but these general averments are qualified by statements of what the plaintiff does, for it likewise avers what it is in which the plaintiff is engaged, and hence the questions do arise (1) whether this is commerce, and (2) whether it is interstate. What the plaintiff did was to receive interstate shipments carried by the railroad, either consigned to him or in his care, for the patrons of his warehouse, and to receive from the latter shipments to be made in interstate commerce. It is true he did not have title to the shipment, but the commercial character of the shipment does not turn upon the ownership of what was shipped. Commerce is business intercourse. If it takes the form of transportation, its commercial character is independent of what is shipped or who owns it. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23.
We are of opinion that the plaintiff was engaged in commerce and in interstate commerce.We see a well-defined difference between the Commerce Act and the Sherman Act. They have different objectives. The former is aimed at control of the carriers to the end that they may not exact excessive rate charges; the latter is aimed at those who would restrain or monopolize commerce. It is true that the forbidden thing in the former may, and we assume always would, tend to interrupt or diminish the flow of commerce, allthough it is conceivable that it might not. The forbidden thing in the latter is the restraint or monopoly of commerce. It might well be that the trade of A could be destroyed through a conspiracy which used as one of its instrumentalities the imposition of killing tariff transportation rates upon B. The distinction between the two injuries is no less real if A and B were the same person. If they were, we see no legal obstacle in either act to A appealing to the Commission to stop the illegal exaction under the one act and to appeal to the courts to award him damages under the other. In moving to this conclusion, we do not encounter Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 43 S. Ct. 47, 67 L. Ed. 183.
In that case the question was not of commerce but of rates. The charge was that a number of carriers had conspired to exact undue tariff rates. An appeal was made to the Commission, with the result that the rates were held to be reasonable and lawful. An appeal was then made to the courts under the Sherman Act, but there was no complaint other than a conspiracy to exact an excessive tariff charge. It was held that the plaintiff had no cause of action and that the Sherman Act gave no right of action; the sole remedy for an excessive tariff rate injury being given by the Commerce Act.
Here the injury complained of is not the exaction of an undue transportation rate but an injury to plaintiff's trade. The charge has no reference to the tariff rate other than that this was used as one of the instrumentalities by which injury to trade was done.
The argument addressed to us assumes the plaintiff to have no complaint (as in the Keogh Case) except of an excessive tariff charge. This is not only not the only complaint but it is not the complaint at all.
The conclusion reached is that the plaintiff may resort to the Sherman Act for redress of the injury to his trade.
The further point made that the carrier and its favored warehouseman are not competitors is a fact, but we cannot accept the application made of it beyond its possible trial use to acquit the carrier of participation in a conspiracy to monopolize a trade in which it had no interest. The plaintiff and the warehouse defendant are, however, competitors, and, if the carrier, although without interest, joined in the conspiracy charged, it would be answerable. Moreover, the further complaint is that it is interested.
The remaining points made we find no need to pass upon at this time. It may or may not be true that the contracts do not in themselves "constitute a restraint or monopoly of the warehousing business." The charge, as several times said, is the wholly different one of a conspiracy to monopolize with the contracts averred to be among the means used to achieve the plotted result. What the fact may be is a trial question. So likewise the defensive proposition, that the plaintiff having appealed to the Commission has lost his right of appeal to the courts. The answer is a reiteration. The basis of the action is a conspiracy to give one of the defendants a monopoly of the warehousing business to aid in accomplishing which the other defendant made unlawful use of its rate making powers. This unlawful use was stopped by the Commission, but it does not follow that the plaintiff is thereby shut out from seeking the remedy given by the Sherman Act.
We are of opinion that the questions of law raised should be ruled in favor of the plaintiff, with leave to defendants to file an affidavit of defense to the fact averments of the statement of claim, in accordance with the Pennsylvania Practice Act of 1915 (12 PS Pa. § 382 et seq.).
An appropriate order may be submitted, and a like order entered, in No. 16774, March sessions, 1932.
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