On Dec. 20, 1938, an indictment was filed in the District Court of the United States for the District of Columbia charging the American Medical Association, Medical Society of the District of Columbia, Harris County (Texas) Medical Society, Washington Academy of Surgery and twenty-one individual defendants with conspiracy to violate section 3 of the Sherman Anti-Trust Act. The defendants filed a demurrer to the indictment. This means that the defendants contended that, even assuming everything alleged in the indictment to be true, there was no violation of the law as charged. Of course, on the issue thus formed the courts were bound to take as true, whether or not it was in fact true, each and every allegation of the indictment. The District Court agreed with the defendants' contention and on July 26, 1939, sustained the demurrer and dismissed the indictment.1
From that order Thurman Arnold, as Assistant Attorney General, prosecuted an appeal to the Court of Appeals of the District of Columbia. While the case was pending in the Court of Appeals, and before a decision there, the government filed a petition in the Supreme Court of the United States for a writ of certiorari to remove the case from the Court of Appeals to the Supreme Court of the United States. The defendants did not oppose this petition, but the Supreme Court denied it,2 probably on the theory that the issues presented were raised by demurrer and that the case had not been tried and the real facts did not appear in the record.