Prior to the enactment of the Anti-Trust Law, the Lehigh Valley
Railroad Company, in combination with the Lehigh Valley Coal
Company, a subsidiary created and operated as a mere agency or
instrumentality of the Railroad Company, deliberately entered upon
the policy of purchasing and leasing the anthracite coal lands in
Pennsylvania tributary to its extensive railroad system, and of
buying up the stocks of corporations owning such lands, for the
purpose of controlling the mining, transportation, and sale of the
coal to be obtained therefrom and of preventing and suppressing
competition, especially in the transportation and sale of such coal
in interstate commerce. This policy was continued after the
enactment of the Anti-Trust Act, with the result that a practical
monopoly was attained of the transportation and sale of the
anthracite derived from the lands tributary to the railroad, the
amount so transported coming to exceed one-fifth of the entire
annual anthracite production of the country. Considering this
result, the methods employed in
Page 254 U. S. 256
achieving it, and the great volume of production and trade
involved, as compared with the restricted area of the whole
anthracite territory,
held that the combination effected a
restraint of trade or commerce among the states and constituted an
attempt to monopolize and an actual monopolization of a part of
such trade or commerce in anthracite coal within the meaning of the
first and second sections of the Anti-Trust Act. P.
254 U. S.
269.
For the purpose of divesting itself in appearance of interest in
the coal transported, the Railroad Company, with the Coal Company,
brought about the creation and organization of a Sales Company,
whose stock was subscribed for by stockholders of the Railroad
Company only, with the aid of a dividend declared by that company
for the purpose, and whose management was largely made up of former
agents and officials of the Railroad and Coal Companies; the Sales
Company thereupon, in pursuance of the plan, made, in form, an
agreement with the Coal Company, for a term of ten years but
subject to termination by either party on six months' notice, by
which the Coal Company agreed to sell and the Sales Company to buy
all coal mined or produced by the Coal Company at prices mostly
fixed at a specified percentage of New York prices, and by which
the Coal Company agreed to lease all of its facilities, structures,
and trestles to the Sales Company, and the Sales Company was
inhibited from buying any coal except from the Coal Company, and
from selling any not so purchased.
Held that the Sales
Company was neither an independent buyer nor a free agent, and that
the contract, being a mere device to evade the commodities clause
of the Interstate Commerce Act, and obnoxious also to the
Anti-Trust Act, was void.
United States v. Delaware, Lackawanna
& Western R. Co., 238 U. S. 516. P.
254 U. S.
264.
225 F. 399 reversed.
The case is stated in the opinion. A motion to modify the decree
was made and denied at this term.
Post, 617.
Page 254 U. S. 257
MR. JUSTICE CLARKE delivered the opinion of the Court.
This is an appeal from a decree entered in a suit to dissolve
the intercorporate relations existing at the time it was commenced
in March, 1914, between the defendant corporations, other than
Girard Trust Company, for the reason, it is averred, that they were
so united that they constituted a combination in restraint of
interstate trade and commerce in anthracite coal and an attempt to
monopolize and an actual monopolization of a part of such commerce,
in violation of the Anti-Trust Act of Congress of July 2, 1890, c.
647, 26 Stat. 209, and also for the alleged reason that the Lehigh
Valley Railroad Company was transporting over its lines of railway
anthracite coal in which it had an interest, in violation of the
commodities clause of the Act of June 29, 1906, c. 3591, 34 Stat.
585.
Page 254 U. S. 258
It will be necessary to consider only the relations and
activities of the Lehigh Valley Railroad Company, hereinafter
designated the Railroad Company, the Lehigh Valley Coal Company,
designated the Coal Company, and the Lehigh Valley Coal Sales
Company, designated the Sales Company.
A condensed history, chiefly admitted, of the organization,
stock ownership, and conduct of these three companies, and the
application to the facts thus developed of fully established
principles of law, will be decisive of the case.
The limited area of anthracite producing territory, its relation
to the interstate transportation system and markets of our country,
and the various attempts to monopolize and control the great
railway tonnage originating therein have all been so often
described in reported cases that they need not be repeated here in
detail.
*
It will suffice for our present purpose to say that the
anthracite producing territory is very restricted in area, it all
being within seven counties of Eastern Pennsylvania with the known
deposits underlying only 309,760 acres of land. For trade purposes,
it is divided into three fields; the northerly is called the
Wyoming field, the next southerly the Lehigh or middle field, and
the southerly the Schuylkill field. The lines of the Railroad
Company extend into the Wyoming and Lehigh fields, but to only one
colliery in the Schuylkill field. Much the greater part of its
tonnage is derived from the Wyoming field, and four-fifths of it
moves in interstate commerce.
