"THE ORANGE ROUTING CASE cerned. But on the other hand, to sustain any joint tariff between competing roads would have been to violate the plain provi sions of the law. The learned circuit judge met the issue squarely and decided in favor of the law. The Supreme Court of the United States, realizing the absurdity of the law, decided in favor of common sense and the practical needs of the public. To do so the court was obliged to strain a point and use a little sophistry. It decides that the joint tariff in question does not restrain competition between the competing carriers, because they were not competing carriers. They "were really not competing roads," it says, because "prior to the adoption of the routing rule these connecting railroads were already acting under a through rate tariff which continued up to the time when the agreement for the routing was adopted. When so acting it was no longer possible to compete with each other as to rates." This is of course merely begging the question; it only removes the inquiry a little further back. If the present tariff is void the pre vious one was also, and it will not do to say that the present one is valid, because there had been another theretofore precisely like it, restraining competition in the same way. Indeed, the invalidity of the previous tariff is all but admitted by the language of the court, when it says, "The railroads are no longer rate-competing roads after the adop tion of a through rate tariff by them." The conclusion is irresistible that a tariff which accomplishes such a destruction of compe tition is void. Never has the utter impracticability of the principle of competition been so clearly demonstrated. When the Supreme Court is reduced, in the interest of common sense and the public good, thus to decline, in the face of the statute, to apply the principle, it • is evident there is some fundamental defi ciency in the doctrine itself. It is an admis sion in the particular case, of the fact which has become notorious in all phases of com mercial life, that in application the principle
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retards progress, opens the door to fraud, prevents necessary conveniences, is incon sistent within itself, makes the struggle for life bitter and unscrupulous and, to use a phrase of Mr. Justice Holmes, makes "eter nal the bellum omnium contra omnes." The present frenzy of enthusiasm for this princi ple is sufficiently strange in itself, and, as may be supposed, its expression takes strange form. In Kansas City two business men have been sentenced to the penitentiary for competing with the only weapon avail able — the rebate. In Toledo five business men have, on the other hand, been sentenced to the workhouse for a year for not compet ing at all. The Government proposes a great and definitive attack in the near future upon the greatest competitor of all, the Standard Oil Company, for the reason, ap parently, that it has been too successful in a battle to which this very Government has continually encouraged it. And when we remember that the foundations of its suc cess were laid at a time when the means used were not unlawful, and that those means, to wit, the procurement of lower rates for a greater volume of business, are daily employed with universal approval in the barter of every commodity and service known to trade except the single item of transportation, the attitude of criticism seems peculiar in the extreme. At any rate, it is not disclosed to us what alternative re mains when one is liable to be sent to the penitentiary for engaging in competition of the only possible kind and equally liable for not engaging in competition at all. In the present case not one of the parties concerned came into court with clean hands . They had engaged in a rebate war of the most obnoxious sort; they proposed to enter into a combination of the most obnoxious sort. It was not possible, under the ap proved system, that their hands should be clean. No moral turpitude was involved whatever. "We tried," said the assistant traffic manager of the Santa Fe" with consid erable naivete, "the costly experiment of
