Venner v. New York Central & Hudson River Railroad (177 A.D. 296, 1917)

Thomas, J.:

Under the name of the New York Central Railroad Company (incorporated April 16, 1913), there has been a consolidation of the New York Central and Hudson River Railroad Company, the Lake Shore and Michigan Southern Railway Company and nine other companies. Thus the city of New York is directly connected by railway with Chicago. But there are other terminals. Northerly and southerly of the line noted, in itself nearly 1,000 miles in length, stretches a vast territory of incalculable agricultural and mineral wealth, and containing industrial and commercial centers, Pittsburg, Columbus, Cincinnati, Indianapolis, St. Louis and others towards the south; while northerly are Ogdensburg, Ottawa, Montreal, Detroit, Grand Rapids and other notable places. To bring such regions and intermediate localities into mutual communication, and to afford facilities for transportation to distant destinations, many interpenetrating railways had been built and the control of some of them acquired by certain of the constituent companies entering into the consolidation. So railways, themselves, perchance, products of earlier unification, have finally become one system, whose principal arteries feed and are fed by many lines distributed in diverse directions. The due development of railways has resulted from such mergers. Nor does the prevailing thought concerning transportation question the benefit. Indeed, one cannot but know the evils to all concerned from the several ownerships of physically connecting lines, isolated in operation and segregated in control. I feel at liberty to state that the result of the experience of all classes of people using railways is that the possible scope in distance of a bill of lading or passenger ticket should be unlimited and in inverse ratio to the proximity and accessibility of a known and an accountable carrier. But it is to disrupt the consolidation (perfected December 23, 1914, pursuant to an agreement made in March, 1913) and to resolve it into its elements and even to reach further dissevering results that this action was brought on December 14, 1914. Considering only the elements actually united, such a disposition seems at variance with usual conceptions of public benefit. and tends to reactionary conditions that would be regarded as detrimental to the necessities of transportation, and as well subversive of essential rights of property. But the plaintiff would look beyond the immediate contract of consolidation to matters that do not appear in it. The law places some constraint upon railway increment by combination of independent lines. The reasons for it, and the historic basis, are presented in Standard Oil Co. v. United States (221 U. S. 1), and by Mr. Justice Holmes in Northern Securities Co. v. United States (193 id. 197). Without stopping here to note the learning on that subject, I go straight to the salient applications of it by the appellant.

Lines Alleged to Be Combined in Violation of the Sherman Act.

The lines which plaintiff alleges are combined in violation of the Sherman Act are: (1) The Michigan Central (ninety per cent of the stock owned-by the former New York Central since 1898 and not directly consolidated); (2) The Lake Shore and Michigan Southern (organized under the laws of New York, Pennsylvania, Ohio, Indiana, Michigan and Illinois, ninety per cent of the stock owned by the former New York Central since 1898, directly consolidated); (3) New York, Chicago and St. Louis (known as the Nickel Plate; majority of stock held by the Lake Shore since 1882, not directly consolidated). They are deemed by the plaintiff as potentially parallel and competing because (a) each company has or had a line from Buffalo to Chicago, with several intervening common points; (b) the Lake Shore entering the consolidation controlled by stock ownership or by lease, or by both, (1) the Big Four system; (2) the Lake Erie and Western lines; (3) the Toledo and Ohio Central lines; (4) the Chicago, Indiana and Southern Company (in the consolidation), among themselves also alleged to be potentially parallel and competing: in some respects. The appellant also urges that the railways in several instances are parallel and competing within some of the States, where they are and where the new company is organized. There is other criticism of the consolidation which will be noticed conveniently. Whatever may be said at present has no reference to the Nickel Plate, unless specially mentioned. Plaintiff has owned 170 shares of the stock of the Michigan Central since 1904, 300 shares of the former New York Central since March, 1907, and 75 other shares since January, 1910, and 5 shares of the Lake Shore since December 2,1914. The New York Central Company will be called the New Company; the New York Central and Hudson River Railroad Company, the former New York Central, and the Lake Shore and Michigan Southern, the Lake Shore.

The Consolidation Is Merely a Change in the Form of Control and Does Not in Itself Offend the Federal Anti-Trust Laws.

