SAME REASONABLENESS Opinion of the Court. OF RATES.-Where an interstate carrier charged plaintiff the regular posted tariff rates, plaintiff could not maintain an action at law either under the Anti-Trust Act, Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200], or the Interstate Commerce Act, Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154], for a readjustment of such rates on the ground that the same were unreasonable or unlawful, its remedy being by application to the Interstate Commerce Commission to have the schedule of tariffs adjusted on a reasonable and lawful basis. J. W. M. Newlin, for plaintiff. John Hampton Barnes, for defendant. [279] ON DEMURRER TO PLAINTIFF'S STATEMENT. HOLLAND, District Judge. In the first count in the statement the plaintiff has a good cause of action, upon the facts stated, under the Interstate Commerce Act, for a violation of the second section of the Interstate Commerce Act, as amended, for discriminating against plaintiff in charging it the full tariff rates and permitting its competitors, by a device, to transport their coal at a lower rate. The plaintiff, however, alleges a combination or conspiracy on the part of the defendant with certain other railroads to restrain trade, which combination, etc., is effected by charging the plaintiff the tariff rates and charging its competitors less than the tariff rates. This difference in charge per ton is laid as the damage suffered by plaintiff, and treble the amount is claimed under the Sherman AntiTrust Act, Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]; that is to say: The first count attempts to lay a cause of action under the Sherman Anti-Trust Act by alleging a combination and conspiracy of the defendant with other railroads, but the facts averred in the statement do not set forth a combination or conspiracy to restrain trade, and the damage claimed is for an injury for which damage can be collected only under the Interstate Commerce Act, Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901. p. 3154], to wit, by unlawful discrimination against plaintiff in collecting tariff rates from it and by rebates and other Opinion of the Court. devices permit its competitors to transport their coal for less per ton. The second count claims treble damages under the Sherman Anti-Trust Act for an "excessive and unreasonable charge" of 55 cents per ton for certain number of tons of coal transported by the defendant company for the plaintiff at tariff rates. The third count is a claim for treble damages under the Sherman Anti-Trust Act for a charge for the transportation of plaintiff's coal over the defendant's road in excess of the lawful charge for the carriage of said coal, the price charged being the amount specified in the defendant's tariff of rates posted and filed with the Interstate Commerce Commission. The ground of demurrer is the same to each of the three counts, to wit, that there are no averments of fact in any of the three counts showing an injury to the plaintiff in its business or property within the provisions of the Sherman Anti-Trust Act of July 2, 1890. In this we think the defendant is right. There is no combination and conspiracy set forth in the first count which would entitle the plaintiff to recover treble damages under the Anti-Trust Act, but there is a cause of action under the Interstate Commerce Act, and the count will therefore be sustained under that act, and the matter therein contained, for the purpose of bringing it within the terms of the Anti-Trust Act, can be regarded as surplusage. The demurrer, however, is sustained as to the second and third counts, because it appears from the facts stated in both these counts that the amount charged by the defendant company was the tariff rates of the defendant company, which they had posted and filed with the Interstate Commerce Commission as required by law. If the plaintiff regarded these charges "unreasonable," as set forth in the second count, or "unlawful," as alleged in the third count, its remedy was to apply [280] to the Interstate Commerce Commission and have the schedule of tariffs adjusted on a "reasonable" and "lawful" basis. There is no right of action either under the Anti-Trust Act or the Interstate Commerce Act for a readjustment of tariff rates filed and posted Opinion of the Court. other than through the Interstate Commerce Commission. A shipper cannot maintain an action at law for excessive and unreasonable freight rates exacted on interstate shipments where the rates charged were those which had been duly fixed by the carrier according to the act and had not been found to be unreasonable by the Interstate Commerce Commission. Texas & Pacific R. R. Co. v. Abilene C. & O Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553; Clement v. Louisville & N. R. Co. (C. C.) 153 Fed. 979. For the reasons stated, the demurrer to the first count is overruled, and the demurrer to the second and third counts in the statement is sustained. ON DISCHARGING RULE FOR AMENDMENT TO STATEMENT. It is true the proposed amendment follows the wording of the Sherman Anti-Trust Act and the language of the Supreme Court case, Loewe v. Lawlor (decided February 3, 1908) 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488, in alleging a contract and combination in the form of a trust and conspiracy in restraint of trade, but the facts in detail set out in the amendment, instead of showing a contract or combination in the form of a trust or conspiracy in restraint of trade, show a case prohibited by the commerce act; whereas, in the Loewe v. Lawlor case, supra, the facts show a clear conspiracy to restrain trade, prohibited by the AntiTrust Act. The alleged acts of defendant which caused the damage are those condemned by the commerce act, and the case cannot be brought within the purview of the Anti-Trust Act by using the language of the latter to describe a cause of injury prohibited by the former. In sustaining the amendment, it was held the first count stated a good cause of action under the commerce act and regarded the statements intended to bring it within the scope of the Anti-Trust Act as surplusage. This amendment would simply restore the count to its original form. Holding still the view expressed upon the demurrer, the rule to show cause why the first count should not be amended is discharged. 