Ill. 449, 6 N. E. 49;; Lake Shore & M. S. R. Co. v. Baltimore & O. & C. R. Co. 149 Ill. 272, 37 N. E. 91; McAboy's Appeal, 107 Pa. 558; Volmer's Appeal, 115 Pa. 166, 8 Atl. 223; Wheeling Bridge & Terminal R. Co. v. Camden Consol. Oil Co. 35 W. Va. 205, 13 S. E. 369; Greenville & H. R. Co. v. Grey, 62 N. J. Eq. 768, 48 Atl. 568; Baltimore & O. R. Co. v. Waters, 105 Md. 396, 12 L.R.A. (N.S.) 326, 66 Atl. 685; Blanton v. Richmond, F. & P. R. Co. 86 Va. 618, 10 S. E. 925; Howard County v. Central Nat. Bank, 108 U. S. 314, 27 L. ed. 738, 2 Sup. Ct. Rep. 689; Interstate Commerce Commission v. Delaware, L. & W. R. Co. 216 U. S. 531, 537, 54 L. ed. 605, 607, 30 Sup. Ct. Rep. 415. Denison Assistant Attorney General argued the cause, and, with Mr. Thurlow M. Gordon, Special Assistant to the Attorney General, filed a brief for the United States: If either of the petitioning roads were attempting to build the line of the traction company under a charter provision permitting it to build lateral branch roads, the construction could not be enjoined as ultra vires. & T. R. Co. 12 Inters. Com. Rep. 483; Mr. C. B. Matthews filed a brief for appellant the Cincinnati & Columbus Traction Company. Messrs. R. Walton Moore, Edward Barton, and Theodore W. Reath argued the cause and, with Messrs. Joseph I. Doran and F. Markoe Rivinus, filed a brief for appellees: What other conceivable definition of a lateral branch railroad, as the term is used in the clause, can be adopted than that it is a line of railroad, naturally tribu Newhall v. Galena & C. U. R. Co. 14 Ill. 274; McAboy's Appeal, 107 Pa. 548; Volmer's Appeal, 115 Pa. 166, 8 Atl. 223; Baltimore & O. R. Co. v. Waters, 105 Md. 396, 12 L.R.A.(N.S.) 326, 66 Atl. 685; Green-tary to the line of the common carrier, and ville & H. R. Co. v. Grey, 62 N. J. Eq. 770, 48 Atl. 568; Florida, A. & G. C. R. Co. v. Pensacola & G. R. Co. 10 Fla. 145; Blanton v. Richmond, F. & P. R. Co. 86 Va. 618, 10 8. E. 925. This broad interpretation of the words "lateral branch line" not only accords with the statutory significance incrusted upon these words at the time of their adoption by Congress, but it is necessary to the accomplishment of the remedial purposes of the act. Interstate Commerce Commission v. Delaware, L. & W. R. Co. 216 U. S. 537, 54 L. ed. 607, 30 Sup. Ct. Rep. 415. entirely dependent upon it for an outlet to the markets of the country? See Interstate Commerce Commission v. Delaware, L. & W. R. Co. 216 U. S. 531, 54 L. ed. 605, 30 Sup. Ct. Rep. 415; Blanton v. Richmond, F. & P. R. Co. 86 Va. 618, 10 S. E. 925. The order of the Commission is invalid because the foundation of the order was the independent investigation of the Commission, not contemplated or permitted by the commerce act. Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 510, 56 L. ed. 863, 32 Sup. Ct. Rep. 535; Atlantic Coast The order is not void because as to the Line R. Co. v. Interstate Commerce Comphysical condition of the traction commission 194 Fed. 457; Saratoga Springs v. pany's line, the Commission supplemented Saratoga Gas, Electric Light, Heat & P. the testimony of witnesses by independent Co. 191 N. Y. 123, 18 L.R.A. (N.S.) 713, investigations. 