The New Company succeeds to the property rights of the constituent companies, including the capital stock which they owned. Through stock ownership it chooses the directors of the Michigan Central and thereby fashions its policy, and through such agency, operates its railway, to the extent that practical solidarity of ownership may make the will of stockholders authoritative. I understand that the appellant’s argument is, that the New Company succeeds to a railway (Lake Shore) that is parallel to, and competitive with, the Michigan Central, and has an interest and ability not existing before to restrain competition, and to lessen to those who would use either line the benefit that would come if one stockholder did not control both lines, whereby plaintiff as a stockholder is damaged. Of course, if the same person own company A and company B, he may, if he keep within the law, exalt one and depress the other. So the New Company could starve or rob itself in either direction, and to do so would deprive the communities on the depressed line, as well as the public, of legal opportunities, although it is a rational reflection that one does not make a pigmy of what for his needs should be a giant, and that it is not a reasonable inference that the New Company would weaken the efficiency and earning quality of a great tributary to its system, even if a supervising government, Federal or State, were not ready to thwart or to penalize such an attempt. Such ability to exalt' or to depress portions of properties pertains to every owner of them. But I understand, and later propose to show, that the anti-trust laws are not offended by mere naked capacity for perversion and self-injury, without any evidence of illegal purpose or interest, and where the several arms of transportation are congruous and serviceable growths, and where amputation of a limb would merely deform the body of the general system, with consequent injury to stockholders, creditors and the public. The former New York Central could, before the consolidation, do what the present New Company can do now. The latter can do no more. The grasp was as firm and the exercise of the power as facile in one case as the other. The majority of the directors of the New York Central, it is urged, were also a majority of the directors of the Lake Shore, the Michigan Central, the Nickel Plate; the Big Four, Lake Erie and Western, the Toledo and Ohio Central, New York and Harlem, and other companies, and the officers were practically identical. In short, since 1898, when the stock of the Lake Shore and the Michigan Central was acquired there has been but one control and one ruler. Even before that the Vanderbilt family, from 1878, controlled the Lake Shore and Michigan Central. The New Company may decrease expenses of operation, as the formalities of eleven separate organizations need not be maintained, but the unity of capacities, the coherence of the rights of ownership, the motives of action, the interests to be conserved, the ease of sway, as to the Lake Shore and Michigan Central, have not been changed. There is in the New Company no such perfected solidarity that obedience is compelled the more to the new master than to the former one. It is a new form,of control, but the change is the merest formality. The law looks beyond the externals to the substance, but the present corporate appearance is but another aspect of the same reality. If there is now monopoly or restraint of trade, or potency for it, there was then. The holder of the stock could then proffer or withhold goods to the degree that it can now. It could discourage or stimulate traffic over one line or the other, if it may do so now. A court of equity should not make exteriors, in themselves impotent for harm, grounds of judgment. It is clear that the consolidation in its mere self is not intended to restrain trade or commerce, but to furnish a convenient instrumentality for operating the lines which one company had! earlier controlled. The result is not to restrain trade, because i the effect is the same as before the consolidation. If a corpration is doing what for many years it was doing in another form, at least a new intention in the act cannot be ascribed to it, and if the result of the new act is the same as under earlier conditions, the new act takes on no sinister complexion from the things done under it. I shall later show that the courts consider the past history, whether that shows intention or purpose to restrain competition and to monopolize, the result of the combination and the purpose with which it is continued.

The System of Transportation as It Was and Is Does Not Offend the Federal Statutes.

The Michigan Central through the Canada Southern Company, which it leases, and trackage rights, and the Lake Shore, severally, have terminals at Buffalo. Bach has a terminal at Chicago. The distance between the terminals via the Lake Shore is 540 miles, by the Michigan Central 535 miles. Lake Erie separates the railways for its length of about 250 miles. Principal competing stations are said to be Toledo, in Ohio; Detroit, Grand Rapids, Lansing, Jackson, Kalamazoo, Hastings, Albion, Marshall, Ypsilanti and Monroe, in Michigan; South Bend, Gary, Michigan City and Indiana Harbor, in Indiana; none of which is common to the main lines, unless it be the three last near Chicago. The Michigan Company passes through Canada and to the north of Lake Erie to Detroit. The Lake Shore passes to the south of Lake Erie. The lines are at the greatest distance sixty miles apart. The two lines to Chicago run in the same general direction and each company would seek traffic at Buffalo and Chicago, as well as at some intermediate points. But in determining whether a combination of the two lines is in restraint of interstate or international commerce, it should be considered what each line was intended to do, and what is the breadth of its activities. No one can fail at once to see that an essential purpose of the Michigan Central was, and is, to gather the commerce on the northerly side of Lake Erie and from points between Detroit and Chicago, and that the purpose of the Lake Shore was, and is, to serve the territory southerly of the line of Lake Erie. But that statement is very narrow and deficient, for from Detroit and Jackson on the Michigan Central two lines extend to Bay City, where they unite and stretch up through the Peninsula of Michigan to Mackinaw City, where there is water connection with Canada. There are some other branches tending northward, notably to Grand Rapids, South Haven and Benton Harbor on Lake Michigan. The Lake Shore had or controlled lines from Grand Rapids, Woodbury, Lansing, Jackson and Detroit, in the State of Michigan, and also lines intermediate the Michigan Central and Lake Shore lines west of Lake Erie, and while they may contribute to the Lake Shore line proper, another purpose apparently is to furnish Michigan transportation to regions south and southwest of the Lake Shore line. The territory towards the northwest, increasing so amazingly in production, as well as the portion of Canada north of Lake Erie, are given over to the enterprise and profit of the Michigan Central. On the other hand, an examination of the map shows that the Lake Shore, while operating a line from Buffalo to Chicago, had acquired control, through stock holding, leasing or otherwise, of lines embraced in, or entering into, the States of Michigan, Pennsylvania, Ohio, Indiana, Illinois, and elsewhere. In their large aspects the two enterprises, the Lake Shore and the Michigan Central, are entirely dissimilar, save in the fact that they both seek business at Buffalo and Chicago, and have some local points which they commonly reach, usually through branches. It should be noticed that through the whole tract containing the constituent lines and their dependencies, there is shown on the map in the record a fine network of railways, not owned or controlled by any constituent company. That would not per se excuse or palliate a violation of anti-trust laws, but it bears upon the tendency and intent of the action. Monopoly of trade between the States, or the States and Canada, by reason of the present combination, seems the merest chimera. The actuality of the consolidation is a vast system of transportation from the Atlantic seaboard to Buffalo and thence to points west, northwest and southwest. When the New York Central line ends at Buffalo, it begins the distribution of its traffic, not for Chicago alone, very important as that is, but elsewhere, as various connecting points are reached over wide and diverse areas that demand service. But the multiplicity of its lines and terminals and the liberality of its service are urged as an offense because in the course of supplying so many localities some of its lines touch or cross each other or have common terminals. The former New York Central reaching Buffalo wished to deliver on both sides of Lake Erie. Lines for that end would naturally be carried to Chicago. It sought to carry not only to and from Chicago, but to and from all the lateral territory, through which service lines are now laid. I conceive that it may not be desirable that a railway be limited to two terminals, but rather that it shall radiate, here and there diverging to touch and to serve and to be used by many localities. But to that end there must be main arteries ramified in branches, whereby passengers and goods are brought nearer to points of departure or destination. What I would say is that the ensemble must be considered, and that the enterprise does not become in restraint of trade, or monopolistic, because two lines of the system are parallel and have two common terminals. The public is not injured by dissemination of branches. The shipper is not. The stockholder gains by the wider gathering of products for transportation. In my judgment, the consummation of the system, the entirety of control, considering the geographical distribution of service, is in harmony with sound principles of economics in railway transportation. For let. it be kept in mind that there was no law that forbade the New York Central’s multiplicity of terminals, and there was every reason for extending the great eastern line for the broadest disposition of traffic. . It was for the advantage of the New York Central, and the interests of New York and other States, guarded so solicitously by Legislatures, that the products of Canada and the northwest should not find their way by rail and water route to the Gulf of St. Lawrence, nor was it desirable in the .interest of western routes by land and by water that there should be such diversion. Nor was it less advantageous to the localities served that the ores and other products of the northwest should find routes to the iron furnaces of Pennsylvania, whence in turn would be received the output of that State and the bituminous coal of southern Ohio and West Virginia. While Chicago is an important point from Buffalo, and an expectant westerly terminal, so are St. Louis, Cincinnati, Columbus, Indianapolis; and there is no logical reason for a public policy that should declare that if a company has a terminal in Chicago, it should not have terminals in such other cities; or that, if it searched out and visited the northerly domains, it should keep clear of southerly regions; or that, if one branch sweeping southerly also went to Chicago, its northerly line must avoid that place as one of its destinations.

