[179]*CINCINNATI, PORTSMOUTH, BIG SANDY, & POMEROY PACKET COMPANY, Plff. in Err., บ. GEORGE W. BAY and William Bay. (See S. C. Reporter's ed. 179-186.) 1. Error to state court-Federal ques- on con competition in the freight and passenger traffic over a route between two named Ohio ports on the Ohio river, and requires the vendors to withdraw from such competition for five years, is too insignificant to render the contract invalid under the act of July 2, 1890 (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), as imposing a restraint on interstate commerce. 3. Contracts—unlawful restraints on in- interstate commerce-incidental re- uary 2, 1906. NOTE. On illegal trusts under modern anti-, and that the decision was in favor of the validtrust laws-see note to Whitwell V. Con- ity of such legislation, may be resorted to, in tinental Tobacco Co. 64 L.R.A. 689. the absence of an opinion, to show that a Federal question which was otherwise raised Certificate of state court as showing presence in the record was actually passed upon by the of Federal question. A certificate of a chief or presiding justice of the highest court of a state cannot relieve the Supreme Court of the United States from determining for itself whether the record shows that the suit really involves any question which will entitle it to review the judgment of the state court. Newport Light Co. v. Newport, 151 U. S. 527, 38 L. ed. 259, 14 Sup. Ct. Rep. 429; Powell v. Brunswick County, 150 U. S. 433. 37 L. ed. 1134. 14 Sup. Ct. Rep. 166. Such a certificate is incompetent to confer Jurisdiction not shown on the record (Felix v. Scharnweber, 125 U. S. 54, 31 L. ed. 687, 8 Sup. Ct. Rep. 759; Mississippi & M. R. Co. v. Rock, 4 Wall. 177, 18 L. ed. 381; Powell v. Brunswick County, supra; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Henkel v. Cincinnati, 177 U. S. 170, 44 L. ed. 720, 20 Sup. Ct. Rep. 573; Home for Incurables v. New York, 187 U. S. 155, 47 L. ed. 117, 63 L.R.A. 329, 23 Sup. Ct. Rep. 84), though it may have the effect of making more certain and specific what is too general and indefinite in the record (Parmelee v. Lawrence, 11 Wall. 36, 20 L. ed. 48; Brown v. Atwell, 92 U. S. 327, 23 L. ed. 511; Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 41, 45 L. ed. 415, 21 Sup. Ct. Rep. 256; Dibble v. Bellingham Bay Land Co. 163 U. S. 63, 41 L. ed. 72, 16 Sup. St. Rep. 939). The certificate may induce the Federal court, where the question is a close one, not to construe the pleadings so strictly as to hold that they do not sufficiently present a Federal question. Roby v. Colehour. 146 U. S. 153, 36 L. ed. 922, 13 Sup Ct. Rep. 47. A certificate of the chief justice of a state court, stating that the validity of state legislation subsequent to the charter of a corporation was drawn in question upon the ground that it impaired the obligation of a contract, court. Gulf & S. I. R. Co. v. Hewes, 183 U. S. 66, 46 L. ed. 86, 22 Sup. Ct. Rep. 26. The certificate of a state court of last resort may serve to remove any doubt whether rights under the Federal bankrupt law were so relied upon and passed upon in affirming, without opinion, a judgment dismissing a suit brought by a trustee in bankruptcy to recover an alleged asset of the bankrupt estate, as to sustain a writ of error from the Federal Supreme Court. Rector v. City Deposit Bank Co. 200 U. S. 405, post, 527, 26 Sup. Ct. Rep. Rep. 289. And where the record shows that the jurisdictional question may have been involved, a certificate by the presiding judge of a state court, certified by the clerk as part of the record, that one of the questions mentioned in the 25th section of the judiciary act was decided in the manner prescribed by that act, will be presumed to have been made by authority of the court, and the Supreme Court of the United States must take jurisdiction. Armstrong v. Athens County, 16 Pet. 281, 10 L. ed. 965. A certificate signed by the clerk and certified by the presiding justice of a state court, though entitled to great weight as showing that a Federal question was decided by the