Edward Douglass White

“ Does, therefore, the implication irresistibly srise that congress intended in the act of 1890 to abrogate, in whole or in part, the provisions of the act of 1887, regulating interstate commerce? It seems to me that the nature of the two enactments clearly demonstrates that there was no such intention. The act to regulate interstate commerce expressed the purpose of congress to deal with a complex and particular subject which, from its very nature, required special legislation. ”

“ How could a joint rate be agreed on by the roads composing one of these continuous lines, without an ascertainment of the rate existing on the other continuous line? What contract could be made with safety for transportation over one of the lines without taking into account the rate of all the others? There certainly could be no prevention of unjust discrimination as to the persons and places within a given territory, unless the rates of all competing lines within the territory be considered and the sudden change of the published rates of all such lines be guarded against. ”

“ The contract between the railway companies which the court holds to be void because it is found to violate the act of congress of the 2d of July, 1890 (26 Stat. 209) , substantially embodies only an agreement between the corporations by which a uniform classification of freight is obtained, by which the secret undercutting of rates is sought to be avoided, and the rates as stated in the published rate sheets, and which, as a general rule, are required by law to be filed with the interstate commerce commission, are secured against arbitrary and sudden changes. ”

“ That is the suggestion that it is impossible to say that there can be such a thing as a reasonable contract between railroads seeking to avoid sudden or secret changes in reasonable rates, because the question of railroad rates is so complex, and is involved in so much difficulty, that the say that a rate is reasonable is equivalent to saying that it must be fixed by the railroads themselves, as no mind outside of the officials of the particular roads can determine whether a rate is reasonable or not. ”

“ Indeed, the proposition that any restraint of its conduct which a railroad may create by contract is invalid, because such road is a public corporation, is demonstrated to be erroneous by the interstate commerce act, which, in the provisions heretofore referred to, not only expressly authorizes, but in some instances commands, agreements from which restraint of the action of the corporation necessarily arises. ”

“ The interstate commerce act provided for the appointment of a commission, to whom was to be confided the supervision of the execution of the law. Without going into detailed mention of the provisions of the statute, I adopt and quote the summary statement of the leading features of the original act contained in the first annual report made to congress by the commission, as required by the act. It is as follows:
'All charges made for services by carriers subject to the act must be reasonable and just. Every unjust and unreasonable charge is prohibited, and declared to be unlawful. ”

“ The act itself provides for its being so when it forbids unjust discrimination as between localities.' That is to say, if one continuous line made joint rates and fixed and published them, and the other then made a different rate, not only would the first joint rate be injurious to the interests of the railroads making it, during the period in which it could not be changed, but would also be against the interests of the public and of those who had contracted to ship, since it would create among shippers and the receivers that inequality which it was the express purpose of the act to prevent. ”

“ The significance of the statement that, to obtain uniformity of classification, a result most desirable for the best interests of the public, agreements between the railroads themselves was essential, is apparent from the fact, frequently declared by the commission in its reports, that uniformity of classification is one of the prerequisites of uniformity of rates. ”

“ The making of a tariff of this character includes necessarily agreements for the classification of freight, as the freight classification is the essential element in the making up of a rate. That the interstate commerce rates, all of which are controlled by the provisions as to reasonableness, were not intended to fluctuate hourly and daily as competition might ebb and flow, results from the fact that the published rates could not either be increased or reduced, except after a specified time. ”

“ In deed, the opinion of the court sustains this view, since it eliminates all consideration of improper motives, and holds that the validity of the contract must depend upon its face, and deduces, as a legal conclusion from this premise, that the contract is invalid, because even reasonable contracts are embraced within the purview of the act of 1890. ”

“ Referring to the modern and American rule on the subject, Beach, in his recent treatise on the Modern Law of Contracts, at section 1569, says:
'The tendency of modern thought and decisions has been no longer to uphold in its strictness the doctrine which formerly prevailed respecting agreements in restraint of trade. ”

“ The asserted exception not only destroys the rule which is relied on, but it rests upon no foundation of reason. It must either result from the exclusion of particular classes of contracts, whether they be reasonable or not, or it must arise from the fact that the contracts referred to are merely collateral contracts. ”

“ There is nothing in the existence of such arrangements which is at all inconsistent with earnest competition. They are of general convenience to the carriers, as well as to the public, and their voluntary extension may be looked for until in the strife between the roads the limits of competition are passed and warfare is entered upon. ”

“ When competition degenerates to rate wars, they are as unsettling to the business of the country as they are mischievous to the carriers, and the spirit of existing law is against them'
In addition to the text of the law heretofore commented on, the section which forbids pooling adds cogency to the construction that the law could not have been intended to forbid contracts between carriers for the purpose of preventing the doing of those things which the law forbade. ”

“ The interpretation of the statute, therefore, which holds that reasonable agreements are within its purview, makes it embrace every peaceable organization or combination of the laborer to benefit his condition either by obtaining an increase of wages or diminution of the hours of labor. ”

“ While the exact scope of these contracts is not shown, the fact that their existence was considered by congress results from the face of the act, since it requires that agreements and contracts between carriers shall be filed with the commission. Moreover, the earlier reports of the commission, as I have shown, refer to such traffic agreements, and state that after the passage of the act they continued to exist as they had existed before, eliminating only the pooling feature. ”