The Subsidiary Companies of the Lake Shore. The Lake Shore through stock ownership controlled several companies. The New Company has succeeded to that control. Does that preclude legal consolidation ? The map shows the Lake Shore and its relations to its dependencies, as has been stated. It is evident that none of the dependent lines (except the Nickel Plate) parallel each other or the Lake Shore to Chicago. But the appeal requires that some lines, specially designated as competitive and illegally controlled by the New Company, be examined. The plaintiff’s argument as to these lines relates both to interstate and to intrastate conditions. But the lines should be taken in their normal relations, without splitting them into parts as they pass through or into two or more States. Where there is a system, that should be considered, and not portions dissevered to support a claim of local and limited parallelity.

The Lake Erie and Western and the Big Four. The Lake Brie and Western (Lake Shore had majority of stock control since about 1900) has a line southwesterly from Sandusky to Muncie, whence it takes a more westerly course to Peoria, Ill., and is intersected by a branch starting at Indianapolis and running northerly to Michigan City on Lake Michigan, connecting with the main Lake Shore near that point. The Big Four system (Cleveland, Cincinnati, Chicago and St. Louis Railroad Company — Lake Shore held fifty-two per cent of the stock) southwesterly from Cleveland branches at Gallon in Ohio. The more northerly member runs through Muncie, where it touches the Lake Erie and Western, through Indianapolis to East St. Louis, while the other branch from Gallon extends through Columbus, Springfield, Dayton and Cincinnati, thence to Indianapolis, where it subdivides for extensions to Chicago and Peoria, the Peoria branch at Danville meeting a line from- Cairo. There are several lines, interconnecting parts of the Big Four system, or making departures for outlying districts, for instance, from Sandusky to Springfield; from Jackson, Mich., to Franklin, 0.; from Benton Harbor on Lake Michigan to Anderson, to Greensburg, Ind., thence to Louisville, Ky.; and from Springfield to Indianapolis. Some of the Lake Erie and Western lines have similar directions, and reach some common points. The salient fact is that they reach those points from dissociated fields of service. It is true that the Lake Erie and Western has a principal line from Sandusky to and through Muncie, and that the Big Four sends a branch from Sandusky to Springfield, but, although emanating from the same point, that is, Sandusky, the transportation purposes relate to quite different compass points. There is also a rough parallelity to Muncie of the Big Four from ■Cleveland and the Lake Erie and Western from Sandusky. But shall not the cities of Columbus and Cincinnati have a line from Cleveland and thence to Peoria because Sandusky is connected with Muncie and Peoria ? And is it candid criticism that from Cleveland lines may not run to Indianapolis, St. Louis and Peoria because the Lake Erie and Western touch such lines at Muncie and Indianapolis % It does not seem so to me. At Peoria, as noted, the Lake Erie and Western and Big Four have a common westerly terminal, from which they diverge towards the east on entirely different missions. At some distance northerly of Peoria is Zearing, whence the Chicago, Indiana and Southern (in the consolidation; Lake Shore owned most of stock) operates a line to South Bend on the Lake Shore in Indiana. The accusation is, as I understand, that within the State of Illinois such lines potentially compete with the two lines from Peoria, and that the two lines out of Peoria potentially compete with each other. That is founded on the argument that geographical parallelity, however the lines may be serving quite unrelated neighborhoods, is forbidden. Unless a line’s scope of influence for transportation purposes is compassed by another line’s sphere of operation, parallelity is remote and inconsequent.

