United States v. Reading Co.

183 F. 427, 1910 U.S. App. LEXIS 5069

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: December 8, 1910
• Docket: No. 27
• Status: Published

Opinions

GRAY, Circuit Judge.

The proceedings in this case were begun by a petition in the nature of a bill in equity, filed June 12, 1907, on' behalf of the United States, under section 4- of the act of Congress of July 2, 1890, commonly known as the “anti-trust act,” against the defendants named above. Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3201). The petition invokes the jurisdiction of this court to prevent and restrain the alleged violation by the defendants of sections 1 and 2 of said act of Congress. The defendants áre all alleged to be corporations duly created under the laws’of the states of Pennsylvania, New York and New Jersey, respectively.

-In its first paragraph, the petition alleges that the defendants, the Philadelphia & Reading Railway Company, the Lehigh Valley Railroad Company, the Delaware, Lackawanna & Western Railroad Company, the Central Railroad Company of New Jersey, the Erie Railroad Company, and the New York, Susquehanna & Western Railroad Company (called the defendant carriers when referred to collectively), are common carriers engaged in interstate transportation, particularly in the transportation of anthracite coal from the mines of Pennsylvania to the markets of that and other states. It alleges that the defendants, the Philadelphia & Reading Coal & Iron Company, the Le-high Valley Coal Company, the Lehigh & Wilkes-Barre Coal Company, the Pennsylvania Coal Company, the Hillside Coal & Iron Company, and the New York, Susquehanna & Western Coal Company (called the defendant coal companies), own and operate anthracite coal mines in the state of Pennsylvania, and “buy, sell and otherwise deal in anthracite coal in the markets of the several states”; that the defendant, the Temple Iron Company, also owns and operates anthracite mines in the state of Pennsylvania; that the defendant, the Reading Company, is the holding corporation of the Reading System, and holds the entire capital stock of the Philadelphia & Reading Railway Company and of the Philadelphia & Reading Coal & Iron Company, and a majority in interest of the capital stock of the Central Railroad Company of New Jersey.

In its second paragraph, it is alleged that, save the Pennsylvania Railroad Company and the New York, Ontario & Western Railroad Company, and the line of the Delaware & Hudson Company, the defendant carriers operate the only lines of railroad that penetrate the anthracite coal regions, and, with the exception stated, furnish and control the only means of transporting anthracite coal from the mines in Pennsylvania to the markets and distributing points in that and other states, particularly the great markets and distributing points at tide water in the vicinity of New York.

The third paragraph of the petition alleges that the Reading Company, the holding corporation of the Reading System, which holds the entire capital stock of the Philadelphia & Reading Railway Company, also holds the entire capital stock of the Philadelphia & Reading Coal & Iron Company; the Lehigh Valley Railroad Company owns all the capital stock of the Lehigh Valley Coal Company; the Central Railroad Company of New Jersey owns nine-tenths of the capital stock of the Lehigh & Wilkes-Barre Coal Company; the Erie Railroad Company owns all the capital stock of the Pennsylvania Coal Company and a large majority of the capital stock of the Hillside Coal & Iron Company; and the New York, Susquehanna & Western Railroad Company owns nearly all of the capital stock of the New York, Susquehanna & Western Coal Company; and that these so-called “subsidiary’’ coal mining companies (the defendant coal companies herein) are controlled bj’ or in the interest of the defendant carriers, or some of them, through the ownership of controlling stock interests.

The fourth paragraph of the petition, after stating that anthracite coal is an article of prime necessity and universally used for domestic purposes throughout New England and the Middle Atlantic Stales, and that the source of the entire supply, save a few small deposits of inferior quality, is located in the state of Pennsylvania, in an area of about 484 square miles, divided Cor trade purposes into three regions, viz., the northern or Wyoming (sometimes called the Lackawanna) region, the middle or Lehigh region, and the southern or Schtiykill region, alleges that the defendant carriers and the Reading Company, either directly or through the said defendant coal companies, own or control 90 per cent., approximately, of the entire unmined area of anthracite, distributed substantially in the following proportions, to wit:

Per rv»><

Reading Company...............................

Lehigh Valley Railroad Company........,......

Delaware, Lackawanna & Western Railroad Co..

Central Railroad Company of New Jersey......

Erie Railroad Company........................

Niew York, Susquehanna & Western Railroad Co. 80.53

—and that they produce, either directly or through the agency of these coal companies, from 70 to 75 per cent., approximately, of the annual supply of anthracite. There are, however, it is alleged, a large number of independent individual firms and corporations who mine anthracite, either from their own properties or from properties leased by them, and who would be free from the control of the defendant carriers, were it not for the unlawful contracts hereinafter referred to; that these independent operators produce, approximately, from 20 to 25 per cent, of the annual supply of anthracite (the residue being produced by the anthracite carriers not parties hereto), which would come in competition in the great distributing centers with the anthracite produced by the defendant carriers, or their so-called agencies, the defendant coal companies, were it not for the unlawful contracts, combinations and conspiracies hereinafter charged and set forth, which stifle competition between the several defendant carriers, or their so-called agencies, in the sale of anthracite coal throughout the several states, and between such defendant carriers, or their so-called agencies, and the aforesaid independent operators.

Paragraph 5 alleges that that part of the anthracite output not consumed in the state of Pennsylvania, is carried chiefly to tide water at New York Harbor, and is thence distributed by water and by railroad to points in the New England and Middle Atlantic States; that New York Harbor is the principal distributing point for anthracite coal, and that the price in that market fixes or regulates its price in the markets of the several states which get their supply through New York Harbor points.

Paragraph 6 sets forth the attempted lease, in January, 1892, by the Lehigh Valley Railroad Company and by the Central Railroad Company of New Jersey, as lessors, of their respective railroads and coal properties, to the Philadelphia & Reading Railroad Company, predecessor of the present defendant, as lessee, for the period of 999 years; and that by the decree of the chancellor of the state of New Jersey, said lease of the properties of the Central Railroad Company was adjudged to be null and void, and that, in consequence thereof, the lease between the Philadelphia & Reading Railroad Company and the Le-high Valley Railroad Company was rescinded.

The gist of the petition and its charging part are set forth in the seventh paragraph thereof. Its general charge of combination and conspiracy is thus set forth:

“The average price of anthracite coal at tide water, taking for illustration the stove size, which rose from $3.71 and $3.85 a ton in 1890 and 1891, respectively, prior to the leases just described, to $4.15 and $4.19 a ton in 1S02 and 1893 respectively, the years during which the said leases were in force, again declined, under the influence of competition, in the years immediately following the cancellation of the leases, falling to $3.60 a ton in 1894 and $3.12 a ton in 1895. Whereupon, in violation of the provisions of sections 1 and 2, respectively, of an act of Congress, approved July 2, 1890, entitled “An act to protect trade and commerce against unlawful restraints and^monopolies” (26 Stat. 209), the defendant the Heading Company, and the defendant carriers and the defendant coal companies, owning or controlling 90 per cent, more or less, of all the anthracite deposits, and producing 75 per cent., more or less, of the annual anthracite supply, and controlling all the means of ■ transportation between the anthracite mines and tide water, save the railroads opora Led by the Pennsylvania Railroad Company and the Yew York, Ontario & Western Railway Company, which, as aforesaid, reach only a limited number of collieries, entered into an agreement, scheme, combination, or conspiracy, by virtue whereof they acquired the power to control, regulate, restrain, and monopolize, and have controlled, regulated, restrained and monopolized. not. only the production of anthracite coal, but its transportation from the mines in Pennsylvania to market points in other states and its price and sale throughout the several states, with the result that competition in the transportation and sale of anthracite coal has been wholly suppressed, and the price t,hereof to consumers greatly enhanced. As steps In the development of this illegal combination, and in furtherance of its illegal purposes, the defendants herein named, or some of them, engaged in and became parties to the following additional acts, schemes and contra cts, among others, in violation of the aforesaid act of July 2, 1S90,” etc.

These “additional acts, schemes and contracts,” alleged to be steps in the development of this illegal combination, in violation of the act, are then set forth in said paragraph. They are four in number, and are referred to as (a) the 65 per cent, contracts, (b) the absorption by the Erie Railroad Company of the New York, Susquehanna & Western Railroad Company, (c) the acquisition by the Reading Company of the majority of the shares of the Central Railroad Company of New Jersey, (d) the Temple Iron Company transaction, and (e) the acquisition by the Erie Railroad Company, while controlling the Hillside Coal & Iron Company, of all the shares of the Delaware Valley & Kingston Railroad Company, a projected competing carrier, and all the shares of the Pennsylvania Coal Company, a competing producer.

All the above named defendants, both carrier and coal companies, have filed their answers to the petition, and the Hillside Coal & Iron Company demurred generally for want of equity, and specially for multifariousness. These answers are several and separate, and' each of them denies any participation in any combination or conspiracy, as charged against all the defendants in the seventh paragraph of the petition, and all knowledge or information in regard to the same. The separate acts charged against various groups of the defendants, as steps towards the alleged general conspiracy, and as independently unlawful, are also denied by those defendants, respectively, against whom the charge is made.

After the filing of the answers, the petitioner, by leave of the court, amended its original petition, by adding as defendants therein a large number of independent coal producers, operators and mine owners, as being parties to the so-called 65 per cent, contracts with all or some of the original defendants.

