgical service only if they approved the treatment in advance. There was evidence of instances where promptly needed treatment was delayed while obtaining company approval, and where a lay insurance official disapproved treatment advised by a doctor.

In 1936, five private associations were selling prepaid medical certificates in Oregon, and doctors of that State, alarmed at the extent to which private practice was being invaded and superseded by contract practice, commenced a crusade to stamp it out. A tooth-and-claw struggle ensued between the organized medical profession, on the one hand, and the organizations employing contract doctors on the other. The campaign was bitter on both sides. State and county medical societies adopted resolutions and policy statements condemning contract practice and physicians who engaged in it. They brought pressure on individual doctors to decline or abandon it. They threatened expulsion from medical societies, and one society did expel several doctors for refusal to terminate contract practices.

However, in 1941, seven years before this action was commenced, there was an abrupt about-face on the part of the organized medical profession in Oregon. It was apparently convinced that the public demanded and was entitled to purchase protection against unexpected costs of disease and accident, which are catastrophic to persons without reserves. The organized doctors completely re