The Toledo and Ohio Central and the Big Four. The Toledo and Ohio Central (majority of stock acquired by Lake Shore in 1910) has two lines out of Toledo.. I will later comment on them under the head of Ohio laws; but note here that they unite at or near Thurston southeasterly from Columbus and then separate to make with the Zanesville and Western a loop at Corning, and from Corning the controlled line (Kanawha and Michigan) penetrates the bituminous coal fields of southern Ohio and West Virginia. The Big Four operates a line from Jackson, Mich., which extends southerly through Savona to Franklin, where it joins the Big Four line from Cleveland to Cincinnati. The appellant’s argument is that such line from Bryan (on the main Lake Shore line) to Savona (on the line from Springfield to Indianapolis) is a parallel and competing line with the Toledo and Ohio Central (just above mentioned) through Columbus to Corning, and is illegal under the laws of Ohio. The distance between Toledo and Bryan on the Lake Shore line is given at fifty-four miles. It does not appear that either of the two lines just above mentioned in usual competition would directly take the trade of the intervening territory, while their obvious purposes are quite different. The Toledo and Ohio Central line, connecting at Toledo with the Lake Shore and Michigan Central lines from Detroit, is designed to reach Columbus and westerly and southwestly points, and finally the coal mines in southern Ohio and in West Virginia, while the Cincinnati and Northern (Big Four) is intended to connect Jackson in Michigan with Cincinnati, and of course other places through other arms of the service. I cannot conceive that there is undue restraint upon the operation of either, or that illegality arises from the fact that the two lines on their several ways connect with other lines of the common system, or with lines of other companies, whereby varied opportunities for dispatching freight and passengers are afforded. The lines are apart in distance and foreign to each other in the province of their business.

Big Four, Jackson to Savona; Lake Erie and Western, Jackson to Muncie. In this connection I notice the suggestion that the Big Four line from Jackson to Savona parallels the line (Lake Erie and Western, Lake Shore system) from Jackson to Muncie. Both lines do start from Jackson and gradually diverging meet the Big Four'direct line from Cleveland to St. Louis, the Lake Erie at Muncie (where it connects with its own system), and the Big Four line at Ansonia, 40.1 miles further east. The distance from Jackson to Muncie I find to be 165.3 miles, from Jackson to Ansonia 151 miles. The Lake Shore could have managed the stock of the two companies so that each directory would stifle competition where the intervening zone (largely intrastate in Michigan) is so limited that each could draw from it, and could have adjusted the rates so that traffic between Jackson and the Cleveland and St. Louis route would have favored one of its properties. But such a view so depreciates probabilities that I do not entertain it. However, it brings the discussion acutely to the question earlier presented, whether two lines paralleled, and in this instance of a short length, naturally competing before they draw apart, can be commonly owned through stock control. I cannot believe that anti-trust statutes are so meticulous of monopoly as to condemn a general purpose lest it be dwarfed into a capacity and intention to injure intervening vicinities that may for a comparatively short distance use either line. The Federal statute has to do with travel between States and nations, not between villages in the same State, or small localities near the boundary lines, to which both roads for a ways are available, and States contemplate that diversities of service must bring lines into narrow zones as they go on their several ways.

Lake Shore and Michigan Central between Detroit and Toledo. I come back to the Michigan Central and the Lake Shore. Each had a line practically from Toledo to Detroit. The Lake Shore line (Detroit, Monroe and Toledo) is in the consolidation, and the Lake Shore owned most of the stock. They are short in mileage and close in location, and, as I understand, each is in the State of Michigan. They are parallel and so related as to be competing. The New Company can send over either all the freight that it will bear. If it can afford to let one be idle, may it render it moribund and make the other abound % How, then ? By charging higher rates on one than the other ? That would be contrary to law, if it owns both lines, and the appellant urges that there is a substantial ownership in each case. How, then, will its evil and destructive potentiality display itself ? In what abnormities of dealing ? By neglecting the roadbed, equipment and service of one line, and magnifying that of the other ? Has not the Railroad Commission of Michigan power over that ? I think that the era has come when there is, even in the case of railroad companies, a presumption against self-destruction, if for no other reason because the law does not permit it. But I am unwilling to leave the matter there. It is a "matter of common knowledge that Detroit and Toledo are centers of industry and great seats of manufacture. It does not appear but that the two lines in all their availabilities are needed for their trade, but it is inferable that they are. There should be considered the traffic gathered from the Michigan Peninsula and Canada, and routed to places, near and remote, southerly of the Lake Shore main line; for instance, to Pennsylvania would go minerals, and thence would go its coals, and from southern Ohio and West Virginia their bituminous products. In the absence of informing evidence the court should decline to conclude that the two links (between Detroit and Toledo), introducing to each other two such widespreading but interdepending regions, are theoretically in illegal combination because they have become a part of a system in which they are important conduits of circulation.

The Consolidation of the Constituent Companies Did Not Offend the Federal Statutes, as Judged by Decisions.

