United States v. Trans-Missouri Freight Association/Dissent White

by Edward Douglass White

United States Supreme Court

166 U.S. 290

United States  v.  Trans-Missouri Freight Association

Mr. Justice WHITE, dissenting.

It is unnecessary to refer to the authorities showing that, although a contract may in some measure restrain trade, it is not for that reason void, or even voidable, unless the restraint which it produces be unreasonable. The opinion of the court concedes this to be the settled doctrine.

The contract between the railway companies which the court holds to be void because it is found to violate the act of congress of the 2d of July, 1890 (26 Stat. 209), substantially embodies only an agreement between the corporations by which a uniform classification of freight is obtained, by which the secret undercutting of rates is sought to be avoided, and the rates as stated in the published rate sheets, and which, as a general rule, are required by law to be filed with the interstate commerce commission, are secured against arbitrary and sudden changes. I content myself with giving this mere outline of the results of the contract, and do not stop to demonstrate that its provisions are reasonable, since the opinion of the court rests upon that hypothesis. I commence, then, with these two conceded propositions, one of law and the other of fact: First, that only such contracts as unreasonably restrain trade are violative of the general law; and, second, that the particular contract here under consideration is reasonable, and therefore not unlawful, if the general principles of law are to be applied to it.

The theory upon which the contract is held to be illegal is that even though it be reasonable, and hence valid, under the general principles of law, it is yet void, because it conflicts with the act of congress already referred to. Now, at the outset, it is necessary to understand the full import of this conclusion. As it is conceded that the contract does not unreasonably restrain trade, and that, if it does not so unreasonably restrain, it is valid under the general law, the decision, substantially, is that the act of congress is a departure from the general principles of law, and by its terms destroys the right of individuals or corporations to enter into very many reasonable contracts. But this proposition, I submit, is tantamount to an assertion that the act of congress is itself unreasonable. The difficulty of meeting, by reasoning, a premise of this nature is frankly conceded; for, of course, where the fundamental proposition upon which the whole contention rests is that the act of congress is unreasonable, it would seem conducive to no useful purpose to invoke reason as applicable to and as controlling the construction of a statute which is admitted to be beyond the pale of reason. The question then is, is the act of congress relied on to be so interpreted as to give it a reasonable meaning, or is it to be construed as being unreasonable and as violative of the elementary principles of justice?

The argument upon which it is held that the act forbids those reasonable contracts which are universally admitted to be legal is thus stated in the opinion of the court, and I quote the exact language in which it is there expressed, lest, in seeking to epitomize, I may not accurately reproduce the thought which it conveys:

'Contracts in restraint of trade have been known and spoken of for hundreds of years both in England and in this country, and the term includes all kinds of those contracts which in fact restrain trade. Some of such contracts have been held void and unenforceable in the courts by reason of their restraint being unreasonable, while others have been held valid because they were not of that nature. A contract may be in restraint of trade, and still be valid at common law. Although valid, it is nevertheless a contract in restraint of trade, and would be so described either at common law or elsewhere. By the simple use of the term 'contract in restraint of trade,' all contracts of that nature, whether valid or otherwise, would be included, and not along that kind of contract which was invalid and unenforceable as being in unreasonable restraint of trade. When, therefore, the body of an act pronounces as illegal every contract or combination in restraint of trade or commerce among the several states, etc., the plain and ordinary meaning of such language is not limited to that kind of contract alone which is in unreasonable restraint of trade, but all contracts are included in such language, and no exception or limitation can be added without placing in the act that which has been omitted by congress.'

To state the proposition in the form in which it was earnestly pressed in the argument at bar, it is as follows: Congress has said every contract in restraint of trade is illegal. When the law says 'every,' there is no power in the courts, if they correctly interpret and apply the statute, to substitute the word 'some' for the word 'every.' If congress had meant to forbid only restraints of trade which were unreasonable, it would have said so. Instead of doing this, it has said 'every,' and this word of universality embraces both contracts which are reasonable and unreasonable.

Is the proposition which is thus announced by the court, and which was thus stated at bar, well founded? is the first question which arises for solution. I quote the title and the first section of the act which, it is asserted, if correctly interpreted, destroys the right to make just and reasonable contracts: 'An act to protect trade and commerce against unlawful restraints and monopolies.

'Every contract, combination, in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments in the discretion of the court.'

Is it correct to say that at common law the words 'restraint of trade' had a generic signification which embraced all contracts which restrained the freedom of trade, whether reasonable or unreasonable, and, therefore, that all such contracts are within the meaning of the words 'every contract in restraint of trade?' I think a brief consideration of the history and development of the law on the subject will not only establish the inaccuracy of this proposition, but also demonstrate that the words 'restraint of trade' embrace only contracts which unreasonably restrain trade, and, therefore, that reasonable contracts, although they, in some measure, 'restrain trade,' are not within the meaning of the words. It is true that in the adjudged cases ianguage may be found referring to contracts in restraint of trade which are valid because reasonable. But this mere form of expression, used not as a definition, does not maintain the contention that such contracts are embraced within the general terms 'every contract in restraint of trade.' The rudiments of the doctrine of contracts in restraint of trade are found in the common law at a very early date. The first case on the subject is reported in Y. B. 2 Hen. V. fol. 5, p. 26, and is known as Dier's Case. That was an action of damages upon a bond conditioned that the defendant should not practice his trade as a dyer at a particular place during a limited period, and it was held that the contract was illegal. The principle upon which this case was decided was not described as one forbidding contracts in restraint of trade, but was stated to be one by which contracts restricting the liberty of the subject were forbidden. The doctrine declared in that case was applied in subsequent cases in England prior to the case of Mitchell v. Reynolds, decided in 1711, and reported in 1 P. Wms. 181. There the distinction between general restraints and partial restraints was first definitely formulated, and it was held that a contract creating a partial restraint was valid, and one creating a general restraint was not. The theory of partial and general restraints established by that case was followed in many decided cases in England,-not, however, without the correctness of the difference between the two being in some instances denied and in others questioned, until the matter was set finally at rest by the house of lords in Nordenfelt v. Ammunition Co., reported in (1894) App. Cas. 535. In that case it was held that the distinction between partial and general restraint was an incorrect criterion, but that whether a contract was invalid because in restraint of trade must depend upon whether, on considering all the circumstances, the contract was found to be reasonable or unreasonable. If reasonable, it was not a contract in restraint of trade, and, if unreasonable, it was.

