The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1904-05-11
LAW FOR ONE CASE ONLY.
Prof. canfeId's Conclusions About the
Decision in the Merger.
Columbia Law Review for May


1t would seem that the following
propositions may be stated with rea-
sonable certainty:
l. The Northern Securities decision is
wrong on principle. involving wrong in
depreciation of the antitrust act and a
wrong Interpretation of the powers OF
congress under the constitution; and, with
all Difference the actual decree rendered,
In its full length and breadth, is abso-
lutely indefensible and Violative of funda
mental principles.
2. The United States supreme court as
now constituted. will not carry this de-
cision to its logical consequences The
decision will be recognized. and more and
of judicial legislation, resulting from the
assumed necessity of suppressing what
was supposed to be great evil and of
averting greater evils Of a similar char
aefer, which 1t was feared this one might
produce.
8. The primary practical result of the
Northern Securities decision will be sim
ply that the Northern Securities company
itself Will be practically suppressed and
all similar plans of merger, if there We're
any such, must be abandoned; but the
actual coneentratlon of power and sup
preston of competition which the North
efn Securities company was supposed to
secure will either continue to exist in
the hands of the promoters of that enter
prise or of those controlling a still larger
combination of interests.
4. The Pennsylvania Railway company
the New York Central and Hudson River
Railway company and other large rail-
way companies, which have consolidated
with or bought control of competing rail-
way companies, are safe from attack by
the United States government under the
existing antitrust act.
D, The large Industrial combinations
such as the Standard Oil company, United
states Steel company and others, are also
government under existing laws
b. JOINT traffic associations between
competing railway companies are Illegal
even though they provide simply for the
the union of railway companies is sup
posed to constitute a monopoly
I. Joint selling agencies and associations
Tor maintaining prices among competing
manufacturing or trading companies are
legal, If they are in all respects reason
able, and the companies are not so big
as to create monopoly. If they do, how
ever, constitute monopoly, then they are
Illegal whether reasonable or uTrea soma
Bile, because the test of reasona bleness
does not apply to monopolies.
The writer has not intended to ex-
press any opinion on the merits Of the
trust question. That question presents
grave problems and must be soberly
considered. He has simply endeavored
TO study the situation as it exists to-
day from the viewpoint of a lawyer.
The agitation of the trust question in
modern times, vociferouSly supported
by quacks and charlatans, and stimu-
lating ill-conSidered action by legisla-
lures and courts, is an apt illustration
If it had not been declared, as it was
declared in the Addyston Steel and
Pipe case, that an association of man
ufactureFs, however innocent and how
ever necessary to prevent financial
suicide was illegal, there would have
been no necessity, or at least much
less inducement for the formation of
the United States Steel company If
it had not been held, as it was held in
the Traffic association cases, that
agreements to maintain uniform and
reasonable rates among competing
companies We're Illegal, there would
have been no necessity or at least
much less inducement, for the forma-
ton of the Northern Securities COM
pany or for adopting the modern policy
Of community of interest involving the
buying or control of or a dominant in
huence in competing railway COM
panieS
Having necessitated, or at least slim
ulated, this policy of combination, we
now say that those who have been
Joined together must be put asunder.
Is this sensible? Some one has said
that the Northern Securities decision
was not only good sense, but also good
law, for the public welfare. 1t is re-
specially submitted that the law is
now good only so far as the Northern
Securities company itself is concerned
and cases involving precisely similar
facts; that the governments law was
bad both before the decision and since,
as the court, while granting the de-
cree asked for by the government, re-
jected it's legal propositions. AS for the
public welfare, it may be that the at
tack upon the Northern Securities
checked the wild specula-
tive spirit which preceded it's forma-
ton; but would not natural forces
have take care of that, as they have
taken care of Mr.. Sully. and his cotton
bubble. and in times past of all the
blowers of speculative bubbles?
Whether it will have the effect of pre-
venting the suppression Of competition
and the maintenance of rates between
the Northern Pacific and Great North
arn Railway companies is yet to be de-
termined.
So far as now appears, one of two
:. .:ssse.. z.sceIIf likely to happen. Either
the practical concentration of power
and control win remain in the hands of
the promoters of the Northern Securi-
ties company, or it will be superseded
by a still more formidable concentra-
ton of p0Mer-namely, by the prac-
teal union of the Northern Pacific,
Union Pacific and Southern Pacific
companies. George F. Garfield.