83 N. E. 693, 14 Ann. Cas. 606; People ex rel. Bath & H. R. Co. v. Public Service Commission, 127 App. Div. 480, 112 N. Y. Supp. 133; Interstate Commerce Commission v. Union P. R. Co. 222 U. S. 541, 547, 56 L. ed. 308, 311, 32 Sup. Ct. Rep. Cederberg v. Robison, 100 Cal. 93, 34 Pac. 625; Sutherland, Damages, § 441, note, 1; Wigmore, Ev. §§ 1150-1168; People v. Delaware & H. Canal Co. 165 N. Y. 362, 59 N. E. 138; Interstate Commerce Commission v. Baird, 194 U. S. 25, 48 L. ed. 860, 24108. Sup. Ct. Rep. 563; Boston Fruit & Produce Exch. v. New York & N. E. R. Co. 3 Inters. Com. Rep. 493, 4 I. C. C. Rep. 664; Missouri & K. Shippers' Asso. v. Missouri, K. 57 L. ed. Mr. Edward Barton also filed a separate brief for the Baltimore & Ohio Southwestern Railroad Company: The line of the traction company is 105 strictly within the definition of a parallel, for passengers and some freight, running and competing road. Com. v. Louisville & N. R. Co. 144 Ky. 324, 138 S. W. 291; East St. Louis Connecting R. Co. v. Jarvis, 34 C. C. A. 639, 92 Fed. 735. Congress must have had in contemplation as a lateral branch line something different from the ordinary description of railroad. Interstate Commerce Commission v. Delaware, L. & W. R. Co. 216 U. S. 531, 535, 54 L. ed. 605, 606, 30 Sup. Ct. Rep. 415; Baltimore & O. R. Co. v. United States, 215 U. S. 481 54 L. ed. 292, 30 Sup. Ct. Rep. 164, 154 Fed. 108, 91 C. C. A. 147, 165 Fed. 113. under a state charter between Norwood and Hillsboro, through the middle of the diamond inclosed by the steam roads, and authorized to go on to Columbus. For number of miles easterly from Norwood to Stonelick, near Boston, the last-mentioned road is very near and almost parallel to the tracks of one or the other of the steam roads, as it is again for the last 5 miles before reaching Hillsboro. In the intervening space, between Boston and Dodsonville, the towns and villages on the electric line are from 5 to 10 or 12 miles by wagon distant from the nearest station on one of the steam roads. The Traction Company applied to the Commission for switch connections, and they were ordered as we have said. Lateral branch lines, which are in many respects only plant facilities, and so rather themselves to be classed as private side tracks than as trunk lines or railroads Some technical objections were raised, proper, are common throughout the coun- but the substantial question is whether the try, and have been for many years. Their Traction Company is a "lateral branch line status as shipping facilities rather than of railroad" within the meaning of the common carriers has been recognized by the Interstate Commerce Commission time and again. Crane R. Co. v. Philadelphia & R. R. Co. 15 Inters. Com. Rep. 248; Crane Iron Works v. Central R. Co. 17 Inters. Com. Rep. 514. The traction company is so organized, constructed, maintained, operated, and equipped under the laws of Ohio as that it cannot be deemed a lateral branch line of railroad with respect to appellees. Cosmopolitan Shipping Co. v. HamburgAmerican Packet Co. 13 Inters. Com. Rep. 266; Re Exchange of Free Transportation, 12 Inters. Com. Rep. 39; Wylie v. Northern P. R. Co. 11 Inters. Com. Rep. 145. 1st section of the act to regulate commerce, amended by act of June 18, 1910, chap. 309, § 7, 36 Stat. at L. 539, 547. That section requires carriers subject to the act to establish switch connections with such lines on certain conditions; and, as amended, permits owners of such lines as well as shippers to make complaint to the Commission in case of the carriers' failure upon written application, and authorizes the Commission to hear, investigate, and *determine whether the conditions exist,[19 and to make an order directing the carrier to comply with the act. It will be seen without much argument that, unless the Traction Company is a lateral, branch line of railroad, the trunk line carriers, the appellees, are not subject to the requirement Mr. Justice Holmes delivered the opin- of the statute, so far as the Traction Comion of the court: pany is concerned. This is a suit to set aside an order of The words "lateral branch line" do not the Interstate Commerce Commission, di- refer to what