The Railroad Company, in 1913, owned 1,438 miles of main line
and a total trackage of 3,354 miles, its capital
Page 254 U. S. 259
stock was $60,600,000, its funded debt was $85,800,000, its
total assets had a book value of $182,700,000, but a much greater
actual value, and it carried a larger tonnage of anthracite coal
than any other railroad in the country -- over 13,000,000 tons in
1913, this being 18.84% of the total 69,000,000 tons shipped over
all railroads in that year.
In 1864, the Railroad Company, by merger with a coal company,
acquired a small acreage of anthracite containing land, and
thereupon added the mining, shipping, and selling of coal to its
duties as a carrier.
The annual reports of the Railroad Company show that, as early
as 1868, it entered upon the policy of acquiring by purchase and
lease the control of as much as possible of the anthracite coal
containing lands tributary to its lines of railroad for the purpose
of preventing, or, when it had become established, of suppressing,
competition in the carrying of coal over its interstate lines to
interstate markets.
Thus, the annual report of the company for 1868 shows that, it
having been determined that it was of "the utmost importance" to
the future welfare of the company to secure "control of tonnage
from regions having other outlets to markets," the company, by
merger of two coal companies, obtained coal lands which secured to
it the whole trade of the Hazelton coal field and "the withdrawal
from competition" of a business so large as to greatly strengthen
the "future prospects of the road."
In 1869, the policy of securing a proportion of the coal trade
from each region by the purchase of interests in companies owning
lands on or near the several branches of the company was approved
and "continued."
In 1871, it is reported: "We have continued to acquire interests
in coal lands situated in our various regions."
In 1872, after detailing the purchase for $2,000,000 of 5,800
acres of land having upon it ten collieries, the report of the
company declares that:
"Should there be a corresponding increase for a year or two
more, the total consumption will so nearly equal the full capacity
of the mines for production as to
render unnecessary all
attempts to regulate or control the trade."
After reciting that a contract had been entered into granting to
the Delaware, Susquehanna & Schuylkill Railroad Company
trackage rights to tidewater, the report of the Railroad Company
for 1894 continues, saying that there is thereby assured to the
company
"an important traffic . . . for which several outlets existed
and which had been in contention for some time previous. It also
removes an incentive to the construction of further new lines into
the territory tributary to the Lehigh Valley system."
Although, in 1875, it caused the Coal Company (hereinafter
discussed) to be organized for the purpose of taking title to coal
lands then owned or which might thereafter be purchased, and
although the Anti-Trust Law was enacted in 1890, nevertheless, the
Railroad Company continued its policy of purchasing for control and
from time to time it acquired and took in its own name the title to
extensive tracts of coal lands and to stocks in coal companies.
Thus, in 1885, it acquired the entire capital stock of the Wyoming
Valley Coal Company, the owner of 1,657 acres of anthracite land,
in 1900 it acquired the entire capital stock of the Westwood Coal
Company, a considerable owner of anthracite land, in 1901 it
acquired the entire capital stock of the Connell Coal Company, and
in the same year the entire capital stock of the Seneca Coal
Company, the owner of 1,308 acres of anthracite land.
In the years prior to 1905, the Railroad Company made a number
of other purchases of coal land, but in that year it made its
largest single and most significant purchase when it acquired, for
the sum of $17,440,000 all of the capital stock of Coxe Bros. &
Co., Incorporated. This company was the largest independent coal
operator then
Page 254 U. S. 261
on the line of the Railroad Company, and its production for 1905
exceeded 1,100,000 tons. It not only owned extensive areas of coal
land, on which were located eight collieries, but it was also owner
of all of the capital stock of the Delaware, Susquehanna &
Schuylkill Railroad Company, which owned fifty miles of railway
which served other large independent mines in addition to those of
Coxe Bros. & Co., Inc. This railroad had connections with the
Reading, Pennsylvania, and New Jersey Central lines, which were
taken up or fell into disuse when the control of it passed to the
defendant Lehigh Valley Railroad Company. The Railroad Company
continued to own all the capital stock of Coxe Bros. & Co.,
Inc., to the time the testimony was taken in this suit, and it is
admitted that that company then held in fee or under long lease
36,490 acres of land in the anthracite field, 7,169 acres of which
were known to contain anthracite coal. This purchase was
confessedly made to prevent the diversion of traffic to other
lines, and, while the company was continued in form as a separate
corporation, the officers and directors of the coal company were
made its officers and directors, and, in June following the year of
the purchase, its directors, by resolution, provided that the net
earnings of the company should be paid to the Railroad Company
without the formality of declaring a dividend, and this practice
continued until 1911.