court, which gives it in the manner required to give the Supreme Court of the United States jurisdiction, is not conclusive that such a question was raised in the case. Caperton v. Bowyer, 14 Wall. 216, 20 L. ed. 882. And it certainly cannot be regarded as conclusive when the same judge, in the opinion on file in the case, places the decision entirely on a ground independent of a Federal question. Adams County v. Burlington & M. River R. Co. 112 U. S. 123, 28 L. ed. 678, 5 Sup. Ct. Rep. 77. A certificate of the presiding judge of a state court is insufficient to show that a I' N ERROR to the Supreme Court of the, 1017-1027, 17 Sup. Ct. Rep. 540; United State of Ohio to review a judgment States v. Joint Traffic Asso. 171 U. S. 505, which affirmed a judgment of the Circuit 573-575, 43 L. ed. 259, 288-290, 19 Sup. Court of Lawrence County, in that state, Ct. Rep. 25; United States v. Addyston in favor of plaintiffs in an action to re- Pipe & Steel Co. 46 L.R.A. 122, 29 C. C. A. cover the purchase price of certain river 141, 54 U. S. App. 723, 85 Fed. 271, Afcraft, in which the defendant alleges that firmed in 175 U. S. 211, 44 L. ed. 136, 20 the contract of sale was illegal under the Sup. Ct. Rep. 96; Northern Securities Co. Federal antitrust act. Affirmed. v. United States, 193 U. S. 197, 331, 402, 48 L. ed. 679, 697, 726, 24 Sup. Ct. Rep. 436; Chesapeake & O. Fuel Co. v. United States, 53 C. C. A. 256, 115 Fed. 610. The facts are stated in the opinion. Mr. Ledyard Lincoln argued the cause, and, with Mr. Julius L. Anderson, filed a brief for plaintiff in error: Repeated attempts have been made to restrict the broad and general language of the Sherman antitrust act, but the Federal courts, and especially this court, have uniformly held that the act means just what it says, and cannot be confined to unreasonable restraints nor such as were condemned by the common law before its passage. United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 312-341, 41 L. ed. 1007, Federal question was raised and decided, where the recorded opinion of the court shows that the decision was based on a ground that did not involve a Federal question. Dibble v. Bellingham Bay Land Co. 163 U. S. 63, 41 L. ed. 72, 16 Sup. Ct. Rep. 939. Where, from the entire record, it appears that the decision of the state court depends upon the construction, and not the constitutionality, of a state statute, the certificate of the state court is unavailing to show that the constitutional question was involved. Lawler v. Walker, 14 How. 149, 14 L. ed. 364; Commercial Bank v. Buckingham, 5 How. 317, 12 L. ed. 169. It cannot be questioned that the transportation of persons and property from one state to another is interstate commerce. United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 312, 325, 41 L. ed. 1007, 1017, 1022, 17 Sup. Ct. Rep. 540; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Lottery Case (Champion v. Ames) 188 U. S. 321, garded such a certificate as part of the record. But such a certificate, though it may help out the failure of the record to show beyond all question the presence of a Federal controversy, seems generally to have been regarded as something distinct from the record itself. Newport Light Co. v. Newport, 151 U. S. 527, 38 L. ed. 259, 14 Sup. Ct. Rep. 429; Powell v. Brunswick County, 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166; Felix v. Scharnweber, 125 U. S. 54, 31 L. ed. 687, 8 Sup. Ct. Rep. 759; Mississippi & M. R. Co. v. Rock, 4 Wall. 177; 18 L. ed. 381; Henkel v. Cincinnati, 177 U. S. 170, 44 L. ed. 720, 20 Sup. Ct. Rep. 573; Parmelee v. Lawrence, 11 Wall. 36, 20 L. ed. 48; Brown v. Atwell, 92 U. S. 327, 23 L. ed. 511; Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 41, 45 L. ed. 415, Something more definite than a certificate of the highest court of a state that certain statutes, challenged as in violation of the Federal Constitution, were held valid, with- 21 Sup. Ct. Rep. 256; Roby v. Colehour, 146 out naming those statutes, is necessary satisfy the requirement that the record should show that such a question