To this point I have discussed the conditions preceding the consolidation and their actual continuance, to show (1) that the consolidation in itself is not an act, or a combination or aught else that offends the Federal anti-trust laws; (2) that the relations that earlier existed would not violate that act, taking into consideration the growth of the system and the intention and purpose of it and its use. I would now test the accuracy of the conclusion by ascertaining the concrete things condemned, by using the decisions to depict what the criminal and mischievous acts were, what their manifestations of evil intentions were, what destruction they wrought, and by what characteristics they were adjudged to be bad and illegal. The Sherman Act, sections 1 and 2, of July 2, 1890 (26 U. S. Stat. at Large, 209, chap. 641), is as follows: “Sec. 1. 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 five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, 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. ” In Standard Oil Co. v. United States (221 U. S. 1, 49) Mr. Chief Justice White, after considering the text of the act and its “meaning in the light of the common law and the law of this country at the time of its adoption,” concluded that “ reason was the guide by which the provisions of the act were in every case interpreted,” and that “it was intended that the standard of reason which had been applied at the common law and in this country in dealing with subjects of the character embraced by the statute, was intended to be the measure used for the purpose of determining whether in a given case a particular act had or had not brought about the wrong against which the statute provided.” While that was written of the 1st section of the act, relating to “'restraint of trade or commerce,” the thought is extended to the 2d section, which relates to monopoly of “ any part of the trade or commerce among the several States, or with foreign nations. ” The .judicial mind should be amenable to that rule. But in no better way can its application be taught than by tracing the elements that have affected the minds of the justices who have in last resort applied the statute to particular cases. The volume of facts submitted to their consideration, and the painstaking analysis of them by the court, are very marked features of the decisions. The inquiry has been, what was the condition of the business before the alleged violation of the statute ? What did the parties do to change it ? What effect has their course of dealing had upon the rights of others ? How has it affected or threatened trade % How does it tend to affect it ? In the Standard Oil case the violation of the act was found in the following language: “ a. Because the unification of power and control over petroleum and its products which was the inevitable result of the combining in the New Jersey corporation by the increase of its stock and the transfer to it of the stocks of so many other corporations, aggregating so vast a capital, gives rise, in and of itself, in the absence of countervailing circumstances, to say the least, to the prima facie presumption of intent and purpose to maintain the dominancy over the oil industry, not as a result of normal methods of industrial development, but by new means of combination which were resorted to in order that greater power might be added than would otherwise have arisen had normal methods been followed, the whole with the purpose of excluding others from the trade and thus centralizing in the combination a perpetual control of the movements of petroleum and its products in the channels of interstate commerce, b. Because the prima facie presumption of intent to restrain trade, to monopolize and to bring about monopolization resulting from the act of expanding the stock of the New Jersey corporation and vesting it with such vast control of the oil industry, is made conclusive by considering, 1, the conduct of the persons or corporations who were mainly instrumental in bringing about the extension of power in the New Jersey corporation before the consummation of that result and prior to the formation of the trust agreements of 1879 and 1882; 2, by considering the proof as to what was done under those agreements and the acts which immediately preceded the vesting of power in the New Jersey corporation as well as by weighing the modes in which the power vested in that corporation has been exerted and the results which have arisen from it. Becurring to the acts done by the individuals or corporations who were mainly instrumental in bringing about the expansion of the New Jersey corporation during the period prior to the formation of the trust agreements of 1879 and 1882, including those agreements, not for the purpose of weighing the substantial merit of the numerous charges of wrongdoing made during such period, but solely as an aid for discovering intent and purpose, we think no disinterested mind can survey the period in question without being irresistibly driven to the conclusion that the very genius for commercial development and organization which it would seem was manifested from the beginning soon begot an intent and purpose to exclude others which was frequently manifested by acts and dealings wholly inconsistent with the theory that they were made with the single conception of advancing the development of business power by usual methods, but which on the contrary necessarily involved the intent to drive others from the field and to exclude them from their right to trade and thus accomplish the mastery which was the end in view.” I do not regret the long quotation, as it masses the thoughts that led to the conclusion that the New Jersey corporation was a combination in restraint of trade and also “ a monopolization bringing about a perennial violation of the second section ” of the act. The attempt to restrain ■ trade and monopolize it was as wide as the continent, to be achieved through the exclusion of others by abnormal methods, by driving men from occupations and by centralizing commerce in one company, all by overmastering power. Where in the present consolidation are such signs of transgression found ? There is a similarity in the vast capital. But it has aggregated through the years in the evolution of great and useful lines of travel with accretions opening up to a general system of transportation new territory, with no ruins, but with prosperities. At least, the record shows nothing different. I turn to United States v. American Tobacco Co. (221 U. S. 106). The facts, summarized by the chief justice so conveniently for the reader, may be contrasted with those in the present case. The summary shows products at one time “marketed'under competitive conditions of a ■ peculiarly advantageous nature,” the organization of the American Tobacco Company in New Jersey, the absorption in divers ways of the manufacture and sale of tobacco, and its accessories in various forms, the formation of new corporations, the purchase and closing of many competitive plants, until by manipulation piled on manipulation the whole commerce seemingly was -at the mercy of the ever-outstretching influence and power of the combination. But the matter can be pictured comprehensively only by the following excerpt from the opinion: “ Indeed, the history of the combination is so replete with the doing of acts which it was the obvious purpose of the statute to forbid, so demonstrative of the existence from the beginning of a purpose to acquire dominion and control of the tobacco trade, not by the mere exertion of the ordinary right to contract and to trade, but