The Birmingham age-herald., 1904-03-15


 of the court Justice Brewer, however, did not accept the reasoning of Justice Harlan In all its details, and therefore de- livered a brief opinion of his own. He ex- pressed the opinion that some Of the re- cent opinions of the circuit court In anti trust cases had gone too far, and after mentioning several of them, sald:
 Justice Brewers Opinion.
 Instead of holding that the antitrust act included all contracts, reasonable or unreasonable, in restraint of interstate trade. the ruling should have been that the contracts there presented were in themselves unreasonable restraints of in- terstate trade, and therefore within the scope of the act.
 congress did not intend by the act to reach and destroy those minor contracts in partial restraint of trade, which the long course of decisions at commons law has affirmed were reasonable and ought to be upheld. The purpose rather was to add statutory prohibition which pre- scribed penalties and remedies to nullify those contracts which were in direct re- straint of trade, unreasonable and against ' public policy"
 He also held that the general language of the act Is limited by the power Wmch the individual has to manage hls own property, and determine the place ana manner of its investment saying on this point:
 ''Freedom of action in these respects are among the inalienable rights of every citizen. If, applying this to the present case, it appeared that MT. Hill was the owner of a majority of the stock Tn the Great Northern Railroad company, he could not by any act of congress be de- prived of the right of investing his sur plus means in the purchase of stock or the Northern Pacific railroad, although such purchase might tend to vest in him through that ownership a control over both companies"
 The dissenting justices, including Chief Justice Fuller and Justices White, Peck ham and Holmes, presented two opinions, giving their reasons for not agreeing with the majority in the decision reach ed The first of these was delivered by Justice Holmes, and the second by Justice White. Justice Holmes, in his opinion, contended that the antitrust statue Is of a criminal nature, and said:
 Justice Holmes DlssentIon.
 Tt is in vain to Insist that this is not a criminal proceeding. The words cannot be read one way in a suit which is to end in a fine and imprisonment and another way in one which seeks an injunction am no friend of artificial interpretations, because the statute is of one kind rather than another, but all will agree that be- fore a statute is to be taken to punish that which always has been lawful, 1t must express its intent in clear words. So, l say we must read the words before us as if the question were whether two small exporting grocers should go to jail"
 a ha ha of discussion, that congress might take steps not only to regulate commerce. but also to regulate instruments of commerce or contracts 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 ar gued would not justify such law Re- ferring ot the contention as to the effect the acquisition of the stock of the Great Northern and the Northern Pacific rail- road companies would have in preventing competition between the two roads, Jus tice Holmes said:
 'If such a remote result of the exercise of an ordinary incident of personal free dom is enough to make that exercise un- lawful there is hardly any transaction concerning commerce between the states that may not be made a crime by the finding of a jury or court"
 Would Not Go to Jail.
 He did not exeptc, he said, to hear it contended that MT. Morgan could be sent 10 jail for buying in his individual capac- ity shares of stock of the two railroad companies, even if he bought them at the same time and got more than half of the stock of such roads.
 Yet" he said, unless am entirely wrong in my understanding of what a combination in restraint of trade means, then the same monopoly may be at- tempted and effected by a nindividual and is made equally illegal in the case by section 9.
 Continuing, he said:
 "The law says nothing about competi- tion and only prevents its suppression by contracts or combinations in restraint of trade. and such contracts or combinations derive their character as restraining trade from other features than the suppression of competition alone"
 Justice Whites opinion was of consid- erable length and required more than an hour for its delivery. He based his re- marks upon what he said were the two principal questions at issue. which were: Does the antitrust act, when rightfully interpreted. apply to the acquisition and ownership by the Northern Securities company of the stock in the two rail roads; ard second. If it does. had con- gress the power to regulate or control such acquisition and ownership? In considering the question of power.