Thus, this important coal company and its railroad became a mere
coal producing and transporting agency of the defendant Railroad
Company.
In 1874, the State of Pennsylvania adopted a constitution
containing the provision that:
"No incorporated company doing the business of a common carrier
shall, directly or indirectly, prosecute or engage in mining or
manufacturing articles for transportation over its works."
Constitution of Pennsylvania, 1874, Art. 17, ยง 5.
Page 254 U. S. 262
Prior to this time, the Railroad Company had been a large owner,
miner, shipper, and seller, as well as carrier, of anthracite coal,
and, as if for the purpose of complying with the new constitution
of the state from which it derived its franchise, it caused the
Lehigh Valley Coal Company to be created in 1875 by the
consolidation of two smaller companies. This company, which was
organized for the purpose of taking title to coal lands and stocks
in coal companies, then owned or thereafter to be acquired by the
Railroad Company, and to conduct the business of mining, shipping,
and selling coal, had an original capital of $650,000, which was
afterwards increased to $1,965,000, all of which has been owned by
the Railroad Company from the beginning. Coal-producing lands and
stocks in various coal companies were purchased from time to time
by the Railroad Company, directly or through advances of money to
the new coal company for that purpose, title thereto being taken in
the Coal Company, with the result that, when this suit was
commenced, that company admitted itself to be the owner of 54,229
acres of land in the anthracite producing regions, of which 24,748
acres were located along the lines of the Railroad Company; that
the funded debt of the company had become $20,000,000, and that the
value of its assets amounted to about $35,000,000. Eight and
one-half million tons of anthracite, of the 13,000,000 carried by
the Railroad Company in 1913, were produced by this Coal Company
and by Coxe Bros. & Co., Inc., owned, as we have seen, by the
Railroad Company. The combined acreage of lands owned by the Coal
Company and by Coxe Bros. & Co., Inc., is admitted to be 90,719
acres, of which 61,238 acres are located along the lines of the
Railroad Company. The annual reports of the Coal Company show that,
in 1903, 56.77% of the coal transported over the railroad was
produced by the Coal Company and its affiliated companies; that, in
1906, the percentage produced and purchased
Page 254 U. S. 263
was 85.25% of that transported, and in 1907, it was 87.11%. The
Interstate Commerce Commission found that, in 1908, the company
controlled 95% of the tonnage moving over its line to tidewater.
Meeker v. Lehigh Valley R. Co., 21 I.C.C. 129, 154.
The Railroad Company and the Coal Company had usually the same
president, secretary, treasurer, and auditor, and the latter
company admits, as it must, that the Railroad Company, "as the
owner of stock, controls and long since has been controlling the
election of its directors." The Railroad Company constantly
advanced large sums of money to the Coal Company for the purchase
of property and for operating capital. The total of these advances
to the year 1892 exceeded $15,500,000, which amount, however, was
reduced by operations of the Coal Company to $11,500,000. The Coal
Company never paid any dividends, its earnings being frankly
treated as those of the Railroad Company, and the financial and
other relations between the two companies were so intimate and
interlaced that, in argument, it is admitted that, "in the last
analysis, the assets of the Coal Company are the assets of the
Railroad Company."
There is much more in the record to like effect, but sufficient
has been stated to make it clear beyond controversy that the Coal
Company was organized and conducted as a mere agency or
instrumentality of the Railroad Company for the purpose of avoiding
the legal infirmity which it was thought might inhere in the owning
of coal lands and in the conducting of coal mining, shipping, and
selling operations by the Railroad Company, and that the policy of
purchasing and leasing coal lands tributary to its lines for the
purpose of controlling interstate trade and commerce in anthracite
coal and of preventing and suppressing competition therein was
deliberately entered upon by the Railroad Company, and, in
combination with its agency, the Coal Company, was consistently
pursued, with in creasing
Page 254 U. S. 264
energy and scope after the passage of the Anti-Trust Act, until
the commencement of this suit, unless these purposes and results,
in point of law, were modified and cured by the organization in
1912 of the Sales Company and by the functions which it performed
-- which remain to be considered.