The decisions of the American courts substantially conform to both the development and ultimate results of the English cases. While the rule of partial and general restraint has been either expressly or impliedly admitted, the exact scope of the distinction between the two has been the subject of discussion and varying adjudication. And although it is accurate to say that in the cases expressions may be found speaking of contracts as being, in form, in restraint of trade, and yet valid, it results from an analysis of all the American cases, as it does from the English, that these expressions in no way imply that contracts which were valid because they only partially restrained trade were yet considered as embraced within the definition of 'contracts in restraint of trade.' On the contrary, the reason of the cases, where contracts partially restraining trade were excepted, and hence held to be valid, was because they were not contracts in restraint of trade, in the legal meaning of those words. Referring to the modern and American rule on the subject, Beach, in his recent treatise on the Modern Law of Contracts, at section 1569, says:

'The tendency of modern thought and decisions has been no longer to uphold in its strictness the doctrine which formerly prevailed respecting agreements in restraint of trade. The severity with which such agreements were treated in the beginning has relaxed more and more by exceptions and qualifications, and a gradual change has taken place, brought about by the growth of industrial activities and the enlargement of commercial facilities which tend to render such agreements less dangerous, because monopolies are less easy of accomplishment.'

The fact that the exclusion of reasonable contracts from the doctrine of restraint of trade was predicated on the conclusion that such contracts were no longer considered as coming within the meaning of the words 'restraint of trade' is nowhere more clearly and cogently stated than in the opinion of the court of appeals of the state of New York in the case of Matthews v. Associated Press, 136 N. Y. 333, 32 N. E. 981. In considering the contention that a by-law of the defendant association which prohibited its members from receiving or publishing 'the regular news dispatches of any other news association covering a like territory and organized for a like purpose' was void, because it tended to restrain trade and competition and to create a monopoly, the learned judge said (page 340, 136 N. Y., and page 982, 32 N. E.):

'We do not think the by-law improperly tends to restrain trade, assuming that the business of collecting and distributing news would come within the definition of 'a trade.' The latest decisions of courts in this country and in England show a strong tendency to very greatly circumscribe and narrow the doctrine of avoiding contracts in restraint of trade. The courts do not go to the length of saying that contracts which they now would say are in restraint of trade are nevertheless valid contracts, and to be enforced. They do, however, now hold many contracts not open to the objection that they are in restraint of trade which a few years back would have been avoided on that sole ground both here and in England. The cases in this court which are the latest manifestations of the turn in the tide are cited in the opinion in this case at general term, and are Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419; Hodge v. Sloan, 107 N. Y. 244, 17 N. E. 335; Leslie v. Lorillard, 110 N. Y. 519, 18 N. E. 363.

'So that, when we agree that a by-law which is in restraint of trade is void, we are still brought back to the question, what is a 'restraint of trade,' in the modern definition of that term? The authority to make by-laws must also be limited by the scope and purpose of the association. I think this by-law is thus limited, and that it is not 'in restraint of trade,' as the courts now interpret that phrase.'

This lucid statement aptly sums up the process of reasoning by which partial and reasonable contracts came no longer to be considered as included in the words 'contracts in restraint of trade,' and points to the fallacy embodied in the proposition that contracts which were held not to be in restraint of trade were yet covered by the words 'in restraint of trade'; that is, that, although they were not such contracts, yet they continued so to be. After analyzing the provisions of the by-law, the opinion proceeds as follows (page 341, 136 N. Y., and page 983, 32 N. E.):

'Thus, a by-law of the nature complained of would have a tendency to strengthen the association, and to render it more capable of filling the duty it was incorporated to perform. A business partnership could provide that none of its members should attend to any business other than that of the partnership, and that each partner who came in must agree not to do any other business, and must give up all such business as he had theretofore done. Such an agreement would not be in restraint of trade, although its direct effect might be to restrain to some extent the trade which had been done.'

This adds cogency to the demonstration, and shows in the most conclusive manner that the words 'contracts in restraint of trade' do not continue to define those contracts which are no longer covered by the legal meaning of the words.

This court has not only recognized and applied the distinction between partial and general restraints, but has also decided that the true test whether a contract be in retraint of trade is not whether, in a measure, it produces such effect, but whether, under all the circumstances, it is reasonable. Navigation Co. v. Winsor, 20 Wall. 64, 68; Gibbs v. Gas Co., 130 U.S. 396, 409, 9 Sup. Ct. 553. As it is unnecessary here to enter into a detailed examination of the cases, I append in the margin a reference to decisions of some of the state courts, and to several writers on the subject of contracts in restraint of trade, by whom the doctrine is reviewed and the authorities very fully referred to. ^[1]

It follows from the foregoing statement that at common law contracts which only partially restrain trade, to use the precise language of Maule, J., in Rannie v. Irvine, 7 Man. & G. 977, were 'an exception ingrafted upon that rule'; that is, the rule as to contracts in restraint of trade, 'and that the exception is in furtherance of the rule itself.' I submit, also, manifestly, that the further development of the doctrine by which it was decided that, if a contract was reasonable, it would not be held to be included within contracts in restraint of trade, although such contract might in some measure produce such an effect, was also an exception to the general rule as to the invalidity of contracts in restraint of trade. The theory, then, that the words 'restraint of trade' define and embrace all such contracts, without reference to whether they are reasonable, amounts substantially to saying that, by the common law and the adjudged American cases, certain classes of contracts were carved out of and excepted from the general rule, and yet were held to remain embraced within the general rule from which they were removed. But the obvious conflict which is shown by this contradictory result to which the contention leads rests, not upon the mere form of statement, but upon the reason of things. This will, I submit, be shown by a very brief analysis of the reasons by which partial restraints were held not to be embraced in contracts in restraint of trade, and by which ultimately all reasonable contracts were likewise decided not to be so embraced; that is to say, that the reasoning by which the exceptions were created conclusively shows the error of contending that the words 'contracts in restraint of trade' continued to embrace those reasonable contracts which those words no longer described.

