The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1898-10-25

fectfng railroads Justice Peckbarn
says that it is worthy of remark that
the our stion was never raised or limited
at upon the argument in the former
THE fact that not one of the many
astute and able counsel for transporta-
ton companies in that case raised an
objection of such conclusive character,
If well founded, is strong evidence that
the reasons showing the invalidity of
the act as construed do not lie on the
surface and were not then apparent to
those counsel
Upon the constitutionality of the act
it is now earnestly commended that con-
tracts in restraint of trade are not nee
essariIy prejudical to the welfare and
security of society, and that congress is
without power to prohibit generally all
contracts in restraint Of trade and that
the efforts to do this invalidates the act
in question"
Justice Peckham comments on the
fears expressed by counsel for the rail-
road association that the effect of these
decisions would be far reaching, render
ing Illegal most business contracts com
binations, such as contracts to maintain
wages, contracts of incorporation for
any line OF business, or partnership
This makes quite a formidable list
the opinion states, but it will be observ-
ed that no contracts of the nature de-
sired are now before the court"
The formation of corporations has
never been regarded, the opinion STATES
straint of trade. The same is true Of
partnerships. Proceeding, the opinion
says: HAS not congress, with regard
to interstate commerce and in the
course Of regulating it in the case of
railroad companies, the power to say
that no contract or combination shall
be legal which shall restrain trade and
commerce by shutting out the operation
of the general law of competition! we
think it has.
1.-THE business of railroad carrier is of
nd in Y0aTfOTning i
the carrier is also performing, to GER
tain extent, a function of government,
which requires them to perform the ser
vice upon equal terms to all. Th1S pup
lie service that of transportation of
passengers and freights, is part OF
trade and commerce, and when trans
ported between states such commerce
becomes what is described as inter
state and comes to a certain extent
under the jurisdiction of congress by
virtue of its power to regulate com
merce among the several states. When
| the grantees of this public franchise are
| competing railroad companies for inter
state commerce, we think congress is
competent to forbid any agreement or
| combination among them by means of
which competition is to be smothered.
1--WE think it extends at least to the
prohibition of contracts relating to in
| terstate commerce which would eXtin-
| guish all competition between other
| wise competing railroad corporations,
| and which would In that way restrain
| interstate trade or commerce.
1--WE do not think that when the
| grantees of this public franchise are
| competing railroads, seeking the trans
pOrtation of men and goods, from one
! state to another that ordinary freedom
| of contract in the United States and
| nagement OF their property requires
| the right to combine as one cOnsolidat-
\ ed and powerful association for the pur-
| pose OF sitting competition among
| themselves and of thus keeping their
| rates and charges higher than they
might otherwise be under the laws of
! competition. And this is so, even
| though the rates provided for in the
| agreement may for the time be more
| than are reasonab BILE. They may easily
| and at any time be increased. 1t is the
| combination of the large and powerful
| corporations, covering vast sections OF
| territory and influencing trade through
| out the whole extent thereof, and acting
/ as one body in all the matters over
4 which the combination extends, that
| constitutes the alleged evil, and in re-
| gard to which, so far as the combination
| operates upon and restraints interstate
| commerce, congress has power to legiS-
/ of such contracts may, in the judgment
| of congress, be one of the reasonable ne
| commerce, and congress is the judge Of
| such necessity, unless in a case of pos
! sible gross perversion of the principle,
! the courts might be applied to for re-
| lief"
Referring to the claims of counsel re-
/ garding the general constitutional right
| of the person to make contracts and the
! extent of individual liberty under the
! fourteenth amendment, the opinion
| says:
'"The citizen may have the right to
| make a proper Chat is, a LAWFUL con-
| tract, one which is also essential and
| necessary in carrying on his lawful
| purpose. The question which arises here
| is whether the contract is a proper or
| lawful one. We presume it will not be
! contended that the right of the citizen
| to pursue any livelihood or vocation in
| cludes every means Of livelihood, wheth-
] er lawful or unlawful. NOtWithSta
| ing the general liberty of contract
! which is possessed by the citizen under
| the constitution, we find that there are
| many kinds of contracts, which while not
| in themselves immoral or NAL in Sc,
| may be prohibited by the legislation Of
| the states or in certain cases by con-
1.-The question is, for us, one of power
only, not of policy. We think the pow
! er exists in congress and the statute is
| therefore valid
| Justice PecIIham deals finally with
| the plea advanced that the court should
retrace it's steps, because of 1.-The wide
| spread alarm with which the Transmits
| souri, decision was received and the seri-
| GUS consequences which have resulted
| or may soon result"
| After reviewing the care taken in
! reaching the former decision, the opin-
| ion says:
And now, for the third time, the same
again expected to reesant its tonnes o eoU opin Is
| ion, and to decide the same question in
! direct opposition to the conclusion arrived
| at in the Transmfssouri case. As we have
| twice already deliberately and earnestly
| considered the same arguments which are
| now for a third time pressed upon our at
| tention, it could hardly be expected that
! our opinion should now change from that
/ already expressed. We have listened to
/ the same arguments because of the emf
hence of the counsel engaged. their ear
! nestness and zeal their evident belief in
! the correctness of their position, and, most
| important of all, the grave nature of the
! questions involved. called upon the court
! to again give these arguments respect
! full attention"
! Referring to counsels claim that the
1 only resort open to railways to save them