Page:The Green Bag (1889–1914), Volume 18.pdf/715

 THE GREEN BAG which this court need not consider or deter mine. Undoubtedly, there are those who think that the general business interests and prosperity of the country will be best pro moted if the rule of competition is not applied. But there are others who believe that such a rule is more necessary in these days of enormous wealth than it ever was in any former period of our history. Be all this as it may, Congress has in effect recog nized the rule of free competition by declar ing illegal every combination or conspiracy in restraint of interstate and international commerce." Now obviously a joint tariff is a com bination in restraint of competition of the most radical kind. It affects rates, the most vital object of competition; it takes them by agreement out of competition at once; it fixes them beyond the power of competition to change. Joint tariffs, over continuous lines only, are expressly author ized by the Interstate Commerce Act. "In cases where passengers and freight," says the Act, "pass over continuous lines or routes operated by more than one common carrier, and the several common carriers operating such lines or routes establish joint tariffs of rates or fares or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be filed with said commission." It is perfectly plain that the permission to combine on rates is limited to connecting car riers, and is denied to competing carriers. The intention is equally apparent to pre serve between competing roads that contest upon rates which is the chief feature of our competitive system. In the case we are now discussing all the carriers, as well the Eastern competing roads with one another as each of those roads with its Western con nection, agreed upon a through rate for oranges of $1.25 per hundred pounds. Noth ing could be a more patent combination in restraint of competition. But even if the joint tariff had been in this case only over continuous lines the result would have been

the same. Suppose the Santa Fe" should make a joint tariff agreement of $1.25 per hundred with the Pennsylvania Railroad for continuous transportation to the East via Chicago, and another agreement, in identical terms, with the Baltimore and Ohio (referring to the time when they were true competitors) for continuous transpor tation to the East via Chicago, and file each joint tariff separately. Obviously, though the separate forms are preserved, this is nothing in the world but a tariff combina tion between the three roads, two of them competing. The restraint upon competi tion between the two latter is completely effectual. Moreover, the Interstate Commerce Act makes it unlawful "for any common carrier subject to the provisions of this act to enter into any contract, agreement, or combina tion with any other common carrier or car riers for the pooling of freights of different and competing railroads;" which certainly might be accomplished by agreement for a fixed freight charge and by giving to one of the parties the power to apportion the freight among them all. This was in effect the joint tariff arrangement in the present case. At any rate, this pooling provision, taken in connection with the general policy of the law, evidently contemplates entirely free compe tition among the carriers in the acquisition of business; and certainly such free competi tion is prevented by the power reserved to one of them by the tariff in question. This presented a difficult situation. To declare this joint tariff void and to announce that no agreement for through rates is per missible where it is made by competing car riers, would have been action of the most radical and dangerous character. All per sons, no matter what their interests, desired a through uniform rate over all the Eastern lines; and the advantage of such a tariff is plain. A most beneficial and reasonable commercial arrangement would thus have been demolished at one blow to the dissatis faction and indignation of everyone con