Issue having been joined by replication duly filed by the petitioners, evidence was taken at great length on behalf of both the government and the defendants, and the case is now before us on final hearing.

The provisions of the act of Congress, of July 2, 1890, with which we are here concerned, are contained in sections 1, 2, and 4 of said act, and are as follows:

“Sec. 3. 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 flue 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 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.

**************

“See. 4. 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. Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises.”

The theory of the government’s case, as stated by the learned and able counsel who represented it, is that all the original defendants have long been parties to a general combination and conspiracy which stifles competition and obstructs trade and commerce among the states in anthracite coal, to which the separate acts charged against various groups of the same defendants are referable as steps towards the common goal; and further, that these separate acts of the various groups are independently in violation of the act of Congress, and, contributing as they do to the same end, that all the defendants, parties .to some of them, would properly be embraced in one petition, though there were no general combination or conspiracy to which each might be referred.

Counsel for the petitioner have dwelt at great length upon the' somewhat peculiar conditions now and for a long time past obtaining in the production and transportation of coal in the anthracite region of Pennsylvania, and counsel for the defendants have referred to the history, as shown by the evidence, of the development of coal production and transportation in that region, and the necessary and fostering care exercised by the state in promoting that development. This development has necessarily been influenced by the peculiar natural features, topographical and geographical, which characterize the anthracite region, and it is doubtless true that the present situation of trade and traffic in anthracite coal is largely the outgrowth of these antecedent conditions.

The knowledge of the availability of anthracite coal as a fuel for domestic and industrial purposes, antedating as it did the railroad era, was not utilized for want of transportation facilities, and after the beginning of that era, for the want of capital for the building of railroads and the mining and preparation of the coal for use. The requirement of such capital was'enhanced by the fact that the production of anthracite coal differed from that of bituminous coal, in that the former, after it was mined, required to be broken up before it was marketed into assorted sizes, by means of expensive machinery called "breakers.”

The transportation of anthracite coal to the more distant markets of Pennsylvania and adjoining states, was at first, accomplished by the construction of canals by those owning the coal properties. The public policy of the slate of Pennsylvania, for obvious reasons, favored such construction. This public policy also extended to the construction of railroads from convenient shipping points to different parts of the anthracite region. This policy is exemplified by the acts of Assembly of the stale of Pennsylvania, between the years 1823 and 1871, which expressly conferred upon the Delaware & Hudson Company the same authority which was conferred upon it in its act of incorporation in the state of New York, April 28, 1828 (Laws 1828, c. 288), “to construct a canal or water navigation from the anthracite coal district in Pennsylvania to the Hudson river in New York, to purchase lands in Pennsylvania containing stone or anthracite coal; and to employ its capital in the business of transporting to market coal mined from such lands.” This authority was after-wards extended to the construction and acquisition of railroads for the same general purpose of transporting coal from the coal lands owned by said company. The same is in general true of the other defendant carriers. Under and in deference to the same general policy, the roads of the other defendant carriers were constructed, either by the present corporations or tlicir predecessors in title, as also were established the defendant coal companies which grew up under the auspices or ownership of the defendant carriers, respectively, each coal company producing or marketing the coal over the railroad to which the mines from which it was produced were contiguous or naturally tributary. These coal companies were organized from time to time under acts of Assembly of the state of Pennsylvania, with authority to mine and sell coal and to acquire coal lands for that purpose. Moreover, by an act of Assembly of the state of Pennsylvania, approved April 15, 18(59 (P. U. 81), entitled “An act to authorize railroad and canal companies to aid in the development of the coal, iron, lumber and other material interests of this commonwealth,” such railroad and canal companies were authorized to aid corporations engaged in developing coal, iron, lumber, and other material interests of Pennsylvania, by the purchase of their capital stock and bonds, or either of them.

The anthracite coal deposits of Pennsylvania are found in three cuite distinct and separate fields or regions — the upper, or Wyoming, region extending in a northeast and southwest direction, and of comparatively narrow width, for a distance of 50 or (¡0 miles, partly on both sides of the Susquehanna river as it runs from the northeast to the southwest, containing 17 (5 square miles in Lackawanna and Luzerne comities; (he middle or Lehigh region containing 127 square miles in Luzerne, Schuylkill, Columbia and Northumberland counties ; and the southern or Schuylkill region, in Schuylkill, Dauphin and Carbon counties, containing 181 square miles. Scranton and Wilkes-Barre are the principal towns of the Wyoming region, Hazleton of the Lehigh region, and Pottsville of the Schuylkill region. In each of these regions, there are many collieries and plants for preparing coal, including those owned and operated by the defendant coal companies or carriers, as well as by so-called independent coal companies and operators. Into each of them run one or more of the defendant carrier companies, which, with some other companies not' defendants, collect and carry the coal adjacent to their lines, respectively, by means of the spurs and branches constructed from such lines to the various mines and collieries. Naturally, each railroad line carries the coal from that part of the coal region adjacent to it or conveniently reached by its spurs and branches.

%From one of the tables filed as a government exhibit, we take the following ’statement of the shipments of anthracite coal carried by the defendant railway companies, and two others, as initial transportation lines during 1907, and the proportionate percentage of the whole carried by each:

Railroad. Gross Tons Per Cent.

PMlá. & Reading Ry............. ..14,018,795 20.89

Lehigh. Valley Railroad......... . .11,532,255 17.18

Central R. R. of New Jersey... .. 8,714,113 12.99

Del. La.ckawanna & West. R. R. . .10.237,419 15.25

Delaware & Hudson Company... .. 6,562,768 9.7S

Pennsylvania Railroad.......... .. 6,203,271 9.24

Erie Railroad................... .. 7,151.683 10.66

New York, Ontario & West. Ry.. .. 2.689,089 4.01 67,109,393 100.00

It appears from the exhibits and testimony produced by the petitioner, that approximately 12 per cent, of the total production of coal in the anthracite region is not shipped away, but is consumed at local points and in the operation of the mines, and that, taking the year 1905 as a normal year, it would appear that, of the coal that was shipped away from the mines, about 25 per cent, was carried to tide water points in New York Harbor, and of the balance, about 20 per cent, was consumed within the state of Pennsylvania and 55 per cent, shipped to points outside the state, other than those at tide water in New York Harbor.

As averred in the petition, and as appears in the agreed statement of facts, the distribution of coal lands among the principal holders at the time of filing the petition was as follows:

Area

Names of Holders Possessed

Aeres.

The Del.. Lackawanna & West. R. R. Co............................ 37,353

The Delaware & Hudson Co. and subsidiaries...................... 25.180

Hillside Coal & Iron Company.................................... 33.466

The Pennsylvania Coal Company.................................. 13.900

The New York, Susquehanna & West. Coal Co.................:..:, 963

Scranton Coal Company...........................................' 2,695

Elk Hill Coal & Iron Company..................................... 3,04!)

Lehigh & Wilkes-Barre Coal Company.............................. 15,050

The Temple Iron Company and subsidiaries........................ 4,465

Susquehanna Coal Co. and affiliated companies..................... 36,867

Lehigh Valley Coal Company...................................... 37,047

Coxe Bros. & Company, Inc......................................5.311

Philadelphia & Reading Coal and Iron Co.......................... 98.077

Lehigh Coal & Navigation Company............................... 13.783

Total ......................................................2U7.S06

Total Coal Area (484 square miles).................................309,760

Of these, the Delaware & Hudson Company and its subsidiaries, the Scranton Coal Company, the Elk Hill Coal & Iron Company, the Susquehanna Coal Company and affiliated companies, and the Lehigh Coal & Navigation Company, whose ownership aggregates (>l/>7-1 acres, are not defendants in this proceeding, as participants in the general combination or conspiracy charged by the petition against die original defendants therein named. This would leave about two-thirds in area of the coal lands of the anthracite region in the ownership or possession by lease, or otherwise, of the defendant companies. As appears from the undisputed testimony of the defendants, these present holdings of coal lands have resulted from acquisitions made through a long period of years by the companies named respectively, or their predecessors in title, beginning, in the case of some of the largest holders and in respect to the larger part of the acquisition, long prior to 1874. The gradual growth of these acquisitions and the consequent development of the present situation, it is contended by the defendants, have been induced by natural causes, such as the geographical and topographical features of the anthracite coal region, which have presented serious obstacles to the construction of railroads with which it was sought to penetrate the different coal fields of the anthracite region, and which have enhanced enormously the cost of their construction; that in the earlier periods of the development of this region, when the mines and the production of coal were more largely in the hands of individuals and small corporations, the business of mining and marketing coal was wasteful and often resulted largely in the failure or bankruptcy of those concerned therein. The individual exploiter skimmed the cream, so to speak, of his coal lauds, and, unable to meet the expense of practicing the economies necessary to their full development, the mines were not infrequently abandoned, and of this abandonment, deterioration or ruin was the natural result. That, latterly, the recurrence of strikes and labor troubles have contributed to the difficulties of the situation. That these strikes and labor troubles extended to all the coal mining and coal shipping operations of the whole region, affecting all producers, great and small alike, and that the solidarity of the labor unions compelled a joint agreement, embracing all engaged in mining operations as to the terms of settlement. That since the last settlement in 1902 — 03, there has resulted a condition of comparative industrial peace in the anthracite region. That this condition, together with the increased demand for and the consequent increased price of coal have regulated, without destroying, the natural competition of the great carrying and producing companies. That many economies in the production and sale of coal have been made possible, wasteful production largely done away with, and, more than all, a wise and scientific conservation of the future supply of this necessity of modern life has been brought about, to the infinite advantage of the public and of those connected with the production of coal, whether as capitalists or laborers.

