to elicit and compel information from railroad carriers as to their capitalization, indebtedness, earning, operation, etc.

Important cases are now pending in the courts relative to various features of this law, especially the commodity clause, the power of the Commission to fix rates and to compel the production of information. These cases are under the special control and direction of the Attorney-General, and will receive his personal attention in the argument in the Supreme Court when they reach that tribunal.

In the Beef Trust Case the Supreme Court held that a combination of a dominant proportion of the dealers in fresh meat throughout the United States, in order to regulate prices and restrict shipments, is an illegal combination within the prohibition of the Sherman Anti-Trust law. (Decided January 30, 1905; 196 U. S., 375.)

In the cases against the New York, New Haven & Hartford and the Chesapeake & Ohio Railway Companies, the important point decided by the Supreme Court was that a carrier under the Interstate Commerce Act cannot contract to sell and transport and deliver a certain commodity when the transaction amounts to granting indirectly a less rate than the published rate for the transportation; that, whatever the device or method, such a contract is illegal under the Interstate Commerce laws if the amount charged for transportation is less than the published rates. (Decided February 19, 1906; 200 U. S., 361.)

In the recent case of the Great Northern Railway Company v. United States (decided February 24, 1908, 208 U. S., 452), the Supreme Court adopted the Government's construction of section 10 of the Hepburn law, and held that the provision therein contained relating to pending prosecutions was only intended to save methods of procedure provided for by the old law, and did not operate to release prior offenders from prosecution. The result of this decision enabled the Government to prosecute all offenses which had been committed against the Elkins Law prior to the passage of the Hepburn Law, provided, only, such offenses were not barred by the statute of limitations when instituted.

In the other recent cases of the packing companies (decided March 6, 1908. 209 U. S., 56), several important questions were decided in favor of the Government.

1. It was held that a "device" to obtain rebates, in order to come within the prohibition of the Interstate Commerce Law, including the Elkins Act, need not necessarily be fraudulent, but that the term "device" includes any plan or contrivance whereby merchandise is transported for less than the published rate, or whereby any other advantages may be given to or discriminations practiced in favor of the shipper.

2. It was held that the shipper and the carrier could not make a "contract" for the transportation of freight at the legal rate and for a reasonable length of time which would protect the shipper from a proscution at the instance of the Government on the charge of receiving a rebate in the event that the carrier subsequently and during the life of the contract advanced the rate as provided by law and notwithstanding such advance the shipper still continued to ship under his

contract rate.

3. It was also held in this case that in prosecutions for violations of the Elkins Act the Government could prosecute either the carrier or the shipper in any judicial district through which the transportation was conducted; in other words, that the carriage of the merchandise was a necessary and indispensable element of the offense defined by the law. This was a most important question to have settled for our guidance with respect to future prosecutions.

In the case of the Government against the Standard Oil Company of New Jersey as an illegal combination in restraint of trade, a preliminary victory was won by the Government respecting jurisdiction, the power of Congress to authorize the process of a Federal Court to run outside its district, and other related questions, by a decision of the Circuit Court in the Eastern District of Missouri, March 7, 1907. (U. S. v. Standard Oil Co., Fed. Rep., 290)

This case, which is the usual suit in equity under the Sherman law to dissolve an illegal combination is steadily proceeding on the taking of testimony, and it is expected will be heard by the Circuit Court within the next six months. The Government is also conducting other proceedings against the Standard Oil Company, including a prosecution for taking rebates on shipments of oil from the Western Pennsylvania and New York oil fields to New England points, which is pending and will soon be tried in the Circuit Court of the United States for the Western District of New York.

