The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1900-02-02
ILLINOIS ANTITRUST LAW
Lawyers Dispute as to Whether or No
the state Has One.

Chicago, ILL.,. Feb. Judge {. G. Kohl
saat handed down a decision yesterday in
the United States Circuit Court which de-
clares void the antitrust law passed by
the Illinois legislature in 1898. on the
ground that it contains both special and
| class legislation in contrayention OF both
the state and federal constitutions. The
opinion of the court, while bearing d.
rectly on the ninth clause of the act
which went into effect on July l. 1893,
also rules that the whole act is uncon-
stitutional and invalid
The ninth section Of the law, which. in
the opinion Of Judge Kohlsaat invali-
dates the entire act, he holds exempts
| from its provisions the agriculturist and
stock raiser, and because of this exemp-
| ton the court declared that the statute
was vitiated throughout by the special
and class legislation. Judge Kohlsaat
took the case from the jury, after It had
been on trial for nearly week, and or
dered that judgments be entered for the
| plaintiff.
| Whether the State of Illinois IS now
without an antitrust law Is question
in the minds of some lawyers. Herbert
/ Hamlin of counsel for the defense claims
|
that OF 1893 and stin in force, because
| Judge Kohlsaat did not mention the
former in his decision. Henry D. Cogh-
| Ian, also of the defense, believes that both
laws have been wiped out by the deci-
sion. Edwin Walker, who had charge of
| the prosecution, declares that the stat
ute of 1891 was superseded by the act of
| 1893. and that the State no longer has an
antitrust law.
Corporation lawyers, especially those
representing the glucose trust. find much
satisfaction in the ruling. 1t IS regarded
as a forerunner of the decision to be CIV
en- by the United States Supreme Court
in the case now pending, in which the
legality of the sale of the Peoria re-
fnery to the trust is attacked under the
provisions of the antitrust law.
The attorneys representing the defend
ants in the case decided by Judge Kohl
saat claim that the ruling of the court
is in direct conflict with the finding of
the State Supreme Court in the mix
shippers" and glucose cases, and de-
clare their intention OF carrying the mat
ter to the United States Supreme Court
If necessary. Motions for an appeal to
the United States Circuit Court Of APP
peals were entered by counsel for the de-
Tense after the court had overruled mo-
tons for new trial and to arrest judg-
ment.
The action through which the consti-
tutionality of the law of 1898 was
brought in question was instituted by the
Union Sewer Pipe company of Ohio to
recover some $1,000 from William e. Dee
; and Thomas Connolly. two contractors
of this city, on purchases made by them
several years ago. The defendants resist
ed payment on the ground that the Union
Sewer Pipe company was a trust, or COM
fbination organized for the purpose of re-
stricting trade contrary to the law of 1893
the common law in Ohio and Illinois, and
the federal law known as the sherman
act" and that the company therefore had
nc right to sue por recover on any con-
tract made in this state.
The decision of the court Is as follows:
Plaintiff in this case brings suit to re-
cover on certain promisory notes given
by defendant for balance due on purchas-
es and deliveries of sewer pipe. Defend
ant pleads the general issue and gives
notice hereunder of three special defen-
ses all of which are based on the theory
that plaintiff was a trust or combination
organized for the express purpose of ere
ating and carrying out restrictions in
trade contrary
/ To the common law in force. both in
Ohio and Illinois.
3 To the act Of Congress of July 2, 1890
commonly called the Sherman act" and
g. To the statute of the State of Hi
nois taking effect July 1, 1898.
As to the matters set out in the first no
tice of special defense, it is undoubtedly
true that by the common law contracts
which are themselves directly in re-
straint of trade may, in a proceeding
based thereon. be declared void and unen-
forcable by the courts; but there is no
case Brought to the attention of the court
in which 1t has been held that at common
law a contract not in itself in restraint
OF trade is void because one Of the parties
thereto is a party to a contract which IS
in restraint of trade and the one con-
tract is directly based upon the other.
The fact that one party to contract is
engaged in illegal acts will not, at COM
mon law, avail the other party as d de-
tense TO the enforcement of a contract IN
itself legal The first notice OF special
defense will, therefore, be stricken out
1t will be seen by an inspection Of the
so-called Sherman act" and OF the opin-
ion OF Judge Peckham in the Adiystor
Pipe and Steel company case. decided by
the United States Supreme Court Dec.
4, 1899. that the act only covers contracts
which are themselves directly in restraint
of trade, and does not affect those which
merely indirectly. remotely, incidentally.
or colIaterally regulate to a great or less
degree interstate commerce among the
States" It. therefore. follows that the
second mater of special defense viii.
therefore. be stricken out.
SNow. coming 10 the ground OF special
defense set up in the third nOtice-to-
wit: the Illinois statute which went into
effect on July l. 1898. This statute IN
terms provides that the defense herein
set UP may be maintained as bar; and.
II the statute is valid. then plaintiff can
not recover in this case e # be. as aver
ed by defendant, a corporation organized
in restraint of trade and a trust under
the definition contained in said statute
Plaintiff contends that the said statute
Is unconstitutional (1l because Il - 90
noxfous to section ! OF the fourteenth
amendment OF the federal constitution,
which reads. in part. as follows: No
State shan make or enforce any Law
which shall sfortdge the privileges or i'm
muuities OF citizens OF the United States.
nor shall any state deprive any person
OF life. liberty. or property without due
process OF law. nor deny TO any person
within It's jurisdiction the equal protec-
ton OF the laws" And also q because
il is in contravendon Of section = o. ar
tiels q the constitution Of the State %
Illinois Witch roads in mart as follows.