by methods devised in order to monopolize the trade by driving competitors out of business, which were ruthlessly carried out upon the assumption that to work upon the fears or play upon the cupidity of competitors would make success possible. We say these conclusions are inevitable, not because of the vast amount of property aggregated by the combination, not because alone of the many corporations which the proof shows were united by resort to one device or another. Again, not alone because of the dominion and control over the tobacco trade which actually exists, but because we think the conclusion of wrongful purpose and illegal combination is overwhelmingly established by the following considerations: a. By the fact that the very first organization or combination was impelled by a previously existing fierce trade war, evidently inspired by one or more of the minds which brought about and became parties to that combination, b. Because, immediately after that combination and the increase of capital which followed, the acts which ensued justify the inference that the intention existed to use the power of the combination as a vantage ground to further monopolize the trade in tobacco by means of trade conflicts designed to injure others, either by driving competitors out of the business or compelling them to become parties to a combination — a purpose whose execution was illustrated by the plug war which ensued and its results, by the snuff war which followed and its results, and by the conflict which immediately followed the entry of the combination in England and the division of the world’s business by the two foreign contracts which ensued, c. By the ever-present manifestation which is exhibited of a conscious wrongdoing by the form in which the various transactions were embodied from the beginning, ever changing but ever in substance the same. How the organiza- - tion of a new company, now the control exerted by the taking of stock in one or another or in several, so as to obscure the result actually attained, nevertheless uniform, in their manifestations of the purpose to restrain others and to monopolize and retain power 'in the hands of the few who, it would seem, from the beginning contemplated the mastery of the trade which practically followed, d. By the gradual absorption of control over all the elements essential to the successful manufacture of tobacco products, and placing such control in the hands of seemingly independent corporations serving as perpetual barriers to the; entry of others into the tobacco trade, e. By persistent expenditure of millions upon millions of dollars in buying out plants, not for the purpose of utilizing them, but in order to close them up and render them useless for the purposes of trade, f. By the constantly recurring stipulations, whose legality, isolatedly viewed, we are not considering, by which numbers of persons, whether manufacturers, stockholders or employés, were required to bind themselves, generally for long periods, not to compete in the future.” Such was the use of the rule of reason in the Tobacco case. The decision, neither in word or spirit, has contact with the case at bar. There are two cases that deal directly with a combination respecting the same railways, Pearsall v. Great Northern Railway (161 U. S. 646), under the statutes of Minnesota, and Northern Securities Co. v. United States (193 id. 197), under the Federal anti-trust acts. The combinations were dissimilar in form, but one in purpose, viz., to place under one control the Great Northern Eailway Company and the Northern Pacific Eailway Company. Each company had some 4,500 miles of railway in its system, stretching into or across the States of Wisconsin, Minnesota, North Dakota, Montana, Idaho, Washington and Oregon to the Pacific coast. The eastern terminals of the Great Northern were St. Paul and Duluth, Minn., and Superior, Wis., and its western terminals Everett and Seattle in the State of Washington, and as stated in the second case, Portland in Oregon; while the Northern Pacific had its eastern terminals at St. Paul, Minn., and Ashland, Wis., and western terminals at Tacoma, in the State of Washington, and Portland in the State of Oregon. The agreement attacked in the first case involved the sale of the Northern Pacific, the issuance of $100,000,000 or more of bonds guaranteed by the Great Northern, and of $100,000,000 of stock, one-half to be distributed to the stockholders of the Great Northern, or to some person or corporation as trustee for their use, with a provision for interchange of traffic at connecting points for places not common to the two lines and for profit sharing according to mileage. It is noticeable (1) that the opinion suggests that a different quóstion would be present if the agreement had been effected before the Legislature of Minnesota amended the statute, for it is said, “It is possible that, if this arrangement had been actually made and carried into effect, before the acts forbidding the consolidation of parallel or competing lines had been passed, the rights of the parties thereto would have become vested, and could not be impaired by any subsequent act of the Legislature; ” (2) that “ the effect of this arrangement would be to practically consolidate the two systems, to operate 9,000 miles of railway under a single management, and to destroy any possible advantages the public might have through a competition between the two lines; ” (3) that the arrangement was a plain violation of the acts of the State of Minnesota, “ prohibiting railroad corporations from consolidating with, leasing or purchasing, or in any other way becoming the owner of, or controlling any other railroad corporation, or the stock, franchises or rights of property thereof, having a parallel or competing line.” The court decided that “The consolidation of these two great corporations will unavoidably result in giving to the defendant a monopoly of all traffic in the northern half of the State of Minnesota, as well as of all transcontinental traffic north of the line of the Union Pacific, against which public regulations will be but a feeble protection.” In the Northern Securities case the scheme was to vest in the Northern Securities Company sufficient stock to control the Great Northern and the Northern Pacific systems, and that was by the court, four justices dissenting, considered a violation of the Federal Anti-trust Act. It was decided that however the stock was acquired or held, it was to be used in suppressing competition" between the companies. The two cases show a purpose to centralize in one corporation two systems not only parallel but furnishing the only service at intermediate points through an immense territory, systems which had the common purpose of connecting the Great Lakes and the Mississippi river with the Pacific Ocean. This attempt was to combine them arbitrarily, without any valid purpose, and without either railway fitting in conjunction. Two different things, made to be used apart, were forced into unnatural union. That was distortion. It is convenient to call attention to the fact that the Great Northern Company and the Northern Pacific had gained control of the Burlington system of 8,000 miles in length, as the bill showed, “ extending from St. Paul, in the State of Minnesota, where it connects with the Great Northern and Northern Pacific Railway systems, through the States of Minnesota, Wisconsin and Illinois, to Chicago, in the State of Illinois, and from these two cities through said States and through the States of Iowa, Missouri, Nebraska, Colorado, South Dakota, Wyoming and Montana, to