The Ely miner. [volume] (Ely, Minn.) 1895-1986, 1903-08-07

stated, that: ANY contract, agreement,
arrangement or conspiracy, or any COM
bination in the form of a trust or other
wise hereafter entered into which is in
restraint of trade or commerce within
this state !. is hereby prohibited
and declared to be unlawful.
Language in the act extending these
provisions to interstate commerce is here
omitted and disregarded and the act con-
within the state, that being proper sub
ject for state legislation, though carried
on by the same instrumentaEties used In
interstate commerce The anguage Just
of congress of July 2, 1890 GIG Stat. 209;
e. 64D, known as the Sherman antitrust
act, which has received consideration by
the supreme court of the United States
in several cases.
Effect Must Be Direct.
1.-The proper construction of the Sher-
man antitrust act, so far as it relates to
these decisions of the supreme court APP
pears to be this:
"(a) The act applies to railroads And
all contracts made between railroad COM
panies for the purpose and having the
effect of preventing competition by fixing
rates, or empowering persons to fix them,
and agreeing to conform to them when
fixed, are in restraint of trade and within
the provisions of the statute, whether
the rates so fixed are reasonable or I'M
reasonable
manufacturers of commodity respect
ing their sales of that commodity to be
delivered by them outside the state, hay
ing the direct effect of sitting COMPETE
ton and raising the cost of the article
to the purchaser, is also in restraint of
trade and within the statute.
"lc) That contracts which do not di-
rectly and necessarily affect transporta-
ton. or rates therefore, are not in re-
straint of trade, or within the statute.
even though they may remotely and in
70 hnt nIah
effect in that direction
1.-The state antitrust act must have
the same construction in respect to traf-
fic on railroads within the state.
Does Not Control.
Neither the Great Northern company
nor the Northern Pacific company were
parties to, or in their corporate capacity
had anything to do with the formation
OF the Northern Securities company, nor
of any Of the contracts or proceedings
complained of in the bill. The Northern
Securities company is merely an investor
in and owner of a majority of the stock
of each of these two railroad companies
1t Is not railroad company, and has
crate or direct the management or OPP
GRAFTON of either railroad in respect to
rates or charges for transportation or
otherwise; and there Is no scintilla of
evidence that it has sought to control or
interfere in respect to any Of these mat
tiers.
1t mas, therefore, done no act and
made no contract in restraint of trade or
commerce. Owning now a majority of
the stock of each of these railroad COM
panies. it has the power by voting it's
stock to elect the board OF directors-the
governing body-of each of these rail-
road companies. But the board of di-
rectors of each is different body from
the board of directors of the other as no
can be director of the Northern Pacific
company. The directors of each railroad
company will appoint its managing and
other officers. and control it's business
and policy. Presumably they will seek,
in lawful ways only, to increase the bust
ness and property of the railroad which
they as directors represent.
1.-The action of the defendant Hill in
promoting the formation of the North
ern Securities company, under the cir
cumstances and for the purposes which
the evidence discloses and investing in
it's stock by the sale to it of his stock
in the two railroad companies involved
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
violated the Minnesota antitrust act
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, 721, and who will doubt
upon appeal, has necessarily. caused hes
itation and careful examination. But the
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 cases tried be-
fore me.
1.-The decision Of the case last cited
as 1 read it and understood it, does not
specify or point out any contract, agree
ment or act on the part of the defend
in restraint of trade or commerce. or
which has any direct reference to trade.
commerce, 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
porations it will be for it's interest to
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 competition;
and as a corolary to this reasoning Cor
conjecture) the decision holds that the
formation of the Northern Securities
company, and purchase by it of ma
jority of the stock of each of these rail-
road companies, are acts or contracts in
restraint of trade, though of themselves.
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
Securities company and its holdings of
stock has and can have nothing to do
directly or indirectly with trade, COM
merce, transportation or rates.
Guilty Before Offending.
''To epitomize this decision: 1t is held
that it will be for the interest of the
Northern Securities company to restrain
trade by suppresSing competition between
these two railroad companies; and that
by coercing or perSuading the two boards
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-
lation 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 appears;
and it must be suppressed and destroyed.
II am compelled to reject the doctrine
that any person can be 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
nprSI1a sion or coercion of his agents tO