Cincinnati, Portsmouth Big Sandy, Pomeroy Packet Company v. George Bay
| Decision Date | 02 January 1906 |
| Docket Number | No. 174,174 |
| Citation | 200 U.S. 179,26 S.Ct. 208,50 L.Ed. 428 |
| Parties | CINCINNATI, PORTSMOUTH, BIG SANDY, POMEROY PACKET COMPANY, Plff. in Err. , v. GEORGE W. BAY and William Bay |
| Court | U.S. Supreme Court |
Messrs. Ledyard Lincoln and Julius L. Anderson for plaintiff in error.
[Argument of Counsel from pages 179-181 intentionally omitted] Messrs.Joseph Spencer Graydon and Lawrence Maxwell, Jr., for defendants in error.
This is an action upon a contract, brought by the defendants in error to recover an instalment of money due by its terms. A judgment in their favor was sustained by the supreme court of the state, although the petition in error to that court set up that the contract was illegal under the act of Congress of July 2, 1890, chap. 647. 26 Stat. at L. 209, U. S. Comp. Stat. 1901, p. 3200. No opinion was delivered, but a certificate that this objection was relied upon, and that it necessarily was considered, was made part of the record by that court. Therefore the present writ of error properly was allowed. The record shows that the question was raised, and the certificate shows that it was not treated as having been raised too late under the local procedure, a point upon which the state court is the judge. It is enough that the Federal question was raised and necessarily decided by the highest court of the state. Farmers' & M. Ins. Co. v. Dobney, 189 U. S. 301, 47 L. ed. 821, 23 Sup. Ct. Rep. 565.
The contract was an indenture between the Portsmouth & Pomeroy Packet Company, George W. and William Bay, of the first part, and the Cincinnati, Portsmouth, Big Sandy, & Pomeroy Packet Company, of the second part. By this instrument the parties of the first part sell to the latter two steamers, two deck barges, two coal flats, and $500 in the stock of the Coney Island Wharf Boat Company, for $30,500, to be paid as therein provided. The party of the second part also agrees to pay to the Bays $3,600 annually in advance for five years, provided, however, that in case of opposition to its boats by other boats running from Cincinnati to Portsmouth, Ohio, or to points above Portsmouth, not including points above Syracuse, Ohio, causing it to carry freight and passengers at certain exceedingly low rates, the time of payment of the instalments shall be postponed until the opposition has ceased. It is further agreed that if the opposition continues for two years without interruption, and no annual payment be made, the Bays may cancel the agreement.
'It is also agreed as a part of the consideration of this agreement' that for five years the parties of the first part, or either of them, shall not be 'engaged in running or in operating, or in any way be interested in any freight and passenger packet or business, or either of them, at and from Cincinnati, Ohio, to Portsmouth, Ohio, and intermediate points; nor at and from Portsmouth, Ohio, to Cincinnati, Ohio, and intermediate points; nor at and from Syracuse, Ohio, or points between Syracuse and Portsmouth, Ohio, to or for points below Portsmouth, Ohio,' with a qualification as to the towing and barge business, so long as it does not interfere with the other party's freight and passenger business from Portsmouth to Cincinnati. 'It is also understood in this agreement that the party of the second part will maintain the rates charged by the parties of the first part on business above Portsmouth, Ohio, said rates, however, never to exceed railroad rates between said points.' The last-mentioned covenants, set forth in this paragraph, are especially relied upon as making the contract illegal, as in restraint of trade. The previously mentioned suspension of instalments in case of opposition rising to a certain height also is referred to as a combination to aid the purchaser in getting a monopoly of river trade between Portsmouth and Cincinnati, including, it is said, some Kentucky ports.
It might be enough, perhaps, to answer the whole contention, that it does not appear on the record that the contract necessarily contemplated commerce between the states. It would be an extravagant consequence to draw from Hanley v. Kansas City Southern R. Co. 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214,—a case of a state attempting to fix rates over a railroad route passing outside its limits,—that the contract was within the Sherman act because the boats referred to might sail over soil belonging to Kentucky in passing between two Ohio points. It may be...
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