It is further urged by the defendants, that the destruction of present conditions and methods attending the production and sale of coal, will produce a deplorable anarchy in the trade, and involve in confusion and financial loss all those engaged therein, a confusion and loss by which the consumer is bound to suffer.

This may all be admitted. Counsel for the petitioner, indeed, do not undertake to deny, as it is unnecessary that they should, any of these statements. They are only pertinent as challenging by'their importance the careful consideration by the court of the issues involved in the case before us.'

The general situation being as thus briefly indicated, the defendant railway carriers and defendant coal companies are charged by the petition, as above stated, with having, in violation of the provisions of sections 1 and 2 of the act of Congress, approved July 2, 1890, entitled “An act to protect trade and commerce against unlawful restraints and monopolies” at a time not definitely stated, but presumably shortly after the year 1895, “entered into an agreement, scheme, combination or conspiracy, by Virtue whereof they acquired the power to control, regulate, restrain and monopolize, and have controlled, regulated, restrained and monopolized, not only the production of anthracite coal, but its transportation from the mines in Pennsylvania to market points in other states, and its price and sale throughout the several states, with the result that competition in the transportation and sale of anthracite coal has been wholly suppressed and the price thereof to consumers greatly enhanced.” For specific details of time, place and circumstance of this somewhat vague and indefinite charge, we must of course look to the evidence adduced by the petitioner. In saying that the time fixed for the entering into the combination and conspiracy charged, is presumably shortly after 1895, reference is made to the statements of the petition introductory to the charge above quoted. These statements having set forth the attempted lease,, in 1892, by which the Philadelphia & Reading Railroad Company, as lessee, was to take over' the railroad and coal properties of the Le-high Valley Railroad Company and of the Central Railroad Company of New Jersey, the lessors, for a period of 999 years, and that the same was set aside by a decree of the chancellor of the state of New Jersey, in 1893, at the suit of its Attorney General, adjudging the same to be null and void, the petition avers that the price of stove size of anthracite coal at tide water, which rose from $3.71 and $3.85 a ton in 1890 and 1891 respectively, prior to the leases just described, to $4.15 and $4.19 a ton in 1892 and 1893, respectively, and again declined in the years immediately following the cancellation of the leases to $3.60 a ton in 1894 and $3.12 a ton in 1895. “Whereupon” the petition charges that the defendants entered into the corm bination and conspiracy as above recited. The conclusion is thus sought to be drawn by the petitioner, that the motive of the combination and conspiracy about to be charged was the fall in the price of stove coal that occurred in 1895, and that the time at which it was entered into was shortly thereafter.

Accordingly, as being direct evidence of the general conspiracy charged, we are referred to the testimony touching what is alleged to be an express agreement or arrangement entered into between the presidents of the defendant carriers, on January 23, 1896, and spoken of as “the presidents’ percentages.”

Joseph A. Harris, one of the first witnesses produced on behalf of the petitioner, was president of the Philadelphia & Reading Railroad Company from 1893 to 1895, when .he became one of the receivers appointed by this court of the said railroad, and of the coal and iron company, and after the reorganization in 1897, president again of the Reading Railroad Company, the Reading Company, and the Reading Coal & Iron Company, until 1901, when he retired. Tie was called to testify,, and was questioned at great length as to certain alleged agreements between the defendant carriers and coal companies in 1876, 1884, 1885 and 1886, by which the coal tonnage of the different roads was to be apportioned among the several roads and restricted to certain percentages of the whole. To repeated questions, he answered that he had no recollection at all in regard to such agreements ever having existed. He was then questioned as to certain testimony given by him in a suit by the state of Pennsylvania against certain of-these companies in 1886, as to all of which he replied that he had no recollection of having given the testimony referred to, and when read to him, that it did not refresh his memory. The same course was pursued in regard to the proceeding before the Interstate Commerce Commission, in which he is said to have testified with the same result. This course of questioning was pursued, and to reiterated leading questions, he repeatedly declared that he had no recollection and did not believe that any such agreements between the defendant companies as he was being interrogated about had ever existed. The examination then continues as follows:

“Q. Coming now to the year 1896, while yon were president of the Philadelphia & Reading Railroad Company, give ns the substance of the agreement between the presidents of the anthracite coal roads entered into at that time, establishing what, were thereafter commonly called ‘presidents’ percentages.’

“A. I do not. know anything about it.

“Q. Have you never heard of the ‘presidents’ percentages’?

“A. I have never heard of the ‘presidents’ percentages.’ I never heard the term.

“Q. What was the agreement entered into by the presidents of the railroads in 1896, in reference to allotting to each interest a certain percentage of the total output of coal?

“A. I <lo not know. 1 do not remember that there was any agreement at all. Have you anything there to refresh my memory?

“Q. In 1896. was there not a meeting of the presidents of the coal carrying roads, in which the question of the allotment of tonnage was discussed?

“A. That I do not remember at all.

“Q. Do you remember no discussion in reference to that matter between the presidents of the various coal carrying roads?

“A. No; if you will give me the papers, I will look over them and tell you.

“Q. This is your testimony which was taken in the investigation before the Interstate Commerce Commission (referring to testimony).

“A. I no doubt gave my testimony correctly then.

“Q. You were asked: ‘You do recollect, do you not, that there was a time when that matter (referring to the distribution of tonnage among the coal carrying roads) came up for discussion among the presidents of the coal carrying roads?’ and you replied, ‘What question came up? Q. The question of the division of the business of carrying coal — the question of the division of the anthracite coal Into certain percentages?’ you saying, ‘Understanding as to what share of the business each road was legally entitled to? Q. Xes, if that makes it clearer,’ and then you answered that, ‘Xes.’

“Judge Campbell:

“I think the witness’s attention should be called to the whole of his examination and cross-examination, because he may have, and probably did on further recollection or refreshment' of his memory, made a very material change in the substance of his testimony.

“By Mr. McReynolds:

“Q. Have you any recollection of those meetings at all?

“A. I have no recollection of them at all: no. If I were to see these minutes or to read them, I might remember them. I have no doubt that what I testified to there was true. That is all I can say.

“Q. From 1890 down to the time when you left the Reading Railroad Company, was there not a general understanding between you and the various presidents of the coal carrying roads, as to what percentage each one should be entitled to?

“A. There was not a general understanding, because it was the subject of a great deal of contest. I do not believe, so far as my recollection goes, that there was ever any agreement made at all.

“Q. Please read this testimony that you gave before the Interstate Commerce Commission in 1903. commencing on page 1570, for three or four pages, and see if it refreshes your recollection on that subject.

“A. (After reading testimony) I notice I said then, as I say now, that it was too far away for me to recollect any of the details of that meeting. It has been long years since, and my memory has not been refreshed. I think this testimony of mine, from page 1572 to page 1575, is all correct.

“Q. Having read that, do you not remember that there was a meeting in the year 1896?

“A. I only remember it by these papers.

“Q. Having refreshed your recollection about that, do you not remember - that there was a meeting in the year 1890 of the presidents of the anthracite coal carrying roads, at .which they came to a general understanding about the amount of the proportion of the total output which should be allotted to each?

“A. Yes.

“Q. What was the percentage at that time allotted to the Philadelphia and Reading interest?

“A. Twenty and a half, it appears from this testimony.

“Q. And each of the other roads had some percentage of a similar character allotted to them?

“A. Yes; I say here in this testimony, ‘there was never any binding agreement’ — I thought there was not — ‘as can best be shown by the statistics at that time. There never was a year when that understanding was kept or nearly kept, and as a general statement of what would be fair and reasonable, • there was never a single year when there was an approach to it.’ There is a general statement, and that is correct. •

“Q. There was, however, a general understanding among the parties, that they should each endeavor to produce a given percentage which was allotted?

Yss sir

(See Record, vol. 2, pp. 25, 26.)

Mr. Harris is a gentleman highly respected in the community in which he lives, hut the activities of his useful life have long since ceased. He is pressed again and again with questions, the answers to which only disclose a want of recollection as to the matters suggested therein. His testimony, as quoted above, in regard to the so-called “presidents’ percentages,” falls short of supporting the general conspiracy charged in the petition,- not only on account of the manifest infirmity of the witness’s memory, but also on account of the substance of the testimony itself.

A copy of the testimony of one Alfred Walter, who at one time was president of the Rehigh Valley Railroad Company, given in a proceeding against some of these same defendants before the Interstate Commerce Commission, begun in 1902 on the petition of William R. Hearst, and certified before the secretary of said Commission, has been introduced into this case by the petitioner. Mr. Walter’s deposition is an exceedingly long one. That part of it to which we are especially referred by counsel for the petitioner, is as follows (see Government Exhibit No. 159, vol. 3, Record, p. 377) :

“Mr. Shearn: Have you not stated, and is it not a fact, Mr. Walter, that the Lehigh Valley Coal Company during your administration did not produce and sell to tide water as much coal as it was capable of producing and marketing?

