a8o
THE GREEN BAG
terests by conducting a competing business we are told by the plaintiffs' counsel, might lawfully lower rates provided they did not in which the courts upon the strictest con struction of the franchise have held that lower them beyond a 'fair freight,' what this particular kind of competition was not ever that may mean. But where is it in violation of the franchise, and therefore established that there is any such restric have dismissed the suit since nothing but tion upon commerce? And what is to be mere competition remained as the basis of the definition of a 'fair freight'? It is said the complaint. Such were substantially the that it ought to be a normal rate of freight, facts in Illinois and Michigan Canal v. such as is reasonably remunerative to the Chicago and Rock Island Railroad (14 Ill. shipowner. But over what period of time 314) where a canal company complained of is the average of this reasonable remunerathe interference with its business by the tiveness to be calculated? All commercial construction of a railroad paralleling it. men with capital are acquainted with the In discussing the case, Mr. Justice Caton ordinary expedient of sowing one year a said : "Who shall anticipate the new methods crop of apparently unfruitful prices, in of intercommunication which the ingenuity order by driving competition away to reap of this wonderful age may devise, or the a fuller harvest of profit in the future; and improvements which may be made in the until the present argument at the bar it old? Who can set bounds to the wants in may be doubted whether shipowners or this respect which new developments may merchants were ever deemed to be bound by suggest? And shall we imply and intend, law to conform to some imaginary ' normal ' even with the aid of the most liberal rule of standard of freights or prices, or that law construction that the legislature designed courts had a right to say to them in respect to surrender the right to allow the people to of their competitive tariffs, 'Thus far shalt avail themselves of improved modes of thou go, and no further.' To attempt to communication or commerce?"1 limit English competition in this way would probably be as hopeless an endeavor as the VI experiment of King Canute." It would seem that the right to cut prices Undoubtedly the excellent opinion just whatever damage may result to competitors quoted represents the law everywhere; all is a fundamental privilege in competition. that there is against it is an interesting In the very important case of the Mogul dictum in Averrill v. Southern Railway (75 Steamship Company v. McGregor (L. R. 23 Fed. Rep. 736), where the receiver of a rail Q. B. D. 598), one of the matters of which way filed a bill asking the aid of the court the plaintiff steamship owners complained in protecting the property against a rate was that the defendant steamship compa war inaugurated by the Southern Railway. nies sent additional ships to Hankow and A cut of 35 per cent had been made with smashed freights in order to ruin the plain notice that if this was met a further cut of tiffs or drive them from the field. In hold 80 per cent would be made in the rates. It ing that this constituted no legal wrong was alleged that its ultimate object in this Lord Justice Bowen said: "It would impose was to annihilate competition by the de a novel fetter upon trade. The defendants, struction of its competitors. How deplor1 These principles are well set forth in the follow 1 able this seemed, in a public service, to Mr. ing cases: Charles River Bridge v. Warren Bridge, Justice Simonton, may be seen from his 11 Pet. 420; Parrott v. Lawrence, 2 Dillon, 332; extreme language: "The destructive results Saginaw Gas Co. v. Saginaw, 28 Fed. seq.; Omaha Ry. v. Omaha Ry., 30 Fed. 388. Petition of Mt. of a rate war waged between two great sys Washington Rd., 35 N. H. 134; Tuckahoe Canal v. tems of railroads are recognized and depre cated by men of the greatest ability who Railroad, 11 Leigh 73.