It is perhaps true that the principle by which contracts in restraint of the freedom of the subject or of trade were held to be illegal was first understood to embrace all contracts which in any degree accomplished these results. But, as trade developed, it came to be understood that, if contracts which only partially restrained the freedom of the subject or of trade were embraced in the rule forbidding contracts in restraint of trade, both the freedom of contract and trade itself would be destroyed. Hence, from the reason of things, arose the distinction that, where contracts operated only a partial restraint of the freedom of contract or of trade, they were not, in contemplation of law, contracts in restraint of trade. And it was this conception also which, in its final aspect, led to the knowledge that reason was to be the criterion by which it was to be determined whether a contract which in some measure restrained the freedom of contract and of trade was in reality, when considered in all its aspects, a contract of that character, or one which was necessary to the freedom of contract and of trade. To define, then, the words 'in restraint of trade' as embracing every contract which in any degree produced that effect, would be violative of reason, because it would include all those contracts which are the very essence of trade, and would be equivalent to saying that there should be no trade, and therefore nothing to restrain. The dilemma which would necessarily arise from defining the words 'contracts in restraint of trade' so as to destroy trade by rendering illegal the contracts upon which trade depends, and yet presupposing that trade would continue, and should not be restrained, is shown by an argument advanced, and which has been compelled by the exigency of the premise upon which it is based. Thus, after insisting that the word 'every' is all-embracing, it is said from the necessity of things it will not be held to apply to covenants in restraint of trade which are collateral to a sale of property, because not 'supposed' to be within the letter or spirit of the statute. But how, I submit, can it be held that the words 'every contract in restraint of trade' embrace all such contracts, and yet at the same time it be said that certain contracts of that nature are not included? The asserted exception not only destroys the rule which is relied on, but it rests upon no foundation of reason. It must either result from the exclusion of particular classes of contracts, whether they be reasonable or not, or it must arise from the fact that the contracts referred to are merely collateral contracts. But many collateral contracts may contain provisions which make them unreasonable. The exception which is relied upon, therefore, as rendering possible the existence of trade to be restrained, is either arbitrary or it is unreasonable.

But admitting, arguendo, the correctness of the proposition by which it is sought to include every contract, however reasonable, within the inhibition of the law, the statute, considered as a whole, shows, I think, the error of the construction placed upon it. Its title is, 'An act to protect trade and commerce against unlawful restraints and monopolies.' The word 'unlawful' clearly distinguishes between contracts in restraint of trade which are lawful and those which are not; in other words, between those which are unreasonably in restraint of trade, and consequently invalid, and those which are reasonable and hence lawful. When, therefore, in the very title of the act, the well-settled distinction between lawful and unlawful contracts is broadly marked, how can an interpretation be correct which holds that all contracts, whether lawful or not, are included in its provisions? While it is true that the title of an act cannot be used to destroy the plain import of the language found in its body, yet, when a literal interpretation will work out wrong or injury, or where the words of the statute are ambiguous, the title may be resorted to as an instrument of construction. In U.S. v. Palmer, 3 Wheat, 610, where general language found in the body of a criminal statute was given a narrow and restricted meaning, Mr. Chief Justice Marshall, in the course of the opinion, said (page 631): 'The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature. The title of this act is, 'An act for the punishment of certain crimes against the United States.' It would seem that offenses against the United States, not offenses against the human race, were the crimes which the legislature intended by this law to punish.'

So, also, in U.S. v. Union Pac. R. Co., 91 U.S. 72, where the construction of a statute was involved, it was held that the interpretation adopted was supported by the title, which disclosed the general purpose which congress had in view in adopting the law under consideration. The same rule was announced in Smythe v. Fiske, 23 Wall. 374, 380, and Coosaw Min. Co. v. South Carolina, 144 U.S. 550, 12 Sup. Ct. 689, and cases there cited.

Pretermitting the consideration of the title, it cannot be denied that the words 'restraint of trade,' used in the act in question, had, long prior to the adoption of that act, been construed as not embracing reasonable contracts. The well-settled rule is that, where technical words are used in an act, and their meaning has previously been conclusively settled by long usage and judicial construction, the use of the words without an indication of an intention to give them a new significance is an adoption of the generally accepted meaning affixed to the words at the time the act was passed. Particularly is this rule imperative where the statute in which the words are used creates a crime, as does the statute under consideration, and gives no specific definition of the crime created. Thus in U.S. v. Palmer, supra, Mr. Chief Justice Marshall, referring to the term 'robbery,' as used in the statute, said (page 630): 'Of the meaning of the term 'robbery' as used in the statute, we think no doubt can be entertained. It must be understood in the sense in which it is recognized and defined at common law.' If these obvious rules of interpretation be applied, it seems to me they render it impossible to construe the words 'every restraint of trade,' used in the act, in any other sense than as excluding reasonable contracts, as the fact that such contracts were not considered to be within the rule of contracts in restraint of trade was thoroughly established, both in England and in this country, at the time the act was adopted. It is, I submit, not to be doubted that the interpretation of the words 'every contract in restraint of trade' so as to embrace within its purview every contract, however reasonable, would certainly work an enormous injustice, and operate to the undue restraint of the liberties of the citizen. But there is no canon of interpretation which requires that the letter be followed, when by so doing an unreasonable result is accomplished. On the contrary, the rule is the other way, and exacts that the spirit which vivifies, and not the letter which killeth, is the proper guide by which to correctly interpret a statute. In Smythe v. Fiske, 23 Wall. 374, 380, this court declared that: 'A thing may be within the letter of the statute, and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.' In Lau Ow Bew v. U.S., 144 U.S. 47, 12 Sup. Ct. 517, this court, speaking through Mr. Chief Justice Fuller, said (page 59, 144 U.S., and page 520, 12 Sup. Ct.):

'Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion. Church of Holy Trinity v. U.S., 143 U.S. 457, 12 Sup. Ct. 511; Henderson v. Mayor, etc., 92 U.S. 259; U.S. v. Kirby, 7 Wall. 482; Oates v. Bank, 100 U.S. 239.'

In all the cases there cited the literal language of the statutes was disregarded, in order to restrict its operation within reason. To those cases may also be added U.S. v. Mooney, 116 U.S. 104, 6 Sup. Ct. 304, where it was contended that by the act of March 3, 1875, c. 137, the circuit courts were vested with jurisdiction concurrent with district courts over certain suits. The plausibility of the argument, based upon the literal language of the statute, was conceded by the court, but the results which would follow from sustaining the construction contended for were pointed out by the court, and it was observed (page 107, 116 U.S., and page 306, 6 Sup. Ct.): 'A construction which involves such results was clearly not contemplated by congress.'

Indeed, it seems to me there can be no doubt that reasonable contracts cannot be embraced within the provisions of the statute if it be interpreted by the light of the supreme rule commanding that the intention of the law must be carried out, and it must be so construed as to afford the remedy and frustrate the wrong contemplated by its enactment.

