crade and commerce, but highly beneficial to both; that Congress has never declared or intended to declare it criminal, and that it is deserving, not of judicial condemnation, but of judicial encourageinent and approval. Unless the act is subject to the interpretation hereinafter maintained, it is open to grave objections on constitutional grounds, which will be dealt with by other counsel.

The court has no jurisdiction to entertain this suit unless it can be found in the provision of some statute.

The bill sets forth simply the commission of a misdemeanor, and an intention on the part of the defendants to repeat the offense. No principle of the public remedial law of America or England is more fundamental than that the ordinary administration of criminal justice by the ordinary courts of common law, is sufficient for the repression of crime, and exclusive adhesion to it neces sary for the protection of the citizen.

Courts of equity have no jurisdiction to restrain the commission of crime, or to enforce moral obligations and the performance of moral duties; nor will they interfere for the prevention of an illegal act merely be cause it is illegal.

High, Injunc. § 20; Atty. Gen. v. Utica Ins. Co. 2 Johns. Ch. 371; Re Debs, 158 U. S. 564, 593, 39 L. ed. 1092, 1106.

In the case at bar nothing whatever is alleged except the mere violation of the law and the intent to continue it. It is not alleged that such violation does, or will in fact, lead to the imposition of any unjust or unreason able charge for the carriage of merchandise, or any unjust discrimination, or in any way diminish or impair any facilities for carrying on interstate commerce. Indeed, the avowed and apparent purpose of the agree ment is to secure justice, equality, and im provement in interstate transportation; and this purpose stands admitted. All that is averred in the bill is that the method chosen to accomplish the purpose is prohibited by penal law.

The Anti-Trust Act contained provisions purporting to create a jurisdiction in equity to give relief by way of injunction; and perhaps the decision made by this court in the suit of United States v. Trans-Missouri Freight Asso. should be regarded as a determination that the Attorney General was at liberty, in case of any violation of the provisions of the act, to file a bill for an injunetion, although it would seem necessary, upon familiar principles, to make out a case for equitable interposition in order to justify an appeal to the equitable jurisdiction thus created. But so far as it is sought to maintain the present action on the basis of an alleged violation of the provisions of the Interstate Commerce Act, no support can be derived from the decision above referred to. No such jurisdiction in equity is given by that act. And by implication at least it is with held: for in certain cases specially mentioned in §§ 6 and 13 jurisdiction is expressly given to courts of equity to grant injunetions. If it is not given in other cases it must be taken to be for the reason that it

was not intended. Expressio unius est exclusio alterius.

A clear understanding should be had at the outset with the meaning of the terms with which we are dealing. The contracts condemned by the Anti-Trust Act are such, and such only, as have the effect of restraining trade or commerce. The actual effect which the contracts have upon trade or commerce is the material consideration which determines whether or not they are included within the class.

This is self-evident. But the possible suggestion inay be made that there is a class of contracts called or named "contracts in restraint of trade," and that the statute relates to these irrespective of their real and true effect.

There is no foundation for such a suggestion. There is no class of contracts known to the law by the name of contracts in restraint of trade irrespective of their actual effect upon trade. Whenever heretofore the point has been made in the case of a particular contract whether it was in restraint of trade, it has been determined by an inquiry into its actual effect upon trade. No suggestion would have been indulged that it was valid or void according as it might or might not be called a contract in restraint of trade.

Moreover, we are dealing with the criminal law, which never classes acts and makes them punishable under arbitrary names without regard to their supposed effects, as being actually mischievous or otherwise. This would be putting innocence on a par with guilt.

Doubtless there are certain contracts which readily come to mind where contracts in restraint of trade are spoken of, and which may therefore be taken as good examples of the class. They are such as directly purport and assume to restrain trade, and which consequently do, in some sense and degree at least, necessarily restrain it.

Mitchel v. Reynolds, 1 P. Wms. 181; Davis v. Mason, 5 T. R. 118.

Agreements for combinations among persons engaged in the same employment, to promote their supposed interests, -as, of laborers and employers, or merchants, or tradespeople, have rarely, if ever, been styled agreements in restraint of trade.

There seems to be no room for doubt concerning the meaning of the term "in restraint of trade or commerce." To restrain is to hold back, to check, to prevent, and thus to diminish. It is the injury to trade or commerce which the act is aimed to prevent. Unless, therefore, a contract injures and thus diminishes, or tends to diminish, trade or commerce, it cannot be deemed as

in restraint of trade or commerce.

The agreement under which the Joint Traffic Association was formed, and the carrying out of which is sought to be enmed joined, is not a contract in restraint of trade or commerce within the meaning of the act of July 2. 1890.

It does not in terms purport or assume to restrain or limit trade or commerce. No one of the parties to it undertakes in any

one.