In the case of the United States against the Standard Oil Company of Indiana, in which a fine of $29,240,000 was imposed, the United States District Court for the Northern District of Illinois held that under contracts by a shipper for through interstate shipments solely with one railroad company, although such shipments passed over the lines of other companies, a common arrangement between the carriers for a continuous carriage is sufficiently proved, and that under such a contract and arrangement, where the shipper obtained a concession from the lawful published rates in interstate shipments in violation of the Federal law, the fact that another railroad or route may have had a published rate about as low is immaterial, the shipper is chargeable with knowledge of the lawful rate where it has been published and filed in accordance with law and is accessible to the public, unless he is misled after using proper diligence to ascertain the rate; and, finally, that under the provisions of the Elkins Act forbidding the giving or receiving of rebates, where a shipper has been continuously receiving rebates the Government is not limited to a prosecution for a single offense, but each shipment made at the illegal rate constitutes a separate offense, and under established rates on car lots, each car constitutes a separate shipment. (Decided August 3, 1907; 155 Fed. Rep., 305.)

The judgment in this case was reversed in the Circuit Court of Appeals and the case remanded with instructions to grant a new trial by an opinion filed July 22, 1908, on the grounds that the trial court erred in its rulings on the admission and exclusion of evidence bearing on the shipper's intent and its actual knowledge of the lawful published rate; that the trial court also erred in making each carload and not an entire shipment the unit or integer to determine the number of offenses, and abused the discretion vested in the court in imposing the fine.

It is the earnest contention of the Government that the Court of Appeals mistook the state of the case shown by the record as to the admission and exclusion of evidence, and adjudged the other propositions of law incorrectly in view of the authorities. Immediate steps will be taken to have this decision reconsidered and reviewed in all the ways known to the law.

On July 29, the Attorney-General issued the following statement regarding the case :

a

"The Government will make every effort in its power to secure revision of the recent decision and opinion of the Circuit Court of Appeals for the Seventh Circuit in the case of the Standard Oil Company of Indiana, either by the Court of Appeals itself, or, if necessary, by the Supreme Court of the United States. The gentlemen who have been in consultation with me all unite in my opinion that in the interest of the impartial and effective administration of our laws, such action on the part of the Government is imperatively demanded by the circumstances of the case and the possible consequence if this opinion should stand as authority without question by the government.

"To this end an application for a reargument of the case and a motion for a modification of the opinion will be submitted to the Circuit Court of Appeals in behalf of the United States at the earliest possible moment. Other appropriate steps will be taken afterward, their character to be determined by the Court's action upon this application.

"The pending prosecutions in which the giving or receiving of rebates or offenses of like character are charged will be pressed to trial and judgment by the government with all possible energy and as promptly as may be practicable.

"In the view of the Government's legal advisers the reversal of the judgment in the case recently decided in no way affects the merits of that controversy or the necessity and duty of bringing to punishment if possible in this and any other cases any individual or corporation shown to have evaded or defied the laws."

In United States v. McAndrews & Forbes Co., an indictment under sections 1 and 2 of the Sherman Anti-Trust law of

one of the constituent members of the Tobacco Trust, it was decided on demurrer, among other points, that a corporation may be liable criminally for conspiracy, and that an indictment under the anti-trust law may charge all who aid in the commission of the offenses as principals, and a corporation and its officers who personally participated in committing the offenses may be joined as defendants, although their acts may be separate and not done at the same time, and that to bring any given case or scheme within the law, the restraint of trade need not amount to a total suppression, nor the attempt at monopoly to a complete monopoly, but it is sufficient if the necessary operation tends to restrain interstate commerce and to deprive the public of the advantages flowing from free competition. (Decided December, 1906; 149 Fed. Rep., 823.) The case is now pending in the Supreme Court, having been taken there on a writ of error by the defendants, who were convicted in the trial court.

In the proceedings preliminary to the Paper Trust suit and the Tobacco Trust prosecution, the United States won a very important victory by compelling certain witnesses to testify under personal immunity, without protecting other persons or corporations, with the result that in the Paper Trust case the final decree provided for its dissolution, and the Tobacco Trust prosecutions are proceeding, along with a suit in equity to dissolve that combination, with the aid of the testimony and information of which the Government compelled the production. (Paper Trust Cases, 201 U. S., 92, 117; decided March 12, 1906; Tobacco Trust cases, id., 43, 90, decided same day.)

In the suit in equity to dissolve the Tobacco Trust the testimony has all been taken, and the argument before the Circuit Court has just been completed, May, 1908.