10870°-S. Doc. 111, 62-1, vol 3————21 Syllabus. [85] TRIBOLET v. UNITED STATES. (Supreme Court of Arizona. March 27, 1908.) [95 Pacific Reporter 85.] MONOPOLIES-COMBINATION AND RESTRAINT OF TRADE-INDICTMENT.— An indictment alleged that defendants did engage in a combination in form of trust, and entered a conspiracy in restraint of trade and commerce as follows: That defendant, T., and others, were engaged in the wholesale and retail meat business in competition prior to August 1, 1906, and that thereafter on August 23d, they being engaged in a combination and form of trust, and in a conspiracy in restraint of trade in furtherance thereof, entered into a contract and formed defendant corporation, to which they transferred the business of each of them, agreeing not to again engage in the meat business in the city of Phoenix; that the combination and conspiracy was formed to carry out restrictions in trade and commerce, and to increase the price and prevent competition in the sale of fresh meats in such city, etc. Held, that the indictment did not charge defendants with making a contract which was in itself in restraint of trade and commerce, but that the contract was alleged only as one of the steps [86] by which the "combination or conspiracy' was brought about, and as an overt act in furtherance thereof." [Ed. Note. For cases in point, see Cent. Dig. vol. 35, Monopolies, § 20.] " INDICTMENT-DUPLICITY-" COMBINATION OR "CONSPIRACY." Sherman Anti-Trust Law (Act July 2, 1890, c. 647, § 3, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3201]) declares that every contract, combination, and form of trust or otherwise, and conspiracy in restraint of trade or commerce in any territory of the United States, or in restraint of trade or commerce between any such territory and another, etc., are declared illegal, and that every person who shall make any such contract or engage in any such "combination or conspiracy" shall be deemed guilty of a misdemeanor. Held, that the words "combination or conspiracy" as so used were synonymous, and hence an indictment alleging that defendants entered into a "combination or conspiracy" in restraint of trade was not duplicitous as alleging two distinct offenses. [Ed. Note. For other definitions, see Words and Phrases, vol. 2, pp. 1275, 1454-1461; vol. 8, p. 7613.] MONOPOLIES-STATUTFS-SCOPE OF PROHIBITION. Sherman Anti-Trust Law (Act July 2, 1890, c. 647, § 3, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3201]), prohibiting combinations or conspiracies in restraint of trade or commerce in any territory of a • Syllabus copyrighted, 1908, by West Publishing Co. Syllabus. the United States, was not limited to combinations and conspiracies which operated in restraint of the trade of substantially an entire territory, but applied as well to a combination and conspiracy in restraint of trade and commerce in a single city in a territory. INDICTMENT-DEFECTS OF FORM-STATUTORY OFFENSES. Where an indictment for combination or conspiracy in restraint of trade in violation of Sherman Anti-Trust Law (Act July 2, 1890, c. 647, § 3, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3201]) was uncertain as to some of its allegations, owing to the fact that the offense was first charged in the language of the statute, and the purposes and objects of the conspiracy were not fully stated until after the overt acts were described, the defect was one of form, and not of substance, not prejudicial to defendant, and therefore immaterial under U. S. Rev. St. § 1025 (U. S. Comp. St. 1901, p. 720), providing that no indictment shall be quashed for a non-prejudicial defect of form. [Ed. Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 486, 487.] MONOPOLIES-INDICTMENT—Object. The object of a combination or conspiracy in restraint of trade being unlawful both at common law and by statute, an indictment therefor was not objectionable for failure to allege the means by which the combination or conspiracy was to be accomplished. [Ed. Note. For cases in point, see Cent. Dig. vol. 35, Monopolies, § 20.] SAME COMBINATION IN RESTRAINT OF TRADE-CORPORATIONS-LIABILITY OF OFFICERS. Where defendant and H. entered into a combination and conspiracy in restraint of trade to control the meat business in Phoenix, Ariz., and for this purpose organized a corporation, the fact that defendant acted merely as an officer and stockholder in such corporation, and that the corporation was held not guilty, did not prevent defendant's conviction for violating the Sherman Anti-Trust Law (Act July 2, 1890, c. 647, § 3, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3201]), prohibiting a combination or conspiracy in restraint of trade. Appeal from District Court, Third District; before Justice Edward Kent. S. J. Tribolet was convicted of violating the Sherman anti-trust law, and he appeals. Affirmed. Thomas Armstrong, Jr., and G. P. Bullard, for appellant. J. L. B. Alexander, U. S. Atty., and George D. Christy, Asst. U.S. Atty. G • Syllabus copyrighted, 1908, by West Publishing Co. |