It does, indeed, purport to restrain competition, although in a very slight degree and on a single point. That is one of its objects; and if competition and commerce were identical, being but different names for the same thing, then indeed, in assuming to restrain competition even so far, it would be assuming in a corresponding degree to restrain commerce; but surely no such identity will be pretended. Commerce is the interchange of commodities. Competition is one of its incidents only, and but an occasional incident. To identify a thing with one of its occasional incidents would be an error.

It is conceivable that a restraint upon competition, although competition is but an occasional incident of commerce must still necessarily restrain the latter; but, however conceivable, it is by no means true. The contrary is often true; namely, that such restraint enlarges, increases, and benefits it.

Competition is, in general, a good thing; it is what is called "the life of trade;" and artificial efforts to repress it may have an injurious effect opposed to sound public policy; but to infer from this that it is so under all circumstances, or that it may not be productive of the most extensive mischief, is a conclusion of ignorance utterly refuted by the teachings of experience, and long since discarded by all enlightened minds.

But it is worth while to employ a few words in pointing what the true and great benefit of competition is, and when it ceases to be beneficial and becomes the source of mischief.

There is a point beyond which competition may not only cease to be beneficial, but may become exceedingly injurious, not only to private individuals, but to the public also. When prices have reached the point which places the profits of a particular industry on a level with the average profits of industries generally, the further prosecution of the struggle is likely to be injurious to the community, and the competition becomes de structive and deadly, precisely in proportion to the difficulty of disengaging the capital employed.

A restraint upon competition does not of necessity restrain trade, but may even promote trade.

com

If the restraint on competition effected by this agreement is necessarily in the eye of the law a bad thing in its effect upon trade, injuring and diminishing it, then, although trade is not in terms restrained by it, it is so in fact; and if, on the other hand, it is in the eye of the law beneficial to trade, or cannot be seen to be injurious (for the burden of proving its injurious tendency is upon the plaintiffs), it must be held to be unaffected by the statute.

The agreement in question, as a whole,

motive of trade and commerce.

The charges of railroad transportation in the United States have been constantly diminishing, and they are now lower than in any country in the world; and it is probably true that the capital actually invested in railroads was at the time of the passage of the Anti-Trust Act receiving a smaller annual return than capital invested in any other business, notwithstanding the risk to capital invested in railroads is far greater than that which attends many other investments.

The reason why railroads are greater sufferers than other industries from the destructive effects of free competition is that the latter have several defenses against it, while the former have but one.

The only resort open to railroads to save themselves from the effects of a ruinous competition is that of agreement among themselves to check and control it.

The history of railroad transportation proves that whenever a railroad depends for its support upon traffic upon which another railroad is in like manner dependent, and the competition thus engendered has continued for any considerable length of time, one competitor has either swallowed up the other, or, if both survive, it is under some modus vivendi established by agreement.

Suppose the case of several rival lines, all of them much-needed public facilities, and to support all of which there is a sufficient traffic at fair rates. The competition between them waxes fiercer and fiercer until the point is reached where there is no profit for the road possessing the least natural advantages. Can a word be said in defense of the proposition that public policy requires that this competition should proceed until it ends in the successive destruction of the weaker parties and the consequent loss of most useful public facilities?

From this we venture to draw the conclusion that competition is useful only where it is voluntary. Such a thing as competition made compulsory by law is utterly abhorrent to every principle of public policy.

Freedom of contract is, in general, the best public policy. Some will always be found who will abuse freedom, and make contracts of a mischievous public tendency. These contracts should be declared illegal, and may justify penal enactments. The courts have a broad jurisdiction to inquire into and determine what contracts are and what are not in conflict with public policy.

The extinction of competition by agreement has always been going on in the industrial world, and to the principal ways in which it is done no sound lawyers or thinkers have ever suggested any objection.

An ideally perfect railroad service would be one in which a shipper was assured that he could deliver any amount, large or small, of merchandise at any point in the country, at any time, destined for any other point, and have it delivered at its destination in safety and with despatch at a price known beforehand, which would fairly reward the

The deliberate and solemn declarations of the body constituted by Congress itself to supervise the conditions of interstate commerce and the actions of the various railroad systems in respect thereto prove every material assertion made in this brief, of the unmeasured mischiefs of unfair competition in rates, and of the inability of repressing them in any other way than by the making and observance of such agreements.

Agreements in all fundamental respects similar to the one in question have been in force during the whole history of railroad competition, and in some instances going much further in doing away with competition by actually pooling traffic or its receipts; but will anyone say that commerce, the interchange of commodities, has been thereby restrained, that there has been less of buying and selling by reason of them? Everyone must admit that trade and commerce have been prodigiously facilitated by them, and consequently increased.

The apprehensions of monopoly and oppression with which we are dealing have no foundation in reason, or in experience.

The agreement which this action seeks to condemn is not, by reason of any restraint effected by it upon competition, or otherwise, a contract in restraint of trade or commerce, but is on the contrary, highly needful to, and promotive of, both.

