294
THE GREEN BAG
rates, by means of dealing in the purchase and sale of coal. Mr. Justice White, who wrote the opinion of the court, puts the matter well when he says: "If the public purpose which the statute was intended to accomplish be borne in mind, its meaning becomes, if possible, clearer. What was that purpose? It was to compel the carrier as a public agent to give equal treatment to all. Now if by the mere fact of purchasing and selling merchandise to be transported, a carrier is endowed with the power of disregarding the published rate, it becomes apparent that the carrier possesses the right to treat the owners of like commodities by entirely dif ferent rules. That is to say, the existence of such a power in its essence would enable a carrier, if it chose to do so, to select the favored persons from whom he would buy and the favored persons to whom he would sell, thus giving such persons an advantage over every other, and leading to a monopoli zation in the hands of such persons of all the products as to which the carrier chose to deal. Indeed the inevitable result of the possession of such a right by a carrier would be to enable it, if it chose to exercise the power, to concentrate in its own hands the products which were held for shipment along its line, and to make it, therefore, the sole purchaser thereof and the sole seller at the place where the products were to be mar keted; in other words, to create an absolute monopoly. To illustrate: If a carrier may by becoming a dealer buy property for transportation to a market and eliminate the cost of transportation to such market, a faculty possessed by no other owner of the commodity, it must result that the carrier would be in a position where no other per son could ship the commodity on equal terms with the carrier in its capacity of dealer. No other person owning the com modity being thus able to ship on equal terms, it would result that the owners of such commodity would not be able to ship, but would be compelled to sell to the car
rier. And as by the departure from the tariff rates the person to whom the carrier might elect to sell would be able to buy at a price less than any other person could sell for, it would follow that such person so selected by the carrier would have a monopoly in the market to which the goods were trans ported." It was a fact shown in the record of this case that the Chesapeake and Ohio, as a result of its being a dealer in coal as well as a carrier, had become virtually the sole purchaser and seller of all coal produced along its line of road. As the court points out, the inevitable tendency will be toward such monopoly if the common carrier is permitted both to deal in a commodity and to carry it. The court is content, it seems, to decide no more at present than that the carrier must charge itself in its operations as a dealer with its own schedule rates as carrier; but much of its reasoning, if carried to the logical conclusion, would forbid the railroads to take the inconsistent positions of dealers and carriers.1 VII The view expressed in the last opinion that a carrier in engaging in ordinary busi ness must treat itself and its business rivals with equality is a conservative view. It may be that a more radical remedy is de manded to meet the situation, for it is not always safe to leave the matter in this shape. Thus in another case before the commis sion — McGrew v. Missouri Pacific Railway (8 I. C. C. Rep. 630) — the defendant rail way which owned many coal mines along its route, was shown to charge higher relative rates to its competitors in the coal mining business whose product was of a higher grade. The commission pointed out that this could not be altogether stopped as the law stood, saying: "It may properly be observed 1 But see Caledonian Coal Co. v. Seaham Colliery Co., IQOI A. C. 554.