“Mr. Walter: I do not think I said anything like that.

“Mr. Shearn: Well, you used to receive Ruley’s report, did you not?

“Mr. Walter: Yes.

“Mr. Shearn: And you used to see on those reports the heading, ‘tonnage based on the presidents’ percentages,’ did you not?

“Mr. Walter: Yes.

“Mr. Shearn: What did that mean to you?

“Mr. Walter: That meant the question of the shipping of coal and not the sale of coal. You have the two mixed.

“Mr. Shearn: Changing the form of the question, then, was there during

this period an understood arrangement between the presidents of the different companies as to the proportion of anthracite tonnage to be shipped over each of the railroads?

“Mr. Walter: Yes.

“Mr. Shearn: And when wTas that understanding arrived at; when was it reached?

“Mr. Walter: Oh, I do not remember.

“Mr. Shearn: Was that not in January, .1896?

“Mr. Walter: I think it was; yes. I think so.”

Afterwards, on cross-examination, however, he testified as follows:

“Mr. Gowen: You have just spoken of these figures that were called the ‘presidents’ figures,’ having to do with the relative tonnage over various roads, and you spoke of the matter as having originated in 1896. At that time, you had no connection with the Lehigh Valley road?

“Mr. Walter: No.

“Mr. Gowen: You do not know anything about how the figures started?

“Mr. Walter: X was not president of the Lehigh Valley at that time.

“Mr. Gowen: You had nothing to do with the eoa.l business at that time?

“Mr. Walter: No.

“Mr. Gowen: During the time you were president of the Lehigh Valley

Railroad Company, you were under no agreement or understanding which was binding on you, by which you undertook to regulate the percentage of shipments over the I.ehigh Valley road? You could have decreased your percentage or run it up without violating any agreement?

“Mr. Walter: Yes, sir.”

The natural inference to be drawn from Mr. Walter’s testimony, as well as that to be drawn from Mr. Harris’s testimony, would seem to be that, for some time prior to January, 1896, as well as for some time thereafter, there had come to be what was generally thought a. normal coal tonnage over the railroads respectively transporting anthracite coal, representing the capacity of the collieries in the regions tributary to those roads respectively, as derived from the reports of the Bureau of Statistics furnished to the railroad and coal companies and the public generally. It would also seem from Mr. Ruley’s testimony, as above quoted, that these supposititious percentages, which the so-called “presidents’ percentages” of 1896 had by that time come to be, were not reported until January, 1901, in the monthly reports of the Bureau of Statistics, and were discontinued in May, 1903. Nor is it to be inferred, as it seems to be by the counsel for the petitioner, on page 57 of their brief, that immediately after the meeting of 1896, and not before, all the coal interests “reported to a common source their production and sale of coal” — that is, to the Ruley Bureau of Statistics. . On the contrary, Mr. Ruley’s testimony shows that from 1890, when he took charge of the Bureau, these reports had been regularly made of the tonnage carried by the roads respectively, as well as of the sales of coal and prices obtained by the various shippers.

The objection to the admission of the copy of Mr. Walter’s testimony, as taken before the Interstate Commerce Commission, must be sustained. It is testimony taken before a body not judicial but administrative, in a proceeding between different parties, and with reference to nonidentical issues. It is not authenticated or proven by any witness present at the time the testimony was taken. It is therefore not within the rules permitting the testimony of a witness taken in one proceeding to be used in another. The inclusion of this testimony in the record is to be regretted, as it is embarrassing to the court in considering the weight and effect of all the testimony on either side. It may be said that the testimony, as far as its substance g'oes, is in the same line with the other testimony on the part of the petitioner; but the barriers between what is competent and incompetent as testimony, cannot be broken down without creating confusion and exposing litigants to dangers from which they have a right to be protected.

The testimony of Mr. Ruley, of the Statistical Bureau, in respect to the so-called “presidents’ percentages,” is also referred to in support of the ■ general conspiracy charge. This Bureau was started by one Jones, in 1876, as a private enterprise in industrial statistics, and he sold his compilations, among others, to the defendant carriers, individually. In 1892, he sold out his business to Ruley, who has since carried it on, and whose work has been, and is now, recognized as authoritative by those interested in industrial statistics. It is no doubt true that his patronage or employment has come largely from the defendant carriers and defendant coal companies, who are more than any others interested in these statistics, and indeed, since 1902 and perhaps before, they seem to have been compiled in great part from the monthly returns made to the Bureau by the defendant coal companies and the defendant carriers, severally, of the sales and shipments over the respective roads, and the price obtained for the different sizes of coal at tide water in New York Harbor. Mr. Ruley testifies that these compilations have been furnished each month to the press- — that is, to the coal trade journals — and thus find their way to the office of every considerable wholesale or retail dealer in anthracite coal. He testifies that they are also furnished to the departments of the general and state governments. After the award made by the Anthracite Coal Strike Commission, in April, 1903, by which all the defendant companies and other coal operators in the anthracite region, by agreement previously made among themselves, were jointly and severally bound, it became necessary, in order to carry out the award of the Commission, as to the sliding scale of wages fixed thereunder, to resort to the monthly compilations of this Statistical Bureau, in regard to average prices for certain grades of coal at tide water in New York Harbor.

From Mr. Ruley’s testimony, it appears that the appellation “presidents’ percentages” originated in one of the trade journals to which Mr. Ruley had contributed monthly tonnage reports. In his cross-examination, page 99, volume 2 of the record, we find the following:

“Q. You said the other day that you got the ‘presidents’ percentages’ from the press, if 1 understood you correctly, or trade papers?

“A. I said they were published there, and that is the only source of information I had in mind.”

(The italics are ours.)

“Q. Did you ever talk with any president about the thing, one way or the other?

“A. No, sir.” ,

He then refers to a Coal Trade Journal which had been published for 35 years by Mr. Saward, and in connection with this Trade Journal was a Coal Trade Annual, published by the same person. He said he had them with him as far back as 1890. Referring to the Annual of 1890, he is asked:

“Q. I find below, on page 1 i, ‘Reducing the business done by each of the initial anthracite coat carriers to the basis of percentages, one may find that there are some interesting features attached thereto. Taking the years 188(5-1888 (the latter being the latest official figures available) one finds that the Reading Company did au average of 20.55 per cent., the Dehigh Valley 17.78 per cent., the Central Railroad of New Jersey 14.91 per cent., the Delaware, Lackawanna & Western 17.3(5 per cent., the Delaware & Hudson 11.29 per cent., the Pennsylvania Railroad 11.22 per cent., the Pennsylvania Coal Company 4.55 per cent., and the Erie 2.27 per cent.; this fairly represents the ■“ability to produce” of the several interests on collieries tributary thereto, whether the total output be 40,000,000' of tons annually or less.’ Are you able to find anything earlier than that in any publication on the percentage basis?

“A. I judge I could.

“Q. That Is the earliest you did find?

“A. The earliest 1 could find in the files.

“Q. In other words, for a long time the statisticians had been dealing with tonnages on the percentage basis?

“A. Yes.

“Q. What is the next one you have?

“A. 1891. In 1890 there is quite an extensive report.

“Q. Is this report of 1890 one of the reports you had in mind the other day when you spoke of these presidents’ percentages being published?

“A. Yes, sir. j * *

“Q. Without giving the monthly production and the shipments by the anthracite companies, and the production in each district, with its percentages, and the actual percentages of the whole shipments for the years 1890 to 1895, each year separately for the P. and R., the D. 'V., the C. R. R. of N. 2., the D. L. & W., the D. & II., the P. R. R., the P. C. Co., the Erie, the O. & W., and the D. S. &'S., on page 21 — are these figures which you furnished originally to these publications yourself?

“A. Yes.

“Q. You recognize these figures?

“A. I do not say I furnished the per cents. I furnished the tonnages or» which the percentages are based.

“Q. I find this statement, “There was held on the 23d of January, 1896, a meeting of the representatives of the several anthracite producing and carrying companies in order to come to some agreement in regard to trade conditions and its improvement. According to the figures presented at the meeting the tonnage of the different companies in 1895, as compared with 1S94, is as follows: Then follows the statements of the companies and the production for 1895, and the per cent, for .1894, and the changes of increase or decrease in percentages, the largest being a change of 1.45 per cent. This was referred to a committee to adjust, which a week- later brought in a report recommending that for the period commencing February 1, 1896, and ending March 31, 1897, the following percentages should be adopted: Philadelphia & Reading 20.50, Lehigh Valley 15.65, Delaware, Lackawanna & Western 13.35, Central Railroad of New Jersey 11.70, Pennsylvania Railroad 11.40, Delaware & Hudson Canal Company 9.60, Erie Railroad 4, Pennsylvania Coal Company 4, Delaware, Susquehanna & ÁYestern 3.20, New York, Ontario & Western 3.10.’" Now are these percentages and these statements the percentages and statements you had in mind about seeing them in print in the trade journals?

“A. Yes.

“Q. Do you know of any earlier publication of the presidents’ percentages, except in the journal of which this is a compilation?

“A. No, sir; I do not.

“Q. And was it from these sources, or the original journal of which this is a compilation, from which you got the compilation from which you made your percentage reports and figures?

“A. Yes.”