The plain intention of the law was to protect the liberty of contract and the freedom of trade. Will this intention not be frustrated by a construction which, if it does not destroy, at least gravely impairs, both the liberty of the individual to contract and the freedom of trade? If the rule of reason no longer determines the right of the individual to contract, or secures the validity of contracts upon which trade depends and results, what becomes of the liberty of the citizen or of the freedom of trade? Secured no longer by the law of reason, all these rights become subject, when questioned, to the mere caprice of judicial authority. Thus, a law in favor of freedom of contract, it seems to me, is so interpreted as to gravely impair that freedom. Progress, and not reaction, was the purpose of the act of congress. The construction now given the act disregards the whole current of judicial authority, and tests the right to contract by the conceptions of that right entertained at the time of the Year Books, instead of by the light of reason and the necessity of modern society. To do this violates, as I see it, the plainest conception of public policy, for, as said by Sir G. Jessel, M. R., in Printing Co. v. Sampson, L. R. 19 Eq. 465: 'If there is one thing which more than another public policy requires, if is that men of full age and competent understanding shall have the utmost liberty of contracting, and their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be engorced by courts of justice.'

The remedy intended to be accomplished by the act of congress was to shield against the danger of contract or combination by the few against the interest of the many, and to the detriment of freedom. The construction now given, I think, strikes down the interest of the many to the advantage and benefit of the few. It has been held in a case involving a combination among workingmen that such combinations are embraced in the act of congress in question, and this view was not doubted by this court. In re Debs, 64 Fed. 724, 745-755; Id., 158 U.S. 564, 15 Sup. Ct. 900. The interpretation of the statute, therefore, which holds that reasonable agreements are within its purview, makes it embrace every peaceable organization or combination of the laborer to benefit his condition either by obtaining an increase of wages or diminution of the hours of labor. Combinations among labor for this purpose were treated as illegal under the construction of the law which included reasonable contracts within the doctrine of the invalidity of contract or combinations in restraint of trade, and they were only held not to be embraced within that doctrine either by statutory exemption therefrom, or by the progress which made reason the controlling factor on the subject. It follows that the construction which reads the rule of reason out of the statute embraces within its inhibition every contract or combination by which workingmen seek to peaceably better their condition. It is, therefore, as I see it, absolutely true to say that the construction now adopted, which works out such results, not only frustrates the plain purpose intended to be accomplished by congress, but also makes the statute tend to an end never contemplated, and against the accomplishment of which its provisions were enacted.

But conceding, for the sake of argument, that the words 'every contract in restraint of trade,' as used in the act of congress in question, prohibit all such contracts, however reasonable they may be, and therefore that all that great body of contracts which are commonly entered into between individuals or corporations, and which promote and develop trade, and which have been heretofore considered as lawful, are no longer such; and conceding also that agreements entered into by associations of workingmen to peaceably better their condition, either by obtaining an increase or preventing a decrease of wages, or by securing a reduction in the hours of labor, or for mutually protecting each other from unjust discharge, or for other reasonable purposes, have become unlawful,-it remains to consider whether the provisions of the act of 1890 were intended to apply to agreements made between carriers for the purpose of classifying the freight to be by them carried, or preventing secret cutting of the published rates; in other words, whether the terms of the statute were intended to apply to contracts between carriers entered into for the purpose of securing fairness in their dealings with each other, and tending to protect the public against improper discrimination and sudden changes in rates. To answer this question involves deciding whether the act here relied upon was intended to abrogate the provisions of the act of congress of the 4th of February, 1887, and the amendments thereto, commonly known as the 'Interstate Commerce Act.' The question is not whether railway companies may not violate the terms of the statute of 1890 if they do acts which it forbids and punishes, but whether that statute was intended to abrogate the power of railway companies to make contracts with each other which are either expressly sanctioned by the interstate commerce act, or the right to make which arises by reasonable implication from the terms of that act; that is to say, not whether the act of 1890 is not operative upon all persons and corporations, but whether, being so generally operative, it was intended to forbid, as in restraint of trade, all contracts on the subjects embraced within and controlled by the interstate commerce law. The statute commonly known as the 'Interstate Commerce Law' was a special act, and it was intended to regulate interstate commerce transported by railway carriers. All its provisions directly and expressly related to this subject. The act of 1890, on the contrary, is a general law, not referring specifically to carriers of interstate commerce. The rule is that a general law will not be held to repeal a special statute unless there be a clear implication, unavoidably resulting from the general law, that it was the intention should cover the subject-matter previously should cover the subjec-matter previously expressly and specifically provided for by particular legislation. The doctrine on this subject is thus stated in Ex parte Crow Dog, 109 U.S. 570, 3 Sup. Ct. 405:

"The general principle to be applied,' said Boville, C. J., in Thorpe v. Adams, L. R. 6 C. P. 135, 'to the construction of acts of parliament, is that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together.' 'And the reason is,' said Wood, V. C., in Fitzgerald v. Champenys, 30 Law J. Eq. 782, 2 Johns. & H. 31-54, 'that the legislature, having had its attention directed to a special subject, and having observed all the circumstances of the case, and provided for them, does not intend by a general enactment afterward to derogate from its own act when it makes no special mention of its intention so to do."

These principles thus announced are treated as elementary by the text writers. End. Interp. St. § 223; Sedg. St. Const. §§ 157, 158; Suth. St. Const. § 157.

Does, therefore, the implication irresistibly srise that congress intended in the act of 1890 to abrogate, in whole or in part, the provisions of the act of 1887, regulating interstate commerce? It seems to me that the nature of the two enactments clearly demonstrates that there was no such intention. The act to regulate interstate commerce expressed the purpose of congress to deal with a complex and particular subject which, from its very nature, required special legislation. That act was the initiation of a policy by congress looking to the development and working out of a harmonious system to regulate the highly important subject of interstate transportation.

Conceding, arguendo, that the debates which took place at the time of the passage of the act of 1890 may not be resorted to as a means of interpreting its text, yet a review of the proceedings connected with the passage of the act of July 2, 1890, through the two houses of congress, it seems to me, leaves no room for question that the act was not designed to cover the particular subjects which had been theretofore specially regulated by provisions of the interstate commerce law.

