Evening star. [volume] (Washington, D.C.) 1854-1972, 1904-03-15
Five to Four.

The New York Sun today, commenting
upon the decision of the Supreme Court IN
the merger case, says:
BY majority OF one yesterday. the Su-
preme Court of the United States affirmed
the decree of the circuit court in the mer-
ger case . Never before, therefore,
was the supreme tribunal more equally
divided in case OF momentouS import
ance.
The court divided as nearly evenly as II
is possible for it to do unless one of the
Justices refuses to vote or stands squarely
on the fence and casts a decision which
reads both ways. Justice Brewer did rem
der an opinion which. while deciding
against the merger, adopted line or rea-
soning somewhat different from that en-
bodied in Justice Harians opinion. But
this by no means constituted him an I'M
decided unit. Nor did the fact differentiate
this decision from all others in the past. A
case practically Identical is close at hand
in the insular decision rendered in 1901
The court then stood five to four, and one
of the five. Justice Brown. rendered an
opinion differing in line of reasoning from
that filed on behalf of the four others who
voted with him on the points of law. In
the income tax case, too. the court divided
statute in it's broader application.
Thus in the last two cases Of momentous
Importance that affecting the status Of
the new possessions and that affecting the
great railroad combine, the court has not
only divided as nearly equal as possible I'M
der the mathematical limitations but has
been turned to the one side or the other by
a member who has not shared in all the
views of his Majority associates.
In the merger case the decision, thus
rendered. stands for the most conservative
form of trust correction. 1t checks this
immediate combine on grounds that appeal
10 all but partisan advocates of this method
of business procedure. At the same time
ii does not lay down hard and fast rule
OF law which would inevitably restrict all
corporation growth by placing definite.
irremovable limit upon the activities of the
capitalists. Justice Brewer in effect, takes
a position as the balance of power on the
bench that would enable him with entire
consistency when the next alleged combina:
tior in restraint of trade is brought to the
bar TO regard 1t in the light of its own cir
cUmstances and to sustain it as lawful
In the immediate situation the merger
decision declares to the financial world:
Certain forms of combinations are Illegal
and vodable; but the statute which pro-
hibits them is susceptible of wide latitude
OF Interpretation; this court proposes to
interpret it, as long as it is at present con-
stituted. in the interest of wholesome COM
mercial growth and the protection of the
people from rapaciOus, competition-destroy-
ing trusts, but if the capitalists of this
country wish to try the experiment of de-
vising other methods of economical combi-
nation which will at the same time yield
certain beneficial results to the consumers
and not violate the essential principle of
fai. trade. this court is ready to listen 20
their representations.
Such law, so interpreted. and wisely ad-
ministered. must lead to advancement,
secure sane and scientific. 1t checks the
wild speculation of the promoters, who have
III some cases in the past acted as though
they were subject to no law of the statute
books and no principle of economics. 1t
encourages capital in its legitimate enter
prises and assures the people of watchful
scrutiny over their interests by the judi
ciary of the land.