Martinsburg herald. [volume] (Martinsburg, W. Va.) 1881-1920, 1892-07-30

A Circuit and a District Judge of
the United States have united in
knocking the bottom out of the in
dictment found recently in Boston
against the managers of the whisky
trust Some of the parties concerned
live in Ohio. Bench warrants
were issued for their arrest
to appear and answer at Bos-
ton. They sued out writs of
habeas corpus and in that way the
matter came before District Judge
Kicks at Cleveland and Circuit Judge
Jackson at Cincinnati.
The indictment, which has four
counts, sets forth substantially that
before the passage Of the antitrust
law of July 2, 1890:
1.-The defendants obtained control
of seventy distilleries and operated
them, so as to produce 75-100ths of
the total production of the distilleries
of the United States; that after the
passage of the act they continued to
operate said distilleries on the same
extended scale; that part of their
product was shipped to Massachu-
sets, to be sold there and for trans
portation to other States and sold by
the defendants through their dis
tillery agents, dealers in Massachu-
sets, under promise on the part Of
the defendants that If said dealers
should purchase their distillery prod
ucts exclusively from the distributing
agents of the defendants and should
sell the same at prices not lower than
the list prices of such distributing
agents and should, at the expiration
of six months, certify that they had
done so, then the defendants would
pay to all such dealers rebate of
cents per gallon on all purchases.
1t is alleged further that these acts
constitute combination in restraint
of trade and an attempt to monopo-
lie trade, and that therefore the
parties are guilty of conspiracy. Both
judges agree that it is not enough to
say that a combination is in restraint
of trade to make it one, but that it
must be shown wherein it is so. Some
act must be stated which is relied on
to make the ofTense. But there was
no ayertment in the indictment that
when the parties bought the distil-
leries they own they bound the sellers
not to build others or not to carry on
the business in the future, nor that
they have made any attempt to con-
troll the remaining one-fourth of the
distillcries or to induce the owners to
limit the output Or agree on the
fllanalitx- el,
in the rebate contract made with the
Boston paltes. For these reasons
they hold that three Of the counts
are bad.
The remaining count charged the
defendants with owing three-fourths
Of the distilleries in the United
States, they having acquired them
before the passage Of the law of 1890.
The judges agreed that as there was
40 law against those purchases when
made, Congress could not pass an ex
post factO law to make their owner
ship a crime. They agreed also that
Congress had no power to pass such a
law to apply in the future; that
Congress has no power to put re-
straints of limitations upon the right
Of an individual or corporation in
the acquision of property. Each my
90 and acquire all the property that
the State of the residence or creation
will permit him or it to acquire.
Even the State cannot impose re-
straint in the amount of the property
which the individual may acquire.
In proportion as every bushes; is
built up and enlarged and extended,
it more or less, in popular sense,
monopoliZes the business, If Con-
gress meant to make that an offensc
they have no power to do so; they
had no power to enact such law as
that"
That is to say, the mere act of buy
ing up distillery after distillefy
would not in itself constitute an
offense so long as no unlawful use
was made Of the property thus ac-
quired and the field was left open to
others to start and run distilleries
and no unlawful attempt made to
crush them il they did go into the
business. The mere ownership even
Of all the distilleries would not per
Sc be "in restraint of trade, any
more than the ownership of the soi
tary dry goods store in a town would
make its proprietor monopolist.
The above remarks of Judge Jackson
must not be taken as denying the
right of State to limit the amount
of property corporation created by
it may acquire; but simply that the
State cannot prescrib, such limits &c
the individual citizen.
Hence it seems as if it would b
necessary for the District Attorney
at Boston to draw up new indict-
ment setting forth the acts done
by the whisky trust to restrain trad,
or commerce or to monopolizc tbs