On January 11, 1912, the board of directors of the Railroad
Company requested the directors of the Coal Company "to consider
the propriety of organizing a Sales Company" and of entering into a
contract with it when formed "for a limited time" for the purchase
and sale by it "of the coal mined, purchased, and owned by the Coal
Company." The board also requested that the privilege of
subscribing for the stock of the new company be extended "not to
the Railroad Company, but,
pro rata, to the common and
preferred stockholders of the Railroad Company." As if anticipating
compliance with its request on the part of the Coal Company, of
which it owned all of the stock, the officers of the Railroad
Company were authorized at the same meeting of the board to take
such action and make such conveyances as might be deemed necessary
or advantageous in perfecting the sales arrangement with the new
company to be organized, and, in aid of the enterprise, a dividend
of ten percent on the stock of the Railroad Company was declared,
payable on February 26, which amounted in the aggregate to
$6,060,800.
On the same day, the board of directors of the Coal Company
resolved that the new Sales Company should be organized, as
requested by the Railroad Company, with a capital stock of
$10,000,000, but that only $6,060,800 of it should be issued; that,
when the new company was formed, the Coal Company should, "if
possible," contract with it for a "limited time" for the sale to it
"of all coal which shall be mined, purchased, owned, or acquired"
by the Coal Company during the term of the proposed contract, so
that the title to such coal should vest in the Sales
Page 254 U. S. 265
Company "before the transportation thereof shall be
commenced."
The privilege of subscription to the capital stock of the new
company was restricted to the stockholders of the Railroad
Company.
The Sales Company was promptly organized, and the minutes of the
company show that slightly less than 97% of the stock was
subscribed for by stockholders of the Railroad Company.
The Sales Company had seven directors. One of these, J. W.
Skeele, who was also elected president, had been general sales
agent of the Coal Company; another, W. R. Evans, had been assistant
to the general sales agent of the Coal Company; another, L.D.
Smith, was a director of the Railroad Company, and a fourth, Paul
Moore, was a son of a large stockholder in the Railroad Company.
The vice-president of the company, G. N. Wilson, had been general
auditor of the Railroad Company, and the treasurer, W. J. Burton,
had been employed as assistant secretary of the Coal Company.
It is too plain for discussion that, with a company thus
organized and officered, the making of a contract by the Coal
Company for the sale of all of its coal to the Sales Company was,
in substance and effect, making a contract with itself, the terms
of which it could determine in its discretion.
Immediately after the organization of the Sales Company, the
anticipated contract between that company and the Coal Company for
the purchase of all the coal which the latter might mine or
purchase was entered into, and bears date March 1, 1912. This
contract was to continue for ten years, unless terminated in the
manner which it provides for, and its terms are so nearly identical
with the earlier Lackawanna contract, which is considered in
United States v. Delaware, Lackawanna & Western R.
Co., 238 U. S. 516,
that the judge who tried this case below, with
Page 254 U. S. 266
entire propriety, says that the differences between the two are
"wholly unsubstantial." 225 F. 401. This Court held that the
contract in the
Lackawanna case was void because violative
of the provisions of the Anti-Trust Act and the commodities clause
of the Act to Regulate Commerce.
The discussion of the Lackawanna contract is so full and
satisfactory in 238 U.S.
238 U. S. 516 that
it would not serve any useful purpose to comment in detail upon the
contract which we have here. It will suffice to say that the
provisions of the Lackawanna contract, which were clearly
determinative of the former decision by this Court, are plainly the
same in substance, and almost exactly the same in form, as those in
the contract we are considering,
viz.: the agreement of
the Coal Company (1) to sell, and of the Sales Company to buy, all
of the coal mined by the Coal Company from lands owned or leased by
it, together with all coal which it might purchase; (2) that the
prices to be paid for the more important grades of coal shall be
65% of the New York prices -- the two contracts are in precisely
the same words in this respect; (3) that, with negligible
exceptions, the Sales Company is to sell no other coal, for itself
or for any other, than that "purchased" from the Coal Company; (4)
that the Coal Company shall lease all of its facilities,
structures, and trestles to the Sales Company; (5) that either
party shall have the right to abrogate and cancel the contract upon
giving to the other six months' notice of its desire so to do; (6)
that the Sales Company shall not buy coal except from the Coal
Company-, a provision which excludes the Sales Company, potentially
a strong competitor, from the market. The Coal Company purchased
2,960,000 tons of coal in 1911 in addition to that which it
mined.