Prior to the passage of the act of 1890, various reports had been made to congress concerning the operations of the interstate commerce act, in which the commission pointed out the desirability and necessity of contracts between railroad companies in the matter of classification, stable rates, etc. After the act of 1890 had been adopted in the senate, it was amended in the house of representatives so as to specifically include among the contracts declared lawful 'contracts for the transportation of persons or property from one state or territory into another.' 21 Cong. Rec. pt. 5, pp. 4099, 4144. On the return of the bill to the senate, the amendment was agreed to, with the added provision that the contracts for transportation to be prohibited 'should only be such as raise the rates of transportation above what is just and reasonable.' Id. p. 4753. The house refused to concur in the senate amendment. A conference committee was appointed by both bodies, which recommended that the house of representatives recede from its disagreement to the amendments of the senate, and agree to the same modified by the addition of the provision that 'nothing in this act shall be deemed or held to impair the powers of the several states in respect to any of the matters in this act mentioned.' In a statement accompanying the report, Mr. Stewart, for the conferees on the part of the house, said:

'A majority of the committee of conference on the part of the house on the disagreeing votes of the two houses on senate bill submit the following statement:

'In the original bill two things were declared illegal, namely, contracts in restraint of interstate trade or commerce, and the monopolization of such trade.

'Its only object was the control of trusts, so called, so far as such combinations in their relation to interstate trade are within reach of federal legislation.

'The house amendment extends the scope of the act to all agreements entered into for the purpose of preventing competition, either in the purchase or sale of commodities or in the transportation of persons or property within the jurisdiction of congress.

'It declares illegal any agreement for relief from the effects of competition in the two industries of transportation or merchandising, however excessive or destructive such competition may be.

'The amendment reported by the conference is the senate amendment with the added proviso that the power of the states over the subjects embraced in the act shall not be impaired thereby.

'It strikes from the house amendment the clause relating to contracts for the purchase of merchandise, and modifies the transportation clause by making unlawful agreements which raise rates above what is just and reasonable.'

21 Cong. Rec. pt. 6, p. 5950.

The house rejected the report of the conference committee, and adhered to its amendments. A new conference committee was appointed, and the recommendation of that committee that both houses recede was concurred in, and the bill as it originally passed the senate was adopted. 21 Cong. Rec. pt. 9, p. 6212.

It thus appears that the bill was originally introduced in the form in which it now appears; that this form was thought not to be sufficient to embrace railroad transportation, and that a determined effort was made by the proposed amendment to include such contracts, and that the effort was unsuccessful. The reports to congress by the commission and by the conference committee being facts proper to be noticed in seeking to ascertain the intention of congress (Church of Holy Trinity v. U.S., 143 U.S. 457, 12 Sup. Ct. 511), it would seem to be manifest therefrom that there was no intention by the act to interfere with the control and regulation of railroads under the interstate commerce act, or with acts of the companies which had theretofore been recognized as in conformity to, and not in conflict with, that act.

That there was and could have been no intention to repeal by the act of 1890 the earlier 'act to regulate interstate commerce' is additionally evidenced by the fact that no reference is made in the later act to the prior one, and that no language is contained in the act of 1890 which could in any way be construed as abrogating any of the rights conferred or powers called into existence by the interstate commerce act. Nowhere, contemporaneous with the act of 1890, is there anything indicating that any one supposed that the provisions of that act were intended to repeal the interstate commerce act. The understanding of congress in this respect is shown by the circumstance that the interstate commerce act has been amended in material particulars, and treated as existing, since the adoption of the act of 1890; and this conception of the legislative department of the government has also been that entertained by the executive and judicial departments, evidenced by the appointment of new members of the commission and by decisions of the courts enforcing various provisions of that act, and treating it as still subsisting in its entirety. The two laws then co-existing, is the agreement of the carriers to secure a uniform classification of freight, and to prevent secret changes of the published rates,-in other words, to secure just and fair dealings between each other,-sanctioned by the act to regulate interstate commerce, and therefore not within the inhibition of the act of 1890?

The interstate commerce act provided for the appointment of a commission, to whom was to be confided the supervision of the execution of the law. Without going into detailed mention of the provisions of the statute, I adopt and quote the summary statement of the leading features of the original act contained in the first annual report made to congress by the commission, as required by the act. It is as follows:

'All charges made for services by carriers subject to the act must be reasonable and just. Every unjust and unreasonable charge is prohibited, and declared to be unlawful.

'The direct or indirect charging, demanding, collecting, or receiving for any service rendered a greater or less compensation from any one or more persons than from any other for a like and contemporaneous service, is declared to be unjust discrimination, and is prohibited.

'The giving of any undue or unreasonable preferences, as between persons or localities, or kinds of traffic, or the subjecting any one of them to undue or unreasonable prejudice or disadvantage, is declared to be unlawful.

'Reasonable, proper, and equal facilities for the interchange of traffic between lines, and for the receiving, forwarding, and delivering of passengers and property between connecting lines, is required, and discrimination in rates and charges as between connecting lines is forbidden.

'It is made unlawful to charge or receive any greater compensation in the aggregate for the transportation of passengers or the like kind of property under substantially similar circumstances and conditions for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance.

'Contracts, agreements, or combinations for the pooling of freights of different and competing railroads, or for dividing between them the aggregate or net earnings of such railroads or any portion thereof, are declared to be unlawful.

'All carriers subject to the law are required to print their tariffs for the transportation of persons and property, and to keep them for public inspection at every depot or station on their roads. An advance in rates is not to be made until after ten days' public notice, but a reduction in rates may be made to take effect at once, the notice of the same being immediately and publicly given. The rates publicly notified are to be the maximum as well as the minimum charges which can be collected or received for the services respectively for which they purport to be established.

'Copies of all tariffs are required to be filed with the commission, which is also to be promptly notified of all changes that shall be made in the same. The joint tariffs of connecting roads are also required to be filed, and also copies of all contracts, agreements, or arrangements between carriers in relation to traffic affected by the act.

'It is made unlawful for any carrier to enter into any combination, contract, or agreement, expressed or implied, to prevent, by change of time schedules, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination.' These provisions substantially exist in the act as now in force, except that by an amendment made March 2, 1889, it was provided that rates should not be reduced by carriers except upon three days' public notice of an intention so to do.

This summary of the act, which omits reference to a number of its provisions relating to the power of the commission and the mode in which these powers are to be exercised, will suffice for an examination of the matter in hand.

