clearly in violation of the provisions of the Sherman Act (October, 1898). United States v. Joint Traffic Assn., 171 U. S. 505.

The court observed, among other things in pointing out the illegality of the agreement, that under it the managers of the association may from time to time recommend changes in rates and a failure to observe the recommendation would be a violation of the agreement and would subject the offender to a fine not exceeding $5,000. If one member should be allowed to fix its own rates and be guided by them, as to that company the agreement might as well be rescinded. No such result was contemplated. In order to prevent not only secret competition, but to prevent any competition at all, provision is made for prompt action by the managers of the association, under which the latter is given power to enforce uniformity of rates against the offending company, upon pain of an open, rigorous, and relentless war of competition against it on the part of the whole association. Ib.

The natural, direct, and immediate effect of competition is to lower rates and to thereby increase the demand for commodities, the supplying of which increases commerce. And an agreement whose first and direct effect is to prevent this play of competition restrains instead of promotes trade and commerce. Ib.

The agreement entered into by the combination known as the Trans-Missouri Freight Association made no provision for pooling freights or dividing the aggregate net proceeds. It was an agreement to fix and maintain uniform rates among competing lines engaged in interstate commerce, with penalties to be imposed upon its members for a violation of its rules. The court held that, as there was no agreement to pool freights or divide the aggregate net proceeds, the agreement complained of was not one forbidden by the Interstate Commerce Act or by section 5 of that act forbidding such pooling arrangements, but that the agreement being one to prevent competition and furnish rate cutting it was in violation of the Sherman Anti-Trust Act. (Act approved July 2, 1890.) United States v. Freight Assn., 166 U. S. 290 (March, 1897).

The court held further, that the Sherman Act embraced every contract or conspiracy in restraint of interstate trade or commerce, whether made by common carriers engaged in transportation or by persons or corporations engaged in the manufacture,

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purchase, and sale of commodities. The court held further that if it appeared that the contract or combination complained of was in restraint of interstate or foreign commerce it was condemned by the statute without regard to whether such agreement or combination was or was not reasonable.

Ib.

Status of the Court in the Freight Cases. In both of the cases above referred to the court was not unanimous. In both the prevailing opinion was written by Mr. Justice PECKHAM. The earlier (the Trans-Missouri case) was argued December 8, 1896, and decided March 22, 1897. Chief Justice FULLER and Justices BREWER, BROWN, and HARLAN concurred with PECKHAM, J. Justices WHITE, FIELD, GRAY, and SHIRAS dissented. In the later case of the Joint Traffic Association, which was argued February 24, 1898, and decided October 24, 1898, Chief Justice FULLER and Justices BREWER, BROWN, and HARLAN, concurred with PECKHAM, J. Justices SHIRAS, WHITE, and GRAY dissented. Justice McKENNA took no part.

In the Addystone Pipe case (argued in April 26, 1899; decided, December 4, 1899), which did not relate to railroads but to manufacturers and dealers in pipe in which it was held that the agreement or combination was unlawful as in restraint of interstate commerce and in violation of the provisions of the Sherman Act, the decision was unanimous. The opinion of the court was written by Mr. Justice PECKHAM.

The Merger Case Status of the Court.-The case of the Northern Securities Company v. The United States (193 U. S. 197), was decided March 14, 1904. It was brought under the Sherman Act to dissolve the securities company to which had been assigned, as a holding company, the stock of two corporations operating parallel competing lines of railroad under an agreement to permit the holding company, which did not own or operate a railroad, to control the operations of both competing lines. It was argued that the agreement was in restraint of trade and commerce and of the Constitution and statutes of States which created the merged corporations. The merger agreement was held to be illegal and in violation of the provisions of the Sherman Act. The court divided. The prevailing opinion was written by

Justice HARLAN, with whom Justices BROWN, DAY, and McKENNA concurred. Mr. Justice BREWER concurred in the result in an opinion in which he doubted whether every agreement in restraint of trade and commerce could be held to be illegal. Chief Justice FULLER and Justices WHITE, HOLMES, and PECKHAM dissented.

For a fuller review of these cases, see post, under section 1 of the Sherman Act.

Pooling Contracts Relating to must be Produced - Coal Trust.- A proceeding was instituted before the Interstate Commerce Commission charging certain carriers engaged in the transportation of coal from mines in Pennsylvania to tide water and to different States. The allegations in the complaint were in substance that six railroad companies engaged in carrying coal were substantially parallel competing lines. That they entered into an agreement and combination to pool their freight traffic in anthracite, so as to divide the same between their different lines in agreed proportions in violation of section 5 of the act, and pooled their freight under the agreement.

In the course of the investigation the carriers and their agents were called upon to produce the contracts in evidence. The carriers refused on many grounds, among others that the evidence contained in the contracts might tend to incriminate the contracting parties. The Circuit Court sustained the objection solely on the ground that the contracts related only to the sale of coal in Pennsylvania, which was not a transaction embracing interstate commerce.

On appeal to the United States Supreme Court the lower court was reversed, the contracts were held to be relevant, and that the contracts must be marked in evidence.

Mr. Justice DAY, on this point, said: "It is argued that these contracts if given in evidence will tend to show a pooling of freights in violation of the fifth section of the Commerce Act. While this testimony may not establish such an agreement as is suggested it has, in our opinion, a legitimate bearing upon the question. There is a division of freight among several railroads where by agreement or otherwise the companies have a common interest in the source from which it is obtained.”

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The court held also that the contracts were competent on the question as to the mode of fixing rates. "To unreasonably homper the Commission by narrowing the field of inquiry beyond the requirements of the due protection of rights of citizens will be to seriously impair its usefulness and prevent a realization of the salutary purpose for which it was established by Congress." (April, 1904.) Interstate Com. Co. v. Baird, 194 T'. S. 25.

Pooling a Defense to an Equity Suit against Ticket Scalpers. --The carrier sued a number of defendants engaged as ticket brokers who sold tickets issued by complainant in conjunction with other carriers at cut rates. The relief asked was an injunction to restrain defendants from selling the tickets. They were known as round-trip excursion tickets to the Pan-American Exposition, held at Buffalo in 1901. The defendants purchased these tickets at Buffalo and sold the unused return portions at reduced prices. The tickets were originally issued at special rates and were non-transferrable by the original purchaser.

Defendants pleaded that he who comes into equity must come with clean hands. That complainants in issuing the tickets originally did so under an agreement and combination with other carriers to create a monopoly in the sale of such tickets and to stifle competition, and bar all competitors not members of the associations under which complainant acted and of which it was a member, to-wit, the Trunk Line Association, also to subordinate bodies as the Trunk Line Committee acting through the Trunk Line Passenger Committee. It was charged that under the agreement its members made a pro rata division of all receipts, and that it was not only a pooling agreement forbidden by section 5 of the Interstate Commerce Act, but that it was also in violation of the Sherman Act.

The court sustained the defense and vacated the temporary injunction on the ground that as the act of complainant in issuing such tickets was unlawful and was the result of an agreement forbidden by statute, complainant could not invoke the aid of a court of equity to sustain it in the prosecution of such an unlawful agreement. Delaware Railroad v. Frank, 110 Fed. Rep. €89 (August, 1901, Cir. Ct. No. Dist. N. Y.).

§ 6. Schedule of Rates to be Published. That every common carrier subject to the provisions of this act shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately the terminal charges and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous places, in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transportation in such form that they shall be accessible to the public and can be conveniently inspected.

Rates through Foreign Country.- Any common carrier subject to the provisions of this act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for shipment, schedules showing the through rates established and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment; and any