manner to refrain from doing business. In-ard particularly so much of it as affects deed, it evidently assumes that all the par- competition, is in the highest degree proties to it are to continue to do all the busi- motive of trade and commerce. ness which their facilities enable them to do, and to strive against each other for a larger share of the business in every way except


It does, indeed, purport to restrain competition, although in a very slight degree and on a single point. That is one of its objects; and if competition and commerce were identical, being but different names for the same thing, then indeed, in assuming to restrain competition even so far, it would be assuming in a corresponding degree to restrain commerce; but surely no such identity will be pretended. Commerce is the interchange of commodities. Competition is one of its incidents only, and but an occasional incident. To identify a thing with one of its occasional incidents would be an error.

It is conceivable that a restraint upon competition, although competition is but an occasional incident of commerce must still necessarily restrain the latter; but, however conceivable, it is by no means true. The contrary is often true; namely, that such restraint enlarges, increases, and benefits it.

Competition is, in general, a good thing; it is what is called "the life of trade;" and artificial efforts to repress it may have an injurious effect opposed to sound public policy; but to infer from this that it is so under all circumstances, or that it may not be productive of the most extensive mischief, is a conclusion of ignorance utterly refuted by the teachings of experience, and long since discarded by all enlightened minds.

But it is worth while to employ a few words in pointing what the true and great benefit of competition is, and when it ceases to be beneficial and becomes the source of mischief.

There is a point beyond which competition may not only cease to be beneficial, but may become exceedingly injurious, not only to private individuals, but to the public also. When prices have reached the point which places the profits of a particular industry on a level with the average profits of industries generally, the further prosecution of the struggle is likely to be injurious to the community, and the competition becomes destructive and deadly, precisely in proportion to the difficulty of disengaging the capital employed.

A restraint upon competition does not of necessity restrain trade, but may even promote trade.

If the restraint on competition effected by this agreement is necessarily in the eye of the law a bad thing in its effect upon trade, injuring and diminishing it, then, although trade is not in terms restrained by it, it is so in fact; and if, on the other hand, it is in the eye of the law beneficial to trade, or cannot be seen to be injurious (for the burden of proving its injurious tendency is upon the plaintiffs), it must be held to be unaffected by the statute.

The agreement in question, as a whole,

The charges of railroad transportation in the United States have been constantly diminishing, and they are now lower than in any country in the world; and it is probably true that the capital actually invested in railroads was at the time of the passage of the Anti-Trust Act receiving a smaller annual return than capital invested in any other business, notwithstanding the risk to capital invested in railroads is far greater than that which attends many other investments.

The reason why railroads are greater sufferers than other industries from the destructive effects of free competition is that the latter have several defenses against it, while the former have but one.

The only resort open to railroads to save themselves from the effects of a ruinous competition is that of agreement among themselves to check and control it.

The history of railroad transportation proves that whenever a railroad depends for its support upon traffic upon which another railroad is in like manner dependent, and the competition thus engendered has continued for any considerable length of time, one competitor has either swallowed up the other, or, if both survive, it is under some modus vivendi established by agreement.

Suppose the case of several rival lines, all of them much-needed public facilities, and to support all of which there is a sufficient traffic at fair rates. The competition between them waxes fiercer and fiercer until the point is reached where there is no profit for the road possessing the least natural advantages. Can a word be said in defense of the proposition that public policy requires that this competition should proceed until it ends in the successive destruction of the weaker parties and the consequent loss of most useful public facilities?

From this we venture to draw the conclusion that competition is useful only where it is voluntary. Such a thing as competition made compulsory by law is utterly abhorrent to every principle of public policy.

Freedom of contract is, in general, the best public policy. Some will always be found who will abuse freedom, and make contracts of a mischievous public tendency. These contracts should be declared illegal, and may justify penal enactments. The courts have a broad jurisdiction to inquire into and determine what contracts are and what are not in conflict with public policy.