The contract is necessary to the uniformity, the stability, the fairness, and the just ness of rates; to the ease, safety, and convenient despatch of the enormous transportation of the country; is necessary as a sup plementary aid to the Interstate Commerce Law; and necessary to the prevention of crime, concealment, and perjury, otherwise sure to be committed to a prodigious extent, and necessary to the preservation of great public facilities; and is not a contract, combination, or conspiracy in restraint of trade within the meaning of the act.

If the Anti-Trust Act is interpreted as forbidding agreements such as the one under discussion, one of three alternatives must necessarily follow: (1) That all railroad transportation will be abandoned; or (2) the consolidation of all competing railroads L.n. der a single ownership, either governmental or private; or (3) that all competing railroad business must be carried on in constant and daily violation of criminal law.

It is not possible for competing railroad transportation to be carried on permanently without uniformity in rates, fixed either by express or tacit agreement.

The multitudinous expressions of the Interstate Commerce Commission all mean uniformity of rates by agreement, either express or tacit.

Congress never intended in enacting the Anti-Trust Act, to condemn and make criminal as restraints on trade those regulating contracts and arrangements respecting railroad traffic which, in some form, are everywhere adopted, and without which it is impossible the business of railroads could be carried on in conformity with its own laws. Church of the Holy Trinity v. United States. 143 U. S. 457, 36 L. ed. 226,

The positions taken in this brief are fully supported by the weight of authority.

Kellogg v. Larkin, 3 Pinney, 150, 56 Am. Dec. 164; Leslie v. Lorillard, 110 N. Y. 519, 1 L. R. A. 456; People v. North River Sugar Ref. Co. 121 N. Y. 582, 9 L. R. A. 33; Collins v. Locke, L. R. 4 App. Cas. 674; National Benefit Co. v. Union Hospital Co. 45 Minn. 275, 11 L. R. A. 437; Perkins v. Lyman, 9 Mass. 522; Manchester & L. R. Co. v. Concord R. Corp. 66 N. H. 100, 9 L. R. A. 689, 3 Inters. Com. Rep. 319; Judge Cooley's article in the Railway Review, April 26, 1884, on the subject of Traffic Pooling; Mitchel v. Reynolds, 1 Smith, Lead. Cas. pt. 2, p. 508; Perkins v. Lyman, 11 Mass. 76, 6 Am. Dec. 158; Pierce v. Fuller, 8 Mass. 223, 5 Am. Dec. 102; Bowser v. Bliss, 7 Blatchf. 344, 43 Am. Dec. 93; Grundy v. Edwards, 7 J. J. Marsh. 368. 23 Am. Dec. 409; Morgan v. Perhamus, 36 Ohio St. 517, 38 Am. Rep. 607; Pike v. Thomas, 4 Bibb. 486. 7 Am. Dec. 741; Morse, Twist Drill & Mach. Co., v. Morse, 103 Mass. 73, 4 Am. Rep. 513; Hoyt v. Holly, 39 Conn. 326. 12 Am. Rep. 390; Hubbard v. Miller, 27 Mich. 15, 15 Am. Rep. 153; Cook v. Johnson, 47 Conn. 175, 36 Am. Rep. 64.

The opinion in the Trans-Missouri case suggested a distinction between agreements restraining competition between persons or corporations engaged in business of a publie nature, and those engaged in private business. To show this a passage is quoted from the case of Gibbs v. Consolidated Gas Co. 130 U. S. 396, 408, 32 L. ed. 979, 984, citing the following cases: New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516; Louisville Gas Co. v. Citizens' Gas Co. 115 U. S. 683, 29 L. ed. 510; Shepard v. Milwaukee Gaslight Co. 6 Wis. 539; Chicago Gaslight & Coke Co v. People's Gaslight & Coke Co. 121 111. 530; St. Louis v. St. Louis Gaslight Co. 70 Mo. 69: Printing & N. Registering Co. v. Sampson, L. R. 19 Eq. 462; West Virginia Transp Co. v. Ohio River Pipe Line Co. 22 W. Va. 600, 46 Am. Rep. 527; Western U. Teleg. Co. v. American U. Teleg. Co. 65 Ga. 160, 38 Am. Rep. 781.

The case of Gibbs v. Consolidated Gas Co. 130 U. S. 396, 32 L. ed. 979, furnishes no color of support to the view that any different rule is to be applied to the case of agreements between corporations engaged in business of a public nature from that which obtains in relation to agreements between individuals engaged in the like business.

The suggested distinction between persons engaged in business of a public nature and those engaged in ordinary business, which forbids the former and permits the latter to enter into agreements which may restrain competition merely, has no support in the authorities referred to.

This question whether agreements between such persons are injurious to trade depends always upon the actual effect of such agreements upon trade, such effect being determined by the character of the agreements and the purpose in view as shown by the agreements themselves and the facts of the situation which calls them forth and to which they were to be applied.