right of action until and only as unlawfulness is found. The commission is given judicial or semijudicial power to find, when the power is invoked, the reparation to which a complainant has the right. The jurisdiction of the commission is restricted to common carriers and its awards so limited.
An injured party is given another right of action by the Sherman Anti-Trust law. The cause of action is wholly different from that of the right of action given by the commerce acts. It is given to recover damages flowing from an unlawful conspiracy. It is not restricted to carriers nor aimed at them as such. Any two or more persons may be conspirators. As before remarked, if one of the conspirators happens to be a common carrier, it is a mere coincidence. An overt act of the conspiracy may or may not have to do with the business of a carrier, nor does it matter whether the act is in itself lawful or unlawful for, as before said, a conspiracy may be unlawful because of an unlawful end, although the means by which accomplished may in themselves not be unlawful.
This we think is the doctrine of Keogh v. Chicago & N.W.R. Co., 260 U.S. 156, 43 S. Ct. 47, 67 L. Ed. 183. That case, it is true, was for a cause of action given by the Anti-Trust Act. The conspiracy charged, however, was a conspiracy among carriers to exact unlawful carrier rates. The commission had ruled that the charges exacted were not unlawful. To permit a jury under the Sherman Act to find the rates charged to be unlawful would be to deny to the commission the power to determine what rates were lawful.
The present action has a wholly different basis. It was for a charged conspiracy to monopolize the interestate part of the warehousing business. The commerce acts had directly nothing to do with it. The conspiracy would have existed and the damages recovered have been wrought if the practice of the carrier had not been found to have been unlawful. The wrongfulness of the practice did not affect the existence of the conspiracy, its unlawful character, or the damage suffered by the plaintiff. The commission could award damages only against the carrier qua carrier and for some practice as carrier condemned as unlawful. It would have no jurisdiction to award damages against conspirators who were not carriers, but in an unlawful conspiracy to do some act with which the commerce acts did not concern themselves. The fact that one of the conspirators was a carrier would not confer jurisdiction.
Another case upon which defendants rely is that of Interstate Commerce Commission v. United States, 289 U.S. 385, 53 S. Ct. 607, 77 L. Ed. 1273. Directly it does not touch the question now presented. There had been a proceeding before the commission and a "cease and desit order" directed to issue. The complainant had also asked for reparations which the commission refused to award. Application was made for a mandamus to compel the commission to make an award. This the court refused, holding the award made to be a judicial or semijudicial judgment. The duty of the commission was discussed and its scope explained. The discussion concludes with the statement that "damages for discrimination denied by the Commission are not recoverable elsewhere." Judicial utterances are not to be interpreted as abstractions, but always in the light of the fact situation to which they relate. The commission was being asked to make an award. It is fair to assume that it had the jurisdictional power to make or refuse to make the award asked. All the case rules is that its judgment could not be coerced nor could any other court make for it an award which it refused to make. This is far from ruling that one who has suffered damages through an unlawful conspiracy cannot recover for the injury done him because the Interstate Commerce Commission has found that he suffered no loss from the exaction of an unlawful rate by a common carrier. If the judgment of the commission concludes the plaintiff, it would seem to be on the res adjudicata principle. It will be noted as perhaps having some significance that the reference in the discussion is never to this principle but always to that of estoppel.
Another case upon which the defendants rely is that of Louisville & N.R. Co. v. Ohio Valley Tie Co., 242 U.S. 288, 37 S. Ct. 120, 61 L. Ed. 305. Here again the reliance is not upon the ruling made but upon general phrases which appear in the opinion. There had been an award by the commission and reparation allowed for an unlawful freight rate exacted. A suit was brought to recover business losses. This was based on the Commerce Act not the Sherman Act. The opinion, it is true, expresses the tought that the commission might have awarded reparation for "damages to (the complainant's) business," but this is qualified by the statement that it was for damages "following" the exaction of the unlawful freight rate. The language emphasized by the defendants is further qualified by the concluding words of the opinion, "If at a new trial the plaintiff can prove that the defendant * * * caused it other damage not attributable to the overcharge of freight, our decision does not prevent a recovery."
It is further to be observed that the judgment in the court below was reversed because of elements of damage which were improper having been allowed and the case directed to be retried. The case cannot be properly viewed as supporting the proposition for which the defendants stand.
Still another case is that of Pennsylvania R. Co. v. International Coal Mining Co., 230 U.S. 184, 33 S. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315. The case may be misread because not well reported. It was based upon the Commerce Act because of preferential rates. No damage was proven, the plaintiff relying solely upon the fact that preferential rates had been given. If the case stands for the broad proposition that what is of benefit to one shipper is not necessarily an injury to another, it is in line with numerous other cases. That it will not bear the reading given to it by the defendants is clear from Mecker v. Lehigh Valley R. Co., 236 U.S. 429, 35 S. Ct. 328, 59 L. Ed. 644, in which it stated that the case does not so rule.
Without further expansion of an already overlong discussion, we state the conclusion reached. It is that the award or refusal of the commission to award reparation for the exaction of unlawful freight rates by a carrier is not a bar to an action by the same complainant against the same carrier and others under the Sherman Act for "damage to his business" through an unlawful conspiracy to monopolize the business in which the complainant is engaged.
We stand for the further proposition that a practice of a carrier who is a coconspirator may be used as an instrument to advance the ends of an unlawful conspiracy, for the damage done by which the conspirators are responsible, without regard to whether the practice of the carrier as such is in itself lawful or unlawful.
The action here is for damages suffered through an unlawful conspiracy. It is not brought under the commerce acts and those acts have to do with it only incidentally.
The rule for a new trial is discharged, and the motion in arrest of judgment denied, with leave to plaintiff to move for judgment on the verdict in accordance with the Sherman Anti-Trust Act, with costs, and counsel fees.
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