the applicant may become recting the appellees to establish switch or be made by order of the Commission, connections with the road of the appellant, but to what it already is when it applies. and also through routes to and from points The power of the Commission does not ex18]on that road. 20 *Inters. Com. Rep. 486. tend to ordering a connection wherever it The commerce court made a decree as sees fit, but is limited to a certain and prayed (195 Fed. 962), and an appeal was somewhat narrow class of lines. The most taken to this court. The facts material obvious examples of such lines are those to our decision are as follows: The Balti-that are dependent upon and incident to more & Ohio Southwestern Railroad and the main line,-feeders, such as may be the Norfolk & Western Railway are trunk lines of steam railroads running east and west across the state of Ohio. After almost touching each other at Norwood, a suburb of Cincinnati, they draw apart, the former in a northerly, the latter in a southerly, direction, but come together again at Hillsboro, about 53 miles further to the east. The line of the Traction Company is an "interurban" electric railway, built from mines or forests to bring coal, ore, or lumber to the main line for ship. ment. We agree with the commerce court that the Traction Company is not within this class. It is an independent venture, in its general course parallel to, more or less competing with, the steam roads, and working on a different plan. Presumably and so far as appears it was built and would have been run without regard to the the ostensible object of the agreements, also provide for regulating prices through the instrumentality of a price and schedule committee, fix preferential discounts, confining them to sales to jobbers only, authorize reobserved, and forbid all sales to jobbers not bates if the agreements shall be faithfully in the combination, making a condition of their entry a promise not to resell to existence of the steam roads. The cases cited on behalf of the appellants as to the power of railroad companies to construct branch roads under their charter do not apply. There the determination of the company fixes the character of the branch; it builds the branch from the beginning as incident to the purposes of the company. But here, as we have said, this determina-plumbers except at the prices determined by tion of the Commission that the applicants shall be a branch is not enough; the applicant must be a branch before it applies. That is the absolute and reasonable condition. That some shippers would be ac commodated by a switch connection is not enough. The order to maintain through routes was incident to the requirement of switch con20]nections and falls with it. We understand that it was based on the assumption that the connections were to be made, and therefore do not go into the question of power under § 15. It is unnecessary to consider objections to the conclusion of the Commission that it was safe and reasonably practicable, etc., the manufacturers, and not to deal in the [For other cases. see Monopoly, 20-23, in corporation engaged in interstate commerce. 