Now, a consideration of the terms of the statute, I submit, makes it clear that the contract here sought to be avoided as illegal is either directly sanctioned or impliedly authorized thereby. That the act did not contemplate that the relations of the carrier should be confined to his own line and to business going over such line alone, is conclusively shown by the fact that the act specifically provides for joint and continuous lines; in other words, for agreements between several roads to compose a joint line. That these agreements are to arise from contract is also shown by the fact that the law provides for the filing of such contracts with the commission. And it was also contemplated that the agreements should cover joint rates, since it provides for the making of such joint tariffs and for their publication and filing with the commission. The making of a tariff of this character includes necessarily agreements for the classification of freight, as the freight classification is the essential element in the making up of a rate. That the interstate commerce rates, all of which are controlled by the provisions as to reasonableness, were not intended to fluctuate hourly and daily as competition might ebb and flow, results from the fact that the published rates could not either be increased or reduced, except after a specified time. It follows, then, that agreements as to reasonable rates and against their secret reduction conform exactly to the terms of the act. Indeed, the authority to make agreements on this subject not only results from the terms of the act just referred to, but from its mandatory provisions forbidding discrimination against or preference to persons and places. The argument that these provisions referred to joint lines alone, and not to competitive lines, is without force, since joint rates necessarily relate to and are influenced by the rates on competitive lines. To illustrate, suppose three joint lines of railroads between Chicago and New York, each made up of many roads. How could a joint rate be agreed on by the roads composing one of these continuous lines, without an ascertainment of the rate existing on the other continuous line? What contract could be made with safety for transportation over one of the lines without taking into account the rate of all the others? There certainly could be no prevention of unjust discrimination as to the persons and places within a given territory, unless the rates of all competing lines within the territory be considered and the sudden change of the published rates of all such lines be guarded against.

I do not further elaborate the reasons demonstrating that classification is essential to rate making, and that a joint rate, to be feasible, must consider the competitive rates in the same territory, since these propositions are to me self-evident, and their correctness is substantiated by statements found in the reports of the interstate commerce commission to congress, of which reports judicial notice may be taken. Heath v. Wallace, 138 U.S. 573, 584, 11 Sup. Ct. 380.

I excerpt from some of these reports of the commission to congress statements bearing on these subjects, as well as other statements indicating that agreements among carriers, competitive as well as connecting, for the purpose of securing a uniform classification and preventing the undercutting of rates, underbilling, etc., existed prior to the interstate commerce act, were continued thereafter, and were deemed not to be forbidden by law, but, on the contrary, were considered as instruments tending to secure its successful evolution. While it is doubtless true that in a recent report the commission, as now constituted, has said that agreements between competitors to prevent the undercutting of rates may operate to cause carriers to disregard the lawful orders of the commission, this fact does not change the legal inference to be deduced from the construction placed upon the law by those charged with its administration in the period immediately following its adoption and which was then reported to congress.

On the subject of relative rates, the commission, at page 39 of their first annual report, said: 'Questions of rates on one line at one point cannot be considered by themselves exclusively; a change in them must affect rates in a considerable part of the country. * * * Just rates are always relative. The act itself provides for its being so when it forbids unjust discrimination as between localities.' That is to say, if one continuous line made joint rates and fixed and published them, and the other then made a different rate, not only would the first joint rate be injurious to the interests of the railroads making it, during the period in which it could not be changed, but would also be against the interests of the public and of those who had contracted to ship, since it would create among shippers and the receivers that inequality which it was the express purpose of the act to prevent.

In the same report of the commission, at page 33, not only the expediency, but the necessity, of contractual relations between railroad companies is pointed out in the following language:

'To make railroads of the greatest possible service to the country, contract relations would be essential, because there would need to be joint tariffs, joint running arrangements, an interchange of cars, and a giving of credit to a large extent, some of which were obviously beyond the reach of compulsory legislation, and, even if they were not, could be best settled and all the incidents and qualifications fixed by the voluntary action of the parties in control of the roads respectively.'

Also at page 35, after referring to the fact that the former railroad associations had been continued in existence since the enactment of the interstate commerce law, though pooling had been prohibited, among other objects, for the 'making of regulations for uninterrupted and harmonious railroad communication and exchange of traffic within the territories embraced by their workings,' the commission observed that 'some regulations in addition to those made by the law are almost, if not altogether, indispensable.'

On the same page the fact is emphasized that classification had not been taken, by the act, out of the hands of the carriers, and it was observed that classification was best made by the joint action of the railroads themselves. In its second annual report the commission, in commenting upon the evils arising from the want of friendly business relations between railroads and the injury that a short road might cause by simply abstaining from extending accommodation that could not be lawfully forced from it, said (page 28):

'The public has an interest in being protected against the probable exercise of any such power. But its interest goes further than this; it goes to the establishment of such relations among the managers of roads as will lead to the extension of their traffic arrangements with mutual responsibility, just as far as may be possible, so that the public may have in the service performed all the benefits and conveniences that might be expected to follow from general federation. There is nothing in the existence of such arrangements which is at all inconsistent with earnest competition. They are of general convenience to the carriers, as well as to the public, and their voluntary extension may be looked for until in the strife between the roads the limits of competition are passed and warfare is entered upon. But in order to form them great mutual concessions are often indispensable, and such concessions are likely to be made when relations are friendly, but are not to be looked for when hostile relations have been inaugurated.'

At page 29 of the report the existence of traffic arrangements between railroads is called to the attention of congress in the following language:

'While the commission is not at this time prepared to recommend general legislation towards the establishament or promotion of relations between the carriers that shall better subserve the public interest than those which are now common, it must nevertheless look forward to the possibility of something of that nature becoming at some time imperative, unless a great improvement in the existing condition of things is voluntarily inaugurated.'

So, also, the existence of traffic associations, between competitive roads, for purposes recognized by the act as lawful, and their favorable tendency, seems to be conceded in the fourth annual report of the commissioners, where, at page 29, it is said:

'If the regulations which are established by the railroad associations were uniformly, or even generally, observed by their members, respectively, there would be little difficulty in enforcing a rule of reasonable rates, for the competition between the roads which even then would exist would be such as would prevent the establishment of rates which are altogether unreasonable, and the public would not be likely to complain if they were satisfied that the rate sheets were observed.'

The character of associations such as that under consideration is alluded to at page 26 of the same report, where, in discussing the subject of how best to secure a unity of railroad interests, it was observed: 'Without legislation to favor it, little can be done beyond the formation of consulting and advisory associations, and the work of these is not only necessarily defective, but it is also limited to a circumscribed territory.'