The suit against the Anthracite Coal Trust is now ready to be pressed vigorously, and active proceedings will be undertaken forthwith and maintained in the Federal Court for the Eastern District of Pennsylvania, where the bill to dissolve the combination was filed.

In the case of the United States v. The New York, New Haven and Hartford Railroad Company et al., recently instituted in the United States District Court for the District of Massachusetts, the Government seeks to enjoin that company from exercising further control through stock ownership over the Boston and Maine Railroad Company and to prevent the New Haven road from controlling the various trolley lines paralleling said road in the States of New York, Connecticut, Rhode Island and Massachusetts. The bill charges the New Haven road with combining and attempting to combine under one common control the various railroad systems and electric railway systems in New England.

It will thus be seen that, in obedience to the demand of the people and the legal and economic policy reflected in the Sherman law, the Republican administration, legislative and executive, has been steadily proceeding during the last four years to maintain its record of uncompromising prosecution against the great combinations which are violating the law. It is clear that the Government policy and efforts have been to reach the strong and vast aggregations of power and capital, rather than to avoid enforcement of the law against them and proceed against minor and less culpable defendants, and the foregoing review shows also that the results achieved have been commensurate with the importance of the subject and with the efforts of the Government.

THE CAST-IRON PIPE CASE.

Judge Taft's Decision and its Important Relation to the Trust Question.

No list of judicial decisions declaring the power of Congress over combinations in restraint of trade is complete without naming the Addyston Pipe & Steel Co. case. It was one of the early and most important successes of the Federal Government in attempting to enforce the Sherman Anti-trust Act,

and was a signal judicial victory for Judge William H. Taft, for the Supreme Court in deciding the case affirmed the Circuit Court of Appeals and adopted the reasoning and quoted a considerable portion of Judge Taft's opinion in deciding the case in the lower court. The Circuit Court had decided the case against the Government in a long and exhaustive opinion, so that the decision of the Appelate Court, delivered by Judge Taft, which the Supreme Court held was the law was a pathbreaking one and blazed the way for later decisions which have settled beyond all dispute the wide-reaching power of Congress under the Interstate Commerce clause of the Constitution. When the case was first tried, over eleven years ago, the power of Congress was not clearly understood, even in the minds of lawyers and court.

The history of the case, briefly stated, is as follows: The Attorney-General of the United States filed a bill in equity against six corporations engaged in the manufacture of castiron pipe, charging them with a combination and conspiracy in unlawful restraint of interstate commerce in such pipe in violation of the "Anti-trust Law." The companies manufactured iron pipe in four different States and they divided their sales territory into six districts, and agreed not to bid against each other, though fictitious bids were put in at prices higher than was bid by the member of the combination in whose territory the particular contract to be bid on was located. The Circuit Court dismissed the bill, basing its decision mainly on the case of United States vs. E. C. Knight Company, wherein the United States Supreme Court dismissed a bill filed under the anti-trust law, which sought to enjoin the defendants from continuing a union of substantially all the sugar refineries of the country for the refining of raw sugars. The Supreme Court held the monopoly thus effected was not within the law, because the contract or trust agreement related only to the manufacture of sugar and not to its sale, and it was not within the power of Congress to regulate manufacture within a State. The trial court held the cast-iron pipe case was governed by the reasoning in the sugar trust case, and decided against the Government. The case was appealed to the Circuit Court of Appeals, and was heard by Mr. Justice Harlan, of the Supreme Court, and Circuit Judges Taft and Lurton. This court held the combination was unlawful, both at common law and under the Sherman act of 1890 against trusts and monopolies.

Judge Taft's opinion, delivered February 8, 1898, was hailed by the Government as a great victory in its fight against monopolies. and on December 4, 1899, the Supreme Court affirmed Judge Taft's decision and adopted his reasoning and the very language in his opinion.