2. A corporation manufacturing its product in New Jersey, and buying also from other manufacturers and jobbers, which ships from there to its warehouses in Massachusetts and New York, from which sales is engaged in interstate commerce, and as are made in those states and in Connecticut, Sherman anti-trust act of July 2, 1890, such is subject to the prohibitions of the against restraints of trade and monopolies. [For other cases, see Monopolies, II. b, in Digest Sup. Ct. 1908.] Monopoly manufacturers or dealers culpability. to establish the switch. We remark that it is stated in the Commissioner's report that they base their conclusion more largely upon their own investigation than upon the testimony of the witnesses. It would be a very strong proposition to say that the parties were bound in the higher courts by a finding based on specific investigations bination of manufacturers and jobbers 3. The culpability of a party to a commade in the case without notice to them. which accomplishes a restraint of trade conSee Washington ex rel. Oregon R. & Nav. demned by the Sherman anti-trust act of Co. v. Fairchild, 224 U. S. 510, 525, 56 July 2, 1890, is not removed because it was L. ed. 863, 868, 32 Sup. Ct. Rep. 535. Such | restricted in less degree than the other joban investigation is quite different from a bers, enjoying a certain freedom of comview by a jury, taken with notice and sub-petition to meet local conditions. ject to the order of a court, and different (For other cases, see Monopolies, II. b, iD Digest Sup. Ct. 1908.] again from the question of the right of the Appeal Commission to take notice of results reached by it in other cases, when its doing so is made to appear in the record, and the facts thus noticed are specified, so that matters of law are saved. Decree affirmed. continua discretion below ance or adjournment. 4. The trial court did not abuse its discretion in denying a motion by defendants in a civil suit brought by the government under the Sherman anti-trust act of July 2, 1890, for an enlargement of time to take testimony, based upon the ground that they had been prevented by the action of the government in instituting criminal proceedings from properly presenting their defense, in that the government, apprehending that the witnesses for the defense were called to give them immunity from the criminal prosecution then pending, notified them that if they testified, they would de so at their peril, as immunity could only NOTE. As to what relation a contract or combination must bear to interstate commerce in order to bring it within the scope of the Federal anti-trust act-see note to Loewe v. Lawlor, 52 L. ed. U. S. 488. As to illegal trusts under modern antitrust laws generally-see note in Whitwell v. Continental Tobacco Co. 64 L.R.A. 689. [No. 554.] be claimed by witnesses for the govern- | Crown Cork & Seal Co. v. Brooklyn Botment, whereupon, on the advice of counsel, tle Stopper Co. 172 Fed. 225; Crown Cork they refused to testify, leaving the defend- & Seal Co. v. Standard Brewery, 174 Fed. ants without the benefit of the evidence 252; Crown Cork & Seal Co. v. Standard which they could have given. [For other cases, see Appeal and Error, VIII. Stopper Co. 69 C. C. A. 519, 136 Fed. 841; 1, 2, in Digest Sup. Ct. 1908.] Cortelyou v. Lowe, 49 C. C. A. 671, 111 Fed. 1005; Cortelyou v. Carter's Ink Co. 118 Fed. 1022; Cortelyou v. Charles Eneu Johnson & Co. 138 Fed. 110, 76 C. C. A. 455, 145 Fed. 933; Brodrick Copygraph Co. v. Roper, 124 Fed. 1019; A. B. Dick Co. v. Milwaukee Office Specialty Co. 168 Fed. 930; B. V. D. Co. v. Wolf & Co. (Oct. 20, 1911; Cir. Ct. Cinn.); Indiana Mfg. Co. v. Nichols & S. Co. 190 Fed. 579; Auto Argued October 15, 16, and 17, 1912. Decided November 18, 1912. A PPEAL from the District Court of the land to review a decree in favor of the government in a suit to enjoin violations If what was done was legal, the question of motive on the part of anybody is clearly immaterial. Diamond Match Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep. 464, 13 N. E. 419; McCune v. Norwich City Gas Co. 30 Conn. 521, 79 Am. Dec. 278; Glendon Iron Co. v. Uhler, 75 Pa. 467, 15 Am. Rep. 599; 20 Harvard L. Rev. 253, 345, 429. The owner of letters patent can