Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1893-12-13
FLAWS IN TIE ANTITRUST LAW

FLAWS ~ TIE ANTITRUST LAW
The recent report OF u. =. Attorney
General OlHey 80 ho, ike other depart
ment chio'-, boiHg rtquifcd 10 make 90
annual communication just prior 10 ih,
regular session q Congress - lral,
largely with the autl.tust law Of 1890
and is interesting because under th,
most persistent hind Of pressure thnl
he should proceed TO ENFORCE tho pro.
visions Of That enactment, Mr.. Olncy
has heretofore preserved the most
stolid anu imperturbablo Kind Of iudif.
ference. Party organs even on his
own side have luvcled great editorial
bfoaJsiJos at him because hs did not
at once begin war on monopollcs;
and opposition papers have come 10
his rescue with the sarcastic remark
that lawyer OF his training, instincts
and inciinalons could not be- OK pootod
to attack officially the very class Of
clients from which no had profession.
ally drawn hia practice, his omolu.
mcnts and his legal cminence.
In the face OF these woll.meant
thrusts " ifiends and ironical stabs of
foes, the AtioTncy-Gonoral has
pursued 10 silence the even tenor Of
his way, apparently neither needing
the one, nor smariing from the other.
But In the report which he has lately
promulgated, he turns on a search
light which seems 10 put both breeds
Of critlca TO flight. Figurativeiy
speaking, no drives a coach.and.iour
right through the middle Of tho noted
statute, and then prances morciloasly
over iIs disconnected extfvmiuiea.
Blu, way Of introduction Judge
oincy mildly says thotu Ia an orrune-
Gus popular Impression a. 10 the scope
u the law, aud this he aims 10 correct.
lie starts tho wedge In by saying that
the subject matter upon which tue
statute operates, aud alone can operate,
Il, "Any part OF the trade or commerce
among the several statts OF with foreign
nations" This, Of course, exempts
all those transactions that are carried
on wholly within tho jurisdiction OF a
state. Also exempted from the pur.
view OF tie statute are railroad com.
panics engaged In Interstate com.
merce, because they are subject TO
special aud exclusive legislation. In
the next place, the subject matter
Of tie statute as thus limited h to DO
protected from ~ monoplicH, (2l al.
tempis 10 monop0l,ze, 90 comblu-
aiions OF c0nspiraoies TO monopolizs
and (i) contracts, combinations or con.
splracivs, In form Of trusts or otherwise,
Ia restraint Of trade or commerce. Hut,
the Attorney General says, all ownor.
ship VI property is Of Itself monopoly,
and every business contract or
Transaction may be- viewed a. COM
biuation which more or less Restraints
some part or Kind OF trade or com.
merce, lilo therefore logically con.
oludcs that any literal application Of
the provisions Of tho statute h out OF
the question.
Hut ho does not roly alone upon his
own Interpretation Of the law. To do
80 would DO contrary to legal practice
and precedent, n not department In
ono who Is Presumed to accept aud
defend the constltu,ionallty OF a law
until the contrary % established. For.
tunalely there has been Judicial rul.
Ing upon the statute IN question. No
lees "a dignitary than Associate Justice
Jackson Of the u, 8. Supreme court,
decided, while acting as circuit fudge.
~ follows; 1. That Congress cann1t
limit the right Of slate or.
poraliOns or OF citizens In the
acquisition, accumulation ami oiu.
troll " property. ., That Congress
cannot prescribe the prices nc which
such property shall be- sold 10y the
owner whether "a corporation or lndi.
yliuah 3, That Congress cannot make
criminal the iu,ents and purplsus o e
persons Ina tho acquisition uni control
of property which the states VI their
residence Or creation muc,lol. 4.
lnat monopoly, us prohibited boy tho
statute, means au exclusive rirat IN
one party, coupled with q legal re-.
eiricii1u Or restraint upon some 0.lur
party, which prevents tho latter fram
exercising or enjoying the same right.
%. Aud that contracts DO restraint %,
Trade AMI commerce as prohibited sre
contracts ia general restraint tusra1,
uul sucn as would be- void az common
law independently OF any statute.
Personally disposed as ue may Doe 90
accept lhb as nnnl, the Att8rury.G.u.
eal nevertheless Is anxious that bg
whole question may bo reviewed and
passed upon by the court OF last r,a9rt
aud u test case has accordingly been
set in motion aad will be- pushed to a
conclusion. Il may not be proper 10