was involved. Lawler v. Walker, supra. to And see note to Hooker v. Los Angeles, 63 L.R.A. 471, on What the record must show respecting the presentation and decision of a Federal question in order to confer jurisdiction on the Supreme Court of the United States of a writ of error to a state court. A certificate of the state court that such questions arose and were decided as required by $25 of the judiciary act to give the Supreme Court jurisdiction to review the decision of the state court is unnecessary, where the record shows on its face that such questions arose, and how they were decided. Ableman v. Booth, 21 How. 506, 16 L. ed. 169. Home for Incurables v. New York, 187 U. S. 155, 47 L. ed. 117, 63 L.R.A. 329, 23 Sup. Ct. Rep. 84, lays down the rule that a certificate of the chief justice or presiding officer of the highest state court that a Federal question was involved is not properly a part of the record. Although the contrary nowhere seems explicitly to have been stated, Mr. Justice Wayne uses some language in Lawler v. Walker, supra, from which it might be inferred that he re U. S. 153, 36 L. ed. 922, 13 Sup. Ct. Rep. 47; Armstrong v. Athens County, 16 Pet. 281, 10 L. ed. 965; Dibble v. Bellingham Bay Land Co. 163 U. S. 63, 41 L. ed. 72, 16 Sup. Ct. Rep. 939; Gulf & S. I. R. Co. v. Hewes, 183 U. S. 66, 46 L. ed. 86, 22 Sup. Ct. Rep. 26. And see note to Home for Incurables v. New York, 63 L.R.A. 329, on The record for the purpose of showing jurisdiction in the Supreme Court of the United States of a writ of error to a state court. Other notes respecting the review of decisions of the state court in the Supreme Court of the United States are : What adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts, Apex Transp. Co. v. Garbade, 62 L.R.A. 513; How and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States, Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33; What questions the Federal Supreme Court will consider in reviewing the judgments of state courts, State er rel. Hill v. Dockery, 63 L.R.A. 571; The practice and procedure governing the transfer of causes to the Federal Supreme Court on writ of error or appeal, Wedding v. Meyler, 66 L.R.A. 833. 345-352, 47 L. ed. 492, 496-499, 23 Sup. Ct. | States, 175 U. S. 211, 244, 245, 44 L. ed. Rep. 321. The transportation of goods on a through bill of lading from one point in a given state to another in the same state by way of an adjoining state or territory is interstate commerce. Hanley v. Kansas City Southern R. Co. 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214. The states of Kentucky and West Virginia extend to low-water mark on the Ohio side, so that even boats plying directly from Syracuse to Cincinnati, without stopping at intermediate points, would necessarily, at ordinary stages of the river, pass through parts of West Virginia and Kentucky. Indiana v. Kentucky, 136 U. S. 479, 34 L. ed. 329, 10 Sup. Ct. Rep. 1051; Handly v. Anthony, 5 Wheat. 374, 5 L. ed. 113; Booth v. Shepherd, 8 Ohio St. 243; McFall v. Com. 2 Met. (Ky.) 394. It has been held by this court in a number of cases involving contracts which did not relate directly to interstate commerce, but were local in their nature, that they were not within the prohibition of the Sherman act, although the parties contracting in fact sold commodities or solicited busi ness beyond the state line; but the contract must affect interstate commerce directly, and not remotely or incidentally. United States v. E. C. Knight Co. 156 U. S. 1, 39 L. ed. 325, 15 Sup. Ct. Rep. 249; Hopkins v. United States, 171 U. S. 578, 43 L. ed. 290, 19 Sup. Ct. Rep. 40; Anderson v. United States, 171 U. S. 604, 43 L. ed. 300, 19 Sup. Ct. Rep. 50. But in the case of United States v. TransMissouri Freight Asso. 166 U. S. 290, 325, 1007, 1022, 17 Sup. Ct. Rep. 540, the court uses the following language: Transporta tion of commodities among the several states or with foreign nations falls within the description of the words of the statute with regard to that subject, and there is also included in that language that