The herald-advance. (Milbank, S.D.) 1890-1922, 1903-08-07

I'd Ths act applies to railroads. And
a.! contracts made between railroad COM
panles for the purpose and having the
erect OF preventing competition by fixing
Latss' or empowering persons to fix them,
II agreeing TO conform to them when
uAeu, are IN restraint of trade and within
sne provisions of the statute, whether
reasonable.
.tnl That contracts between divers
manufacturers of a commodity respect
iHS thelr sales of that commodity to be
ueIiVered by them outside the state, hav-
t tis 'ne direct effect of sitting competi-
- me purchaser. is also in restraint Of
u1le ana within the statute.
- &C. mat contracts which do not di-
teCtIy ana necessarily affect transporta-
I'm or rates therefor, are not in re-
STINT OF trade, or within the statute,
SHgH Lnough they may remotely and in
etfeSty appear to haves some probable
effect In that direction.
ne state antitrust act must have
ene same construction in respect to traf-
nc on railroads within the state.
Does Not Control.
Neither the Great Northern company
nor the Northern Pacific ompany were
parties TO, or in their corporate capacity
nau anything to do with the formation
OF the Northern Securities company, nor
or any. Of the contracts or proceedings
complained of in the bill. The Northern
SecurltleS company is merely an investor
IN and owner of a majority of the stock
or each of these two railroad companies.
II IS not a railroad company. and has
crate or direct the anagement or OBJ
erauon or either railroad in respect to
rates or charges for transportation, or
other"lse; and there is no s~cintilla of
evidence hat it has sought to control or
tiers.
1T has, therefore, lone no act and
mace no contract in restraint of trade or
me stock of each of these railroad COM
paEtes, it has the power by voting its
STOCK to elect the board of directors-the
governing body-of each of these rail-
road companies. But the board Of d.
tect0rs of each is a different body from
tl3 board OF directors of the other, as no
director Of the Great Northern company
can be a director OF the Northern Pacific
company. The directors of each railroad
company Will appoint its managing and
other othcers, and control its business
ma policy. Presumably they will seek.
IN lawful ways only, to increase the busi-
ness and property of the railroad which
they as directors represent.
The action of the defendant Hill in
promoting the formation of the North
ern Securities company. under the cir
cumstinCes and for the purposes which
the evidence disClOses, and investing in
its stock by the sale to it Of his stock
80 80 W. 80 Sclilp 4
no act or contract in restraint of trade
or commerce.. or affecting transportation
or rates. more than any ordinary trans
fer of railroad stock from one person to
another.
Differs With other Court.
That my judgment, after most care
full consideration of the facts and the
law applicable thereto, as construed by
the highest court, leads me to the con-
clusion that none of the defendants have
Nl0lEte1 the Minnesota antitrust act a
conclusion apparently contrary to that
reached by eminent judges who, in this
court, recently decided the case of Unit
ed States VS.. Northern Securities COM
pany, 120 Fed, III, and who will doubt
less in another court review this cause
upon appeal. has necessarily caused hes
rights of litigants and my own sense Of
duty alike requires that my own DELHI
crate Judgment, guided by my under
standing of authoritative expositions of
the law, be given in all causes tried be.
fore me.
The decision Of the case last cited.
as | read it and understood 1t, does not
specify or point out any contract, agree
ants, or any of them, which Is directly
In restraint of trade or commerce, or
which has any direct reference to trade.
transportation or rates; nor
even any threat or avowed purpose on
the part of any defendant to do any
such act, or enter into any such con-
tract or agreement.
But It Is argued that because the
Northern Securities company has become
the owner of a large majority of the
stock Of each Of the two railroad cor
suppress competition between them, by
causing the two boards of directors Of
these railroad corporations, which it can
fill by election, to enter into arrange
ments or agreements in restraint of
trade, which will suppress competitions:
and as a corollary to this reasoning Cor
conjectuce) the decision holds that the
formation of the Northern Securities
company, and purchase by it OF a ma
jOrity Of the stock of each of these rail
road companies, are acts or contracts in
and without further action .(not yet
taken. and perhaps never to be taken)
by the directors of the two railroad COM
panies, the formation of the Northern
stock has and can ave nothing to do
directly or indirectly with trade, COM
merCe, transportation or rates.
Guilty Before Offending.
ITO epitomize this decision: 1t Is held
that 1t will be for the interest of the
Northern Securities company to restrain
trade by suppressing competition between
these two railroad companies; and that
of directors. whom it has the power to
elect. it will certainly cause them to
commit highly penal offenses by enter
ing into combinations. contracts and ar
rangements in restraint Of trade, in vio-
lati0n of the antitrust act, and hence
the Northern Securities company Is al
ready guilty of these offenses that have
never been committed or thought of by
its officers or promoters so far as APP
pears; and it must be suppressed and de-
stroyed.
Il am compelled to reject the doctrine
that any person can he held to have COM
mitted. or to be purposing and about to
commit a highly penal offense. merely
because it can be shown that his Pc
cuniary interests will be thereby ad-
vanced, and that he has the power either
directly by himself, or indirectly through
persuasion or coercion of his agents to
compass the commission of the offense.
No Consolidation.
"Third-The charge in the bill that the
acts Of the defendant c~ontravene the
statutes of Minnesota prohibiting the
consolidation Of parallel and competing
lines of railroad presents a different
question.
Chapter 30, General Laws of Mime
sofa, 1874, provides as stated:
mo railroad corporation or the les
sors, purchasers or managers Of any rail-
road corporation, shall consolidate the
stock, property or franchise of such cor
poration with, or lease or purchase the
works or franchise of, or in any way
control any other railroad corporation
owning or having under its control a
parallel or competing line