Indeed, it seems to me there can be no doubt that reasonable contracts cannot be embraced within the provisions of the statute if it be interpreted by the light of the supreme rule commanding that the intention of the law must be carried out, and it must be so construed as to afford the remedy and frustrate the wrong contemplated by its enactment.

PLAIN INTENTION OF THE STATUTE.

TO PROTECT LIBERTY OF CONTRACT AND THE FREEDOM OF TRADE-EFFECT OF PRESENT INTERPRETATION.

The plain intention of the law was to protect the liberty of contract and the freedom of trade. Will this intention not be frustrated by a construction which, if it does not destroy at least gravely impairs both the liberty of the individual to contract and the freedom of trade? If the rule of reason no longer determines the right of the individual to contract or secures the validity of contracts upon which trade depends and results, what becomes of the liberty of the citizen or of the freedom of trade? Secured no longer by the law of reason, all these rights become subject, when questioned, to the mere caprice of judicial authority. Thus, a law in favor of freedom of contract, it seems to me, is so interpreted as to gravely impair that freedom. Progress and not reaction was the purpose of the act of congress. The construction now given the act disregards the whole current of judicial authority and tests the right to contract by the con. ceptions of that right entertained at the time of the year books instead of by the light of reason and the necessity of modern society. To do this violates, as I see it, the plainest conception of public policy, for, as said by Sir G. Jessel, Master of the Rolls, in Printing Company v. Sampson (L. R. 19 Eq., 465): "If there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice."

STRIKES DOWN INTEREST OF THE MANY.

The remedy intended to be accomplished by the act of congress was to shield against the danger of contract or combination by the few against the interest of the many and to the detriment of freedom. The construction now given, I think, strikes down the interest of the many to the advantage and benefit of the few. It has been held in a case involving a combination among workingmen, that such combinations are embraced in the act of congress in question, and this view was not doubted by this court. (In re Debs, 64 Fed. Rep., 724, 745-755; 158 U. S., 564.) The intrepretation of the statute, therefore, which holds that reasonable agreements are within its purview, makes it embrace every peaceable organization or combination of the laborer to benefit his condition either by obtaining an increase of wages or diminution of the hours of labor. Combinations among labor for this purpose were treated as illegal under the construction of the law which included reasonable contracts within the doctrine of the invalidity of contract or combinations in restraint of trade, and they were only held not to be embraced within that doctrine either by statutory exemption therefrom or by the progress which made reason the controlling factor on the subject. It follows that the construction which reads the rule of reason out of the statute embraces within its

inhibition every contract or combination by which workingmen seek to peaceably better their condition. It is, therefore, as I see it, absolutely true to say that the construction now adopted which works out such results not only frustrates the plain purpose intended to be accomplished by congress, but also makes the statute tend to an end never contemplated, and against the accomplishment of which its provisions were enacted.

INTENT OF THE ACT OF 1890.

But conceding for the sake of argument that the words "every contract in restraint of trade,” as used in the act of congress in question, prohibits all such contracts, however reasonable they may be, and therefore that all that great body of contracts which are commonly entered into between individuals or corporations and which promote and develop trade, and which have been heretofore considered as lawful are no longer such; and conceding, also, that agreements entered into by associations of workingmen to peaceably better their condition either by obtaining an increase or preventing a decrease of wages or by securing a reduction in the hours of labor, or for mutually protecting each other from unjust discharge, or for other reasonable purposes, have become unlawful, it remains to consider whether the provisions of the act of 1890 were intended to apply to agreements made between carriers for the purpose of classifying the freight to be by them carried or preventing secret cutting of the published rates; in other words, whether the terms of the statute were intended to apply to contracts between carriers entered into for the purpose of securing fairness in their dealings with each other and tending to protect the public against improper discrimination and sudden changes in rates. To answer this question involves deciding whether the act here relied upon was intended to abrogate the provisions of the act of congress of the 4th of February, 1887, and the amendments thereto, commonly known as the interstate commerce act. The question is not whether railway companies may not violate the terms of the statute of 1890 if they do acts which it forbids and punishes, but whether that statute was intended to abrogate the power of railway companies to make contracts with each other which are either expressly sanctioned by the interstate commerce act or the right to make which arises by reasonable implication from the terms of that act: that is to say, not whether the act of 1890 is not operative upon all persons and corporations, but whether, being so generally operative, it was intended to forbid, as in restraint of trade, all contracts on the subjects embraced within and controlled by the interstate commerce law. The statute commonly known as the interstate commerce law was a special act and it was intended to regulate interstate commerce transported by railway carriers. All its provisions directly and expressly related to this subject. The act of 1890, on the contrary, is a general law, not referring specifically to carriers of interstate commerce. The rule is that a general law will not be held to repeal a special statute unless there be a clear implication unavoidably resulting from the general law that it was the intention that the provisions of the general law should cover the subject matter previously expressly and specifically provided for by particular legislation. The doctrine on this subject is thus stated in ex parte Crow Dog (109 U S. 570):

