The citizen-Republican. (Scotland, Bon Homme County, S.D.) 1???-19??, 1903-10-15
THINK MERGER CASE
WILL Be AFFIRMED
Washington Opinion is Thst
Northern Securities Will
Be Invalidated.
A HEARING in DECEMBER
Resume of the Reasons Why the Court
Is Expected to Stand by Its Po-
sition il the Old Trans
Missouri Decision.

cember IA, is the date for hearing the
Northern Securities case by the SUI
preme court. Formally the appearance
for &Aa government Is that of the at
torneJ General. The Northern Securit-
les will be represented by John w.
Griggs, M. D. Grover, C. w. Bum,
Francis Lynde stetson n George B.
Young; John d. johnson of Philadel-
phia has been retained.
The case will undoubtedly come up
on the day named. The decision may
come In two weeks or in two years.
The outcome is already a subject of
speculation. Its political bearings are
almost as far reaching as its economic.
The prevalent opinion here is that the
decision will affirm the circuit court Of
appeals.
Affirmance would seem the logical
outcome Of previous adjudications. The
whole trend of judicial utterance in ap-
plying the Sherman law. from the
trans-Missouri case has been in this
direction. Did congress in passing the
Sherman act mean more than to enact
a statute in harmony with the COM
mon law Of England and this country,
and consonant with legislation of the
states? Or did congress mean to say
that anything that operates directly
to restrain interstate competition comes
within the ban, and is unlawful? -Four
judges Were of the former opinion and
five OF the latter.
1t Is notable that Of the four minor
,lty Justices in this trans-Missouri case
only one Is left on the bench, Justice
White. Field, Gray and Shiras are no
longer there. OF The five justices rem
dering the trans-Missouri decision.
Fuller, Harlan. Brewer, Brown and
Peckham, all are on the court. This
with many persons tells the story.
The trans-Missouri decision estab-
fishes that the Sherman act provides
an iron-clad rule admitting no excep-
ton. On the principle that those who
enter into contract are presumed to
Intend legitimate consequences of their
engagements, the Northern Securities
company was designed to put a check
on competition. The supreme court
said in the case of the Joint Traffic
association substantially this very
thing. The argument was then adj
vanced that no restraint had yet been
made, and the answer was: "You have
agreed to restrain it and that the stat
ute prohibits"
For two reasons, 1t is said here, the
five justices who united in the trans
Missouri opinion could not take an op-
Iposite position now. Any member who
changed would be in a very embar-
RAISING position. Justice Shiras was
frightfully criticised because lie
changed his mind in The income tax
case. Not only did the five justices
In the trans Missouri case take this
position deliberately, but when the
Joint Traffic association case came be-
fore them they said: 1T Is the same
question and a large part of the argu-
ment Is really to show that u de-
cision in the trans-Missouri case was
wrong and ought to be changed" So
there has been not merely n decision,
but this decision a veal or two later
was reafirmed.
A second reason for thinking that
none Of the justices will change is
found in the rule of stare decisis." The
| extent to which all courts go in follow
ing presidents Is well known.
There is another reason, which, while
stated with great delicacy, has to do
with the human nature element. Few
justices car be ~fnsensible to the "ex-
pectation of the public" No Justice
can escape a certain unconscious in1u-
ence of public sentiment. He cannot
disabuse his mind of the notion that to
reverse this case would be followed by
an outburst Of indignation.
The position of a majority Of the
court in the trans-Missouri case was
| that If a mistake had been made it was
IllooSMOS NlS SAlsA P'o-
sible that not only the old majority,
but that some OF the new members who
have taken the place of the dissenting
minority, even If not satisfied with the
| prior decisions, would feel that perhaps
the best way to correct the error would
be to impress upon the country the
idea that a practical remedy was to be
found in a modification of the statute.
1t is also pointed out that the three
judges on the circuit court We're unani-
nous in their decision, point that
must have weight.
If this decision OF the lower courts
is sustained 1t will seemingly be pos
| sib1e to go to great lengths in limiting
the acquisition of property by a single
corporation, or perhaps by a single in
dividual. Many lawyers here are in
clined to agree with Judge Lochren
that tf the Northern Securities COM
pany offends the anti-trust law, Mr..
Rockefeller as an Individual would Of
fend it were he to purchase a majority
of the stock Of both these trans-centi-
mental railroads. There is thus In
volved the possible affirmance of the
! proposition that :fta ma has the
means and desires to bay a majority
I OF the stock In two railroads., which
@are competitors, he commits aScrfminal
z offense and violates the law Of the land,