control unpatented articles used in connection with the machine embodying his invention. Henry v. A. B. Dick Co. 224 U. S. 1, 56 L. ed. 645, 32 Sup. Ct. Rep. 364; Bloomer v. McQuewan, 14 How. 539, 548, 14 L. ed. 532, 536; United States v. American Bell Teleph. Co. 167 U. S. 224, 42 L. ed. 144, 17 Sup. Ct. Rep. 809; Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co. 83 C. C. A. 336, 154 Fed. 358; Goshen Rubber Works v. Single Tube Automobile & Bicycle Tire Co. 92 C. C. A. 183, 166 Fed. 431; Indiana Mfg. Co. v. J. I. Case Threshing Mach. Co. 83 C. C. A. 343, 154 Fed. 365; United States Consol. Seeded Raisin Co. v. Griffin & S. Co. 61 C. C. A. 334, 126 Fed. 364; Rupp & W. Co. v. Elliott, 65 C. C. A. 544, 131 Fed. 730; New Jersey Patent Co. v. Schaeffer, 101 C. C. A. 540, 159 Fed. 171, 178 Fed. 276; Victor Talking Mach. Co. v. The Fair, 61 C. C. A. 58, 123 Fed. 424; Fonotipia Limited v. Bradley, 171 Fed. 951; National Phonograph Co. v. Schlegel, 64 C. C. A. 594, 128 Fed. 733; Edison Phonograph Co. v. Pike, 116 Fed. 863; Edison Phonograph Co. v. Kaufmann, 105 Fed. 960; The Fair v. Dover Mfg. Co. 92 C. C. A. 43, 166 Fed. 117; Commercial Acetylene Co. v. Autolux Co. 181 Fed. 387; Aeolian Co. v. Harry H. Juelg Co. 86 C. C. A. 205, 155 Fed. 119; matic Pencil Sharpener Co. v. Goldsmith The agreements in the case at bar are not within the Sherman act. The agree ments were purely economic arrangements for the purpose of manufacturing and distributing economically and systematically in strict and normal compliance with modern trade progress, sanitary enameled ironware. United States v. Winslow, 195 Fed. 592. They were open upon the same terms to all who chose to take advantage of them. United States v. Terminal R. Asso. 224 U. 8. 383, 398, 410, 56 L. ed. 810, 815, 819, 32 Sup. Ct. Rep. 507. They were, moreover, based upon patents which created a true monopoly, a grant from the sovereign,-the Constitution,so that to hold that this monopoly was violative of the Sherman act would be judicial legislation and an attack upon the whole patent system. Henry v. A. B. Dick Co. 224 U. 8. 1, 16, 27, 35, 56 L. ed. 645, 651, 655, 658, 32 Sup. Ct. Rep. 364. Consequently, it has been held that the Sherman act and the patent laws were passed under separate grants of consti tutional power, and do not affect each other. E. Bement & Sons v. National Harrow Co. 186 U. S. 70, 91, 46 L. ed. 1058, 1068, 22 Sup. Ct. Rep. 747; Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co. 83 C. C. A. 336, 154 Fed. 358. The true construction of the so-called anti-trust act, and one that is not in conflict with any of the decisions, is that it does not condemn a fair and reasonable attempt to avoid loss by means of trade agreements which are intended to prevent nothing but the cutting of rates below the 'reasonable expense of production and rea States v. American Tobacco Co. 221 U. S. 106, 179, 55 L. ed. 663, 693, 31 Sup. Ct. Rep. 632; United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540. Restraint is often mere regulation, or temporary obstruction, for the purpose of clearing out the channel and letting the stream flow at full tide. United States v. Winslow, 195 Fed. 586. Both the Standard Oil Case and the Tobacco Case are in accord with all the previous decisions of the court, as will appear from a careful examination of the other decisions in connection with the facts of each case, which were before the court. United States v. Winslow, 195 Fed. 587. The decision in the Standard Oil Case holds that the test to determine whether or not a given contract or combination is in restraint of interstate trade and commerce is the standard of reason as applied to like contracts at