The extinction of competition by agreement has always been going on in the industrial world, and to the principal ways in which it is done no sound lawyers or thinkers have ever suggested any objection.

An ideally perfect railroad service would be one in which a shipper was assured that he could deliver any amount, large or small, of merchandise at any point in the country, at any time, destined for any other point, and have it delivered at its destination in safety and with despatch at a price known beforehand, which would fairly reward the

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service and be no greater or less than that exacted from others in similar circumstances. This would include the following requisites. (1) Uniformity in rates; (2) stability in rates; (3) equality in rates; (4) despatch and safety; (5) ease and convenience effected by classification and publicity; (6) reasonable rates.

It is an assured fact that whenever men are engaged in performing different parts of the same work they will co-operate in it; that is, they will agree with each other to the end that the work of each may be as little troublesome and as effective as possible. Self-interest and benevolence here concur with each other; and it may with equal confidence be said that men will under these circumstances always agree unless they are somehow pre vented.

With the progress of railroad extension the need of stability, equality, and unifor. mity of rates became increasingly and at last overwhelmingly apparent, and the lack of them equally so. Under competitive conditions this was impossible except when brought about by agreement.

The present agreement was the effort of honorable men to enable themselves to carry on the most necessary of all businesses, without ruin to the property employed and without crime. The situation was unendurable and demanded an earnest effort to discover whether some agreement, other than pooling, could not be contrived which could be enforced and which would be effective. Whether the one actually devised will be effective if it is sustained cannot be absolutely affirmed. It has not yet been fully tried; but there is no objection to it of a legal na ture, which upon any principle heretofore declared, can be sustained. Its object is not in any way to create a monopoly or raise rates; not, in any degree, to suppress or check competition other than secret and illegal competition. It punishes no conduct except criminal conduct. It seeks no other end than to maintain and enforce the observance of the Interstate Commerce Law, and to secure the stability, uniformity, and equality which are the chief objects of that law.

So far as respects all forms and modes of competition save one, the agreement saves and cherishes competition. The improvement of tracks and equipment, increase of facility, safety and despatch in the conduct of the service, are all encouraged. The more these qualities are exhibited by every line the larger traffic it gains, and all these increased rewards are its own. It is competition in rates only which is aimed at; and this is not forbidden directly or indirectly. A temporary adherence to agreed rates for a period not exceeding thirty days is made obligatory.

found in abundance in the often-repeated declarations of the Interstate Conimerce Commission.

If further illustration were needed of the magnitude of the mischiefs brought about by unrestrained competition, of the impossibility of checking or preventing them in any other way than by mutual understanding and agreement between the railway lines, of the efficacy of that method. and of the necessity for voluntary self-regulation through co-operative agreement and association, it will be

Boston Chamber of Commerce v. Lake Shore & M. S. R. Co. 1 Inters. Com. Rep. 763; Report of the Interstate Commerce Commission (1887) 1 Inters. Com. Rep. 653, 667-669, 671; Re Passenger Tariff & Rate Wars, 2 Inters. Com. Rep. 341.

When competition leads to the transportation of property below the actual cost, fairly computed, it ceases to be legitimate. Fair and reasonable competition is a public benefit; excessive and unreasonable competition is a public injury. Competition is to be regulated, not abolished.

Re Southern R. & S. S. Co. (1887) 1 Inters. Com. Rep. 288.

It is inevitable that the probability that any prescribed rates will be accepted by the public as just shall to some extent be affect ed by the fact that at some previous time they have been lower, perhaps considerably lower.

Report of Interstate Commerce Commission, 1 Inters. Com. Rep. 671, 672; Re Chicago, St. P. & K. C. R. Co. 2 Inters. Com. Rep. 148.

Every change in rates affects values; it disturbs trade and alters to some extent the value of contracts.

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There is nothing in the existence of such arrangements which is at all inconsistent with earnest competition.

But in order to form them great mutual concessions are often indispensable, and such concessions are likely to be made when relations are friendly, but not to be looked for when hostile relations have been inaugurated.

