The sun. [volume] (New York [N.Y.]) 1833-1916, 1896-05-29
THE AGREEMENT IS LEGAL.
DECIsIoN IN FAVOR or TIE JoINT
TRAFFIC hssoCIATTON.

J-aEs wheeler s.ys ths. ths R.n-o.as
Have Not Violated the Inter.atsta
Commeres Lsvs-He Di.misses the Co--
pIsint OF ths u. =. District Attorney.
Judge Hoyt II. Wheeler Of the United States
Circuit Court handed down q decision yesterday
Diminishing the bill of complaint In the suit In
equity Of the United States against tho Joint
Traffic Association. Judge Wheeler begins his
decision with q recital Of the clauses of the
Interstate act alleged 10 have been
violated. and quotes the sections Of the agree
ment between the railroads referring 10 rates
and the method adopted by the parties TO the
agreement for their maintenance. He then
says:
This bill Is brought at the request OF the In
tcr-Stato Commerce Commission, under the di-
Iection OF the Attorney-General, by the District
Attorney OF the United States for this district.
against this agreement, as made, without count
Ing upon any statutes. or alleging anything
actually done under 1t to be OF it.
self unlawful otherwise than because so
done. The answer denies. as q conclu-
sion. any ~illegality within or under the
agreement; and. as q matter OF fact, anything
unlawful outside OF or beyond It. The case has
been heard upon the bill and answer, and so is
made to turn upon the question OF the legality
or ~illegality OF the contract. and upon the right
OF the United States as plaintiff to maintain
this suit II 1t Is illegal. The provisions OF the
contract stated are understood to be the ones
challenged MS being contrary to the statute
quoted.
The Restraint and Monopoly act expressly
authorizes such a proceeding in equity as this
70 prevent its violation. and this suit Is we'll
maintained II this contract is within II. Rail-
roads are not expressly named in this act, and
are said in argument not to be within it's terms.
No one is 80 named; but 1t applies to all con-
tracts and combinations in restraint of trade
or commerce among the States. Railroads do
not trade among the States. but they carry
for those who dc; and what would restrain their
80 carrylng would seem to be q restraint of such
These provisions OF the contract do not pro-
vide for lessening the number OF carriers or
except expressly by It's terms not contrary to
able. The Interstate mme law. section /,
requires all rates to be reasonable, and tho max
rage in any traffic cannot be any restraint in
law upon such traffic. The soliciting of custom
Is no part OF the duty OF common carriers, and
dispensing with soliciting agents or with the con-
troll ~ them cannot be illegal. nor an agreement
rests wholly upon tho contract as made, and not
anything actually done under color of or beyond
ness within lawful limits as before, no unlawful
restraint Of commerce seems to be provided for
by II; and no ground for relief unde that statute
No provision is made by the Interstate
lay for enforcing its PROVISION in
mission; and authority for this suit to restrain
any violation Of that law must appear other
wise or fail. That Governments and States ex-
ercising general municipal control over the peo-
pie, their property, their rights and their CON
suits in equity to restrain actual. nuisances TO
ways, parks, m and the like. which are
States Government is limited in such Control to
which Include. of ourse.Hnter-Stat and foreign
ccE2meIce. carrying the mails. and such; These
tba usIn @ay Of p and and n arc sltR.n aFs the sn consrol on Of The tho
engaged, no nuisance would be Federal till It
should become actual by obstructing these
This contract, II illegal. is intangible. and is
not alleged. or claimed, to have DISTRACTED the
roads for Government purposes in any manner
THE United States, may maintain a bill
On eau nS,en to f Fspeal a pSss e for ana land
State, to protect its interest in components
Of the soil under IT'S naviRable waters
because of the interest in the property as pro-
prietor; or IN the grant as q party to 1t. But here
TO have granted the charters OF or to have any
proprietary Interest lin any Of these railroads.
respect involved here, but to have its prohib-
tory statutes for regulating between
th0ro against counterfeiting or tampering
with the mail, should be. Breaches OF such
dictment or information. and that merely such
are lot presentahle In equity Is elementary.
should have some right or interest in the sub.
Ject of prevention. or he given express authority
To proceed in that way BY statute. Authority is
given TO the Interstate Commerce Commission
to Lave proceedings for the enforcement of that
Law taken ard prosecuted. hut that Is under
stO,i 10 refer to the usual and appropriate pro-
cecciugs In such cases. and seems not to au-
thoriIe any that are unknown there. The right
given here Is to prosecute, but not to provide.
remedies.
arp prObihitei as arc for the pDOlirV of fratVhta
or dividing aggregate or net proceeds of earn
ings- So far as this agreement goes each road
carries the freights IT may get over its own line
cccus, net or other, OF the earnings to itself.
Very able judicial opinions and learned COM
mentarIcs and disquis!tions upon pooling. too
numerous for separate notice herein. have been
referred to, but none make 1t include what Is
left IL wholly separate channels. Provision for
reasonable. although equal or proportional, rates
ratc for each carrier, or for u just and propor-
tiorRl division Of traffic among carriers, does
not seem to be either a pooling of their trafhc
or FIRE ghts or q division of the net proceeds of
thcir earnings in any sense.
This statement OF reasons seems quito in
adequate to the very full and able argument
upon which this case has on each side been pre-
scented: but these conclusions have been reached
upon full consideration OF all, so far az under
stood ana as they, appear to be sufficient for
The bin is dismissed"
United States District Attorney Macfarlane
said. after he had heard the decision:
Judge Whccler's decision is but q prelimi-
nary step In the matter. There are questions Of
law involved which can only be conclusively
acted upon by an appellate court; and ! have
Supreme Court and will receive early consid-
GRAFTON at Its next session. the fall term"
"THEsWEARING PARsON" listed.