He afterwards testifies that ever since he had been connected with the Bureau, since 1890, these journals have been giving the details of the anthracite coal statistics, the details for the month and the details for each company, together with circular prices of the different companies for each grade of coal. So that it appears that the only knowledge that Mr. Ruley had of a meeting on the 23d of January, or of any meeting was the publication in the trade journal above quoted. As to the statement made in this publication, it is to be observed that the so-called agreement as to percentages of coal traffic .to be distributed among- the carrier companies, was to obtain for the period commencing February 1, 1896, and ending March 31, 1897, and that these percentages correspond very nearly with those reported in the same trade journal for the years 1886-1888. Counsel for the government rely upon Mr. Harris’s testimony, that the understanding, such as it was, continued in force as long as he remained president of the Philadelphia & Reading. We do not think Mr. Harris’s testimony, taken as a whole, will bear out this statement. Counsel also • rely upon the fact that, the reports of the Bureau of Anthracite Coal Statistics from January, 1901, to May, 1903, show a calculation of tonnages as they would be if based on the so-called presidents’ pfer'centages. Referring to government Exhibit No. 7, produced by Mr. Ruley as showing the form of these reports, we do not find that these percentages are spoken of as presidents’ percentages at all, though they undoubtedly correspond with what were reported as having been adopted in the meeting of January 23, 1896, in the trade journal above referred to. Mr. Ruley’s explanation of how they came to be included in his report, for what purpose, why he abandoned them after May, 1903, and that he had no direction from any defendant to so include them, we think deprives their inclusion during the period mentioned of any evidential value, as claimed by the petitioner. In considering the question, whether the matter of the so-called presidents’ percentages furnishes any foundation for the general charge of combination and conspiracy in restraint of trade, as set forth in the petition, we must consider also the testimony of the defendants.

Mr. E. B. Thomas, president of the Lehigh Valley Railroad Company, testifies, first as to the general charge of the petition above referred to, as follows. The general charge having been read to him from the petition, he is asked:

“Q. Is that charge true or false?

“A. It is not true.

“Q. Did yon ever have any knowledge of any such seheme as that which is charged?

•‘A. I never did.

“Q. Has there ever been any such agreement or scheme, or combination, or conspiracy between the defendants?

“A. Never has. I have never known the time when every parly in the trade was not at liberty to produce and transport all the coal he desired to. or that he could sell. If he could not sell it, he could throw it in the North River, if he wanted to.

“Q. Did that agreement, or any such agreement as that, or any agreement of that character, exist at the time charged in the complaint, or at the time of the commencement of this proceeding, June 12, 1007?

“A. I never knew of any.”

Coming to the question that the general conspiracy, as charged, -was begun about the time of or at its origin in the arrangement of the so-called “presidents’ percentages,” on January S3, 189G, Mr. Thomas’s testimony is as follows:

“Q. Some testimony has been offered by the complainant about a meeting, or some meetings, which were held in or about 1896. of the presidents of the anthracite railroads, at which there was an understanding, or an attempt at an understanding, between them as to percentages of product of anthracite eoal to be carried by different railroads during that year. Were you present at any such meeting at that time?

“A. Yes, I was present at a meeting where there was an attempt made to reach a tentative understanding as to the quantity of coal, proportion of coal, that each road would transport. It related entirely to transportation.

“Q. For how long a period was that under discussion? I mean, what was to be the period—

“A. The period was to be a year. There was not enough percentage in a hundred to go around, to begin with.

“Q. What do you mean by that?

“A. I mean to divide it into per cents., we had to put one hundred and one per cents, as near as we could come.

“Q. In other words, there was some party or parties that were there that would not consent to the percentage that was talked about; is that right?

“A. That is right.

“Q. And never did consent?

“A. Never did consent to it. As far as I have any knowledge, I do not think anybody ever regarded it. It came about by reason of crowded terminals, the question of distribution of cars among shippers.

“Q. I wish you would explain that more fully.

“A. The individual operators claimed that, in times of scarcity of cars, we were favoring our own companies, or those controlled by the railroads, and that they were short of cars. There was an attempt to distribute the tonnage to be handled on colliery production. The individual shippers would load up the cars and send them to tide water or to any other destination and allow them to accumulate and have no market for them. They crowded our terminals and then, when times came up that our own companies had not done the same, they claimed their same proportion of cars right along; and it was an endeavor- to conduct the distribution of cars and movement of tonnage in a more orderly manner and in a more businesslike manner than it had previously been.

“Q. And to meet these complaints?

“A. To meet these complaints.

“Q. And to enable the railroad companies to meet these complaints?

“A. Precisely.

“Q. Was any demand made at that time, or was any suggestion of any demand made, to curtail the output of coal?

“A. None whatever. 1 recollect George B. Roberts, who represented the Pennsylvania at that meeting, stating distinctly that he would not discuss any question of that kind or have anything to do with it; with which 1 heartily accorded. * * *

“Q. The percentages which were considered at that time were the percentages which have sometimes been referred to in this testimony as the ‘presidents’ percentages’ ?

“A. I assume that they were.

“Q. Did that understanding or talk ever go into effect as an agreement?

“A. Never.

“Q. Was it ever put into operation?

“A. I think some people tried to live up to it a little while, until they found the other fellow was not.

“Q. Was there ever any talk about continuing it after the first year?

“A. Never.

“Q. By anybody?

“A. There never was any meeting held after the first one, and I do not think there were any practical results out of that.

“Q. Has there at any time since, except as to this early attempt by some of them, been any observation by the companies of these percentages which, were adopted at that time?

“A. Not to my knowledge.

“Q. Has the Lehigh Valley Company ever observed them?

“A. It has not.”

Elsewhere, in speaking of these so-called “percentages,” he says: “I do not think that tentative understanding entered into ever had any practical result.” He speaks of it repeatedly as an abortive attempt on the part of the carriers to prevent congestion of cars at the water terminals and docks, and to regulate the distribution of cars at the collieries. He says, during the course of his testimony above quoted, that it was directed against a usage of the independent operators to load up long trains of cars, and to use the same to store up coal mined in advance of demand, but that whatever the purpose of the same was, it was not lived up to even for the year during which it was to be tried.

William Truesdale, another witness called by the defendants, at the time of testifying had been president of the Delaware, -Lackawanna & Western Railroad Company since March 1, 1889. In the course of his- examination, he testifies as follows:

“Q. What is meant by presidents’ percentages?

“A. I do not believe I am familiar enough with that matter to give any explanation of it. It is something that was arranged long prior to my connection with the Lackawanna Road, which had nothing to do with our affairs since then, if it ever had.

“Q. Did you ever enter into any agreement with any other person whereby the tonnage of the different coal carrying railroads was distributed according to certain arbitrary percentages'?

“A. There was never such an agreement that I recollect of since my connection with the Lackawanna Railroad.

“Q. Has there been any distribution of tonnage according to any percentage?

“A. There has not.

“Q. Do you know what the alleged presidents’ percentages are?

“A. I know what is referred to by Unit.

“Q. The Delaware, Lackawanna & Western’s percentage, I believe, is said to be — •

“A. Thirteen and thirty-live one-hundredths per cent, under those old percentages.

“Q. Slate whether or not the Delaware, Lackawanna & Western tonnage, since your connection with the railroad, has been maintained at about thirteen and thirty-five onc-hundredtlis per cent?

“A. No, sir. I think nearly every year we exceed that very much.

“Q. State whether or not, since your connection with the Delaware, Lackawanna & Western Railroad, yon have produced all the coal that you could profitably sell?

“A. Wo certainly have, and most of the time we operate our collieries to the limit of their capacity. * * *

“Q. And vou have sold that coal at the best price you could obtain for it?

“A. We have.”

W. A. Lathrop, a witness produced by the petitioner, had been in charge of the mines of the Lehigh Valley Coal Company between 1889 and 1901, and president of the Lehigh Coal & Navigation Company since March, 1907. In the-course of his examination, he testifies as follows:

“Q. Are the collieries of your company operated to their capacity throughout the year, and have they been since your connection with it?

“A. Practically so. There are times during the summer when that is not done, because we cannot find the people to buy our coal. Except that, they are worked practically full time.

“Q. What proportion of the entire production of anthracite does your company put out?

“A. I think the total production last year was about 07,000,000, as near as I remember, and our production was not quite 3,000,000. That would be about 5 per cent, a little less than 5 per cent.

“Q. Do you endeavor to so' operate your mines as to produce about that per cent, from month to month of the entire output?

“A. No, sir; we do not pay any attention to that.

“Q. You pay no attention to the output of the other companies?

“A. We get'out all the coal we can find customers for. We would be glad to get out more if we could find them.”

Mr. George F. Baer, who testifies that he has long been familiar with the affairs of the predecessors of the present defendants, the Reading Company, the Reading Railway Company, and the Reading Coal & Iron Company, as counsel for and director in the same, in 1901. became president of the defendant companies above named. After stating that the Philadelphia & Reading Railway Company is not a competitor for the carriage of coal, which originates in the northern or Wyoming region and the Lehigh or middle region, and that the operations and holdings of the Philadelphia & Reading Coal & Iron Company are confined entirely to what is known as the lower and Schuylkill region, testifies as follows:

“Q. Was there ever at any time, or is there now, anything in the nature of a division agreed upon or participated in by these defendants, of the tonnage carried by them?

