The daily morning journal and courier., 1904-03-31

tial is the item ofsfact and law that is found to be settled. It is generally claimed that the judges stood five in fa- vor of Judge Harlan's opinion and four against it. That is correct only by the merest technically. Taken as body. the actual truth with regard to the is sues Judge Harlan discussed are found to have been favored by only four members of the court, while four dis agreed with them; the other Justice (Brewer) stood as it were between these two forces; he only got in touch with Judge Harlan's four. and hence permitted judgment bull holding with them that the particular arrangement by which the control of the two com panies was merged in a single corpora ticn was against the letter and spirit of the congressional statue and there fore forbidden. Consequently his con- currence in the judgment of affirmance can be taken only as expressive of the settlement of that bare issue. Judge Brewer appears to have got on to Judge Harlan's platform merely by knock ing out some of the basic timbers in former decisions under the Antitrust
 law and then by building an addition of his own which gave him standing room while taking exception to the many other impractieable theories
 Judge Harlan announced. The case can
 consequently never be cited as an au- l thority except in a matter pertaining I to a combination on all four with the Securities Company.
 There are, however, one or two points of very considerable interest that can not be passed unnoticed. We would refer, first, to the position Judge Brewer openly and squarely takes with
 reference to individuals; he clearly up- holds their right to purchase as much
 stock in competing roads as they may desire. The inference from his express ed views would be that the community l of-interest idea could not be successfully l attacked. He affirms that the general 1 language of the act (the antitrust stat
 ue) is limited by the power which the 1 individual has to manage his own property and to determine the place and manner of it's investment. Free 1 dom of action in these respects is
 among the inalienable rights of every citizen. If applying this to the present
 case it appeared that Mir Hill was the
 owner of majority of the stock in the | Great Northern Railway Company, he could not by any act of Congress be de-
 prived of the right of investing his
 surplus means in the purchase of stock
 of the Northern Pacific Railway Com
 pany, although such purchase might l tend to invest in him through that
 ownership control over both com panies. In other words, the right which all other citizens had of purchas- 1 ing Northern Pacific stock could not be denied to him by Congress because of his owner ship of stock in the Great l Northern Company"
 There is yet one other highly im-
 portant portion of Judge Brewers de-
 cision which may change the entire character of past decisions under the Antitrust law and bring the interpre- tation of that law back to certain fix
 ed bounds which previous adiudications
 were supposed to have broken down. | We have in mind the determination reached first, we think in the Trans
 Missouri Freight Association case
 holding that the statue covered rep
 sonable as we'll as unreasonable re- straints of interstate commerce. We