The Indianapolis journal., 1903-04-10

class mentioned . 1t has been held
that the word liberty as used in the
Constitution, was not 10 be confined TO the
mere liberty of persons. but include. among
others, right 10 enter into certain classes
of contracts for the purpose OF enabling
the citizen to carry on his business;
but il has never been, and in our opinion
ought not TO be held. that the word IN
cludes the right TO enter into private con-
tracts upon all subjects. no matter what
their nature and wholly irrespective. among
other things. of the fact that they would.
if performed. result in the regulation OF IN
terstate commerce and In vioiauoh Oh any
act of Congress upon that subject
CONGRESS HAS POWER.
".The provision of the Constitution does
not as we believe. exclude Congress from
legislating with regard to contracts Of the
above nature while in the exercise Of Its
constitutional right to regulate commerce
among the States. On the contrary, We
think the provision regarding the liberty
of the citizen is to some extent limited by
the commerce clause of the Constitution,
and that the power of Congress to regulate
interstate commerce comprises the right
to enact a law prohibiting the citizen from
entering into those private contracts which
directly and substantially, and not merely
Indirectly remotely incidentally and col
laterally regulate to greater or less de-
gree commerce among the States. We can
not so enlarge the scope of the language
of the Constitution regarding the liberty
of the citizen as TO hold that il includes
or that il was intended TO include right
to make a contract which In fact restrained
and regulated interstate commerce not
withstanding Congress. proceeding under
the constitutional provisions giving to It
the power to regulate that commerce, had
prohibited such contracts
'These observations as matter OF course
preclude further controversy over the pow
er of Congress to limit TO some extent the
right TO make contracts when enacting
laws for the regulation of commerce be-
tween the States.
Learned counsel for the defendants
further contend follows: That the anti
trust law was not intended to include or
prohibit combinations looking to the virtual
consolidation of parallel and competing
lines of railroad although such a combfna-
ton operates to stifie competition; that no
relief can be granted TO the government
an this instance because the combination
or conspiracy Of which 1t complains has
accomplished its purpose. to wit. the or
ganization of the Securities Company and
the lodgment of the majority of the stock
of the two railroads in its hands before the
bill; was fled and finally that the combina-
commerce and not 10 restrain it, in other
words that it was one formed to enlarge
the volume of interstate traffic and thus
benefit the public
UNTENABLE AND NOVEL.
1.-The court cannot assent to either of
these propositions. The first, We think, Is
clearly untenable for the reasons already
stated and fully disclosed in the decisions
heretofore cited. Concerning the second
contention, we observe that 1t would be
novel, not to say absurd. Interpretation of
the antitrust act to hold that after an
unlawful combination is formed and has
acquired the power which it has no right to
acquire, namely-to restrain commerce by
suppressing competition and is proceeding
to use it and execute the purpose for which
the combination was formed-it must be
left in possession of the power that 1t has
acquired, with full freedom to exercise II.
Obviously the act, when fairly interpreted,
will bear no such construction. Congress
direct restraint on interstate trade or COM
merce, when by any combination or con-
spiracy, formed by either natural
tificial persons, such a power has been ac-
quired, and the government may intervene
and demand relief as well after the COM
bination is fully organized as while II Is In
process OF formation; ion In this ,ta instance. & as
pany made itself party to combination
in restraint of interstate commerce that
ante-dated its organization as soon as 1t
came into existence, doing SO, of course.
under the direction of the very individuals
who promoted il.
Relative to the third contention. which
has been pressed with great zeal and abil-
ity, this may be said: 1t may be that such a
virtual consolidation of parallel and COM
peting lines of railroad as has been ef-
fected, taking a broad view of the situa-
ton, Is beneficial to the public rather than
harmful. 1t may be that the motives which
inspired the combination by which this end
was accomplished were wholly laudabe and
unselfish; that the combination was formed
by the individual defendants to protect
great interests which had been committed
to their charge, or that the combination
was the initial and necessary step in the
accomplishment of great designs. which, if
carried out as they were conceived, would
prove to be of inestimable value to the
communities which these roads serve and
to the country at large.
I'VE shall neither affirm nor deny either
of these propositions, because they present
issues which We are not called upon to de-
termine and some of them involve ques-
tions which are not within the province
of any court to decide, involving, as they
gress must determine. 1t is our duty to
ascertain whether the proof discloses a
combination in direct restraint OF inter-
state commerce-that is to say, combina-
ton whereby the power has been acquired
to suppress competition between two or
more competing and parallel lines Of rail-
road engaged in interstate commerce Ii
it does disclose such combination, and We
have little hesitation in answering this
question in the affirmative, then the anti
trust act, as it has been heretofore inter-
preted by the court of last resort. has been
violated. and the government Is entitled
to a decree.
THE DECREE.
"a decree in favor of the United States
will accordingly be entered to the follow
ing effect: Adjudging that the stock of
the Northern Pacific and Great Northern
companies. now held by the Securities Com
pany, was acquired in virtue of a COM
.bination among the defendants, in restraint
of trade and commerce among the several
States. such as the antitrust act de-
nounces as Illegal enjoining the Securities
Company from acquiring or attempting to
acquire further stock of either of said
companies; also enjoining it from voting
sueh stock at any meeting of the stock
holders of either of said railroad COM
panies or exercising or attempting to exer-
else any control direction or supervision
influence over the acts Of said COM
panies, or either of them, by virtue of its
holding such stock; enjoining the North
ern Pacific and Great Northern companies
agents, from permitting such stock TO be
voted by the Northern Securities Company
or any of its agents or attorneys on its
behalf, at any corporate election for di-
rectorS or officers of either of said COM
panies, and likewise enjoining them from
paying any dividends to the Securities
Company on account of said stock or per-
pany to exercise any control whatsoever
over the corporate acts of said companies.
or to direct the policy of either; and, final
ly, permitting the Securities COMPANY 10
return and transfer to the stockholders of
the Northern Pacific and Great Northern
companies any and all shares of stock of
those companies which il may have re-
r.. .~s<<o II. l.