The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-10-25

1SSAieo violation or the agreement.
Inc only alternative is the adoption of
resolution by the board of directors
OF another company providing for
cnange of rates so far as that company
IS concerned and the service of a copy
thereof on the board of managers It
IS TINS provision which is referred to
DN counsel as most material and i'm
portant and one which constitutes a
material and important distinction be-
tween the two agreements
After holding that the propositions of
the Two cases are not essentially diff
1erept, the opinion proceeds: THE
natural and direct effect of the two
agreements is the same viz: to main
tam rates at higher level than would
otherwise prevail, and the differences
between them are not sufficiently i'm
portant to cali for different judgments
on the Two cases on any such grounds.
Inc opinion then takes up the consti-
tuuonality OF the antitrust act as af-
fecIng railroads. Justice Peckham
says that it is worthy of remark that
the question was never raised or limited
al upon the argument in the former
case.
The fact that not one of the many
astute and able counsel for the trans
portation companies in that case raised
an objection of such conclusive cnarac-
Ter, if well founded, is strong evidence
that the reasons showing the inValidity
surface and were not then apparent TO
those counsel.
Upon the constitutionality of the act
II Is now earnestly cOntended that con-
tracts in restraint of trade are not
necessarily prejudicial To the welfare
and security of society, and that con-
gress is without power TO prohibit gen
orally all contracts in restraint of
trade and that the efforts to do this
invalidates the act in question.
FAR-REACHING EFFECT.
Justice Peckham comments upon the
fears expressed by counsel for the rail-
road association that the effect Of
these decisions would be far-reaching,
rendering illegal most business con-
tracts or combinations, such as con-
tracts to maintain wages, contracts of
incorporation for any line of business,
or partnership contracts.
This makes quite a formidable list, 3"
the opinion states, but it viii be OBJ
served that no contracts of the nature
described are now before the court"
The formation of corporations have
never been regarded. the opinion states,
as in the nature of contracts in
restraint Of trade The same is true
of partnerships. Proceeding, the
opinion says:
Has not congress, with regard 10
interstate commerce and in the course
of regulating it, in the case OF railroad
companies, the power to say that no
contract or commission shall be legal
which shall restrain trade and COM
merce by shutting out the operation of
the general law of competition? We
think it has.
1.-THE business of a railroad carrier
is Of q public nature and in perform
ing it the carrier is also performing to
a certain extent function of govern
Inent, which requires them TO perform
the service upon equal terms to all.
This public service, that of tranSporta-
ton of passengers and freight, is a
part of trade and commerce and when
transported between states such COM
rnerce becomes what is described as
interstate and comes TO a certain eX-
tent under the jurisdiction Of congress
by virtue of its power to regulate COM
nerce among the several states When
grantees of this public franchise are
competing railroad companies Tor IN
terstate commerce, we think congress
is competent to forbid any agreement
or commission among them by means
of which competition is to be smoth-
cred.
we think it extends at least to the
prohibition of contracts relating to in
terstate commerce which would eX-
tinguish all competition between other
wise competing railroad corporations,
and which would, in that way, restrain
interstate trade or commerce.
grantees of this public franchise are
competing railroads, seeking the trans
pOrtation Of men or goods from one
state to another, that ordinary freedom
OF contract in the use or MANAGEMENT
in their property requires the right to
combine as one consolidated and
powerful association for the purpose OF
sitting competition among themselves
and of thus keeping their rates and
charges higher than they might other
-. lou Of "a a
And this is so, even though the rates
provided for in the agreement may for
the time be not more than are reason
able They may easily and at any
time be increased. 1t is the comblna-
ton of these large and powerful cor
porations. covering vast sections OF
territory and influencing trade through
out the whole extent thereof and act
ing as one body in all the matters
over which the combination extends
that constitutes the alleged evil, ana
in regard 10 which, so far as the COM
bination operates upon and restraints
Interstate commerce, congress mas
power to legislate and TO prohibit The
prohibition of such contracts may, IN
me Judgment of congress, be one of
the reasonable necessities Tor the
proper regulation OF commerce and
congress is the judge of such necessity
and propriety, unless, in case OF a pos
sfble gross perversiOn of the principle
the courts might be apled 10 Iof re-
lief
RIGHTS OF THE CITIZEN.
referring to the claims of counsel
regarding the general constitutional
,ieht of the citizen to make contracts
and the extent of individual Hperty
uDder the fourteenth amendment, the
opinion says:
..rThe citizen may have the right to
make a proDer tthat is, lawful con-
+rect one which is also essential and
necessary in carrying out his lawful
o1,r,nose The question which arises
here is. whether the contract IS a
11,oDer or lawful one. We presume IL
Viii be commended that the right OF the
citfzeu To pursue any livelihood or No-
cation includes every means OF liVen-
Sood whether lawful or unlawful. Not
x-ithstanding the general liberty OF
contract which is possessed by the cit
szen under the constitution, we ma lhat
@bere are many kinds OF contracts
>-btcb while not in temselves immoral.
~ mai a in Sc may yet be PROMPTED
nv Tbe legislation of the state, or, IN
i5r+ain cases, by congress.
.srrbe question is for us one OF power
only and not one of policy we mink
the mower rests in congress, ana the
efa+ilte therefore, is valid
Irsfice Peckham deals finally with
tho nlea advanced that the court should
.at-sce its steps, because OF the wide
1900 alarm with which the trans
ST3seo,1ri decision was received, and the
.s.-f, how