the lumber is cut of such length as to occupy all the cubical space. The loading more nearly approximates the capacity of the car in case of green than in dried lumber.

In March, 1903, there were moved via the Southern Railway from points in Georgia and Florida to Ohio River points and beyond 674 cars of lumber. The average load of these cars was 46,794 pounds. The flat cars, 346 in number, loaded to 86.5 per cent of the capacity of the cars and the box cars, 328 in number, loaded to 81.6 per cent of capacity.

In March, 1903, the Louisville & Nashville Railroad hauled from Georgia 655 carloads of lumber. The average loading of these cars was 43,537 pounds, and the box cars loaded to 77.3 per cent of their capacity and the flat cars to 72.1 per cent of their capacity.

In January, February and March, 1903, the Central of Georgia Railway Company hauled 1454 cars of lumber which averaged 35,041 pounds per car, being 76.79 per cent of car capacity.

The carloads of lumber hauled by the Seaboard Air Line Railway in the month of October, 1901, 1902 and 1903, averaged from 68.6 per cent to 79.7 per cent of the loading capacity of the cars used.

The loading of lumber in the cars furnished is less than that of stone, coal, iron, and, perhaps, some other articles, but it is equal to or greater than that of most other commodities. The following table taken from our report and opinion in the case of the Central Yellow Pine Association v. Illinois Central Railroad Company, et al., gives the loading of certain commodities named therein other than pine lumber and the percentages of loading to car capacity.

10 I. C. C. REP.

15. Lumber is a constant business for the roads throughout the year; it is loaded by the shipper and unloaded by the consignee; it is not perishable traffic, and therefore, does not require rapidity of movement; there is little or no risk incident to its carriage and in case of accidents the damage is, as a rule, insignificant.

CONCLUSIONS.

1. It is alleged in the answer of the defendants-and their counsel insist that the issue thus presented shall be passed upon by us that the by-laws and constitution of the Georgia Saw Mill Association "constitute a contract or combination in the form of a trust, or otherwise," in contravention of the Act of Congress of July 2, 1890, known as the "Anti-Trust Act;" that the complainants as members of the association are acting in violation of that law; that they, therefore, do not come before this Commission with clean hands and "should not be allowed to maintain their bill of complaint in this case." In the view we take of this matter, it is not necessary to determine whether or

not the allegation as to the character of the by-laws and constitution of the association and of the action of the complainants as members thereof, be true. In the first place, the complainants constitute but a small portion of the membership of the association, and the association, as such, is not made a party complainant. In the next place, a proceeding like the present before this Commission, although instituted by and in the name of parties complaining of injury to themselves from alleged violations of law, is not a strictly private or personal suit into which a party complainant must enter with "clean hands,” but is a proceeding for the enforcement of a public duty as well as of an individual or private right.

The Act to regulate commerce provides that this Commission "may institute an inquiry of its own motion" into a matter of the kind involved in this case "in the same manner and to the same effect as though complaint had been made," and that, where complaint is made, such complaint shall not, "at any time be dismissed because of the absence of direct damage to complainants." In these cases, therefore, the complaint is in the nature of an information and the complainants occupy, in part, at least, the attitude of informers. In the case of the Interstate Commerce Commission v. Southern Pacific Company, et al., (132 Fed. Rep. 829), there was involved an order of this Commission forbidding the enforcement by defendants therein of a rule whereby they reserved to themselves, as initial carriers, the right of routing citrus fruit traffic beyond their own lines and denied this privilege to shippers. The defendants contended that, even if the rule was unlawful, the complainants (shippers) were not entitled to relief, because they had used the privilege of routing for the purpose of securing rebates and desired to retain it for that purpose. In overruling this con

tention the Court says:

"With reference to defendants' contention, that the complainants before the Interstate Commerce Commission were there with unclean hands, it is only necessary to say, that, in this Court, the Commission represents the public at large and therefore no participation by said complainants in the unlawful practice of rebates could bar relief." (132 Fed. Rep. 847.)

The same principle applies in a case like the present before this Commission. The complainants represent "the public at large," as well as themselves. The public interested includes consignees, consumers and others, as well as shippers and producers or manufacturers.

2. The complainants, on the other hand, charge in their complaint that, in the matter of the increased rates complained of, "the lumber carrying roads, defendants herein, have acted in concert through the medium of defendant, the Southeastern Freight Association, to effect the lessening of competition in transportation rates and facilities and the exaction of higher transportation charges than would be maintained under conditions of unrestrained competition."

It is claimed by the railway companies that in advancing the rates, they acted independently, each for itself, and not through the agency of the Southeastern Freight Association. Whether or not they made use of the Association as a medium or agency is immaterial. The proof shows conclusively that the advance was the outcome of concert of action and a previous understanding between the companies. Through their authorized official representatives they conferred with each other repeatedly as to the making of the advance; recognized the fact that, because of competition in common markets between the lumber producing districts served by them, the advance should be from all those districts or none; and finally they all promulgated the advance to take effect at exactly the same date and for exactly the same amount. This concurrence of action was not only between the railway companies, parties defendant in this case, and in relation to rates from Georgia shipping points, but was participated in by the lumber hauling roads serving the territories both west and east of the Mississippi River, in Arkansas, Louisiana, Mississippi, Alabama and Florida.

It is insisted in behalf of the defendant, that, while there may be this concert of action, it does not amount to an unlawful agreement under the so-called "Anti-Trust Act."

As we have said in our opinion in the case of The Central Yellow Pine Association v. Illinois Central Railroad Company, et al, (ante, 561), "We deem it unnecessary to express an opinion

on this point, the enforcement of that act being a matter properly cognizable by the Courts. It is clearly, however, within the scope of our authority and duty to consider this joint or concerted action of the defendants in the aspect of its bearing upon the reasonableness and validity of the advanced rate, the result of that action. Where rates are established by concert of action and previous understanding between the carriers, it is manifest, whether or not there be a binding agreement to maintain such rates, that the element of competition is eliminated. Concert of action is wholly inconsistent with competition and, during the time the rates fixed by concert of action are maintained, the effect, so far as competition is concerned, is the same as if there was a binding agreement to maintain such rates.

"Competition is favored by the laws. The object of the pooling section (Section 5) of the Interstate Commerce Act is to prevent, any contract, agreement, or combination' between otherwise competing carriers by which competition between them may be done away with. In East Tenn., Va. & Ga. Railway v. Interstate Commerce Commission, it is said, "The Interstate Commerce Law, it is conceded, was intended to encourage normal competition; it forbids pooling for the very purpose of allowing competition to have effect.' (39 C. C. A. 422, 99 Fed. Rep. 61.) The Supreme Court holds that the suppression of competition is violative of the so-called 'Anti-Trust Act,' in that, such suppression restrains trade and commerce by 'keeping rates and charges higher than they might otherwise be under the laws of competition.' (Joint Traffic Association Case, 171 U. S. 569, 571, 577, 43 L. ed. 287, 288, 290, 19 Sup. Ct. Rep. 25; U. S. v. Freight Association, 166 U. S. 341, 41 L. ed. 1027, 17 Sup. Ct. Rep. 540.)

"The ground upon which competition is favored is that it conduces to the reasonableness of rates or to the protection of the public from unreasonably high or excessive rates. In United States v. Freight Association, supra, the Supreme Court says, 'competition will itself bring charges down to what may be reasonable' (166 U. S. 339, 41 L. ed. 1027, 17 Sup. Ct. Rep. 540). The Act to regulate commerce (section 1), in prohibiting un