These are the contract provisions which led this Court, in the
former case, to hold that a corporation organized and circumstanced
as is the Sales Company which we have
Page 254 U. S. 267
here -- subject to be stripped at the will of another of all of
its business and of all its facilities for carrying on the business
for which it was incorporated -- was neither an "independent buyer
nor a free agent."
Being entirely satisfied with the reasoning upon which the
Lackawanna case proceeds to its conclusion, we hold now,
as it was there in principle held, that the purchase in form by the
Sales Company did not so dissociate the Railroad Company from the
transportation of coal in which it was interested as to meet the
requirements of the law, that the contract, nominally of purchase,
was so calculated to restrain interstate trade as to be obnoxious
to the Anti-Trust Act of Congress, and that, for this reason, it is
unlawful and void.
It will be of service, in determining the purposes of the
defendant Railroad Company, with its corporate subsidiaries, in the
activities thus discussed to recall the history of the defendant
Railroad Company as it appears in the decisions of this and of
other courts.
In 1892, the defendant Railroad Company and the Central Railroad
Company of New Jersey leased their lines of railway for the term of
999 years to the Reading Railroad Company, a parallel competing
carrier extensively engaged in mining, marketing, and selling
anthracite coal. This combination, had it become operative, would
have gone far toward monopolizing the interstate transportation and
trade in anthracite coal of our entire country, but all operations
under the lease of the Central Railroad Company of New Jersey were
enjoined by the New Jersey courts for the reason that it was deemed
to be in restraint of trade, against public policy, and calculated
to partially destroy competition in the production and sale of
anthracite coal, a staple commodity of the state.
Stockton v.
Central R. Co., 50 N.J.Eq. 52. Thereupon, the lease of
defendant's property was abandoned and surrendered.
Page 254 U. S. 268
Six years later, in 1898, the defendant Railroad Company
combined with the Reading and four other railway companies to
contribute a large sum of money, which was successfully used to
prevent the construction of a projected competing line of railroad
from the anthracite fields to tidewater. Of this enterprise, this
Court said:
"We are in entire accord with the view of the court below in
holding that the transaction involved a concerted scheme to combine
for the purpose of restraining commerce among the states in plain
violation of the Act of Congress of July 2, 1890."
United States v. Reading, 226 U.
S. 324,
226 U. S.
355.
Four years later, in 1902, the defendant Railroad Company united
with the Reading and four other anthracite carriers in a
combination to control the entire tonnage of coal produced by
independent operators along the lines of their respective railways.
The device this time resorted to was a contract to purchase all the
coal produced by independent mines, then opened or which might
thereafter be opened by the vendors, and to pay therefor 65% of the
market price prevailing at tidewater points at New York, to be
computed from month to month by an arbitrator to be selected by
agreement. These contracts were elaborately considered and
unsparingly condemned by this Court in the case which is cited, and
the conclusion reached was that the defendants in that case had
unlawfully combined, by and through the instrumentality of the 65%
contract, for the purpose of controlling the sale at tidewater of
the independent output of anthracite coal. The contracts were
declared to be unlawful, and were ordered cancelled.
226
U. S. 370,
226 U. S.
371-373.
In 1911, in Meeker & Co. v. Lehigh Valley R. Co., 21 I.C.C.
129, 154, 163, the Interstate Commerce Commission held that the
only line of demarcation between the Lehigh Valley Railroad Company
and the Lehigh Valley Coal Company was one of bookkeeping, that the
Railroad
Page 254 U. S. 269
Company "had monopolized the coal field served by it," and that
it had been guilty of unjust discrimination and of charging
unreasonable rates for which reparation was awarded. 23 I.C.C. 480.
This decision was sustained by this Court in
Meeker & Co.
v. Lehigh Valley R. Co., 236 U. S. 412.
And yet again, in 1915, the Interstate Commerce Commission,
after an investigation extending over three years, in which the
defendant Railroad Company and all other initial carriers of
anthracite were parties, held that the rates charged by the
defendant and other carriers to tidewater and to certain interior
points were unreasonable, that, by trackage and other arrangements,
they had extended advantages to their subsidiary coal companies, to
the prejudice of other shippers, and that concessions as obnoxious
as "direct cash rebates" had been made to such coal companies. In
the Matter of Rates, Practice, Rules, and Regulations Governing the
Transportation of Anthracite Coal, 35 I.C.C. 220.
