The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-10-25

ard that the effort to do this invalidates
the act in question
FEARS OF RAILWAY ATTORNEYS.
Justice Peckham comments on the fears
expressed by counsel for the railroad as
ISOLATION that the effect of these decisions
would be far-reaching. rendering illegal
most business contracts or combinations,
such as contracts to maintain wages. con-
tracts OF incorporation for any line of bust
ness, partnership contracts. This makes
quite a formidable list" the opinion states,
but it will be observed that no contracts
OF the nature described are now before the
court The formation of corporations has
never been regarded, the opinion states,
~ the nature of contracts in restraint of
trade The same is true of partnership.
Proceeding, the opinion says: Has not
Congress with regard to interstate COM
meIce and in the course of regulating 1t. in
The case Of railroad companies, the power
10 say that no contract or combination shall
be legal which shall restrain trade and
commerce by shutting out the operation of
think It has. -" The G business Of rail- Ms
road carrier is of public nature. and in
performing IT the carrier is also perform
. ing. TO certain extent, function of gov
ernment which requires them to perform
me service upon equal terms to all: This
public service, that of transportation of
passengers aisd freight Is sort of trade
ana commerce. aSd when transported be-
tween states such commerce becomes what
= certain extent under the jurisdiction of
Congress by virtue of its power to regulate
commerce among the several States. When
the grantees of this public franchise are
competing railroad companies for interstate
commerce we think Congress is competent
10 forbid any agreement or combination
among them by means of which competition
Is to be smothered. We think it ex-
tends at least to the prohibition of con-
tracts relating TO interstate commerce
which would extinguish all competition be-
tween otherwise competing railroad cor
porations and which would In that way re-
strain interstate trade or commerce.
A DANGEROUS COMBINATION.
I'VE do not think that when the grantees
of this public franchise are competing rail-
roads seeking the transportation of men and
goods from one State to another that or
binary freedom of contract in the use and
management of their property requires the
right to combine as one consolidated and
powerful association for the purpose of sti-
Hing 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 agree
nent may for the time be not more than
are reasonable. They may easily and at
any time be increased 1t is the combina-
ton OF these large and powerful corpora
tons, covering vast sections of territory,
and influencing trade throughout the whole
thereof, and acting as one body In all mat
ters over which the combination extends,
that constitute the alleged evil, and in re-
gard to which, so far as the combination
operates upon and restraints Interstate COM
lnerce, Congress has power to legislate and
20 prohibit. The prohibition Of such con-
tracts may in the judgment of Congress be
one of the reasonable necessities for the
gress is the judge of such necessity and
propriety unless, in case of a possible gross
perversion of the principle, the courts might
be applied to for relief"
RPfQrFinC
ing the general constitutional right of the
citizen to make contracts. and the extent
or individual liberty under the fourteenth
amendment. the opinion says: THE citizen
may have the right to make proper chat
is a LAWFUL contract. one which is also es-
senual ana necessary in carrying out his
lawful purpose. The question which ar.ses
here Is whether the contract is proper or
lawful one. We presume ii will not be con-
tended that the right of the citizen to pur-
sue any livelihood or vocation includes ev-
cry means of livelihood whether lawful or
unlawful. Notwithstanding the general lib
erty of contract which is possessed by the
citizen under the Constitution, we find that
there are many kinds of contracts which
while nots'n themselves immoral or mala in
Sc. may yet be prohibited by the legislation
of the States, or, in certain cases. by Con-
gress The question is, for u.s. one
Of power only. and not of policy. We think
the power exists in Congress, and that the
statute is therefore valid
Justice Peclham deals finally with the
plea advanced that the court should re-
trace its steps because of 1.-The widespread
alarm with which the transmissouri de-
cision was received and the serious conse-
quences 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 arguments employed and the
court is again asked to recant its former
opinion and to decide the same question in
direct opposition to the conclusion arrived
at in the transmissouri case. AS we have
twice already. deliberately and earnestly,
considered the same arguments which are
now for third time pressed upon our at
te1tiOn. it could hardly he expected that
our opinion should now change from that
already expressed. We have listened to
the same arguments because the eminence
of the counsel engaged, their earnestness
and ZEAL their evident belief in the COR
rectness Of their position, and. most i'm
portant of all, the grave nature of the
questions involved, called upon the court to
again give to those arguments respectful
attention.
EFFECT OF COMPETITION.
Referring to counsels claim that "the
only resort open to railroads to save them
selves from ruinous competition is that
of agreements among themselves to check
and control it, Justice Peckham says:
THE natural, direct and immediate effect
of competition is to lower rates, and to
thereby increase the demand for commodi-
ties, the supplying of which increases COM
merce, and an agreement whose first and
direct effect is to prevent this play of COM
petition restraints instead of promoting.
trade and commerce. Whether, in the alb
sence of an agreement as TO rates, the con-
sequences described by counsel will in fact
follow is a matter of very great uncer-
tainty. Railroads may, and often do. con-
tinue in existence and engage in their law
full traffic at some profit although they
are competing railroads and are without
combination on rates
In conclusion the opinion says: at is not
only possible but probable that good sense
and integrity of purpose would prevail
among the managers. and while making no
agreement and entering into no combination
by which the whole railroad interest as
herein represented should act as one COM
bined and consolidated body. the managers
OF each road might yet make such reason