The closing paragraph of Judge Taft's opinion is worth quoting entire: "Much has been said in argument as to the enlargement of the Federal Government functions in respect of all trade and industry in the States if the view we have expressed of the application of the anti-trust law in this case is to prevail, and as to the interference which is likely to follow with the control which the States have hitherto been understood to have over contracts of the character of that before us. We do not announce any new doctrine in holding either that contracts and negotiations for the sale of merchandise to be delivered across State lines are interstate commerce, or that burdens or restraints upon such commerce Congress may pass appropriate legislation to prevent, and courts of the United States may in proper proceedings enjoin. If this extends federal jurisdiction into fields not before occupied by the general government, it is not because such jurisdiction is not within the limits allowed by the Constitution of the United States."

Not one of the least of Judge Taft's services to his country was his illuminating and record-making decision in the Addyston Pipe and Steel Company case.

One vital, dominating fact confronts the Democratic party which no oratory, which no eloquence, which no rhetoric can obscure: BRYAN'S NOMINATION MEANS TAFT'S ELECTION.-New York World.

THE DEMOCRATIC PLAN OF TRUST REGULATION IS THE PLAN PROPOSED BY STANDARD OIL MAGNATES.

The plan which the Democratic national platform of 1908 proposes for the control and regulation of trusts and corporations engaged in interstate commerce is precisely that proposed and publicly recommended by the Standard Oil President and Vice-President. Moreover, it is certified to by Mr. Bryan's paper, the "Commoner," as the genuine Standard Oil plan.

The "Commoner," in its issue of October 31, 1902, says:

The plan of vesting in the Federal Government exclusive control of trusts was not originated by the present leaders of the Republican party. John D. Rockefeller in his testimony before the industrial commission, when asked what legislation would be advisable, said: "First, federal legislation under which corporations may be created and regulated, if that were possible." Vice-President Archbold, of the Standard Oil Company, said: "The next great and, to my mind, inevitable step of progress in the direction of our commercial development lies in the direction of national or federal corporations." Henry H. Rogers, a Standard Oil magnate, indorsed Mr. Archbold's suggestion.

The Plan Proposed by Standard Oil Magnates in 1899.

The recommendations of the Standard Oil magnates referred to by Mr. Bryan's "Commoner" and apparently followed in the Democratic platform of 1908, will be found in detail in Vol. 1 of the Report of the Industrial Commission. On page 797 Mr. Rockefeller is asked: "What legislation, if any, would you suggest regarding industrial combinations?" His answer is: "First, Federal legislation under which corporations may be created and regulated, if that be possible; second, in lieu thereof, State legislation as nearly uniform as possible encouraging combinations of persons and capital for the purpose of carrying on industries, but permitting State supervision, not of a character to hamper industries, but sufficient to prevent frauds upon the public."

(Signed) JOHN D. ROCKEFELLER.

On page 565 of the same volume, Mr. Archbold, Vice-President of the Standard Oil Company, says: "If you should ask me, gentlemen, what legislation can be imposed to improve the present conditions, I answer that the next great, and to my mind, inevitable step of progress in the direction of our conmercial development lies in the direction of National or Federal corporations. Lack of uniformity in the laws of various States, as affecting corporations, is one of the most vexatious features attending the business life of any great corporation today, and I suggest for your most careful consideration, the thought of a Federal Corporation law."

*

*

The Plan Proposed by the Democratic Platform in 1908. The portion of the Democratic national platform of 1908 which offers the plan of the Democratic party with reference to trust regulation is as follows:

"We favor the vigorous enforcement of the criminal law against guilty trust magnates and officials, and demand the enactment of such additional legislation as may be necessary to make it impossible for a private monopoly to exist in the United States. Among the additional remedies we specify three: First, a law preventing a duplication of directors among competing corporations; second, a license system which will, without abridging the right of each State to create corporations, or its right to regulate as it will foreign corporations doing business within its limits, make it necessary for a manufacturing or trading corporation engaged in interstate commerce to take out a Federal license before it shall be permitted to control as much as twenty-five per cent of the product in which it deals, the license to protect the public from watered stock and to prohibit the control by such corporation of more than fifty per cent of the total amount of any product consumed in the United States; and, third, a law compelling such licensed corporations to sell to all purchasers in all parts of the country on the same terms, after making due allowance for cost of transportation.”