“A. None whatever. There is absolutely no division of coal tonnage and has not been to my knowledge during the period since my active connection with the systems. During my administration, of which I can speak absolutely, there never was any division or attempted division of coal tonnage. We mine and market all the coal we can, without regard to what other companies are doing. It is as free and open a market, so far as that goes, as exists in any commodity in the world.”

■ Taken in connection with the defendants’ testimony, above quoted, it is not without significance too, that tables, filed as exhibits by the government, of the tonnages of the different defendant carriers after 1896, are utterly inconsistent with the existence of any pooling agreement. We take the following analysis of certain of these tables from the brief of the Lehigh Valley Railroad & Coal Companies. Taking the government’s specimen report (Exhibit 7, vol. 3, p. 34) for the five months of 1903, it appears that over 1,500,000 tons, on which the freight at an average of $1.24 per ton, amounted to about $1,860,000, was carried by some railroads in excess of their allotments, provided the pooling agreement existed at that time. The want of conformity by the defendant carriers and others to the so-called “presidents’ percentages,” from 1896 to 1908, is more comprehensively shown in the table furnished by the Erie Exhibit No. 16, vol. 6, p. 455, exhibiting the yearly percentages of shipments of anthracite coal by the several transporting companies, from 1892. to 1908, inclusive.

Taking from tbis table only the figures for tbe years 1896 to 1908, tliey show that some railroads carried tonnage greatly in excess and others as much short of the tonnages allowable under the supposed pooling agreement, to-wit:

Tons Over. Tons Under.

Beading ..................................................... 2,490,S92

Lehigh Valley............................................... 1,705,015

Jersey Central................................... 3,241,078

D., L. & W..................................... 10,730,454

D. & II....................................................... 934,132

Penna....................................... 12,185,542

Brie ........................................................ 1,570,357

O. & W......................................... 7,069,496

D. S. & S.................................................... 2,150,094 22,041,028

That is to say, the three railroads, Jersey Central, Lackawanna, and Ontario & Western, violated the agreement, if it existed, by carrying over 22,000,000 tons more than they had right by the agreement to do. The earnings on this tonnage, at an average rate of $1.24 per ton (see vol. 2, p. 690) would have been $27,280,000, which represents approximately the amount that these three railroads obtained in earnings in excess of their right under the agreement, if it existed, and there is no evidence that any complaint was ever made by any of the companies on this account.

We are compelled to conclude that thus far the direct evidence relied upon by the government to show that all the before mentioned defendants have long been parties to a general combination and conspiracy, commencing presumably in 1896 and continuing down to the filing "of the petition, which stifles competition and obstructs trade and commerce among the states in anthracite coal, fails to establish that charge, and we turn now to a consideration of what may be called the indirect testimony adduced, from which it is contended the existence of such general conspiracy must be inferred. In this respect, we are called upon chiefly to consider the acts charged in the seventh paragraph of the petition to have been committed by certain groups of the defendants in development of this illegal combination, and in furtherance of its illegal purpose, of which we have already given a summary.

The first of these has relation to the so-called 65 per cent, contracts. Much testimony has been taken on both sides in explanation of these contracts, which must he examined, in order to determine their character. It appears that, long prior to 1890, it had become a custom more or less prevalent in the anthracite region, for the smaller operators of collieries to' sell the product of their mines to the large coal companies producing and shipping coal in their neighborhood, f. o. b. on the railroad to which their mines and territory were contiguous and naturally tributary. The terms on which these sales were made gradually came to be common to all parties so engaged; that is to say, instead of a fixed money price per ton, it was agreed that the small producer or independent operator who delivered his coal f. o. b. on the cars, should receive a certain per cent, of the average price at which that grade of coal was sold during the month in the tide-water market of New York Harbor. Out of the balance over such percentage must come the freight of the carrying company, and whatever profit there might he for the purchasing coal company. The advantages of such sales to the independent and smaller operators were stated by many witnesses of that class. To have marketed their own coal would have required sales agents and the maintenance of officers at the various market points, and would have entailed the cost of insurance and the risk of collections, and not infrequently the cost of storage, upon the seller. All this was avoided by the contracts in question, and the seller, upon delivery of the coal upon the cars, ivas done with it and received each month from a responsible buyer the price of his coal, as determined by the contract. There is no doubt from the evidence that this method of dealing between the large companies and the smaller operators grew in favor with both parties to the contracts. The large purchasing companies being compelled to maintain sales agents and offices at the market points and provide for insurance or storage, if needed, were put to little additional expense in caring for and disposing of the coal thus purchased. There is no evidence to show that this custom had its origin and subsequent growth in any agreement or concerted scheme on the part of the defendant carriers or coal companies, or others in the business.

The testimony of the operators called by the government, and occupying a large space in the record, shows that this custom had commenced back as far as 1860, one of them saying that they were educated to it from the first, by reason of the difficulty of getting cars and transportation just when they wanted it, to meet sales, but they all say that the principal reasons were those above enumerated — the expense of maintaining selling agencies and offices, risk of handling, and expense of storage, as contrasted with the regularity and certainty of payment secured by the method of selling f. o. b. to the large companies.

The rate of these percentage contracts was at first as low as 40 or 45 per cent. This percentage rose gradually to 55 per cent. About 1890, and for some time prior thereto, there had been some dissatisfaction expressed by the selling operators with the returns coming to them under these contracts. This dissatisfaction culminated in 1892, in an arrangement by which certain of the coal companies in the Wyoming region offered to take the product of the mines of the independent operators contiguous and tributary to certain of the railroads, on a 60 per cent, basis. This seems to have been the result largely of negotiations had with Simpson & Watkins, large colliery owners of that region. (See testimony of Clarence D. Simpson, Record, vol. 2, p. 440 et seq.) Simpson had insisted on 65 per cent., but 60 per cent, was finally agreed upon. This percentage seems to have been adopted by all the other coal companies and coal roads; whether by any concert or agreement among them, does not appear. This rate generally obtained until about 1899, when demands were made by some of the independent operators, whose contracts had expired or were about to do so, for an increase in the percentage prices to 65 per cent. Negotiations between the representatives of the independent operators and the coal-companies and railroads were carried on for some time, without result, when early in the fall of 1900, a general strike of the coal miners and laborers of the whole anthracite region took place, resulting in an entire cessation of the production of anthracite coal.

There is some conflict in the testimony and in the contentions of counsel, as to the influences which brought about, on the part of the large coal companies and coal carrying roads, an acquiescence in this demand for 65 per cent, contracts. We think, however, it is established by the clear preponderance of the testimony that, during the autumn of 1900, those controlling the'large coal companies and railroads affected by the strike, were induced to concede to the striking-miners a 10 per cent, increase in their wages; that though this was agreed to on the .part of the representatives of these companies, the smaller and independent operators were unwilling to accede to this increase, on the ground that it would necessitate the production of coal by them at a loss. As the strike extended over the whole anthracite region, and affected all producers of coal alike, the representatives of the striking miners refused to accept the settlement on the basis of this increase, unless agreed to by practically all the producers and operators throughout the region.

The proposed settlement having been thus brought to a standstill, conferences took place between representatives of the large coal producing companies and these dissentient operators — notably with those who had been parties to the expired 60 per cent, contracts, with the result that it was agreed that new contracts should be framed and entered into, by which 05 per cent, of tide water prices should be given by the purchasing companies, instead of the 00 per cent, oí the price obtained at tide water under the former contracts, in consideration of the entire output of the mines of the contracting operators, without limitation as to time, “shipments to be made from time to time as called for by the buyer.” On these terms, such operators were to join iu the settlement of the strike on the basis of a 10 per cent, increase in wages. Pursuant to this agreement, a form of contract, embodying its terms, was drawn up, which was presumably acceptable to all parties. At all events, contracts substantially in this form were thereafter, from time to time, executed severally between the theretofore purchasing coal companies and many of such so-called independent miners as produced their coal in territory contiguous and tributary to the roads over which the purchasing companies shipped their coal. These contracts provided that:

“The general average i\ o. l>. prices herein referred to shall be determined by a disinterested expert aeeountant. satisfactory to both parties, to whom the buyer shall furnish, not later than the 8th of each month, a statement, of the quantity of each size sold during the preceding month, and the amount realized therefor by the buyer nt tide on all sales of each size of coal from the ...... region, and the accountant each month shall make a true average price for each size sold ar tide of all the coal sold from the same region, and the average price's thus obtained shall be furnished by the accountant to the buyer and seller.”

The expert accountant selected to make these returns was, naturally, Mr. Ruley, of the Statistical Bureau, who had since 1890 been furnishing these same statistics to the coal producing companies and all others interested.