Id. 263, 264.

The practice of employing soliciting agents, and the somewhat kindred one of establishing transportation lines, Red, White, Blue, etc., is in a large degree fruitful in violations of the law, dishonest artifices, and wasteful expenditure.

Re Underbillings, 1 Inters. Com. Rep. 817. This agreement is likely to be very efficient in its operation, for (1) it takes away the temptation to violate the law; (2) it binds the parties not to violate it, and mulets them in a severe penalty if they do violate it: and (3) it makes it to the interest of all except the guilty parties to detect and expose any violation, and thus bring it to punishment. Fourth Annual Report of Interstate Commerce Commission, 3 Inters. Com. Rep. 339, 340.

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The contract is necessary to the uniform. ity, the stability, the fairness, and the just ness of rates; to the ease, safety, and convenient despatch of the enormous transportation of the country; is necessary as a supplementary aid to the Interstate Commerce Law; and necessary to the prevention of crime, concealment, and perjury, otherwise sure to be committed to a prodigious extent, and necessary to the preservation of great public facilities; and is not a contract, combination, or conspiracy in restraint of trade within the meaning of the act.

If the Anti-Trust Act is interpreted as forbidding agreements such as the one under discussion, one of three alternatives must necessarily follow: (1) That all railroad transportation will be abandoned; or (2) the consolidation of all competing railroads un der a single ownership, either governmental or private; or (3) that all competing railroad business must be carried on in constant and daily violation of criminal law.

It is not possible for competing railroad transportation to be carried on permanently without uniformity in rates, fixed either by express or tacit agreement.

The multitudinous expressions of the Interstate Commerce Commission all mean uniformity of rates by agreement, either express or tacit.

Congress never intended in enacting the Anti-Trust Act, to condemn and make criminal as restraints on trade those regulating contracts and arrangements respecting railroad traffic which, in some form, are every where adopted, and without which it is impossible the business of railroads could be carried on in conformity with its own laws. Church of the Holy Trinity v. United States. 143 U. S. 457, 36 L. ed. 226,

The positions taken in this brief are fully supported by the weight of authority.

Kellogg v. Larkin, 3 Pinney, 150, 56 Am. Dec. 164; Leslie v. Lorillard, 110 N. Y. 519, 1 L. R. A. 456; People v. North River Sugar Ref. Co. 121 N. Y. 582, 9 L. R. A. 33; Collins v. Locke, L. R. 4 App. Cas. 674; National Benefit Co. v. Union Hospital Co. 45 Minn. 275, 11 L. R. A. 437; Perkins v. Lyman, 9 Mass. 522; Manchester & L. R. Co. v. Concord R. Corp. 66 N. H. 100, 9 L. R. A. 689, 3 Inters. Com. Rep. 319; Judge Cooley's ar ticle in the Railway Review, April 26, 1884, on the subject of Traffic Pooling; Mitchel v. Reynolds, 1 Smith, Lead. Cas. pt. 2, p. 508; Perkins v. Lyman, 11 Mass. 76, 6 Am. Dec. 158; Pierce v. Fuller, 8 Mass. 223, 5 Am. Dec. 102; Bowser v. Bliss, 7 Blatchf. 344, 43 Am. Dec. 93; Grundy v. Edwards, 7 J. J. Marsh. 368. 23 Am. Dec. 409; Morgan v. Perhamus, 36 Ohio St. 517, 38 Am. Rep. 607; Pike v. Thomas, 4 Bibb. 486. 7 Am. Dec. 741; Morse, Twist Drill & Mach. Co., v. Morse, 103 Mass. 73, 4 Am. Rep. 513; loyt v. Holly, 39 Conn. 326, 12 Am. Rep. 390; Hubbard v. Miller, 27 Mich. 15, 15 Am. Rep. 153; Cook v. Johnson, 47 Conn. 175, 36 Am. Rep. 64.

The opinion in the Trans-Missouri case suggested a distinction between agreements restraining competition between persons or corporations engaged in business of a public nature, and those engaged in private business. To show this a passage is quoted from the case of Gibbs v. Consolidated Gas Co. 130 U. S. 396, 408, 32 L. ed. 979, 984, citing the following cases: New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516; Louisville Gas Co. v. Citizens' Gas Co. 115 U. S. 683, 29 L. ed. 510; Shepard v. Milwaukee Gaslight Co. 6 Wis. 539; Chicago Gaslight & Coke Co v. People's Gaslight & Coke Co. 121 Ill. 530; St. Louis v. St. Louis Gaslight Co. 70 Mo. 69: Printing & N. Registering Co. v. Sampson, L. R. 19 Eq. 462; West Virginia Transp Co. v. Ohio River Pipe Line Co. 22 W. Va. 600, 46 Am. Rep. 527; Western U. Teleg. Co. v. American U. Teleg. Co. 65 Ga. 160, 38 Am. Rep. 781.

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This question whether agreements between such persons are injurious to trade depends always upon the actual effect of such agreements upon trade, such effect being deter mined by the character of the agreements and the purpose in view as shown by the agreements themselves and the facts of the situation which calls them forth and to which they were to be applied.

Even assuming that this clause in the agreement can be construed into a violation of § 5 of the Interstate Commerce Act, this suit would not be maintainable, because it is not authorized by that act, and is precluded by its express provisions.

People v. Fisher, 14 Wend. 9, 28 Am. Dec. | earnings of traffic which this agreement does 501; Hooker v. Vandewater, 4 Denio, 34, not contemplate. 47 Am. Dec. 258; Stanton v. Allen, 5 Denio, 434, 49 Am. Dec. 282; Cleveland, C. C. & 1. R. Co. v. Closser, 126 Ind. 348, 9 L. R. A. 754, 3 Inters. Com. Rep. 387; Shrewsbury & B. R. R. Co. v. London & N. W. R. Co. 17 Q. B. 652, 6 H. L. Cas. 113; Hare v. London & N. W. R. Co. 2 Johns. & H. 80; Manchester & L. R. Co. v. Concord R. Corp. 66 N. H. 100, 9 L. R. A. 689, 3 Inters. Com. Rep. 319. Agreements simply designed and operative to restrain ruinous competition are not in any manner objectionable when entered into by persons engaged in ordinary business. They have been repeatedly sustained, and, it is believed, nowhere condemned. But agreements between such parties, when calculated and designed simply to raise prices by suppressing ordinary competition, are equally obnoxious to the law.

Wickens v. Evans, 3 Younge & J. 318; Skrainka v. Scharringhausen, 8 Mo. App. 522; Sayer v. Louisville Union Benev. Asso. 1 Duv. 143, 85 Am. Dec. 613; Collins v. Locke, L. R. 4 App. Cas. 674; Central Shade Roller Co. v. Cushman, 143 Mass. 355; Gloucester Isinglass & G. Co. v. Russia Cement Co. 154 Mass. 92, 12 L. R. A. 563.

The agreement is in no manner in violation of the provisions of § 2 of the act. It creates no monopoly, nor is it an attempt or corspiracy to monopolize.

In the attempt made by the bill to array every possible objection to the agreement, there is an evident purpose to suggest that its 8th article, in connection with other subsidiary provisions, constitutes pooling, and therefore is a violation of § 5 of the Interstate Commerce Act. There is no foundation for such a charge. The agreement in no manner violates any provision of the Interstate Commerce Law.

Davies v. Davies, L. R. 36 Ch. Div. 359. Mr. Edward J. Phelps, for the New York Central & Hudson River Railroad Company, appellee:

Whether the agreement by its terms violates the Federal law depends entirely on the inquiry whether it conflicts with any statute of the United States.

The bill is not based upon any statute, but proceeds apparently upon common-law grounds. No statute is referred to or charged to have been violated.

The United States has no common law. Wheaton v. Peters, 8 Pet. 591, 8 L. ed. 1055; United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259; Bucher v. Cheshire R. Co. 125 U. S. 555, 31 L. ed. 795.

The only statutes of the United States that are claimed to be infringed by the terms of the agreement are the Interstate Commerce Act of February 4, 1887, amended by acts of March 2, 1889, February 10, 1891, and February 8, 1895, and the Anti-Trust Act of July 2, 1890.

The agreement violates no provision of the Interstate Commerce Act.

The only provision in that act which is claimed to be infringed is contained in § 5, which prohibits "pooling."

"Pooling" means a division of the money

This court has no power to grant an injunction, either interlocutory or upon final decree, at the suit of the United States government, against the commission of a crime, where no other grounds for the injunction exist except that the act sought to be enjoined is an offense, unless such power is specially conferred by the statute.

Nor does it come within the general equity jurisdiction of the court, since an injunction of that character is unknown in equity jurisprudence.

United States v. Debs, 158 U. S. 564, 39 L. ed. 1092.

No power to grant an injunction against a "pooling" contract is conferred upon the court by the Interstate Commerce Act.

The Interstate Commerce Act does not authorize the commencement of any suit until an inquiry and decision of the Commissioners has first taken place, which in this case has not taken place.

The Anti-Trust Act of July 2, 1890, does not apply to the business of railroad transportation.

The case of United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 41 L. ed. 1007, is by no means controlling in this case. The points of difference are clearly pointed out in the brief of Mr. Edmunds, and need not be restated.

We ask of the court a reconsideration of the conclusions reached by the majority of the judges in that decision, which overrules the judgment of six United States circuit and district judges who sat in the different stages of that case and this, and is opposed to the opinion of four members of this tribunal, and also overrules the decision of Mr. Justice Jackson in the case Re Greene, 52 Fed. Rep. 109, which is directly in point.

Its consequences are far-reaching and disastrous. It deprives the citizens of this country of the right, never before questioned in an English or American court, of making a large class of just and reasonable contracts, often absolutely necessary to the use of property, the transaction of business, and the fair compensation of industry.

Many decisions of this court to this effect are cited by Mr. Justice White, to which many more might be added.

Where a special statute fully covers the subject to which it is addressed, and a subsequent general statute contains words that might, if standing alone, receive a construction broad enough to include the same matter, the general will always give way to the special statute, and will be regarded as not intended to intrude on its province, unless that intention is clearly manifested. And especially will this construction be given where, as in the present case, the statutes, if taken to relate to the same thing, would not only be superfluous, but inconsistent.

Endlich, Stat. § 113, 137, 22; Bishop, v. Washington Market Co. 108 U. S. 250, 27 Written Law, § 126; Brewer v. Blougher, L. ed. 717. 14 Pet. 178, 10 L. ed. 408; Reiche v. Smythe, 13 Wall. 164, 20 L. ed. 566; Atkins v. Fibre Disintegrating Co. 18 Wall. 272, 21 L. ed. 841; United States v. Saunders, 22 Wall. 492, 22 L. ed. 736; Townsend v. Little, 109 U. S. 504, 27 L. ed. 1012.

Says Chief Justice Marshall in United States v. Wiltberger, 5 Wheat. 95, 5 L. ed. 42: "The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself."

And in United States v. Morris, 14 Pet. 475, 10 L. ed. 548, the court remarked: "It has been long and well settled that such [penal] statutes must be construed strictly."

In Harrison v. Vose, 9 How. 378, 13 L. ed. 181, this court observed: "In the construction of a penal statute, it is well settled also that all reasonable doubts concerning its meaning ought to operate in favor of the respondent."

In the case of The Enterprise, 1 Paine, 32, Judge Livingston said: "It should be a principle of every criminal code, and certainly belongs to ours, that no person be adjudged guilty of an offense unless it be created and promulgated in terms which leave no reasonable doubt of their meaning."

