The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1903-10-12
The Matter Has Been Set for Hear
ing on Monday, De-
cember Ia.
Lawyers Say the Decision Of the
Lower Court Probably Will
Be Affirmed.
Decision Will Have Far Reaching
Effect Whichever Way the
Case Is Settled.
From III. journal Bureau, Room Is, Post Build


ing, Washington.
Washington, Oct. 12.-Monday, Dec.
IA, is the date which has been set
for the hearing Of the Northern Sc
cur1ties case by the supreme court.
Formally the appearance for the gov
eminent is that of the attorney gem
eral, and in this case he will, accord
ing to present plans, appear alone.
The Northern Securities will be rep
resented by John w. Griggs, former
attorney general; M. D. Grover, G.. w.
Bum, Francis Lynde stetson and
George B. Young. It is also known
that John D. Johnson of Philadelphia
has been retained. -
The case will undoubtedly come up
on the day named. How long the
court will hold the case under con-
sideration, no one can say with cer-
tatnty. The decision may come in two
weeks or in two years.
Inc outcome is already a subject
Of considerable speculation. It's polit-
1cal bearings are almost as far reach
Ing as its economic. The prevalent
opinion here is that the decision will .
be an affirmance of that Of the cir
cult court of appeals. The reasons for
this belief are varied, but in general
their basis may be summarized as
follows:
Affirmance would seem the logical
outcome Of previous adjudications of
"
of Judicial utterance in expounding,
or interpreting and applying the Sher-
man antitrust law, from the trans
Missouri case to the present time has
been IN this direction. The initial
error, il there was one, was made in
that case. Senator Hoar, chairman
Of the Judiciary committee, has said
in effect that he and others had sup
posed this anti trust law was designed
to prohibit unreasonable restraints Of
do f@ 49,
such competition as might appear to
be reasonable or even necessary in
| given cases. That has really been
the question before the supreme
court. Did congress in passing the
Sherman antitrust act mean any more
| than to enact a statute in harmony
with the common law of England and
this country, and also consonant with
! legislation of the various states on
thes.same subject Or did congress
whatsoever that operates directly to
restrain Interstate competition comes
within the ban of this statute, and
4 is thereby declared. unlaWful? Four
judges were of the former opinion
and five of the latter. ..
Changes in the Court.
+. 1t is furthermore notable that. Of
! the four minority justices in this
trans Missouri case only one; is left
! OH Inc -Do1CIl, JUSTICE w HlI6 ~ Ills
associates, Field, Gray and Shiras, are
" no longer there. Of the five justices
rendering the trans-Missouri decision,
/ Fuller, Harlan, Brewer, Brown and
Peckam, all are on the court This
fact, W WITH H. many person. tells the
The trans-Missouri decision vir-
tually establishes as fundamental the
proposition that the Sherman act pro-
vides an iron-clad rule admitting Of
, no variation or exception. On the IA
miliar principle that those who enter
into contract are presumed to intend
the natural and legitimate conse-
quences of their engagements it is
obvious that such an enterprise as the
i Northern Securities company was de-
signed to put a check on competition
between two transcOntinental railroad
lines. The supreme court said In the
case of the Joint Traffic association,
substantially this very thing. The ar
! gument was then advanced that no
= restraint had yet been made, and the
I answer was in effect, you have
{ agreed to restrain it and that is the
thing which the statute prohibits"
For two reasons, it is said here, the
five justices who united in the trans
Missouri opinion could not very we'll
take an opposite position now. Any
member of that court who changed
his ground on such a great question
|
ing position. Mr.. Justice Shiras, 1t
will be recalled, was frightfully criti-
ciZed because he was supposed to have
} changed his mind in the income tax
case, and his action made a demo-
cratic campaign issue. Not only did
, the five justices in the trans-Missourt
case taken this position deliberately,
t but when the Joint Traffic association
case came before them, they said in
almost SO many words, 1T is the same
) question and a large part of the ar
gument which has been addressed to
, us is really an argument to show that
J, our decision in the trans-Missouri
case was wrong and ought to-, be
changed" So there has been, 1t is
: pointed out by lawyers here, not
i merely one, decision reached after
; careful elaboration and able, argu-
ment, but this decision year or two
later was reaffirmed after thoro re-
view of the whole matter by most
: eminent lawyers.
Rule of "Stare Decisis.'
' A second reason for thinking that
none of the justices will change his
r mind is found in the rule of stare
r decisis.'' The extent to which all
courts go in following precedents Is
5 we'll known. Frequently the student
finds in reading decisions an intima-
! ton that the court is not entirely sat
lSIlGQZ Will LIE auOClSiOli WHICH, IL
81 about to make, but that the question
i has been decided, and that this must
: be regarded as closing it.
ii There is another reason for think
ing that the opinion of the lower court
will be affirmed, which, while it Is
stated with great delicacy by lawyers
here, and by no one reflects any dis
credit on the court, has to do with
& it's human nature element. Few jus.
tees even on the supreme court of the
!, United States can be insensible to the
1 ysexpectation of the public No jus.
y tice can escape g certain unconsciou.
influence of public sentiment. He can.
I not disabuse his mind of the motor
8 that to reverse the circuit court o,
6 appeals in this case and to sustain
!, the Northern Securities enterprise
!. would be followed in many quarters
h by an outburst of public indignation
: This Is not a definite reason to assign
tfor expecting the affirmance of thi.
e decision and yet it is one OF those
E atmospheric influences which count ii
d that direction, and cannot be who'll,
j. overlooked.
Ell The position of a majority of TIL
81 court In the trans-M Missouri case ~