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GENERAL PRINCIPLE TO BE APPLIED.

The general principle to be applied,' said Boville, C. J, in Thorpe v. Adams (L. R. 6 C. P. 135), 'to the construction of acts of parliament, is that a general act is not to be construed to repeal a previous particular act, unless there is

some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together.' 'And the reason is,' said Wood, V. C. Fitzgerald v. Champenys (30 L. J. N. S. Eq 782; 2 Johns. & Hem. 31-54), that the legislature, having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intend by a general enactment afterward to derogate from its own act when it makes no special mention of its intention so to do.'"

These principles thus announced are treated as elementary by the text writers. (Endlich on Interpretation of Statutes, section 223; Sedgwick on Statutory Construction, sections 157, 158; Sutherland on Statutory Construction section 157 )

RELATION TO INTERSTATE COMMERCE.

ACT OF 1890 NOT DESIGNED TO COVER PARTICULAR SUBJECTS COVERED BY THE LAW OF 1887.

Does, therefore, the implication irresistibly arise that congress intended in the act of 1890 to abrogate, in whole or in part, the provisions of the act of 1887, regulating interstate commerce? It seems to me that the nature of the two enactments clearly demonstrates that there was no such intention. The act to regulate interstate commerce expressed the purpose of congress to deal with a complex and particular subject which from its very nature, required special legislation. The act was the initiation of a policy by congress looking to the development and working out of a harmonious system to regulate the highly important subject of interstate transportation.

Conceding arguendo that the debates which took place at the time of the passage of the act of 1890 may not be resorted to as a means of interpreting its text, yet a review of the proceedings connected with the passage of the act of July 2, 1890, through the two houses of congress, it seems to me, leaves no room for question that the act was not designed to cover the particular subjects which had been theretofore specially regulated by provisions of the interstate commerce law.

CONGRESSIONAL PROCEEDINGS.

Prior to the passage of the act of 1890 various reports had been made to congress concerning the operations of the interstate commerce act, in which the commission pointed out the desirability and necessity of contracts between railroad companies in the matter of classification, stable rates, etc. After the act of 1890 had been adopted in the senate it was amended in the house of representatives so as to specifically include among the contracts declared lawful "contracts for the transportation of persons or property from one state or territory into another." (Cong. Rec. vol. 21, part 5, pp. 4,099, 4,144) On the return of the bill to the senate the amendment was agreed to with the added provision that the contracts for transportation be prohibited, "should only be such as raise the rates of transportation above what is just and reasonable." (Ib. 4,753.) The house refused to concur in the senate amendment. A conference committee was appointed by both bodies, which recommended that the house of representatives recede from its disagreement to the amendments of the senate and agree to the same modified by the addition of the provision that "nothing in this act shall be deemed or held to impair the powers of the several states in respect to any of the matters in this act mentioned." In a statement accompanying the report, Mr. Stewart, for the conferrees on the part of the house, said: