of the carrier, the Louisville and Nashville Railroad. The switch led from the quarries of the parties who constructed it, and was used for the purpose of shipping stone. Subsequently the rails and ties and the switch property was transferred to the carrier. Common carriers are quasi public corporations, and in accepting their charters they assume and impliedly agree to perform those public duties which the law imposes on common carriers. These duties require them to the extent of their resources to furnish adequate facilities for the transaction of all business offered, and to deal fairly and impartially with their patrons. And these duties may be enforced in equity by injunction. And this law prevailed prior to the passage of the Interstate Commerce Act. (Munn v. Illinois, 94 U. S. 126; McCall v. Cincinnati, Indianapolis, etc., Railroad, 13 Fed. R. 5.)

By the acceptance of their charters, carriers assume a public trust which clothes the public with an interest in the railroad, in so far as the right of user is involved, which can be controlled by the public to the extent of the interest so conferred.

A common carrier has no right to contract with corporation or individual to give exclusive rights to transfer any commodity over any part of its line. (Oman v. BedfordBowling Green Stone Co., 134 Fed. R. 64.)

VIII. CRIMINAL TRUSTS UNDER SHERMAN ACT.

$ 41. Jurisdiction-Action Pending in State Court when no Bar Under Sherman Act.- When suits are pending between the same parties for the same cause in State and Federal courts, the jurisdiction of the latter resting upon diversity of citizenship, a plea in abatement alleging the pendency of one will be futile against the other. (Gordon v. Guilfoil, 99 U. S. 168.) But where the State court is without jurisdiction to enforce the remedy sought in the same action pending in the Federal court, the same cause cannot be pending in both. A State court has no jurisdiction to enforce the provisions of the Sherman Act, and the pendency of an action for that purpose is no bar to a suit to enforce the act in the Federal court. (Loewe v. Lawlor, 130 Fed. Rep. 633.)

MEASURE OF DAMAGES SHERMAN ACT.

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§ 42. Municipal Corporation May Recover Damages Under.- A municipal corporation engaged in supplying its citizens water, gas, or electric light, is "a business corporation," and under section 7 of the Sherman Act may maintain an action to recover treble the damages which it has sustained by reason of a combination or conspiracy in restraint of trade and commerce in violation of the act. (City of Atlanta v. Chattanooga Foundry Co., 127 Fed. Rep. 23. December, 1903, C. C. A., sixth circuit.)

The city of Chattanooga operated its own water-works and realized therefrom large profits from sale of water to private consumers. The city, in the conduct of its business, was obliged to purchase large quantities of iron pipe and water mains. It was claimed that the price of this commodity was unlawfully enhanced by defendants, who were subsidiary companies forming part of a trust, by suppressing competition in interstate commerce in the sale of iron pipe. That by reason of such conspiracy plaintiff was compelled to buy pipe from defendants, both Alabama corporations. That defendants agreed with the parent company to pay a "bonus" to the trust in order to get the bid from the city for the sale of the pipe through the instrumentality of fictictious bids. That this bonus was $15,000, which was added to the purchase price and paid to the trust. That the price was extortionate, and was $15,000 more than the city would have paid but for the unlawful conspiracy entered into by defendants forming part of the trust. At the trial defendants had a verdict by direction of the court. On appeal this verdict was reversed. The court held that plaintiff, though a municipal corporation, could maintain the action, and that defendants were constituent companies of the Addyston Pipe and Steel Company, which the Supreme Court had declared to be an illegal trust. (City of Atlanta v. Chattanooga Foundry Co., 127 Fed. Rep. 23.)

§ 43. Measure of Damage Under Sherman Act. If the members of an illegal conspiracy in restraint of trade are able to prevent competition in the sale of a commodity which is a subject of interstate commerce, and as a result

the price of the commodity is enhanced and plaintiff is obliged to pay the enhanced price for the commodity used in his business, the measure of damages sustained by the business of the purchaser will be the difference between the price paid and the reasonable price of the commodity under natural competitive conditions. This difference, in the case of iron pipe purchased by plaintiff, was held to be $15,000, shown to be a bonus paid to the trust over and above the reasonable value of the pipe. (City of Atlanta v. Chattanooga Foundry Co., 127 Fed. Rep. 23.)

844. Liability of Individual Members of a Trust.The fact that only two members of an unlawful combine are sued for damages under the Sherman Act is not a defense to the action. If the agreement between defendants and their associates was unlawful and tortious, each is responsible for the torts committed in the course of the illegal combination. That if defendants participated in the benefits resulting from a bonus paid to defendants and their associates, who were not parties to the action, they cannot complain that they were sued alone. (City of Atlanta v. Chattanooga Foundry Co., 127 Fed. Rep. 23.)

$45. Statute of Limitations Applicable to Sherman Act. A suit to recover damages under section 7 of the Sherman Act is not an action for a penalty or forfeiture under section 1047 U. S. Rev. Stat., which declares that a suit to recover a penalty or forfeiture, "pecuniary or otherwise, accruing under the laws of the United States," must be brought within five years. A suit for damages under the Sherman Act is an action to enforce a civil remedy for a private injury, as compensatory damages. Nor does the fact that the damages may be trebled change the nature of the action, such excessive recovery being by way of exemplary damages.

The Statute of Limitations under the Sherman Act is governed by the Statute of Limitations governing actions of a similar character prevailing in the State where the action is brought. (City of Atlanta v. Chattanooga Foundry Co., 127 Fed. Rep. 23.)

BEEF TRUST ILLEGAL.

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§ 46. Beef Trust an Unlawful Conspiracy Under. The Circuit Court of the United States for the northern district of Illinois in April, 1903, in a suit brought by the United States against Swift & Company and a number of corporations, firms, and individuals of different States engaged in the preparation and sale of meats, held that defendants were engaged in an unlawful conspiracy and combination in restraint of trade and commerce within the meaning of the Sherman Act. The corporations are known as the packers, or the beef trust. They interposed a demurrer in the court below which was overruled and a preliminary injunction was granted restraining the defendants from entering into, taking part in, or performing any contract, combination, or conspiracy as to trade and commerce in fresh meats. The defendants appealed from the judgment below to the Supreme Court of the United States, which affirmed the judgment modifying the injunction appealed from only by striking therefrom the words "any other method or device."* The injunction, as modified, restrains combinations only to the extent of certain specified devices which the defendants are alleged to have used and intended to have continued to use. (Swift & Co. v. United States, 196 U. S. 375; affirming United States v. Swift, 122 Fed. Rep. 529.)

Mr. Justice Holmes summarizes the bill of complaint as follows: "It charges a combination of a dominant proportion of the dealers in fresh meat throughout the United States not to bid against each other in the live stock markets of the different States; to bid up prices for a few days in order to induce the cattle men to send their stock to the stock yards; to fix prices at which they will sell, and to that end to restrict shipments of meat when necessary; to establish a uniform rule of credit to dealers and to keep a blacklist, to make uniform and improper charges for cartage; and, finally, to get less than lawful rates from the railroads to the exclusion of competitors. It is true that the last charge is not clearly stated to be a part of the combination. But it is alleged that the defendants have each and all arrange

For text of the injunction, see Snyder's Interstate Commerce Act, page 289.

ments with the railroads that they were exclusively to enjoy the unlawful advantage, and that their intent in what they did was to monopolize the commerce and to prevent competition.".

The court further observed in sustaining the injunction that although the combination alleged embraced restraint and monopoly of trade within a single State, its effect upon commerce among the States is not accidental, secondary, remote, or merely probable. On the allegations of the bill the latter commerce no less, perhaps even more, than commerce within a single State is an object of attack. (Leloup v. Port of Mobile, 127 U. S. 640, 647; Crutcher v. Kentucky, 141 U. S. 47, 59; Allen v. Pullman Co., 191 U. S. 171.) The subject-matter is sales, and the very point of the combination is to restrain and monopolize commerce among the States in respect to such sales.

As to the contention that the bill was too vague and did not set forth a case of commerce among the States, the court said: "Commerce among the States is not a technical legal conception but a practical one, drawn from the course of business. When cattle are sent for sale from a place in one State, with the expectation that they will end their transit after purchase in another, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a technical, constantly recurring course, the current thus existing is a current of commerce among the States, and the purchaser of the cattle is a part and incident of such commerce." The court observed further that no more powerful instrument of monopoly could be used than an advantage in the cost of transportation. (Swift v. United States, 196 U. S. 375.)

847. Stock Quotations, when not Within. There is a property right in market news whose dissemination is helpful to commerce, as quotations of prices on sales of grain and provisions for future delivery, which a court of equity will protect by injunction. Persons who disseminate such news may invoke the protection of a court of equity, and the right to sell such quotations will not be deemed infected