This history of almost 25 years casts an illuminating light upon
the intent and purpose with which the combination here assailed was
formed and continued.
Standard Oil Co. v. United States,
221 U. S. 1,
221 U. S. 76.
Without further comment, this discussion of the record requires
us to conclude that it is clearly established that, prior to the
enactment of the Anti-Trust Act, the Railroad Company, in
combination with its coal company subsidiary, deliberately entered
upon a policy of making extensive purchases of anthracite land
tributary to the Railroad Company's lines for the purpose of
controlling the mining, transportation, and sale of coal to be
obtained therefrom and of preventing and suppressing competition,
especially in the transportation and sale of such coal in
interstate commerce, and that this policy was continued after the
passage of the Anti-Trust Act with increasing energy and tenacity
of purpose, with the result that a
Page 254 U. S. 270
practical monopoly was attained of the transportation and sale
of anthracite coal derived from such lands.
The area of the anthracite territory is so restricted that to
thus obtain control of the supply of such coal on a great system of
railway (the amount transported exceeded one-fifth of the entire
production of the country for the year before this suit was
commenced) by a combination of corporations such as we have here,
and by such methods as we have seen were employed, effected a
restraint of trade or commerce among the several states, and
constituted an attempt to monopolize and an actual monopolization
of a part of such trade or commerce in anthracite coal clearly
within the meaning of the first and second sections of the
Anti-Trust Act as they have frequently been interpreted by this
Court.
Standard Oil Co. v. United States, 221 U. S.
1,
221 U. S. 61;
New York, New Haven & Hartford R. Co. v. Interstate
Commerce Commission, 200 U. S. 361,
200 U. S.
392-393;
United States v. Union Pacific R. Co.,
226 U. S. 61;
International Harvester Co. v. Missouri, 234 U.
S. 199,
234 U. S. 209;
United States v. Delaware, Lackawanna & Western R.
Co., 238 U. S. 516,
238 U. S. 533;
United States v. Reading Co., 253 U. S.
26.
Since we have also found that the contract between the Coal
Company and the Sales Company was a mere device to evade the
commodities clause of the Interstate Commerce Act, and therefore
void, it results that the decree of the district court must be
reversed, and the case remanded, with instructions to enter a
decree, in conformity with this opinion, dissolving the combination
effected through the intercorporate relations subsisting between
the Lehigh Valley Railroad Company, the Lehigh Valley Coal Company,
Coxe Bros. & Co., Inc., the Delaware, Susquehanna &
Schuylkill Railroad Company, and the Lehigh Valley Sales Company,
with such provisions for the disposition of all shares of stock,
bonds, or other evidences of indebtedness, and of all property
Page 254 U. S. 271
of any character, of any one of said companies owned or in any
manner controlled by any other of them as may be necessary to
establish their entire independence of and from each other. The
contract of March 1, 1912, between the Coal Company and the Sales
Company must be decreed to be void, and all contract relations
between the two companies enjoined which would serve in any manner
to render the Sales Company not entirely free to extend its
business of buying and selling coal where and from and to whom it
chooses with entire freedom and independence, so that it may in
effect, as well as in form, become an independent dealer in coal,
and free to act in competition, if it desires, with the defendant
Coal Company or Railroad Company.
As to the New York & Middle Coal Field Railroad & Coal
Company, the G. B. Markle Company, the Girard Trust Company, and
the individual defendants, the bill must be dismissed.
Reversed and remanded, with instructions to enter a decree
in conformity with this opinion.
THE CHIEF JUSTICE and MR. JUSTICE HOLMES, while, if they
exercised an independent judgment, would be for affirmance,
nevertheless concur in the conclusion now announced by the Court
because they consider that they are so constrained to do in virtue
of the controlling effect of the previous decisions in the
Lackawanna and
Reading cases cited in the opinion
of the Court.
MR. JUSTICE McREYNOLDS and MR. JUSTICE BRANDEIS did not take
part in the consideration and decision of this case.
*
United States v. Reading Co., 183 F. 427;
United
States v. Reading Co. 226 F. 229;
United States v.
Delaware & Hudson Co., 213 U. S. 366;
United States v. Lehigh Valley Railroad Co., 220 U.
S. 257;
United States v. Delaware, Lackawanna &
Western R. Co., 238 U. S. 516;
United States v. Reading Co., 226 U.
S. 324;
United States v. Reading Co.,
253 U. S. 26.