The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1904-03-15
TWO OPINIONS BY THE
DISSENTING JUSTICES

and Holmes. presented two opinions, giving
their reasons for not agreeing with the ma
| jority of the court in the decision reached
The first of these WAS delivered by Justice
| Holmes and the second by Justice White.
Justice Holmes, in his opinion. contended
| that the antitrust statute is of . criminal
nature and said: ''It is in vain to insist that
this is not a criminal proceedings. The
/ words cannot be read one way in a suit
which is to end in fine and Imprisonment.
and another way in one which seeks an in
| junction. / am no friend of artificial in
| terpretations because the statute is of one
! kind rather than another, but all agree that
| before a statute is to be taken to punish
that which always has been lawful it must
express its intent in clear words. SO / say
must read the words before if the
| question were whether two small export
ing grocers should so to jail
He conceded, he said for the purpose of
discussion, that Congress might take steps
not only to regulate commerce, but also to
regulate instruments of commerce or con-
tracts, the bearing of which upon commerce
would be only indirect. But the mere fact
of an indirect effect on commerce not
shown to be certain, he argued, would not
justify such a law. Referring to the con-
tention as to the effect the acquisition of
the stock of the Great Northern and the
Northern Pacific Railroad companies would
have in preventing competition between the
two roads, Justice Holmes said: IF such
a remote result of the exercise of an ordi-
nary incident of property and personal free
dom is enough to make that exercise I'M
lawful, there is hardly any transaction con-
corning commerce between the States that
may not be made a crime by the finding OF
jury or a court. The personal ascendency
of one man may be such that II would give
to his advice the effect of a command III he
owned but single share in each road. The
tendency of his presence in the stockhold-
ers' meetings might be certain TO prevent
competition, and thus his advice, if not his
mere existence, becomes crime"
THE POPULAR IMPRESSION.
| Referring to the popular impression con-
corning the intention of the antitrust law,
Justice Holmes said: There is natural
feeling that somehow or other the statute
| meant to strike at combinations great
enough TO cause just anxiety on the part OF
those who love their country more than
money, while it viewed such little ones as
| have supposed with just indifference.
| This notion, it may be said, somehow
breathes from the pores of the act. although
| 1t seems to be contradicted in every way
| by the words in detail. And 1t has occurred
| bination reached a certain size IL might
| have attributed to it more of the character
of a monopoly merely by virtue of its size
| than would be attributed TO smaller one.
l am quite clear that IL is only in connection
| with monopoiies that size could play any
| part, but my answer has been indicated
| already. In the first place size in the case
of railroads is an inevitable incident, and
/ If ii were an objection under the act the
| Great Northern and the Northern Pacific
| already were too great and encountered
| N nl9Pp
railroads. it is evident that the size of the
| combination is reached for other ends than
those which make them monopolies The
combinations are not formed for the pur-
pose of excluding others from the field.
Finally even a small railroad Will have
the same tendency, to exclude others from
! it's narrow area that great ones have to
exclude others from greater one. and the
statute attacks the small monopolies as
well as the great. The very words OF the
this, and it has not been attempted in ex-
| press terms.
He did not expect, he said to hear it
contended that Mr.. Morgan could be sent
to Jail for buying in his individual capacity
shares of stock of the two railroad COM
panies. even if he bought them both at the
| same time and got more than half of the
stock of such roads Yet" he said, "un-
less / am entirely wrong in my understand
| ing of what combination in restraint of
| trade means, then the same monopoly may
be attempted and effected by an individual
as is made equally illegal in the case by
| Section 2.
| EFFECT OF PARTNERSHIP
| He discussed at some length the effect of
a partnership, and said that such a COM
| bination is not a contract combination
in restraint of trade between the partners
unless words were to be given a new mean
ing for the purpose of this act, and he con-
tended that there had been no reference to
the suppression of competition in the trans
missouri decision. ITO suppress competi-
| ton in that way" he said, lis one thing.
| to suppress it by fusion is another"
| Continuing in this line he said: THE law
| prevents its suppression by contracts or
| combinations in restraint of trade, and
such contracts or combinations derive their
| character restraining trade from other
features than the suppression of competi-
ton alone.
Justice Whites opinion was of consider
| able length and required more than an hour
| for its delivery. He based his remarks upon
what he said were the two principal ques-
tions at issue, which were: Does the anti
| the acquisition and ownership by the
! Northern Securities Company of the stock
in the two railroads; and second, if it does,
| had Congress the power to regulate or con-
| troll such acquisition and ownership"
Justice White took issue with the PROPOSE
ton or the government that congressional
power over Interstate commerce includes
| authority TO regulate the instrumentalities
of such commerce and to regulate the
ownership and possession of property If the
enjoyment of such rights would enable
those who possess them if they engage in
| Interstate commerce to exert a power over
the same. The proposition he asserted ONLY
| states in another form that 1.-The right To
| acquire the stock was interstate commerce
and therefore was within the authority OF
| Congress. and is refuted by the reasons
and authorities already advanced that the
| proposition, If adopted, would extend the
| power of Congress to all subjects essenti-
| ally local. So clearly is this the result of
| the particular proposition now being con-
sidered that l again illustrate the subject
| Under this doctrine the sum of property &c
be acquired by individuals or by corpora
tions, the contracts which they would
| make. would be within the regulating pow
| er of Congress. If the wage-earner or
ganized to better his condition and Con
| gress believed that the existence of such
| organization would give power If il were
exertod to effect interstate commerce
| Congress could forbid the organization of
all labor associations. Indeed the doctrine
must in reason lead to a concession of the
| right in Congress TO regulate concerning
the aptitude, the character and capacity OF
/ persons.