years suffered drastic economic decline.
'Advertising is the economic mainstay of the newspaper business. Generally, more than two-thirds of a newspaper's total revenues flow from the sale of advertising space. * * * Obviously, newspapers must sell advertising to survive. And while newspapers in 1929 garnered 79% of total national advertising expenditures, by 1951 other mass media had cut newspapers' share down to 34.7%'
There must be space and room and subject matter involved to afford a competition such as the law requires and where these things do not exist then discontinuance of competition it has been held is not a violation of the anti-trust law. Judge Learned Hand observed in the United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 430:
'A market may, for example, be so limited that it is impossible to produce at all and meet the cost of production except by a plant large enough to supply the whole demand. Or there may be changes in taste or in cost which drive out all but one purveyor. A single producer may be the survivor out of a group of active competitors, merely by virtue of his superior skill, foresight and industry. In such cases a strong argument can be made that, although, the result may expose the public to the evils of monopoly, the Act does not mean to condemn the resultant of those very forces which it is its prime object to foster: finis opus coronat.'
Justice Holmes has said that a man has a right to set up a shop in a small village which can support but one shop of the kind and although there may be one shop of the kind already in town. It then naturally follows that one of the two will have to go down. This is one of the penalties of the freedom of enterprise.
The parties to this case have very properly reduced to writing extensive stipulations thus saving a long record. Each stipulation is supported by facts that might have been produced in evidence in court. In the light of the facts as contained in these stipulations and in light of the testimony that has been offered in the case we are unable to find any well-defined issue of fact that may be submitted to the jury that has not already become a question of law which the Court must decide. In other words, what can the Court tell the jury to find from the evidence in this case that is not already apparent?
The case as developed does not disclose in our judgment any violation of the anti-trust law. It is therefore withdrawn from the jury and judgment entered for the defendants.
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