Counsel for the government argue from the fact that these accounts were so rendered to the parties interested, that there must have been some concert or agreement in violation of the act of Congress among the defendants' and others, with reference thereto. We cannot so regard it. It is, of course, possible that the information obtained from these monthly reports of the Statistical Agency or Bureau maintained by Mr. Ruley and his predecessor, might have been of some use to such a combination as is charged in the bill, to maintain rates of freight or prices of coal in the anthracite region, but, in the absence of any direct proof of such a combination, it is a very violent presumption, indeed, that, because of the existence of such statistics and monthly reports, published in all the trade journals of the country and in the hands of every retailer of coal, as well as in those of every producer of coal, there must have been such au illegal combination; and this too, in face of the fact that many obviously legitimate and useful purposes were to be subserved by such publications, to which all intelligent persons interested in the conduct of the business of producing, selling, carrying and consuming coal would, for their own information and advantage, refer. There does not seem to he the slightest direct proof, apart from the presumption we are asked to indulge in, of any illegal combination or contract promoted by the use of these statistics. The reports were public, and there is not the slightest intimation of any secret correspondence between the Statistical Bureau and the defendants. This information, open to every one, was doubtless useful in many legitimate ways to those who subscribed for and supported it. We might as well be asked to draw unfavorable inferences, in the absence of other proof, from the use by the defendants of the statistics, published by the state or federal governments, concerning mining operations and the coal supply of the country.

The genesis of these contracts being found in the long-established custom above described, the general raising of the percentage of price at tide water to be given to the individual seller, incident to the settlement of the strike, and the insistence by the so-called independent operators, whose previous contracts had expired, is not to be considered as necessarily predicated on any concert or agreement denounced by the act. Moreover, these contracts were clearly intrastate and not interstate in their character. They were complete when the coal was delivered at the mines f. o. b. to the buyer. They did not control or affect, except indirectly and incidentally, interstate commerce; much less did.they suppress or restrain such commerce. No stipulation of the contract directly or indirectly touched the movement or disposition of the coal by the buyer after its delivery under the contract to purchase. Such buyer might have withheld all the coal thus purchased from the stream of interstate commerce, disposed of it in the state where it was bought, or in any other way exercised to the fullest extent every right appertaining to complete ownership of personal property. The law of July 2, 1890, cannot be so construed, or such a purpose be imputed to those who enacted it, as to strike with nullity the legal intrastate contracts which do not in purpose or effect directly relate to or touch “commerce with foreign nations or among the several states.” No judgment of the Supreme Court sanctions such an interpretation. On the contrary, that court has always adhered to the doctrine that the manufacture and sale of commodities within a state are not within federal control under the commerce law, merely because such commodities may, as well as may not, after their manufacture or sale, become the subject of interstate commerce. These contracts were not for the sale of coal to be delivered in another state. They did not reach beyond the delivery of coal f. o. b. the cars at the breakers. If such' coal afterwards entered the stream of interstate commerce, it was because the buyer chose that it should do so, and it was then within federal jurisdiction under the commerce clause of the Constitution. But the contracts by which the title to such coal was acquired, not relating to or affecting, except incidentally and indirectly, interstate commerce, are not amenable to federal control.

It is said, however, that these contracts were made pursuant to concert or agreement entered into among the purchasing coal companies. It might be a question whether such contracts, even if the result of concert and combination, were in restraint of trade. But the evidence does not satisfactorily establish the existence of such combination or concert. The contracts were made, not by all with all, or by all with one, but by the coal companies severally with individual operators. In all essential features, these contracts took the place of the expiring contracts, whose history and genesis we have-summarized. They-were the result of the natural development of the business and the peculiar umiiu>vis pertaining thereto in the coal region (luring a long series of years, and so far from being in restraint of commerce, contributed largely to its orderly and healthy growth. That the price given was determined ly the price obtained for similar coal at tide water in New York Harbor, did not impress an interstate character upon the contracts in cpiestion. It was merely the fixing of the standard by which the prices should be measured, and in no wise differed from the fixing of the price of such coal by the price obtained in San Francisco or Boston. in fact, the evidence is,, that a large part of the coal so purchased Ti1.s not taken to tide water at all, hut was, to a considerable extent, disposed of in the state of Pennsylvania.

Nor does the mere fact that, (luring the long period when these contracts were in vogue, there was equality in the percentage, offered and paid by the buyers to the sellers, or practical equality in the prices obtained by different defendants as sellers at tide water, argue any concert or combination denounced by the act of Congress. Equality '■i prices for staple articles given and received, is the general result of free competition among buyers and sellers. Of this, the grain markets and cotton markets of the world furnish signal examples. Nor can we 'Atribule to the so-called 05 per cent, contracts an inherent illegality rdcr the law, in the fact that tiny provide for the purchase by the • val companies of the whole product of the mine, whereas the percentage contracts prior to 1900 or 1903 were to continue only for a Venn of years. To biy the whole product of a mine is just as legitimate a transaction as to buy a portion of it. To buy the whole produce is just as legitimate as to buy the mine itself. And it is difficult to see bow Ihe 05 per cent, contracts directly affect interstate commerce, if, a.,- seems clear to us, those to which they succeeded did not. A form of «mtnjct used for purchase and sale under these contracts has been shown. Uniformity in the framework of these contracts would seem to be the natural result of the situation, each seller demanding the verms that obtained among other sellers, and is no more evidence of concert <>r agreement, illegal or otherwise, than the uniform character of negotiable notes and bills of lading, as used in the business world. There is no evidence to show that the coal bought by the coal companies under these 65 per cent, contracts was not sold by them in competí iion with each other, just as it is proved all other coal owned or produced ly them was sold, whether at tide water in New York City, or elsewhere.

Being clearly of the opinion that these so-called 65 per cent, contracts are not within the mischief denounced by the act of July 2, 1890, and have no proved connection with any general combination or conspiracy, as charged in the seventh paragraph of the bill, I think as to them the bill should be dismissed.

Nor can we agree that the abortive or abandoned attempts by the defendants, or some of them, to come to agreements or arrangements in 1810, 1881, and 1880, even if admitted to he of a character now denounced by the act of July 2, 1890, have any evidential hearing, remote or otherwise, upon the charge now being considered by the court. In the first place, the several acts referred to were legal when made. They certainty violated no act of Congress then in force; and in the second place, were abandoned long before the passage of the act now under consideration.

If no general agreement or conspiracy in violation of the- act has thus far been disclosed by the testimony, direct or indirect, it is hardly worth while to consider in this connection at any length, the separate acts of individual defendants or groups of defendants, so far as they are alleged to have been committed as steps in the development of the general illegal combination charged in the petition, and in furtherance of its illegal purposes. Nor do these separate acts constitute circumstances from which the existence of such general unlawful combination and agreement can be inferred. The alleged absorption by the Erie Railroad Company, in January, 1898, of the New York, Susquehanna & Western Railroad Company, even if it -were held violative of the provisions of the act of July 2, 1890, on the part of the two companies concerned, has no relation whatever, necessary or otherwise, to any general conspiracy, such as is charged against all the defendants. The same observation is true, also, of the transaction in which the Reading Company acquired a majority of the shares of the capital stock of the Central Railroad Company of New Jersey, thereby, as alleged, uniting and bringing together under a common head and source of control, that company and the Philadelphia & Reading Railway Company. In fact, if all be true, as is alleged of these two transactions, they enabled these two groups of defendants to compete more efficiently with some of the other defendants. They certainly do not tend to prove the conspiracy which must be assumed, if they are to be considered as steps in the development or furtherance thereof.

A careful consideration of the very able argument and brief of the counsel for the government, does not convince us that the evidence discloses any such general contract, combination or conspiracy among the defendants in restraint of trade or commerce among the several states, or to monopolize any part of the trade or commerce among the same, as charged in the petition. Certainly there is no direct evidence of such a combination or conspiracy, and we think it is equally obvious, from what we have just said, that there is no indirect or convincing circumstantial evidence of the existence of such a 'conspiracy. The things herein charged are violations of law, and constitute the crimes denounced by the act. We refrain from saying that, on that account, - the degree of proof of their commission should be that required upon the trial of indictments therefor. It suffices to say that the evidence should be such as to convince the mind of the tribunal to which it is addressed, that the acts" denounced by the law have been committed. The consequences attending the finding of the defendants guilty of the acts charged in the petition in this proceeding, are certainly very serious, not only to the defendants, but to a large portion of the public and to many innocent persons involved in these transactions. As we have before said, this consideration can only be pertinent to invoke a more careful consideration of the testimony adduced in support of the charges made in the petition.

We are not unmindful that the conspiracies and combinations forbidden by the act may be proved otherwise than by direct and positive testimony of definitively formed agreements, and that it is a part of the law of conspiracy, that “if rhete is a meeting of minds brought about in any way to accomplish the common purpose, the essentials of a guilty combination are all satisfied.” We fail, however, to find in any of the acts and transactions disclosed by the testimony, evidence of any general combination or purpose to combine in violation of the provisions of the act continuing after the date of its enactment. Except as hereinafter stated, we cannot find, from any fair intendment of the act in question, a purpose to denounce general conditions and relations such, as now exist among the parties engaged in the mining, selling and i.ransportation of anthracite coal, whether intrastate or interstate in its character, disclosed by the evidence, as now existing since July 2, 1890, and we. can impute no intention to the framers of the act to disturb such conditions.

To violate the act, there must be a contract combination or conspiracj', which ill purpose or effect tends to restrain trade or commerce among the stales, or to monopolize some portion thereof. Whether in purpose or effect violative of the act, such contract, combination or conspiracy must have the ordinary meaning attached to those words. There must be the meeting of the minds of two or more, to accomplish some common purpose directly violative of the act, or a purpose which will, whether intentional or not, in effect constitute a restraint of trade and commerce among the several states. In most of the cases under this act which have come before the Supreme Court, the existence of the contract, combination or conspiracy, has been either admitted or clearly and definitely proved, and the question of difficulty presented to the court was, w hether the contract, admitted or proved, came within the purview of the act. [n this case, however, we are niet at the threshold with the denial of the existence of any such contract, combination or conspiracy, generally charged against all the defendants, and with what we think is a deficiency in the evidence adduced to support the same.