kind of trade in commodities among the states or with foreign nations which is not confined to their mere transportation. It includes their purchase and sale. Precisely at what point in the course of the trade ir or manufacture of commodities the statute may have effect upon them or upon contracts relating to them may be somewhat difficult to determine, but interstate transportation presents no difficulties. It is not necessary that the restraint upon trade should be entire, or the monopoly aimed at complete. United States v. E. C. Knight Co. 156 U. S. 16, 39 L. ed. 330, 15 Sup. Ct. Rep. 249; Addyston Pipe & Steel Co. v. United 430 136, 148, 149, 20 Sup. Ct. Rep. 96; Northern Securities Co. v. United States, 193 U. S. 407, 48 L. ed. 729, 24 Sup. Ct. Rep. 436; United States v. Addyston Pipe & Steel Co. 46 L.R.A. 122, 29 C. C. A. 141, 54 U. S. App. 723, 85 Fed. 278; Chesapeake & O. Fuel Co. v. United States, 53 C. C. A. 256, 115 Fed. 619; Lufkin Rule Co. v. Fringeli, 57 Ohio St. 607, 41 L.R.A. 185, 63 Am. St. Rep. 736, 49 N. E. 1030; Harding v. American Glucose Co. 74 Am. St. Rep. 235, note, 182 Ill. 551, 64 L.R.A. 738, 74 Am. St. Rep. 189, 55 N. E. 577. The provisions of the contract in the case at bar-especially those looking to a suppression of competition oy strangers-go far beyond the fair protection of the Big Sandy Company. Horner v. Graves, 7 Bing. 735; 24 Am. & Eng. Enc. Law, pp. 850, 851; United States v. Addyston Pipe & Steel Co. supra. In Ohio it is well settled that all restraint of trade is presumptively invalid. That a partial restraint may be enforced only where it appears that it is founded upon a valuable consideration, and is reasonable and not oppressive. Lange v. Werk, 2 Ohio St. 519; Lufkin Rule Co. v. Fringeli, 57 Ohio St. 596, 41 L.R.A. 185, 63 Am. St. Rep. 736, 49 N. E. 1030. The supreme court of Ohio and other courts have repeatedly held that contracts in restraint of competition, and tending to monopoly, are against public policy and void. Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666; Emery v. Ohio Candle Co. 47 Ohio St. 320, 21 Am. St. Rep. 819, 24 N. E. 660; State ex rel. Watson v. Standard Oil Co. 49 Ohio St. 137, 15 L.R.A. 145, 34 Am. St. Rep. 541, 30 N. E. 279; South Street R. Co. 171 Ill. 391, 49 N. E. 576; Chicago City R. Co. v. Calumet Electric Anderson v. Jett, 89 Ky. 375, 6 L.R.A. 390, 12 S. W. 670; Texas & P. R. Co. v. Southern P. R. Co. 41 La. Ann. 970, 17 Am. St. Rep. 445, 6 So. 888. See note to Harding v. American Glucose Co. 74 Am. St. Rep. 235. The two packet companies who signed the contract were not engaged in private, but in quasi public business, and therefore any restraint upon such business would be prejudicial to the public interest, and cannot be sustained. United States v. Trans-Missouri Freight Asso. 166 U. S. 333, 335, 41 L. ed. 1025, 1026, 17 Sup. Ct. Rep. 540; Gibbs v. Consolidated Gas Co. 130 U. S. 396, 32 L. ed. 979, 9 Sup. Ct. Rep. 553; United States v. Addyston Pipe & Steel Co. 46 L.R.A. 122, 29 C. C. A. 141, 54 U. S. App. 723, 85, Nav. Co. v. Wright, 6 Cal. 258, 65 Am. Dec. Fed. 291. 511; Dunlop v. Gregory, 10 N. Y. 241, 61 Am. It is claimed that the illegality of the Dec. 746; Fowle v. Park, 131 U. S. 88, 97, contract should have been specially plead-33 L. ed. 67, 74, 9 Sup. Ct. Rep. 658; Hared by the defendant. To this there are two answers. First, that the facts bringing the case within the condemnation of the act of Congress and of the common law appear upon the face of the pleadings and are admitted by them. Indeed, the petition is demurrable. Second, we submit it is not the law that illegality must be plead-| ed, where the plaintiff cannot prove his case without disclosing the illegality; as, for instance, where it appears upon the face of the contract which is the basis of his cause of action. Lange v. Werk, and Lufkin Rule Co. v. Fringeli, supra; 4 Enc. Pl. & Pr. p. 952; 1 Enc. Pl. & Pr. p. 844; 2 Beach, Modern Law of Contracts, § 1443; Oscanyan v. Winchester Repeating Arms Co. 103 U. S. 261, 26 L. ed. 539; Emery v. Ohio Candle Co. supra; Field Cordage