The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1903-08-03
Judge Lochren's Northern Securities
Decision,

Judge LOcnren NOrCleTn cecurlCleS
Decision.
Judge Lochren of the United States cir
cult court for the district of Minnesota
presents his compliments to the United
States circuit court Of appeals and begs to
disagree. g.. a.. -'
The four judges of the circuit court
unanimously declared that the Northern
Securities is an organization in restraint
Of trade.
Judge Lochren declares that it is not
Until the supreme court passes on the
question the public can take its choice
and the larger portion Of the public will
probably prefer to agree with the four
rather than with the one.
AS in everything else there is an old
and new, so there is an old and new
In law and its Interpretation Jurispru-
dence is largely based on precedent but
there comes a time when the progressive
courts Of progressive age must refuse
longer to be bound by the old rulings Of
past time. 1t was the old way to test all
questions by the letter Of the law. 1t is
the new way to test them by the spirit Of
the law--and the spirit Of the times.
Judge Lochren's decision is Of the old
kind. .~'E
The opinion of the circuit court Of ap-
peals is of the new kind.
And yet curiously enough the former
looks upon hi. self as the modern.
Judge Lochren's decision gives full credit
to all the technicalities Of the case. The
Northern Securities company is a COM
pany which describes itself as a stock in
vesting and holding company; therefore
that Is what it is. II then it becomes
mixed up in some transactions whereby
1t accomplishes for the same purpose
what the law forbids railroad company
to accomplish, 1t can not be adjudged
guilty; because, have we not it's own word
for it that it is not a railroad company?
1t is absolutely immaterial that as the I'LL
innate owner and director of two railways
it is more of railway company than the
operating railways themselves. The fact
remains that it says that it is not a rail-
way company r..
The court of appeals had it's eye on the
future and the interests Of the public. 1t
saw that there was little or no distinction
between the virtual consolidation Of par
allel and competing railways and the
actual use of the power resulting from
the consolidation. TO the court of ap-
peals the fact that the Northern Securities
company controlled a majority of the
stock Of two competing lines Of railway
was enough to make it in restraint of
trade. E." .g.-t
TT Is the common experience of man.
kind" says the court, that the acts of
corporations are dictated and that their
policy is controlled by those who own a
majority Of their stock" And 1t invokes
that familiar rule 'that everyone is pre-
sumed to intend what is the necessary
consequence of his own acts when done
wilfully and deliberately"
Contrast those statements with these
by Judge Lochren:
The Northern Securities company is
merely an investor in and owner Of the
majority Of the stock Of these two rail-
road companies. It is not a railroad
company. So It has, therefore.
done no act In restraint Of trade or COM
merce.
The action of the defendant Hill in pro-
curities company involved no act or con-
tract in restraint Of trade or commerce
or affecting transportation or rates, more
than any ordinary transfer Of stock; from
one person to another.
Judge Lochren criticises the superior
court for holding that the Northern Sc
curities company has violated the re-
straint- of-trade inhibition Of the Sherman
antitrust act tho it does not point out
''any contract, agreement or act on the
part Of the defendant or any of then
which Is directly in restraint Of trade OF
commerce or which has any direct refer,
ence to trade, commerce, transportation
or rates"
II the Northern Securities had incor
porated in its charter the undeniable fact
that its purpose was to effect virtua
consolidation Of the two railways, i
might, according to this reasoning, have
been proceeded against. But since i
omitted to confess its purpose and effect
there is no way to reach it, until, al
the Northern Securities, it does in SOM
. way make some undisputed agreement
specifically in restraint Of trade But in
asmuch as there is no need to do tina
when it controls the management Of boil
railway lines in question, it cannot b
reached and never will be reached. Thu
does Judge Lochren confess the impotenc