The sun., 1903-12-09
APPEAL IN SECURITIES CASE.
TO BE ARGUED BEFORE SUPREME
Court ON MONDAY.
Briefs Allege Combination Ended Before
Proceeding Began. That There Is
No Proof OF Attempt at Monopoly and
THAT Antitrust Act Does Not Apply.


WASHINGTON Dec. s.--The appeal Of the
Northern Securities Company and the
North rn Pacific and Great Northern Rail-
road companies from the decision Of the
Fpder Court of Appeal declaring the
merging o tn wo roads a violation of
ih crman antitrust law a restraint
upon interstate commerce, will be argued
in the Supreme Court beginning Monday
next.
The hearing will probably ocupy tw o
devs. The principal arguments for the
corporations will be made by John G..
Johnson of Philadelphia, former Attorney
General Griggs and C. w. Bum of Minne-
apoH Acknowledgement Knox will rep
son, the Government side of tn
controversy.
Briefs on behalf of the Securities company
and the Northern Pacific were filed in the
Supreme Court to- ay that for the former
by George b. Young and the latter by
". Bum, counsel for the Securities
company.
II i argued that the Govern ment is not
entitled to maintain this proceeding under
the antitrust act, nor had he Circuit Court
jurisdiction for the conspiracy or COM
hination charged in the petition and found
by the Circuit Court, If 1t ever existed, had
done all It was formed to do and lad come
TO an end before the proceeding was in
,ttuted.
The only combination Of viii h there is
any evidence is a combination formed in
aid Of commerce, to liberate, protect and
enlarge and not to restrain it. and which
has liberated, protected, aided and en-
larged it and has not restrained and does
not threaten to restrain 1t.
There is no evidence of the combination
or conspiracy charged in the petition, or
Of the combination or conspiracy found by
the Circuit Court
The conspiracy or combination in ques-
ton, whether as alleged in the petition
or as found by the Circuit Court, was not
O combination or conspiracy in restraint
Of Interstate commerce. for the only things
which the parties thereto combined or
conspred to do or procured to be done
were n) the organization of the Securities
company and (2) the acquisition by the
Securities. company, with the help of a
large majority of the shares of each, Of
the defendant railway companies in ex-
change for its own shares.
The things so to be done or procured
to be done (whether taken separately or
togcrher) are such as do not and cannot
IN any wise restrain interstate commerce,
and hence a combination or conspiracy
To- do them or procuree them to be done
Is not in restraint of interstate commerce.
ne NlTclllt NOuTJ eTTeu III nOlulHR lIldt
the Securities company, having acquired
such majority of shares, has power to
suppress competition between the railway
companies; that it obtained and holds
such power by means of, and as party to,
the combination or conspiracy and not as
an incident of its ownership of the shares
that the possession of such power to sup
press competition is of itself, and irrespec-
tive of its exercise, a restraint OF inter-
state commerce. and therefore the combi-
nr in
Testrait of such commerce.
The petition does not allege. nor do the
proofs disclose, any facts showing a monop-
oily or conspiracy, or attempt to monopolize.
any interstate or foreign commerce.
The case is not within the Antitrust
act, for in any view of the matters com
planned of, their effect upon commerce,
whether much or little, for good or i'll,
act and the regulative power Of Congress
under the commerce clause of the Consti-
tuition are alike strictly limited to matters
which directly and immediately affect
interstate and foreign commerce.
The very general language of the Anti
Trust act was not intended to include com.
binations to purchase railways or railroad
shares, connecting or non-competing,, nor
% consultations, actual or VIRTUAL, OF
railways or railway companies.
Congress, when passing the act knew that
the ra ilway systems OF the country rested
pm sue h combinations authorized by State
years. If Congress had meant to declare
such consultations and stock purchases
of competing companies to be illegal. the
securities issued by them void and the State
legislat ion const titut ional, 1t would have said
81 in plain. specific and apt language.
The construct ion put upon the act by all
branches of the Government and by every
body down to the commencement of this
proceeding has been in full accord with
the position that the act has nothing to
do with combinations to own railways or
railway shares.
Even though the Government were en-
titled to any injunction the decree goes far
beyond what the Government was entitled
20 receive or the Circuit Court authorize
grant ,.o,e ..s oo,.,.a .,o
contention of the Government that the
findings of the Circuit Court are true, going
particularly into the alleged illegality of
the Securities Company and the powers OF
Congress respecting interstate commerce
For holding company, such as the
Securities Company, to own the stock of
Compel ing carriers, counsel holds, was no
more prohibited by the antitrust law than
for one interstate carrier to purchase.
lease or otherwise control the property
naraile or Gbompehtng bsnpp h6a garner le,ssd
controlled through stock ownership by
railway corporations owning parallel lines
the country over. So, the country over, had
individuals, partnerships and corporations
Otll StOck III toIHIttlnR ldHNdS NpIil-
panies. These things had been done COM
monty. openly and notoriously during the
last fifty years, yet if they We're restraints
on interstate trade they were and always
had been invalid.
If two or more individuals owning stock
in competing mercantile or carrying cor
poratons engaged in interstate traffic
should unite in a copartnership or a cor
poration sanctioned by State law, was
their doing so, counsel asks, restraint
OF interstate commerce and the subject
Of Federal control?
If the Sherman act and the power of
Congress over commerce We're to be pressed
10 the extent of making such transactions
void, Congress, by one stroke, would be
Invested with the regulation of large
portion of those affairs hitherto supposed
10 belong exclusively to the State,
Ii would place in Congress the general
hight to regulate who might and might not
buy, hold and sell real estate and personal
property, including stocks and other secu
rites within the States, within the regula-
tion of the laws of partnership and of cor
porations, although they were not en-
gagged in any kind Of commerce.
George WashingtOn's Pistols Sold.