Co. v. National Cordage Co. 6 Ohio C. C. 615. The covenants in restraint of commerce were not ancillary. Daris v. A. Booth & Co. 65 C. C. A. 269, 131 Fed. 37; Tuscaloosa Ice Mfg. Co. v. Williams, 127 Ala. 110, 50 L.R.A. 175, 85 Am. St. Rep. 125, 28 So. 669. The question of the illegality of the contract was presented to the circuit court of Lawrence county. rison v. Glucose Sugar Ref. Co. 58 L.R.A. 915, 53 C. C. A. 484, 116 Fed. 304; Fisheries Co. v. Lennen, 116 Fed. 217; Hursen v. Gavin, 59 Ill. App. 66, Affirmed in 162 Ill. 377, 44 N. E. 735; Hedge v. Lowe, 47 Iowa, 137; Nordenfelt v. Maxim Nordenfelt Guns & A. Co. [1894] A. C. 535; S. Jarvis Adams Co. v. Knapp, 58 C. C. A. 1, 121 Fed. 34; United States v. Addyston Pipe & Steel Co. 46 L.R.A. 122, 29 C. C. A. 141, 54 U. S. App. 723, 85 Fed. 271. In this case it is immaterial whether the separate covenant of the plaintiff in error to maintain the rates charged by the parties of the first part on business above Portsmouth, Ohio, is legal or illegal. The suit is not on that covenant, but on the covenant to pay $3,600. The other covenant is not mentioned in the pleadings. Pigot's Case, 11 Coke, 27b; Bank of Australasia v. Breillat, 6 Moore, P. C. C. 152; State ex rel. Laskey v. Board of Education, 35 Ohio St. 519; Lange v. Werk, supra; Harriman, Contr. 134; Thomas v. Miles, supra; Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 70, 71, 22 L. ed. 315, 319. The contract is not illegal under the Sherman antitrust act. United States v. Joint Traffic Asso. 171 U. S. 505, 568, 43 L. ed. 259, 287; Ander Weaver v. Columbus, S. & H. Valley R. son v. United States, 171 U. S. 604, 615, Co. 55 Ohio St. 491, 45 N. E. 717. 43 L. ed. 300, 306, 19 Sup. Ct. Rep. 50; If the Federal or jurisdictional question Hopkins v. United States, 171 U. S. 578, is raised for the first time in the assign- 43 L. ed. 290, 19 Sup. Ct. Rep. 40; Northments of errors in the supreme court ofern Securities Co. v. United States, 193 U. the state, the question is presented in time. Farmers' & M. Ins. Co. v. Dobney, 189 U. S. 301, 47 L. ed. 821, 23 Sup. Ct. Rep. 565: San José Land & Water Co. v. San José Ranch Co. 189 U. S. 179, 47 L. ed. 766, 23 Sup. Ct. Rep. 487; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 231, 232, 41 L. ed. 979, 982, 983, 17 Sup. Ct. Rep. 581; Rothschild v. Knight, 184 U. S. 334, 339, 46 L. ed. 573, 579, 22 Sup. Ct. Rep. 391; Furman v. Nichol (Green v. Nichol) 8 Wall. 44, 56, 19 L. ed. 370, 375. S. 197, 360, 48 L. ed. 679, 709, 24 Sup. Ct. On a petition in error in the supreme court of Ohio to reverse the judgment of a circuit court affirming the judgment of the V. Joseph Spencer Graydon argued court of common pleas, the court is not rethe cause, and, with Mr. Lawrence Maxwell,quired to consider objections to the judgJr., filed a brief for defendants in error: The contract is valid under the laws of Ohio and at common law. Lange v. Werk, 2 Ohio St. 520; Thomas v. Miles, 3 Ohio St. 274; Morgan v. Perhamus, 36 Ohio St. 517, 38 Am. Rep. 607; Lufkin Rule Co. v. Fringeli, 57 Ohio St. 596, 41 L.R.A. 185, 63 Am. St. Rep. 736, 49 N. E. 1030; Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 22 L. ed. 315; California Steam ment of the common pleas that were not assigned for error in the circuit court. Pollock v. Cohen, 32 Ohio St. 514; Union Ins. Co. v. McGookey, 33 Ohio St. 555; Springfield, J. & P. R. Co. v. Western R. Constr. Co. 49 Ohio St. 681, 32 N. E. 961. The writ of error should be dismissed for want of jurisdiction. Caro v. Davidson, 197 U. S. 197, 49 L. ed. 723, 25 Sup. Ct. Rep. 428; Fullerton v. 182-18 Teras, 196 U. S. 192, 49 L. ed. 443, 25 Sup., nual payment be made, the Bays may can- The court will not assume facts to make Neb. (Unof.) Mr. Justice Holmes delivered the opin Portsmouth, Ohio, to or for points below ion of the court: above Portsmouth, Ohio, said rates, however, never to exceed railroad rates between said points." The last-mentioned covenants, set forth in this paragraph, are especially relied upon as making the contract illegal, as in restraint of trade. The previously