The significance of the statement that, to obtain uniformity of classification, a result most desirable for the best interests of the public, agreements between the railroads themselves was essential, is apparent from the fact, frequently declared by the commission in its reports, that uniformity of classification is one of the prerequisites of uniformity of rates. 1 Ann. Rep. 30, 35; 2 Ann. Rep. 40; 3 Ann. Rep. 51, 52; 4 Ann. Rep. 32. The very great importance of uniform and stable rates has also frequently been reiterated in the reports of the commission. Thus, at page 6 of the first annual report, in reviewing the causes which led to the adoption of the interstate commerce act, it is said:

'Permanence of rates was also seen to be of very high importance to every man engaged in business enterprises, since without it business contracts were lottery ventures. It was also perceived that the absolute sum of the money charges exacted for transportation, if not clearly beyond the bounds of reason, was of inferior importance in comparison with the obtaining of rates that should be open, equal, relatively just as between places, and as steady as in the nature of things was practicable.'

That unstable rates between competing carriers lead to injurious discrimination, one of the evils sought to be remedied by the act, was mentioned in the same report at pages 36 and 37, in connection with a discussion of the subject of reasonable charges, in the following language:

'Among the reasons most frequently operating to cause complaints of rates may be mentioned: The want of steadiness in rates, * * * more often, perhaps, growing out of disagreements between competing companies, which, when they become serious, may result in wars of rates between them. Wars of rates, when mutual injury is the chief purpose in view, as is sometimes the case, are not only mischievous in their effects upon the parties to them, and upon the business community whose calculations and plans must for a time be disturbed, but they have a permanently injurious influence upon the railroad service, because of their effect upon the public mind.'

The evil effects of shifting rates were also treated of at page 22 of the second annual report, where the commission inserted a letter received from a business man of Kansas City, not connected with railroads, who said:

'The frequent and violent changes in railway rates which have taken place during the past few years, and which seem likely to be unabated, seems to me to call for new legislation in the way of amendment of the interstate commerce bill. These changes are ruinous to all business men, as well as the railways, and are the cause of great discontent among shippers everywhere, and especially to the farmers. What is needed is a fixed, permanent rate, which shall be reasonable, and which can be counted upon by any one engaging in business.'

So, also, in the fourth annual report, it was observed that shifting, unstable rates, by competing roads, were contrary to the purpose of the interstate commerce act, and hampered the operations of the commission. It was said at page 21: 'In former reports the commission has referred to the undoubted fact that competition for business between railroad companies is often pushed to ruinous extremes, and the most serious difficulty in the way of securing obedience to the law may be traced to this fact. When competition degenerates to rate wars, they are as unsettling to the business of the country as they are mischievous to the carriers, and the spirit of existing law is against them'

In addition to the text of the law heretofore commented on, the section which forbids pooling adds cogency to the construction that the law could not have been intended to forbid contracts between carriers for the purpose of preventing the doing of those things which the law forbade. For, as I have shown, it cannot be denied that at the time of the passage of the act there existed associations and contracts between carriers for other purposes than the pooling of their earnings. While the exact scope of these contracts is not shown, the fact that their existence was considered by congress results from the face of the act, since it requires that agreements and contracts between carriers shall be filed with the commission. Moreover, the earlier reports of the commission, as I have shown, refer to such traffic agreements, and state that after the passage of the act they continued to exist as they had existed before, eliminating only the pooling feature.

In view of these facts, when the act expressly forbids contracts and combinations between railroads for pooling, and makes no mention of other contracts, it is clear that the continued existence of such contracts was contemplated, and they are not intended to be forbidden by the act. The elementary rule of expressio unius entirely justifies this implication.

And it is, I submit, no answer to this reasoning to say that the record does not show the terms of these contracts, since judicial notice may be taken of the reports made by the commission to congress, from which reports the nature of the contracts is sufficiently pointed out to authorize the conclusion to illustrate that they were of the gengeral character of the one here assailed.

While the excerpts from the reports of the commission, which have been heretofore made, serve to elucidate the text of the act, they also, I submit, constitute a contemporaneous construction of the provisions of the act made by the officers charged with its administration, which is entitled to very great weight. Brown v. U.S., 113 U.S. 571, 5 Sup. Ct. 648, and cases there cited.

The rule sustained by these authorities receives additional sanction here, from the fact that the construction at the time made by the commission was reported to congress, and the act was subsequently amended by that body without any repudiation of such construction.

It is, I submit, therefore not to be denied that the agreement between the carriers, the validity of which is here drawn in question, seeking to secure uniform classification and to prevent the undercutting of the published rates, even though such agreements be made with competing as well as joint lines, is in accord with the plain text of the interstate commerce act, and is in harmony with the views of the purposes of that law contemporaneously expressed to congress by the body immediately charged with its administration, and tacitly approved by congress.

But, departing from a consideration of the mere text and looking at the interstate commerce act from a broader aspect, in order to discover the intention of the lawmaker and to discern the evils which it was intended to suppress and the remedies which it was proposed to afford by its enactment, it seems to me very clear that the contract in question is in accord with the act and should not be avoided.

It cannot be questioned that the interstate commerce act was intended by congress to inaugurate a new policy for the purpose of reasonably controlling interstate commerce rates and the dealings of carriers with reference to such rates. Two systems were necessarily presented,-the one a prohibition against the exaction of all unreasonable rates and, subject to this restriction, allowing the hourly and daily play of untrammelled competition, resulting in inequality and discrimination; the other imposing a like duty as to reasonable rates, and, While allowing competition subject to this limitation, preventing the injurious consequences arising from a constant and daily change of rates between connecting or competing lines, thus avoiding discrimination and preference as to persons and places.

The second of these systems is, I submit, plainly the one embodied in the interstate commerce act. At the outset reasonable rates are exacted, and the power to strike down rates which are unreasonable is provided. In the subsequent provisions, discrimination against persons and against places to arise from daily fluctuation in rates is guarded against by requiring publication of rates, and forbidding changes of the published rates, whether by way of increase or reduction, during a limited time. To hold, then, the contract under consideration to be invalid when it simply provides for uniform classification, and seeks to prevent secret or sudden changes in the published rates, would be to avoid a contract covered by the law, and embodied in its policy. It cannot, I think, be correctly said that, while the avowed purpose of the contract in question embraced only the foregoing objects, its ulterior intent was to bring about results in conflict with the interstate commerce law. The answers to the bill of complaint specially denied the allegations as to the improper motives of the parties to the contract, and also expressly averred their lawful and innocent intention. As the case was heard upon bill and answer, improper motives cannot therefore be imputed. In deed, the opinion of the court sustains this view, since it eliminates all consideration of improper motives, and holds that the validity of the contract must depend upon its face, and deduces, as a legal conclusion from this premise, that the contract is invalid, because even reasonable contracts are embraced within the purview of the act of 1890. To my mind, the judicial declaration that carriers cannot agree among themselves for the purpose of aiding in the enforcement of the provisions of the interstate commerce law will strike a blow at the beneficial results of that act, and will have a direct tendency to produce the preferences and discriminations which it was one of the main objects of the act to frustrate. The great complexity of the subject, the numerous interests concerned in it, the vast area over which it operates, present difficulties enough without, it seems to me, it being advisable to add to them by holding that a contract which is supported by the text of the law is invalid, because, although it is reasonable and just, it must be considered as in restraint of trade.

