The herald-advance. (Milbank, S.D.) 1890-1922, 1902-05-16

used for the purchase Of stock in other
corporations, not common carriers, which
this defendant might consider beneficial
to acquire. This defendant was not
formed as a scheme or device to evade
the act of congress known as the anti
trust act" or any other law whatever,
but solely for the purposes hereinbetore
stated.
Not Restrain Competition.
This defendant was not formed, nor
did any of those concerned in it's forma-
ton, nor any Of those who sold their
shares of stock to it, have any purpose
or intention to restrain trade or COM
merce, or to lessen competition between
said railway companies, or to monopo-
iize traffic in any manner whatever; nor
can any such results follow from the
formation or operation of this defen-
dant. In point of fact, since the argani-
cation of this defendant, rates on the
defendant railway companies lines, m
GLIDING rates to and from points COM
mon to both, nave voluntarily been so
reduced as to decrease their earnings
by upwards of a million dollars an
nually. For all Interstate commerce
on the lines of either the defendant rail-
way companies, except traffic beginning
and ending on their own lines, respec-
lively, the rates are fixed by joint tariffs
WIFI connecting lines. III respect " AAA
such traffic neither of the defendant
companies has ever had, or can have,
any independent, rate-making power or
control of trafic or rates. All joint
tariffs with other companies to or from
points common to the lines of the defen-
dant railway companies have always
been, and necessarily must be, the same,
whether the traffic is carried by one or
the other of said companies. The total
amount of all other interstate traffic,
that is, traffic between common points
on the two roads, which is not competi-
tive both as to rates and equally of ser
vice with other carriers having equal
rate-making power with them. is less
than ? per cent of the total interstate
traffic of the two companies.
The sale and transfer of property
whether in the form of shares of cor
porate stock or otherwise, has never
been adjudged to be, and is not, in viola
ton of the act Of congress of July 2.
1890, known as the ANTITRUST act"
This defendant is not a railroad COM
pany, and it has no power to operate or
manage railways, or make or control
rates of transportation, nor to monopolize
or restrain traffic of any kind. So far
from intending to violate any provision
of said act of ongress, the persons who
were concerned in organizing this de-
PENDANT, and those who nave sold their
shares to it. had every reason to believe
and did believe, that such sales were not
in any way In contravention of that act.
In common with the general public, they
were aware that during the eleven years
since the passing of that act, In many
instances, the stock of a competing rail-
way ompan has been acquired by it's
competitor or the shareholders thereof;
without objection from any branch of
principal railways doing business through
out the country. This has been lone
without objection from any branch Of
the government of the United States, and
has invariably proven beneficial to the
railway companies concerned and to
the public: and those making sales of
stock to this defendant had no reason to
believe that such sales were open to any
legal objection or question Whatever.
Not to Control Rates.
This defendant was not organized for
the purpose of acquiring a majority of the
stock Of either the Great Northern or
the Northern Pacific company, but merely
to purchase the stock of those who
wished to sell. as above stated; and was
not organized for the purpose of controll-
ing railway rates in the slightest de-
gree, and has not had and cannot have
any such effect. The transactions referred
to in the petition have consisted in the
organization of a lawful corporation, and
the purchase Of property by it. All acts
done in relation to the organization of
this defendant and in the conduct of its
business have been expressly authorized
by law, and have had no effect whatever
to restrain trade or al nong the
several states or with foreign nations. If
these lawful transactions should hereafter
have any effect to restrain trade or COM
merce among the several states or with
foreign nations (Which is hereby denied),
thai effect would be merely indirect, re-
mote, incidental and collateral, and not
intended and as nothing compared with the
/ 80 III IT,
state and international commerce which
was itnended, and which this defendant
believes is destined to result from the en-
terprise of the two railway companies,
that eliminated In the purchase Of the
Burlington stock.
And this defendant says:
| 1. The "anti-trust'' act was not in
tended to prevent or defeat an enterprise,
in aid Of a great competitive interstate
and International merely be-
cause such enterprise may carry with 1t
the possibility Of incidental restraint upon
some commerce, trif1ing both as respects
territory and volume.
2. Nor was the act intended to limit
the power of the several states to create
corporations, define their purposes, fix
the amount of their capital, and deter
mine who may buy, own and sell their
stock.
3. Otherwise construed, the act would
be unconstitutional, because:
The power to regulate with
foreign nations and among the states
does not give congress the power to reg
ulate any Of the matters above mentioned
in respect to corporations created by the
states; and because
Persons may not be derived of their
property without due process of law. by
taking from them the right to sell it, as
their interest may suggest.
There Is a defect of necessary parties
defendant, because, as already set forth,
the persons who made sales of stock of
the said railway companies to this de.
PENDANT were numerous, exceeding more
than 1900 in number. and few of them
had any connection whatever in the plan
ming or forming of this defendant, and in
their absence from this litigation no de-
cree can be mad affecting their righta
in the premises.
And this defendant denies all and all
manner Of unlawful combination and
c~onfederacy wherewith it is by the said
petition charged, without this, that II
there IL any other matter, cause or thing