Quincy, in the State of Illinois; to Burlington and Des Moines, in the State of Iowa; to St. Louis, Kansas City, and St. Joseph, in the State of Missouri; to Omaha and Lincoln, in the State of Nebraska; to Denver, in the State of Colorado; to Cheyenne, in the State of Wyoming, and to Billings, in the State of Montana, where it again connects with the Northern Pacific Railway system, these States lying west of Chicago and south of the States crossed by the Great Northern and Northern Pacific systems, and constituting the territory occupied in part by what is known as the Union Pacific Railway system, which has been and is a parallel and competing system within said territory with the said Burlington system. ” The bill did not, as I understand, ask for the dissolution of the arrangement by which the Burlington system was obtained—in any case the combination was left intact, although the Burlington Company had, with the Great Northern and the Northern Pacific, a common eastern terminal at St. Paul, and after its sweep southerly joined the Northern Pacific at Cheyenne, en route, coming into competition with the Union Pacific. This brings the discussion to United States v. Union Pacific R. R. Co. (226 U. S. 61), reversing the judgment below (188 Fed. Rep. 102). The Union Pacific Railroad Company acquired by stock purchase what was deemed a dominating control in the Southern Pacific. The Union Pacific system proper extended from the Missouri river to the Pacific coast, that is, from Council Bluffs, la., to Ogden, Utah, a distance of 1,000' miles, with a branch from Kansas City, Mo., through Colorado to the main line at Cheyenne, while it owned the stock of the Oregon Short Line Railroad Company, which operated a railway from Granger, Wyo., on the main line, to Huntington, Oreg., whence a line to Portland was owned and operated by the Oregon Railroad and Navigation Company, the stock of which was owned by the Oregon Short Line. The Oregon Railroad and Navigation Company owned the boat line from Portland to San Francisco, and to the Orient. The Union Pacific had no railway line from Ogden to San Francisco or to Los Angeles. But the Southern Pacific, a holding company of the State of Kentucky, through lease operated the lines of the Central Pacific and owned its stock. Thereby’ was included a line some 800 miles in length from San Francisco to Ogden, where it connected with the Union Pacific and the Denver and Rio Grande Railroad Company. The Central Pacific also had branches some 500 miles in length. The acquisition of the Central Pacific line from Ogden to San Francisco would give the Union Pacific a direct line from the Missouri river to San Francisco, which was much shorter than the line via Portland to San Francisco. It is noticed that the opinion permitted the presentation of a plan for acquiring the control of the direct route from Ogden to San Francisco. Therefore, that line did not fall within the range of the condemnation. But the Southern •Pacific Company owned a ship line from New York to New Orleans, where, as well as at Galveston, connection was made with the company’s railway extending through Louisiana, Texas, New Mexico, Arizona, California and Oregon to Portland, reaching Los Angeles and San Francisco. The United States asserted that before the purchase of the stock, the Union Pacific and Southern Pacific competed for interstate commerce, of which there was much evidence, and that thereafter competition was eliminated. The strife was for transcontinental business. The charges against th¿ combination can be gathered from the vivid and copious denunciation in the petition. It is said in the opinion: “We think the testimony amply shows that, while these roads did a great deal of business for which they did not compete and that the competitive business was a comparatively small part of the sum total of all traffic, State and interstate, carried over them, nevertheless such competing traffic was large in volume, amounting to many millions of dollars. Before the transfer of the stock this traffic was the subject of active competition between these systems, but by reason of the power arising from such transfer it has since been placed under a common control. It was by no means a negligible part, but a large and valuable part, of interstate commerce which was thus directly affected. The fact that the Southern Pacific had a road of its own from the gulf to the Pacific coast did not prevent competition for this traffic. The Union Pacific and its connections were engaged in the same carrying trade, and as a matter of fact were competing for that trade, by all the usual means of competition resorted to by rival railroad systems. As this court said, speaking by Mr. Justice Holmes, in Swift & Co. v. United States [196 U. S. 398]: ' Commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business.’ That commerce, as conducted from the East to the Pacific Coast, was in a substantial part the subject-matter of rivalry and competition between these two systems. Since the stock transfer the companies have common officers and the rival soliciting agencies have been for the most part abandoned. ” The decision illustrates that the question was not one of parallelity of lines, but of suppression of competition between com-, mon eastern and western terminals. The competition does not seem to have been at points between terminals, but between the terminals themselves — New York and the points on the Pacific coast. What influence the water route had upon all-rail routes the case, as reported, does not show. But what is quite apparent is that each company had a system, and that the union of the two systems did not blend what would coalesce in ordinary and natural development, but rather two incongruous and antagonistic entities, characteristically competitive and coalescing only through compulsion. But as applied to the case at bar, the Union Pacific decision teaches this, that at Granger the Union Pacific could bifurcate and send a branch to San Francisco via Portland, and another line to San Francisco via Ogden, and the Supreme Court saw no fault in it. In' the light of such permission, what should be said of the New York Central at Buffalo branching to the north and towards the south, sending off two great lines, which separated in varied directions to many terminals, with some of them converging at Chicago? And there is also this to be said, that such arrangement of lines was a growth begun long since, tried through many years, and not a sudden arbitrary, conventional, unnatural, amalgamation of two diverse and inharmonious systems. It was the normal sequence of legitimate extension and expansion in necessary progress. It may be said that the concession to the Union Pacific accorded with the intention of the Pacific Railroad Acts, authorizing the consolidation of the Union Pacific and Central Pacific. That would indicate that legal authority to do an act was not disturbed by the anti-trust statute, and bears favorably upon the contention that such act does not affect the control of the Lake Shore, and Michigan Central, by the New York Central and Hudson River Railroad Company. The several phases of this litigation yet to be considered preclude further discussion of authorities at this point, but I consider that this survey justifies the conclusion that the combination does not offend the Federal anti-trust statutes. The anti-trust acts seem to have been enforced with a moral sanity. The language has not been pushed to such extremity as to make the law destructive of relations that have developed by a kind of .practical and useful growth.

