The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1904-03-21

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 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 tho such
ownership resulted in the consolida-
ton of competing roads or the obliter-
alton of other minor competitive con-
ditions.
In other words, the rights of pri-
vate property Gncluding the freedom
of contract) and the test Of reason
ableness must be considered as limlta-
lions on the powers of the federal
government to curb the big conlbina-
tons Of capital The restraints must
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, indulging in such suppress
sion Of competition as is in violation
of the letter and spirit Of the antitrust
act.
1t may seem strange that one JUS
| tice, 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 1t is re-
vided and that this one justice holds
| the balance Of power-sO to speak
| or the determining vote. . s...a
Brewer Turns Scale.
1t was Justice Brewers aline-
ment with Harlan, Day, Brown and
McKenna that turned the scale against
the Northern Securities company; and
the reason he aimed himself with
those four was 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 and 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 mind the opin-
ion Of Justice Brewer, and be pre-
pared to convince him that the COM
bination assailed is one which is un-
reasonable within the intention Of the
trainers of the antitrust statute.
For it goes without saying that any
case Of this sort will be fought up
thru the lower courts, and will have
to stand the test Of final Judgment by
the nine justices Of the United States
supreme bench. And, If the attorney
general fails to convince Mr.. Justice
Brewer that the combination is I'M
reasonable, he will give his judgment
in the negative. and will be supported
by the four justices who, for different
reasons, are unwilling to regard the
Sherman statute as valid: in which
event the prosecution would fail. =.
Believes Trusts Illegal.
Attorney General Knox has little
!. doubt in his own mind as to the lille
gality Of a number of great combina-
, tons and conspiracies in restraint Of
trade. and does not hesitate to believe
, that, judged by the conservative test
Z prescribed by Mr.. Justice Brewer,
they will be found in violation of the
Sherman antitrust act. But, even in
Tie HlOSC UaSrdnC cases IL IS necessary
J to be very careful in the preparation
. Of proof.
The department of commerce and
/ labor, acting thru it's bureau of cor
5 porations, will continue the work In
which it has been engaged for num-
) Der Of months, collecting data and
: evidence to be submitted to the presi-
l dent and the department Of justice;
2 and when it appears to the lawyers of
the latter department that a good case
y can be made suits will be started. In
no case will prosecutions be COM
= menced without adequate evidence,
$ for the president and attorney general
= feel that it would have a most unfor-
Y tunate effect for any such prosecution
to fail.
It is perfectly apparent from what
has been said that no wholesale prose-
= cutions are to follow as result Of this
decision. The minor contracts in
partial restraint Of trade" as they
are termed by Mr.. Justice Brewer are
certainly not in danger Of interior
ence by government officials, for they
are not regarded as unreasonable.
On the other hand, the larger con-
tracts and conspiracies which stamp
out competition and monopolize trade,
will feel the full force of the law Just
as rapidly as evidence of character
to convict can be gathered by the gov
eminent officials.
AS to what particular trust or
trusts will come next, nobody knows
not even Attorney General Knox or
President Roosevelt.
| w