existing conditions amounting in tonnage thereof to at least 31 per cent. of present distribution. United States ex rel. Kingwood Coal Co. v. West Virginia Railroad, 125 Fed. Rep. 252.

Railroads have power by improper distribution of cars among competitors to build up the business of some shippers at the expense of others. It can ruin and drive out of business those shippers against whom it may choose to discriminate. To prevent such injustice, the Interstate Commerce Act was passed. The object and purpose of the act was to compel the carrier to treat all shippers alike, and to place every shipper upon an equality. The remedy afforded by the statute permits the shipper to invoke the summary remedy afforded by a writ of mandamus to compel the carrier to move traffic and furnish cars and proper facilities. Ib.

The relator was a

Mandamus Basis of Car Allotments. miner and shipper of coal in Preston county, W. Va., on the line of the respondent's railroad, the Virginia and Northwestern. It joined as respondents two competitors, to-wit, the Irona Coal and Coke Co. and the Atlantic Coal and Coke Co., miners and shippers on the same road; the three collieries being the only ones operated along the line of relator's railway. Relator claimed that the carrier discriminated against it in favor of its rivals, the Irona and Atlantic companies. The cars were furnished to respondent carrier by the Baltimore and Ohio railroad, over whose line the coal ultimately reached the market. The inequality alleged was that the carrier furnished and distributed its cars as follows: To the relator, 17 per cent.; to the Irona Co., 27 per cent.; to the Atlantic Co., 56 per cent. The allotment was based on the following ratings, capacity, or per diem output of the respective mines: 400 tons to the relator, 600 tons to the Atlantic, and 1,250 tons to the Irona. Held, that in reaching a proper basis for the distribution an impartial and intelligent study of the capacity of the mines is necessary. This should be done by competent and disinterested experts charged with the duty to carefully examine the different elements that are essential factors in finding the daily output of the respective mines which are to share in the allotment, to-wit: (1) the working places; (2) number of mine cars, and their capacity;

RIGHT OF SHIPPER TO DESIGNATE ROUTE.

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(3) switch and tipple efficiency; (4) number and character of mining machines; (5) hauling system and power used; (6) number of employees; (7) the number of mine openings, and (8) miners' houses. None of these elements are absolutely controlling, the most important being the real working places and available points at which coal can profitably be mined. United States ex rel. Kingwood Coal Co. v. West Virginia Railroad, 125 Fed. Rep. 252.

Right of Shipper to Designate Route.- A shipper has a right to designate over what route he will ship his products, where there are a number of competing connecting lines, beyond the initial point or point of origin of the shipment. An attempt by the carrier to deny this right to the shipper may be enforced by injunction. Perhaps mandamus would also afford a summary remedy.

The question as to the shipper's right to designate the route of shipment arose in California at the suit of shippers of oranges, lemons, and other citrous fruits engaged in shipping from points in California to points east of the Missouri river. The defendant carriers, the Southern Pacific, and the Atchison, Topeka and Santa Fe companies, promulgated a rule whereby shippers of fruit from California to eastern cities were forbidden the right to designate over what route their property should be transported, when such shipments were made over defendant's lines at the initial point. Under this rule the carriers assumed the right to arbitrarily bill the merchandise over the joint or continuous lines or routes established by the initial carriers, between points of shipment and through points of destination. The shipper was obliged under the carrier's rule to contract for a through rate at the published rate or charge applying over such continuous route or line. Defendants also refused to keep open to the public their published tariff rates on oranges. lemons, and citrous fruits between points of shipment and destination, when such rates were lawfully in force over each route or line published in their joint schedule of tariff.

These facts were shown to the Interstate Commerce Commission and after full hearing the Commission made an order di

recting the carriers to cease and desist from maintaining or enforcing the rule complained of whereby the shipper was denied access to the published tariff rates over all connecting lines, and was denied the right to designate the route of shipment beyond the point of origin. The carriers refused to obey the order. The Commission then brought suit to enforce the order in the United States Circuit Court, southern district of California, and in its petition prayed for an injunction perpetual to restrain defendants from doing the acts complained of. The carriers demurred to the petition. The court overruled the demurrers and directed defendants to answer.

The court held that a rule reserving to the defendants, as initial carriers, the unqualified right of routing beyond its own terminal all shipments made under an established joint through rate could be tested in a suit in which the connecting carriers who joined in making the rate were not partics. Such connecting carriers while proper parties to the suit were not essentially necessary parties. Interstate Com. Co. v. Southern Pacific, 123 Fed. Rep. 597. (June, 1903, Circ. Ct. So. Dist. Cal.)

Held further, that a finding by the Commission that the purpose and effect of the rule complained of by which defendants as initial carriers reserved the right to route through shipments beyond their own lines was to assist in carrying into effect a pooling agreement between their connecting carriers in violation of section 5 of the Commerce Act is pertinent to the inquiry, and supports the legality of the order of the Commission. Ib.

Held further, that the question as to whether the rule complained of subjected shippers to undue, unjust, and unreasonable prejudice and disadvantage, and gave to the initial carriers an undue and unreasonable preference, was a question of fact, and an order based on findings to support it was prima facie a lawful order, and one which the court is required to enforce under section 16 of the act. Ib.

CHAPTER III.

THE SHERMAN ACT.

Entitled "An Act to Protect Trade and Commerce against Unlawful Restraints and Monopolies." Approved July 2, 1890. Also Anti-Trust Provisions of

Wilson Bill, in Effect August 27, 1894.

SEC.

ANALYSIS OF STATUTES.

THE SHERMAN ACT.

1. Trusts and monopolies unlawful - Misdemeanor to contract.

2. Misdemeanor to combine.

3. Contract in restraint of trade illegal - Penalty.

4. Remedy injunction - Jurisdiction of Federal court. 5. Additional parties may be brought in.

6. Trust property, when confiscated.

7. Suits by injured parties - Treble damages.

8. Persons defined; to include corporations.

73. Wilson Bill - Trusts and monopolies by importers.

74. Wilson Bill - Remedy injunction - Jurisdiction of

Federal courts.

75. Wilson Bill - Additional parties may be brought in. 76. Wilson Bill Trust property, when confiscated.

77. Wilson Bill-Suit by injured parties Treble dam

ages. 34. Dingley Bill does not repeal anti-trust features of Wilson Bill, contained in the foregoing sections.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

§ 1. Trusts and Monopolies Unlawful.- 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. [Misdemeanor to Contract.] 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 five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.

The Sherman Act. The act of July 2, 1890, is practically a supplement to the provisions of the Interstate Commerce Act. The latter applies only to common carriers. Its primary object was to place all shippers upon an equality and to declare illegal all discrimination among shippers, and to make it a crime for any common carrier to give a rebate, or unjust preference, or advantage to one shipper, whereby he would be able to undersell his competitors, destroy competition, and monopolize a particular branch of trade or commerce. It was intended also to prohibit parallel or competing lines of railroad from forming a pool, association, or trust to destroy competition and place the community at the mercy of carriers controlled as a unit. In other words pooling was forbidden because the result of such a combination, it was claimed, would place the shipper and consumer under the control of the carrier.

The result of the rebate system practiced by the carriers of the country in direct violation of the Commerce Act enabled certain shippers to destroy competition in certain branches of trade. The evidence in some cases showed that these favored shippers were officers of the carrying companies who gave the rebates that enabled the beneficiary of the carrier's bounty to destroy competition. In so doing the carrier was practically shipper as well as carrier. In giving rebates to favored shippers the carriers were in effect giving the rebates to themselves. Equality of opportunity was denied. The merchant or manufacturer who was not favored could not build his own railroad and was obliged