"Statutes creating crimes will not be extended by judicial interpretation to cases not plainly and unmistakably within their terms. If this rule is lost sight of the courts may hold an act to be a crime when the legislature never so intended. If there is fair doubt whether the act charged in the indictment is embraced in the criminal prohibition, that doubt is to be resolved in favor of the accused."

Per Dillon, Justice, in United States v. Whittier, 5 Dill. 219. See also United States v. Sheldon, 2 Wheat. 119, 4 L. ed. 199; United States v. Hartwell, 6 Wall. 395, 18 L. ed. 832; United States v. Shackford, 5 Mason, 445; United States v. Clayton, 2 Dill. 219; United States v. Garretson, 42 Fed. Rep. 22; Dwarris, Stat. 641; Hubbard v. Johnstone, 3 Taunt. 177.

But if any doubt could still exist on this point, it is completely set at rest by reference to the proceedings of Congress in both Houses, on the passage of the Anti-Trust Act.

2 Cong. Record, pt. 1, 96; pt. 4, 3153, 3857; pt. 5, 4099, 4104, 4123, 4753, 4837; pt. 6, 5453, 5950, 5981; pt. 7, 6116, 6208, C312.

The Supreme Court of the United States held in the case of Blake v. National Banks, 23 Wall. 307, 23 L. ed. 119, that reference to the Congressional Journals may be had, on a question as to the meaning of the language

of a statute.

Gardner v. The Collector, 6 Wall. 511, 18 I. ed. 894; Church of the Holy Trinity v. United States, 143 U. S. 465, 36 L. ed. 230. Views of individual cannot be taken into consideration.

Aldridge v. Williams, 3 How. 24, 11 L. ed. 476; United States v. Union P. R. Co. 91 U. S. 79, 23 L. ed. 224; District of Columbia

Assuming for the purposes of argument that the Anti-Trust Art does apply to railway traffic contracts, no provision of that law is violated by the agreement now under consideration.

The prohibitions of the act are two: (1) Against contracts, combinations, or conspir acies in restraint of trade or commerce; (2) the monopoly of, or the attempt or combination to monopolize, any part of the trade or commerce of the states or with foreign nations.

The agreement in this case is not "in restraint of trade or commerce."

The theory of the bill seems to be that the agreement comes within this description because it tends to restrict competition, and because any agreement which restrains competition is "in restraint of trade." Both these assumptions are erroneous; the one in fact, the other in law.

The agreement does not restrain competition to any such appreciable extent as would justify an injunction, except that competition which is unlawful because it is secret.

Assuming, again, against the fact, that

certain restriction of competition is the necessary result of this agreement if it is allowed to proceed, it plainly appears by its terms to be only such restraint of competi tion as is necessary to secure "just and reasonable rates."

By the Interstate Commerce Act all rates are required to be "reasonable and just." Every unjust and unreasonable charge is made unlawful. Schedules of rates are required to be published and kept open to the public inspection, and to be filed with the Commissioners, and not to be changed without due notice to the public and the Commissioners. Ample remedies, criminal and civil, are provided for the violation of these requirements, the enforcement of which is made the duty of the Commissioners. And the companies are also made subject to the state laws regulating rates.

The precise question, therefore, under this clause of the Anti-Trust Act, is whether a contract that produces a result which the Interstate Commerce Act in terms authorizes and provides for, and helps to repress a practice which that act forbids, is for that reason a contract for the unlawful restraint of trade. Or, in other words, whether it can be made unlawful by a forced construction of the general provisions of one statute of the United States, for a carrier company to provide by a traffic contract for the maintenance of those "just and reasonable rates" which another statute of the United States not only authorizes, but creates elaborate means for making permanent, and for preventing the secret changes of rates which the Interstate Commerce Act prohibits.

It is the statutes themselves that have prescribed a definition of this clause of the Anti-Trust Act, so far as it applies to railway traffic contracts, if it is held to apply to them at all, whatever its meaning as to cther contracts may bc.

That the just and reasonable rates of

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