The Montgomery advertiser., 1902-10-15

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 cunied by the purchasers. and westward ly to the Pacific Ocean.
 To effect this purchase, the Northern Pacific and Great Northern companies issued joint bonds for S2OO,ooO'oo. snort iy after the purchase of the Burlington road the principal owners of the North ern Pacific and the Great Northern roads caused to be organized, under the iaws of New Jersey, the Northern Securines Company, with a nominal capital Of Sf0o,- 900 OOO, of which $30, ,000 was paid in. That company was organized to become the owner of the capital stock of the North, ern Pacific and Great Northern Rallroao companies, and this was accomplished oy an exchange of the stock of the New JeT- sey corporation for the stock or the tWo railroad companies at such price that, II the Securities Company got all the 1 StocS of both roads, its entire $4oo,oooVW oi capital would be absorbeo III the eA change. ,
 At the time of the purchase of the Bur lington road the capital stock or n one three railroad systems was about $osV, OOO, 600. That was the capital upon Whlc:' the combined traffic carried by those roads might. after paying expenses or op- eration, reasonably be expected to pro vide dividends. By the bond issue 10 of the Securities capital, that same traffic Is now expected to provide divi- dends upon more than $200. .0ooO0o or stocK in addition to the original $Sso, ooo.
 When the Department came into pos session of these facts suit In equity was at once begun to restrain the opera ton of the proposed merger and 10 re- store the independence of these trans- @ continental railroads as competing ihee' which suit Is now pending.
 Phases of an Attack.
 Here. then, are four phases of the attack on combinations in restraint or trade and commerce-the railroad lnJu.ca ton suits. the cotton pool eases, @ Sa beef trust" eases. ana the Nortnyin .h r,o- curities case, The first relates to the Ho- nopoly produced by secret ana preIerIeh I tial rates for railroad transportation; tne second to railroad trafhc poolhg; .n third to a combination of ndepe9aent corpora tions to fix and maintain extor- donate prices for meats; and the 1ourth to a corporation organized to merge into itself the control of parallel ana com peting lines of railroad and eliminate competition in their rates of transporta- tion.
 There appears to be no doubt of the facts as set out in the bills filed in these various cases. The combinations proceed cd against are in some respects ai1eret,s ue been decided by the Supreme Court ana 1t is said by their organizers that they have avoided the prohibitions Of the anti trust law. The Department of Justice, being of opinion that they are each n violation of that law, found 1t 10 De lts manifest duty to so advise the President with the result which is known to all.
 My whole purpose in what l have sal is to challenge the proposition that we are hopelessly helpless under our system of government to deal with serious prob lems which confront us in respect 10 our greatest interests. Since the radical que5- ernments have been settled. the produc- ton preservation, and distribution or wealth receive the chief attention of CIV ilized peoples.
 The extent to which legislative cont:oi over commercial activities should be ex- ercsed Is, of course, question for les islative wisdom. We have the experience of the other nations to guide us in de- termining how far the delicate and mys- te-ious rules of trade can be interfertd with by positive statutes without injury, That experience teaches us that the least interference consistent with the preservt- tion of essential rights should exist. Ar bitrary regulations that restrain free ln- tercourse are usually found to be un- wise.
 Primarily it Is for the Congress to de, eide whether it has the power and whether and to what extent 1t will eX- ecute it-what character of restraints, whether all or those only which are un' reasonable and injurious shall fall unde" the ban, whether legislation in the first instance should extend to all commer2 2e or only to commerce in articles. of vital importance to the people. The time neY- CT was when the English-speakng people permitted the articles necessary for thelE existence to be monopolized or controlied and all devices to that end found con demnation in the body of their laws The great English judges pronounced that such manifestations of human avariHe required no statute to declare their un- lawfulness, that they were crimes against common law-that is. against common right.
 Great Unwritten Code.
 It is difficult to improve upon the grelt | unwritten code known as the common | law. Under its salutary guarantees ana | restraints the English-speaking people | have attained their wealth and power. It | condemns monopoly. and contracts in re l straint of trade as well. The distinction. | however, between restraints that are stances and those which are unreason' able, is recognized and has been fol lowed in this country by the courts This distinction makes rule that may | be practically applied, and preserves th2 | rational mean between unrestrained con.' merce and the absolute freedom of con- | tract.
 l A law regulating interstate commerce for its protection against restraint SC broad as to cover all persons whose bus mess is conducted under agreements | which are in any way or to any eXte Il | in restraint of traue. might exclude thousands of small concerns conducting | industries in one State from marketing their products in others; but law which | only covers contracts and combinations | in restraint of trade as defined by the | common law would exclude all hurtfu l combinations and conspiracies. Congres! can If 1t sees fit, adopt the scheme oi | that law. In the enforcement of suct l law each case as it arose would be con sidered upon its own facts, and the rult l of guidance would be as laid down bS the Supreme Court of the United States that Is, public welfare is first consid ! cred, and if 1t be not involved and tho restraint upon one party is not greater | than protection to the other party re | quires the contract may be sustained | The question is whether. under the pac | ticular circumstances of the case ant the nature of the particular contract in
 volved in it, the contract Is or Is no | reasonable.
 ing the difference between a reasonab'
 and unreasonable arrangement or con
 tract at common law First, as to reas
 onabe one
 The case of a sale of a business ant
 it's good will is a good illustration. Her
 a restricted covenant upon the part o l the vendor not to engage in competiticl
 in similar business is often the mai! l consideration for the transaction. Thi 1 covenant Is, of course, in restraint o
 trade, and interferes with competition | But to make a contract such as this Il
 legal is not only restrictive of the lib | erty of contract, but 1t is depriVing on
 of his property without due process O
 law. Good will is property capable O
 being appraised, bought and sold T
 many cases 1t Is the main ingredient Q
 value. It represents all the struggle, in
 dustry, tact and judgment that make
 success. In estimating the worth of
 business 1t IS not infrequently reckonGt
 more valuable than the buildings am
 machinery that make up the physica