In the Addystone Pipe Case, 175 U. S. at page 235, 20 Sup. Ct., at page 105 (44 L. Ed. 136), the court say:

"Wo aro Urns brought to the question, whether the contract or combination proved in this case, is one -which is either a direct restraint or a regulation of commerce among the several state's or with foreign nations, contrary to the act of Congress.” (The italics arc ours.)

Immediately thereafter, the court adopt the statement of special facts made by the learned circuit judge, in part, as follows:

“The defendants, being manufacturers and vendors of cast iron pipe, entered into a combination to raise the prices for pipe for all states west and south of New York, Pennsylvania and Virginia, constituting considerably more than three-quarters of the territory of the United States and significantly called by the associates ‘pay’ territory.”

In the Northern Securities Case, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679, of course the existence of the contract or combination, the result of which wras the incorporation of the Northern Securities Company, for holding the stock of and controlling and managing two competing railroads, wras not denied. Its terms and conditions and purpose were before the court, and were not the subjects of dispute or controversy. The question argued before the court, and upon which the court divided, was whether this combination, admittedly existing, was within the purview of the act of Congress.

In Swift & Co. v. United States, 196 U. S. 375, 25 Sup. Ct. 276, 49 L. Ed. 518, the case came up upon demurrer by the defendants to the petition, and the Supreme Court decided in effect, that the allegation as to the existence of a contract, combination or conspiracy, was sufficient.

In Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488, the combination to “boycott” the interstate trade of a certain hat manufacturer in Connecticut, was admitted or clearly proved.

So far, we have considered the denunciation of agreements or combinations in restraint of trade as set forth in the first section, and combinations to monopolize any part of interstate' trade, together, because both involve the agreement and combination of two or more persons to accomplish a common purpose, as above discussed.

Section 2, however, makes it an offense for any person to monopolize, or attempt to monopolize, any part of interstate trade or commerce. The monopoly feature of the act is covered by the charge of combination and conspiracy to monopolize, and the individual offense can only exist as to individual defendants. There must, however, be a clear, legal concept of the words “monopolize” and “monopoly,” in order to properly consider the charge in this respect, as set forth in the petition.. The word is hard to define, and no attempt at exhaustive definition need be. made. It will suffice to say that the mere extent-of acquisition of business or property achieved by fair or lawful means cannot be the criterion of monopoly. In addition to acquisition and acquirement, there must be an intent by unlawful means to' exclude others from the same traffic or business, or from acquiring by the same means property and material things. As said by Judge Sanborn in U. S. v. Standard Oil Co., 173 Fed. 177:

“It (the anti-trust act) was enacted, not to stifle, but to foster competition, and its true construction is that, while unlawful means to monopolize and to continue an unlawful monopoly of interstate and international commerce are misdemeanors and enjoinable under it, monopolies of part of interstate and international commerce, by legitimate competitioii, however successful, are not denounced by the law, and may not be forbidden by the courts.”

But, even if the proper interpretation of the word “monopoly” were as broad as contended for, as we have already said, we find no evidence to support the charge of an agreement, combination or conspiracy on the part of the defendants in that regard.

The Supreme Court has said that it was not the intention of the court to obstruct, trammel or interfere with the freedom of business, or with the necessary or lawful relations of those engaged in it. The situation in the anthracite region is a somewhat unique one. The territory in which the anthracite coal deposits are found is comparatively •a restricted one, and the development of the business of producing, preparing for the market and transporting it, though necessarily affected by the peculiar conditions surrounding it, has had, on the whole, a natural, wholesome and beneficial growth. It cannot be that every phase in this development, which tends to the better regulation of a business engaged in by many operators, corporate and individual, which incidentally but not directly affects the selling and transportation of coal in and to other states, in the absence of the unlawful purpose denounced in the act, can be visited with the serious consequences fought in this case to be visited upon the defendants. We have already commented on the fact that the development of this business lias tended to dimitíate from if the confusion, loss, and wasteful conditions which characterized the earlier period of its growth, in accordance with the namral taws which govern- competition and reward intelligence and eiitfcriij'isfc.

It has been said in many cases, and the brief of the United States admit1--, that mere acquisition of the material sources of wealth, and the enlargement of business and traffic, accomplished without the illegal combination or conspiracy denounced by the act is not unlawful. In the present case, it has resulted in a large percentage of the coal lands of the region being held by wealthy and powerful corporations who have the ability, and whose interest it is, to conserve those natural resources '-•o valuable to the people of the whole country. The evidence of this case tends to show that these large holding and carrying companies do carry on their business in competition with each other; and there is nothing to show that there has been any general agreement or combination between them, verbal or in writing, in restraint of trade and commerce among the states, by a suppression of competition or otherwise, as is charged in the first clause of the seventh paragraph of the petition.

Counsel for the government insist that the cases in which the Supreme Court has discriminated between those acts of the state Legisla cures which unlawfully invade the exclusive domain of federal regulation of interstate commerce, and those which do not, are applicable to the consideration of the present case. T think this is so only in a qualilic d sense. But, pursuing- the argument on this line, we find that the Supreme Court lias said repeatedly, that state legislation enacted without intent to regulate interstate commerce, is only unlawful if it directly and substantially interferes therewith, but not so if it affects interstate commerce only incidentally and not substantially. I find nothing in this case, either in the evidence in support of the general charge of conspiracy, or of the individual acts of tile Reading Company. with reference to the stock of the Central Railroad Company of New jersey, or of the Erie Company, with reference to the stock of the New York, Susquehanna & Western Railroad Company, by which there lias been made manifest any purpose to restrain interstate commerce, or anything to show that the effect of these transactions has been to directly interfere therewith.

As to the Temple Iron Company transaction, in which seven of the defendants are involved, to wit, the Reading Company, the Central Railroad Company of New Jersey, Lehigh Valley Railroad Company, the í .Clavare. Lackawanna & Western Railroad Company, Erie Railroad Company, and the New York, Susquehanna & Western Railroad Company, it is charged, and the charge is supported by the proof, that the defendants named entered into a combination or conspiracy to defeat and prevent the building of a railroad and the construction of an interstate route for the carrying of coal from the Wyoming region to tide water. The details of this transaction are fully set out in the opinions written by the other members of the court, and need not be here repeated. I agree with the conclusion reached in one of these opinions, that this so-called Temple Iron Company transaction involved a combination or conspiracy by the defendants above named, in violation of the act of July 2, 1890, as being in restraint of commerce among the states. It seems to me clear that an agreement was come to by the defendants named, which resulted in concerted action for the avowed purpose of bringing about an abandonment of the project of a route from the Wyoming coal field in the state of Pennsylvania, for the carriage of coal, to tide water in the state of New York. This avowed and conceded purpose rendered all that was done in pursuance thereof violative of the act of Congress in question, however innocent and legitimate it might have otherwise been. It is true, that the Simpson & Watkins collieries might have been innocently purchased 'by the defendants, separately or in combination, but as they were purchased in order to carry into effect the purpose of an unlawful combination, it seems to me the transaction was clearly within the denunciation of the law^ The Temple Iron Company was the palpable instrument or means by which the unlawful purpose of the combination was accomplished, and its acquirement of the said collieries, in pursuance of that combination, must be held as illegal. I cannot think that the fact that the Pennsylvania charter of the proposed railroad — -The New York, Wyoming & Western by name — only authorized its construction from a point in the Delaware river, in Northumberland county, Pennsylvania (being also the boundary line between the states of New Jersey and Pennsylvania), opposite or near Belvidere, New Jersey, and thence to a point in the Susquehanna river, within or near Pittston, Luzerne county, Pennsylvania, with the necessary branches or laterals, affects in any way the character of the combination charged as being illegal. It clearly appears from the evidence that, a project for a railroad route from the coal fields in Pennsylvania to tide water in New York, was being discussed and ostensibly promoted by named parties interested in the coal regions, notably the firm of Simpson & Watkins, and that the charter above referred to had been obtained as a step towards the consummation of the purpose to construct such a route. I do not think we are called upon to consider and weigh the evidence, pro and con, as to whether the projectors of this route would or would not have been able to carry the same to completion. It matters not for present purposes whether the enterprise would have resulted, or not, in failure. The important fact is, that the defendants named, interested in the production and carriage of coal from Pennsylvania to tide water in New York, believed that the project of constructing such a route was a serious one, and that it induced them to combine, in order to thwart that purpose. The combination brought about the abandonment of the project, and the possibility of a competing road in interstate commerce was, for the time being, frustrated. I cannot escape the conclusion, therefore, that the decree of this court should denounce as illegal the combination by which this result was brought about, if a decree for an injunction, under the prayers contained in the petition can be founded upon such denouncement.

The injunction or restraining order specifically prayed for in the petition should be granted, so far as it will serve “to prevent and restrain” the future or continuing violation of the act. This is the only jurisdiction conferred upon the court in such a proceeding as the one before us, and there can be no injunctive relief granted, unless it tends to restrain some specific future or continuing violation of the act. •