Nor do I think that the danger of these evil consequences is avoided by the statement that, if the contract be annulled, these dangers will not arise, because experience shows that contracts such as that here in question, when entered into by railroads, are never observed, and therefore it is just as though the contract did not exist. How, may I ask, can judicial notice be taken of this fact, when it is said that judicial notice cannot be taken of the fact that there are such contracts? How, moreover, may I ask, can it be said on one branch of the case that the contract, although reasonable, must be avoided, because it is a contract in restraint of trade, and then on the other branch declare that contracts of that character never do restrain trade, because they are never carried out between the parties who enter into them?

There is another contention which, I submit, is also unsound. That is the suggestion that it is impossible to say that there can be such a thing as a reasonable contract between railroads seeking to avoid sudden or secret changes in reasonable rates, because the question of railroad rates is so complex, and is involved in so much difficulty, that the say that a rate is reasonable is equivalent to saying that it must be fixed by the railroads themselves, as no mind outside of the officials of the particular roads can determine whether a rate is reasonable or not. But this proposition absolutely conflicts with the methods of dealing with railroad rates adopted in England, and expressly put in force by congress in the interstate commerce act, and by many of the states of the Union. For years the rule in England was reasonable rates enforced by judicial power, and subsequently by enactment securing such reasonable rates by administrative authority. The interstate commerce act especially provides for reasonable rates, and vests primarily in the commission, and then in the courts, the power to enforce the provision, and like machinery is provided in many of the states. Will it be said that congress and other legislative bodies have provided for reasonable rates, and created the machinery to enforce them, when whether rates are reasonable or not is impossible of ascertainment? If this proposition be correct, what, may I ask, becomes of the judgment of this court in Cincinnatl, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 162 U.S. 184, 16 Sup. Ct. 700, where it is held that the order of the commission finding certain rates charged by a railroad to be unreasonable was correct?

In conclusion, I notice briefly the proposition that though it be admitted that contracts, when made by individuals or private corporations, when reasonable, will not be considered as in restraint of trade, yet such is not the case as to public corporations, because any contract made by them in any measure in restraint of trade, even when reasonable, is presumptively injurious to the public interests, and therefore invalid. The fallacy in this proposition consists in overlooking the distinction between acts of a public corporation which are ultra vires and those which are not. If the contract of such a corporation which is assailed be ultra vires, of course the question of reasonableness becomes irrelevant, since the charter is the reason of the being of the corporation. The doctrine is prodicated on the following expressions taken from the opinion of the court expressed by Mr. Chief Justice Fuller in Gibbs v. Gas Co., 130 U.S., at page 408, 9 Sup. Ct. 557:

'That, in the instance of business of such a character that it presumably cannot be restrained to any extent whatever without prejudice to the public interests, courts decline to enforce or sustain contracts imposing such restraint, however partial, because in contravention of public policy. This subject is much considered, and the authorities cited, in West Virginia Transp. Co. v. Ohio River Pipe-Line Co., 22 W. Va. 600; Chicago Gaslight & Coke Co. v. People's Gaslight & Coke Co., 121 Ill. 530, 13 N. E. 169; W. U. Tel. Co. v. American Union Tel. Co., 65 Ga. 160.'

But, manifestly, this language must be construed with reference to the facts of the case in which it was used. What the facts were in that case is shown by the statement in the opinion (page 406, 130 U.S., and page 556, 9 Sup. Ct.) that the contract there considered 'was an agreement for the abandonment by one of the companies of the discharge of its duties to the public.' It is also to be remembered that it was this character of contract-that is, one which was ultra vires-which was held to be illegal in the West Virginia, Illinois, and Georgia cases which were cited in the Gibbs Case in support of the excerpt just quoted. That the language in the Gibbs Case referred to conditions of fact like that there passed upon-that is, contracts ultra vires is shown by the subsequent case of Chicago, St. L. & N. O. R. Co. v. Pullman South. Car. Co., 139 U.S. 79, 11 Sup. Ct. 490, where a contract of the railway company was assailed as in restraint of trade; and the court held that although, by the contract, the company had restrained itself for a long period of years from using other than certain drawing room and sleeping cars, the contract was yet a valid and proper contract. Manifestly, this decision is utterly irreconcilable with the view that, in the case of a railroad company, every restraint imposed by contract upon its freedom of action is necessarily injurious to the public interests, and hence invalid. Indeed, the proposition that any restraint of its conduct which a railroad may create by contract is invalid, because such road is a public corporation, is demonstrated to be erroneous by the interstate commerce act, which, in the provisions heretofore referred to, not only expressly authorizes, but in some instances commands, agreements from which restraint of the action of the corporation necessarily arises.

I am authorized to say that Mr. Justice FIELD, Mr. Justice GRAY, and Mr. Justice SHIRAS concur in this dissent.

1. Match Co. v. Roeber, 106 N.Y. 473; Leslie v. Lorillard, 110 N.Y. 519, 533; Beal v. Chase, 31 Michigan 490, 518; National Benefit Co. v. Union Hospital Co., 45 Minnesota 272; Ellerman v. Chicago Junction Railways &c. Co., 49 N.J.Eq. 215, 217; Richards v Am. Desk &c. Co., 87 Wisconsin 503, 514; note to 2 Parsons on Contracts, p. 748; note to Angier v. Webber 92 Am.Dec. 751; note to Mitchel v. Reynolds, 1 Smith's Leading Cases 705, and supplemental note (9th Am.Ed.) 716 (1888); review of cases by A. M. Eaton in 4 Harv.Law Review, p. 129 (1890); Patterson on Restraint of Trade (1891).