The Black Hills union and western stock review. [volume] (Rapid City, S.D.) 1904-19??, 1904-03-25
MR.. JUSTICE BREWER
HOLDS The CONTROL
Balance Of Power in the Trust
Gases in Hands Of the
Man From Kansas.
MORE TO BE PROSECUTED
Brewer Will Be Ruled by Facts of Each
Particular Case, and Therefore
No Certainty Exists as to
Future Decisions.

man antitrust law, as interpreted by
the recent decision of the United
States supreme cour in the Northern
Securities case, is to be enforced
against all combinations and conspir-
acieS in restraint of trade, as evidence
is gathered by the federal authorities
OF q character to sustain its prosecu-
lions.
The announcement hat the presl-
dent and attorney general did not pro-
pose to run anuck' among the rusts
has been misinterpreted. By some, it
was misunderstood; by others, it was
purpOsely perverted. The policy Of
the administration, it may be authori-
tatively announced, is as set forth In
the opening paragraph Of this dis
patch.
The attorney general has been
studying the opinion which is to be
ms guide In fUture prosecutions, and
he finds 1t narrower in its scope than
the trst announcements by the press
would lead the public to believe.
For urpos Of prosecution, the
antitrust law is not the so-called ma
5ority opinion rendered by Justice Har-
Ian, but it is the short opinion Of JUS
Tee Brewer, who, while voting with
the majority Of the court, disagreed
with the other four justices in his
AH5 q tiol SSull III
VINO too a much narrower view as
TO the scope Of the law and the DOW
ers of the federal government to deal
with combinations in restraint of
trade.
Test of IllegaIity.
The "reasonableness" or otherwise of
restraints put on competition and trade
Is made the test Of illegality by JUS
t1ce Brewer. The other four justices
or tho ma i0ritv tnnl- thn orrN,,rl ~, =
congress has the right, under the con-
stltul1on, to name any restraints which
IT deems offensive to interstate trade,
and to order the removal OF such re-
StraintS.
Justice Harlan specifically stated
that they might be reasonable or UNI
reasonable; that the power of congress
was plenary. BY the Brewer interpre-
tatlon, each case must stand on its own
merits, n the court reserves the right
to say that the limitations ATTEMPTED
by congress are unreasonable and in
conflict with the spirit letter of the
constitution.
The language of Justice Brewer is
worth quoting. After reviewing pre-
vious decisions of the court on this
subject, he said:
instead OF holding that the antitrust
act included all contracts, reasonable
or unreasonable, in restraint of inter
state trade, the ruling should have been
mat the contracts there presented were
IN themselves unreasonable restraints
Of interstate trade, and therefore with
In the scope of the act.
congress did not intend by that act
to reach and destroy those minor con-
tracts In partial restraint Of trade which
the long course Of decisions at common
law had affirmed were unreasonable
and ought to be upheld.
The purpose, rather, was to add a
statutory prohibition, which prescribed
penalties n remedies to nullify
those contracts which were in direct
restraint Of trade, unreasonable and
against public policy.
Limitations of the Law.
While agreeing with his associate
Justices Of the majority that the COM
bination Of these two railroads was
such unreasonable restraint as the
statute aimed at, he made clear his
conviction that the mere ownership of
stock by a private individual coulG
stock by private individual could
not be regarded as an unreasonable
restraint On trade, and that the law
could not prevent an individual owning
as much Of anything as he might be
able to secure, even though such owner
ship resulted in the consolidation Of
competitive roads or the obliteration of
SSAAS hAiiO SoiAPSAAoNS Noilull1ollS.
In other words, the rights or pri-
vate property G%ncluding the freedom
of c%ontract) and the test of reason
ableness must be considered as limita-
lions on the powers Of the federal
government to curb the big combina-
tons OF capital. The restraints must
be reasonable, and they must be d.
rected to corporate combinations: not
against individual ownership.
And the facts and surroundings Of
each case will be considered in deter
mining whether the corporation against
which prosecution Is directed, Is in fact,
INDUCING in such suppression Of COM
petition as in violation Of the letter
and spirit of the antitrust act.
1t may seem strange that one jus
tice, a member Of a bench made up of
nine, should deliver an opinion in
which none Of the other eight agrees,
and yet which must be taken by the
attorney general and The country at
large as the law. But that such is the
case will be readily seen when it is re-
membered that the court Is evenly d.
| vided and that this one justice holds
the balance of power-so to speak
or the determining vote.
Brewer Turns Scale.
1t was Justice Brewers aline-
ment with Harlan, Day, Brown and
LAtS IAN oSoAS o6dlllSl
the Northern Securities company; and
the reason he alined himself with
those four vas not that he believed in
the radical enunciation of Mr.. Justice
Harlan, but because he believed that
the particular railroad combination on
trial was an unreasonable combination
such as the Sherman antitrust statute
sought to prevent.
If Mr.. Justice Brewer had not re-
garded the merger Of the Great North
ern and Northern Pacific, by means of
the holding" company, as unreason-
able. he would have voted with the
dissenting justices. White. Fuller,
Peckham n Holmes-and the deci-
sion would have been adverse to the
government.
1t is evident, therefore, that, in all
future prosecutions Of trusts under
the Sherman act, the government au-
thorities must keep in mir the opin-
ion Of Justice Brewer, and be pre-
pared to convince him that the com
bination assailed is one which is I'M
reasonable within the intention of the
trainers of the antitrust statute.
| For n ooaa without GO wing that op,.