mentioned suspension of instalments in case of opposition rising to a certain height also is referred to as a combination to aid the purchaser in getting a monopoly of river trade between Portsmouth and Cincinnati, including, it is said, some Kentucky ports. "It is also agreed as a part of the consideration of this agreement" that for five years the parties of the first part, or either of them, shall not be "engaged in running or in operating, or in any way be interested in any freight and passenger packet or business, or either of them, at and from Cincinnati, Ohio, to Portsmouth, Ohio, and intermediate points; nor at and from Portsmouth, Ohio, to Cincinnati, Ohio, and intermediate points; nor at and from Syracuse, Ohio, or points between Syracuse and Portsmouth, Ohio," with a qualification as This is an action upon a contract, brought to the towing and barge business, so long by the defendants in error to recover an in- as it does not interfere with the other stalment of money due by its terms. A judg-party's freight and passenger business from ment in their favor was sustained by the Portsmouth to Cincinnati. "It is also unsupreme court of the state, although the derstood in this agreement that the party petition in error to that court set up that of the second part will maintain the rates the contract was illegal under the act of charged by the parties of the first part on Congress of July 2, 1890, chap. 647. 26 business Stat. at L. 209, U. S. Comp. Stat. 1901, p. 3200. No opinion was delivered, but a certificate that this objection was relied up on, and that it necessarily was considered, was made part of the record by that court. Therefore the present writ of error prop. erly was allowed. The record shows that the question was raised, and the certificate shows that it was not treated as having been raised too late under the local procedure, a point upon which the state court is the judge. It is enough that the It might be enough, perhaps, to answer Federal question was raised and necessarily decided by the highest court of the state. the whole contention, that it does not apFarmers' & M. Ins. Co. v. Dobney, 189 U. pear on the record that the contract necesS. 301, 47 L. ed. 821, 23 Sup. Ct. Rep. 565. sarily contemplated commerce between the The contract was an indenture between states. It would be an extravagant consethe Portsmouth & Pomeroy Packet Com- quence to draw from Hanley v. Kansas City pany, George W. and William Bay, of the Southern R. Co. 187 U. S. 617, 47 L. ed. 333, railroad route first part, and the Cincinnati, Portsmouth, 23 Sup. Ct. Rep. 214,-a case of a state atBig Sandy, & Pomeroy Packet Company, of tempting to fix rates over the second part. By this instrument the passing outside its limits,-that the conparties of the first part sell to the latter tract was within the Sherman act because two steamers, two deck barges, two coal the boats referred to might sail over soil flats, and $500 in the stock of the Coney belonging to Kentucky in passing between Island Wharf Boat Company, for $30,500, two Ohio points. It may be noticed further to be paid as therein provided. The party that Ohio equally has jurisdiction on the of the second part also agrees to pay to the river. Wedding v. Meyler, 192 U. S. 573, Bays $3,600 annually in advance for five 48 L. ed. 570, 66 L. R. A. 833, 24 Sup. Ct. years, provided, however, that in case of Rep. 322. *A contract is not to be assumed[184] to contemplate unlawful results unless a opposition to its boats by other boats running from Cincinnati to Portsmouth, Ohio, fair construction requires it upon the estab or to points above Portsmouth, not includ-lished facts. Technically, perhaps, there ing points above Syracuse, Ohio, causing it to carry freight and passengers at certain exceedingly low rates, the time of payment of the instalments shall be postponed until It is further [183]the opposition has ceased. agreed that if the opposition continues for two years without interruption, and no an might be some trouble in saying that the But we do not like to put our decision |