The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-06-24

contravened the antitrust law. on
the facts of this case with all their
reasonable and fair inferences we con-
clude that the government has failed
to substantiate the averment of its bill
Mr.. Justice Van Devanter while a cir
cult judge participated in the hearing
deliberation and conclusion in this
case and he now concurs in this opin-
ion.
aThe bill must be dismissed and
decree will be entered to that effect
Rates Were Not Changed.
The merger, according to the court,
did not cause change in rates, no
complaints of discrimination and no
conspiracy. Concerning these features
the opinion reads:
1.-The proof shows that after 1901, as
we'll as before the rates for transcon-
tinentaI traffic were the same over both
the Union Pacific and Southern Pa
cidc lines
There has since then been. with
respect to either of these lines, no i'm
pairment of service. no discontinuance
Of efforts to satisfy the public and no
complaints of shippers of any inferior
or inadequate service.
"A substantial majority of the stock
of the Southern Pacific company has
been held by parties other than the
Union Pacific company, but we fail to
find any complaint by such holders of
any discrimination against their road
it's welfare. None of the minor points
charged to have been deprived of COM
petitive opportunities by the Hunting
ton purchase are shown to have suf-
fered from the result of that pur-
chase.
"On the contrary, hundreds of mill
lions of dollars have since 1901 been
expended on these roads. Their physi-
cal condition has been vastly improved
and their efficiency for public service,
as well as for private profit, has been
greatly enhanced. The whole proof
taken together, we think, fails to dis
close any conspiracy to restrain inter
state or foreign commerce IN violation
of the first section Of the act. The
same considerations lead to the con-
clusion that no combination or con-
spiracy to monopolize or attempt to
monopolize trade or commerce among
the states or with foreign nations was
entered into. Moreover, the fact that
the Union Pacific did not secure the
control of the Santa Fe road. a thor
Oughly sufficient, well-equipped and
powerful rival for tranScOnt1nental
business, or the Denver & Rio Grande
road. a potential and later an actual
and powerful rival of the same busi-
ness, affords additional and conclusive
evidence of no such combination or
conspiracy
'"The purchase by the Union Pacific
company soon after acquiring the
Huntington stock of a majority of the
capital stock of the Northern Pacific
tends to the opposite conclusion, but
in view of the main reason for it's ac-
QUESTION and of the other facts just
referred to, as well as to the total ces-
sation of any relations between that
road and the Union Pacific company,
we are indisposed to give to that pur-
chase alone any consider able signih-
cance."
The Dissenting Opinion.
Judge Hook in his dissenting opinion
refers to the governments complaint of
unlawful contract in restraint of trade
between the Southern Pacific and the
Union Pacific railroads thus destroying
or suppressing competition. He says
the combination was erected by the
purchase by the Union Pacific of part
of the stock of the Southern Pacific
road. Judge Hook says there is no
substantial difference between the hold
ing of the corporate stocks of two com
panies by a third, such as was con-
denned in the Northern Securities case
and the holding by one of those two Of
the stock Of another. He says:
1T would be idle to hold that while
two competing railroad companies can
not lawfully submit to a common con-
troll, through a separate stOckholding
organization they may do so by d1spens-
ing with that medium. That would be
regarding shadows and letting the sub
stance go. 11e language Ol the ollSA-
man act in this particular is broad
Judge Hook comedies with the ma
jority of the court in regard to the
Joint ownership of the Los Angeles and
San Pedro road. Judge Hook holds
that the question as to whether the
Union Pacific and the Southern Pa
cific roads were com npetitOrs, which the
majority opinion held to be against the
government was a question of TACT to
be decided by the testimony of many
expert witnesses and these witnesses
Judge Hook holds gave conclusive teS-
tfrnony that there was active, vigorous
and substantial competition
The dissenting opinion says the de-
cision of the court was on two main
grounds:
''First-That the combination of
competitive traffic of the two systems
was not a substantial percentage OF
the total traffic and
'Second-That trade was not re-
strained by the combination because
the Union Pacific was an intermediate
through route and depended for
competitive traffic on connecting car
riers, which unaided could not make
| a thorough joint rate.
This decision so greatly narroWs
! the act of congress that very little is
left of it when applied to railroads.
The opinion states:
"Under one or both of these tests
the Union Pacific could probably have
/ lawfully purchased control of all the
great railroad systems in the United
States"