Combination Through Stock Ownership.

The question has arisen whether a combination through stock ownership could be such as the Federal statute contemplates. The cases already considered amply show that. (See, also, Steele v. United Fruit Co., 190 Fed. Rep. 631.)

May Plaintiff Sue under the Federal Acts ?

This consideration is kept apart from that of a stockholder seeking to restrain ultra vires or fraudulent acts which will be noticed later. That the plaintiff is not authorized by the Sherman Act to file the present bill, accords with the general course of Federal decision. (National Fireproofing Co. v. Mason Builders’ Assn., 169 Fed. Rep. [C. C. A. 2d Cir.] 259, 263; Fleitmann v. United Gas Improvement Co., 211 id. [C. C. A. 2d Cir.] 103; Blindell v. Hagan, 54 id. 40; affd., sub nom. Hagan v. Blindell, 56 id. 696, but an injunction pendente lite was granted on other grounds; Pidcock v. Harrington, 64 id. 821; Greer, Mills & Co. v. Stoller, 77 id. 1; Gulf, C. & S. F. Ry. Co. v. Miami S. S. Co., 86 id. 407, 420; Southern Indiana Express Co. v. United States Express Co., 88 id. 659, 663.) The plaintiff may not maintain the bill under the Clayton Act (1) because he has' not proved damage as required by that act; (2)' because by his long participation in the enjoyment of the stockholding by the former New York Central Company he is precluded from alleging that it was illegal under either Federal acts or the law of any State; (3) because the Clayton Act does not authorize him to file a bill to divest property acquired before it went into effect, and as to some of the stock before the Sherman Act was passed. The last two grounds will be discussed in other connection, but instantly I consider the failure of the plaintiff to show special damage. The Clayton Act, section 16, provides: “That any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections two, three, seven and eight of this act, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue. ” (38 U. S. Stat. at Large, 737, chap. 323, § 16.) What loss or damage has the consolidation caused, or what did it, or does it, threaten to cause plaintiff as a stockholder in the New York Central and Hudson River Railroad Company, or the Lake Shore Company, or the Michigan Central Company, and, if there be damage, conjectural or real, is it peculiar to his relation to any one of the companies, or to all of them ? And I search for an answer to the same inquiry respecting the relations of the companies for the many years before the consolidation, and while the plaintiff •was a stockholder. By reason of a combination in restraint of trade, in the Standard Oil case, and in the Tobacco case, varieties of people were shown to have been injured in divers ways. But here a member of corporations alleges that he is injured, and in place of proving actual damages, beyond invoking the expense attending the organization of the new company — an outlay that may be met by increased economies in administration and which in any case goes only to the consolidation — he relies upon a presumption of injury from the wrongful act. So he is merely restraining the combination because it is a crime. But the Clayton Act did not, I infer, tend to allow a private individual to redress a violation of an act merely because it was a violation of public law, but only in case he prove that it “ will cause loss or damage.” He may have a preliminary injunction, if he show that the “danger of irreparable loss or damage is immediate,” but not if he merely show an offense against the United States. The learned counsel for the appellant, in a most thorough brief, among other things cites Watson v. Sutherland (72 U. S. [5 Wall.] 74) and North v. Peters (138 id. 271) as presenting instances of irreparable damage. But surely not a shadow of such damage appears here. The violation is, of course, one condition of his right to sue, but that is only preliminary to proof of an injury that distinguishes him from the mass of people. The plaintiff would construe the act to authorize his interposition to vindicate public justice, upon the presumption that a crime hurts his pocket because he has some financial interest in the wrongdoer. That puts him on an equality with the United States, . whose functions he would usurp. When the proposition is, whether a system may continue, which in experience accords with the general public benefit, and which affords, and for a generation has presented, to several States facilities for local and distant transportation, and to the nation opportunities for easy intercourse and interchange, into which the plaintiff entered and wherein he presumptively thrived through a considerable period, and concerning which the nation and several States, having jurisdiction, have been silent in the presence of the apparent prosperity of all concerned, I think that there is no presumption of injury to the plaintiff, which he may redress upon the theory that he has some particular hurt that he cannot prove, but of which he is theoretically sensible. In Coquard v. Nat. Linseed Oil Co. (171 Ill. 480, 484) it is said: “ Only the State can complain of injury to the public or that public rights are being interfered with, and enforce a forfeiture of defendant’s franchise for that reason.” Plaintiff adverts to Harding v. American Glucose Co. (182 Ill. 551, 626), but there the demurrer admitted the injury, and, indeed, by the bill it seemed serious, and the court also gave the stockholder standing as representing the company. But in my judgment the Clayton Act does not enable the stockholder to maintain an action in behalf of the corporation. The general principle that the stockholder must show damage to himself was declared in Continental Securities Co. v. Interborough R. T. Co. (221 Fed. Rep. 44, affg. 207 id. 467; Thomas v. Musical Mutual Protective Union (121 N. Y. 45); Delavan v. N. Y., N. H. & H. R. R. Co. (154 App. Div. 8). That the plaintiff may not maintain the action under the Sherman Act appears from the cases cited, and also Wilder Mfg. Co. v. Corn Products Co. (236 U. S. 165); and that he may not do so under the Clayton Act without showing damage, was decided in Union Pacific R. Co. v. Frank (226 Fed. Rep. 906 [1915]), where it is said that the Clayton Act (Act of Congress, Oct. 15,1914, 38 U. S. Stat. at Large, 737, chap. 323, § 16) would not change the rule that the “right to sue by a private party is only given to obtain injunctive relief against threatened loss or damage,” so that, the opinion continues, the “loss or damage * * * must be shown.” In Shawnee Compress Co. v. Anderson (209 U. S. 423) the action was by stockholders of a company illegally leased to an alleged monopolizing company, but the question of their right to sue was not raised, nor was it decided whether the judgment was based on the Sherman Act. In Bigelow v. Calumet & Hecla Mining Co. (155 Fed. Rep. 869 [1907]) special damage was alleged and a temporary injunction issued. In Steele v. United Fruit Co. (190 Fed. Rep. 631) the ability to sue was not questioned.

Jurisdiction of the State Court.

Has the State court jurisdiction to enforce the Federal AntiTrust Acts % The doubt arises entirely from the language of the Sherman and Clayton Acts and the system of administration for which they provide. The Sherman Act is a criminal statute, and its enforcement as such falls to the government that enacted it. But ordinarily the courts of a State would entertain a civil suit based on a Federal statute. (Second Employers’ Liability Cases, 223 U. S. 1; Claflin v. Houseman, 93 id. 130; Plaquemines Fruit Co. v. Henderson, 170 id. 514; Cooke v. State National Bank of Boston, 52 N. Y. 96; Robinson v. National Bank of Newberne, 81 id. 385; Cook v. Whipple, 55 id. 150.) If a Federal statute forbade the consolidation of two railways engaged in interstate commerce, a State court could entertain a cause of action in behalf of one damaged, provided it could gain jurisdiction of the proper parties, even if the Federal courts were given jurisdiction. The Sherman Act provides (§ 4) that “ The several Circuit Courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations,” and a procedure is prescribed. But interstate commerce might well involve persons in widely separated judicial districts, and provision was made (§ 5) that other parties could be brought in by subpoenas served