An indictment was found in the Southern District of Illinois against appellees Green and a local union. The jury adjudged them guilty under counts one and two thereof. The court sustained their separate motions in arrest of judgment, setting out in its order that its action was 'solely' on the following grounds:
'2. This court is without jurisdiction of the offense.
'(b) The facts alleged in the Indictment failed to set forth an offense against the United States such as to give this Court jurisdiction.
'(c) A proper construction of the statute in question clearly indicates that it does not cover the type of activity charged in this indictment; to interpret the Act in question as covering the type of activity charged in this Indictment is to extend the jurisdiction of this Court and the power of Congress beyond their Constitutional limits.'
Appeal was taken by the United States directly to this Court under 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. We noted probate jurisdiction. 350 U.S. 813, 76 S.Ct. 44.
The two counts in question were based upon alleged violations of 18 U.S.C. § 1951, 18 U.S.C.A. § 1951, popularly known as the Hobbs Act. The pertinent statutory provisions are subsections (a) and (b)(2) thereof, reading as follows:
'(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
'(b) * * *
'(2) The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.'
Each of the two counts charged appellees with acts of extortion under § 1951 directed against a different employer. The extortions alleged consisted of attempts to obtain from the particular employer
'his money, in the form of wages to be paid for imposed, unwanted, superfluous and fictitious services of laborers commonly known as swampers, in connection with the operation of machinery and equipment then being used and operated by said (employer) in the execution of his said contract for maintenance work on said levee, the attempted obtaining of said property from said (employer) as aforesaid being then intended to be accomplished and accomplished with the consent of said (employer), induced and obtained by the wrongful use, to wit, the use for the purposes aforesaid, of actual and threatened force, violence and fear made to said (employer), and his employees and agents then and there being: in violation of Section 1951 of Title 18, United States Code.'
Appellees each filed motions for acquittal or in the alternative for a new trial. These the trial court specifically denied. The opinion of the trial court, 135 F. Supp. 162, says nothing as to failure of evidence to support the allegations of the indictment, or as to trial errors. Instead the court relied upon the absence of criminality in the acts charged, and it was therefore logical for the trial court to deny acquittal and new trial. The court thought persuasive our recent cases which held union efforts to secure 'made work' for their members were not unfair labor practices. From its view that extortion as defined in the Hobbs Act covers only the taking of property from another for the extortioner's personal advantage, the necessity to arrest the judgment followed. Rule 34, Fed.Rules Crim.Proc., 18 U.S.C.A.