common law. United Shoe Machinery Co. v. La Chap- C. C. A. 13, 167 Fed. 729; Camors-McConelle, 212 Mass. 467, 99 N. E. 289. Statutes are not to be interpreted to change the common law except so far as a purpose so to do is necessarily implied. United States v. Winslow, 195 Fed. 578; Northern Securities Co. v. United States, 193 U. S. 197, 361, 48 L. ed. 679, 710, 24 Sup. Ct. Rep. 436; Standard Oil Co. v. United States, 221 U. S. 51, 59, 60, 55 L. ed. 641, 644, 645, 34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912 D, 734. While the expressions of opinion during debate upon a bill are not evidence by which the bill is to be construed, still the fact that a bill contains a provision with reference to competition, and is then enacted leaving out all reference to competition, and using phrases which had an ascertained meaning at the time of the enactment of the bill, does bear very materially upon the construction to be given to the act. United States v. E. I. du Pont de Nemours & Co. 188 Fed. 127. The Sherman act has no application, because the agreements were an economic arrangement to meet the demands of the market. United States v. E. C. Knight Co. 156 U. S. 1, 39 L. ed. 325, 15 Sup. Ct. Rep. 249; Bigelow v, Calumet & H. Min. Co. 94 nell Co. v. McConnell, 140 Fed. 412, 72 C. C. A. 681, 140 Fed. 987; Whitwell v. Continental Tobacco Co. 64 L.R.A. 689, 60 C. C. A. 290, 125 Fed. 454; Prame v. Ferrell, 92 C. C. A. 374, 166 Fed. 702: Hopkins v. United States, 171 U. S. 578, 43 L. ed. 290, 19 Sup. Ct. Rep. 40; Anderson v. United States, 171 U. S. 604, 43 L. ed. 300, 19 Sup. Ct. Rep. 50; Cincinnati, P. B. S. & P. Packet Co. v. Bay, 200 U. S. 179, 184, 50 L. ed. 428, 432, 26 Sup. Ct. Rep. 208; Phillips v. Iola Portland Cement Co. 61 C. C. A. 19, 125 Fed. 593; Northern Securities Co. v. United States, 193 U. S. 197, 48 L. ed. 679, 24 Sup. Ct. Rep. 436; United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540; United States v. Joint Traffic Asso. 171 U. S. 505, 43 L. ed. 259, 19 Sup. Ct. Rep. 25; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 44 L. ed. 136, 20 Sup. Ct. Rep. 96; W. W. Montague & Co. v. Lowry, 193 U. S. 38, 48 L. ed. 608, 24 Sup. Ct. Rep. 307; Swift & Co. v. United States, 196 U. S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep. 276; Loewe v. Lawlor, 208 U. S. 274, 52 L. ed. 488, 28 Sup. Ct. Rep. 301, 13 Ann. Cas. 815; Shawnee Compress Co. v. Anderson, 209 U. S. 423, 433, 52 L. ed. 865, 875, 28 Sup. Ct. Rep. 572. It is "the dominant purpose" of the parties which determines the character of the agreements. Darius Cole Transp. Co. v. White Star Line, 108 C. C. A. 165, 186 Fed. 63. Ibid; United States v. John Reardon & Sons Co. 191 Fed. 454; United States v. Terminal R. Asso. 224 U. S. 383, 56 L. ed. 810, 32 Sup. Ct. Rep. 507; Mogul S. 8. Co. v. McGregor, L. R. 23 Q. B. Div. 598, affirmed in [1892] A. C. 25, 61 L. J. Q. B. N. 8. 295, 66 L. T. N. S. 1, 40 Week. Rep. 337, 7 Asp. Mar. L. Cas. 120, 56 J. P. 101; Hopkins v. United States, 171 U. S. 578, 592, 43 L. ed. 290, 296, 19 Sup. Ct. Rep. 40; United States v. Joint Traffic E. Bement & Sons v. National Harrow Co. Asso. 171 U. §. 505, 567, 43 L. ed. 259, 186 U. S. 70, 46 L. ed. 1058, 22 Sup. Ct. 286, 19 Sup. Ct. Rep. 25; Standard Oil Rep. 747; Rubber Tire Wheel Co. v. MilCo. v. United States, 221 U. S. 51, 55 L.waukee Rubber Works Co. 83 C. C. A. 336, ed. 641, 34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912 D, 734; Fonotipia, Limited, v. Bradley, 171 Fed. 959; United The Sherman act has no application to agreements under the patent law. 154 Fed. 362; Goshen Rubber Works v. Single Tube Automobile & Bicycle Tire Co. 92 C. C. A. 183, 168 Fed. 431; Indiana |