The sun., 1907-11-20
THE sMERMAN Law.
A Hair Baked Measure Co Hamper and
HmJuro American Commerce.

To THE EDITOR or TMn SUN-StY: Presi-
dent Roosevelt might do much good FOR him
self and for the political party OF which no 10
regulator. leader and boss n he would In
his next annual message urge that party and
his partisan admirers in Congress and every
where else TO fall In behind Senator Foraker
and accomplish the modification OF the Hep
burn. Sherman and ElklnR laws which that
Senator advocated In his statesmanlike
speechNin Cincinnati on the second day OF
last month 20 the Grain Dealers National
Association, and especially the enactment OF
some such measure a. the following. which be
presented TO the Senate three years ago;
De II enacted. &C.. that nothing In the act TO
regulate commerce, approved February Z, 1887,
or In the act 10 protect trade and commerce against
unlawful restraints and mOnoDoiles, approved July
3 1890. or In any act amendOtory or either or
said acts shall hereafter apply TO foreign commerce
or shall prohibit act contract In restraint
of trade or commerce among tho several states.
provided that such a restraint be reasonable. or
shall hereafter authorize imprisonment or for
FeIture OF property punishment for any violation
OF such acts. except for perjury or contempt OF
court.
One OF the Presidents subOrdinRtes on the
Interstate Commerce Commission. MIR. Prouty.
who cannot be fairly stigmatized by the Presi-
dent as visionary or a Bourbon reactiOnary.
recently condemned at Portland. Me-. the
merger Of executive, legislative and judicial
his fellow commissioners.
He and his associate, Mr.. Knapp. chairman
OF the commission. have recently denounced
the Sherman law as "mischievOus" and "in-
tolerable." because IL strikes a blow at
development and progress" by prohibiting
combinations and agreements that are reH-
sonable. even II they do restrain in Isolated
and exceptional cases some Of the trade OF
an individual. a partnership or a corporation
while they enlarge the whole trade OF the
country at home and abroad.
President Roosevelt has himself already
backed up Senator Foraker's urgency in
1903 that the sherman law be so modified
as to permit reasonable" agreements. COM
binations. cOnspiracies, mOnopolies and all
The rest, in reasonable" restraint of inter
state trade. 1t is. OF course. not 10 be seri-
Cously contemplated that either the Presi
dent or the Interstate Commerce Commits
sion or any executive subordinate OF the
President shall have the tremendous power
TO decide the question OF reasOna nableness in
Interstate trade. which Is a judicial question.
Each State will take care in its own way Of
It's own local trade.
Probably an overwhelming majority OF
good lawyers in the country whose opinion
OF anything ia worth thirty cents" believe
that the Su rene Court will whenever the
question Is fairly presented dC is deVOutly
To be wished II could be before the next No
by Congress under existing railway rate
laws to the Interstate Commerce Commits
sion OF a legislative power to fix future rail-
road rates is unconstitutional Even IL each
Of the States can delegate such n power In
that way to its own agents. Congress never
theless is unable to do It under the Federal
Constitution. Secretary Taft endeavOred In
his speeches to vindicate that delega-
tiOn by Congress which Foraker, PrOuty
and Knapp assail and to vindicate IL upon the
plea that the general rule f0rbidding such
delegation OF legislative power has an ex-
ception II and when there is no other feAs-
ibls method by which reasonable railway
rates can be fixed. There are other methods
| in abundance. II the Federal Executive
will only enforce reasonably. fairly and
without a Government brass band existing
| laws fOrbidding rebates and unjust discrimi-
nations by interstate railroads. then shippers
public opinion, the several States and the
courts will secure reasonable rates without
violating the Fourteenth Amendment.
Il may be safely affirmed that the most
| persistent and intelligent partisan OF the
President cannot exhibit examples Of ben
eft which those portions Of the Hepburn.
| sherman and Elkins laws that Foraker.
PrOuty and Knapp propose to eliminate from
| the statute book, have conferred upon Ameri-
| can trade and commerce. They have been
! as useless in promoting the Industrial welfare
| OF the COuhLIS dS tho FhOStuehS rpcCChcS
| on the accumulation and distribution Of
wealth. beginning at Minneapolis In 1901 and
| continuing down TO the last at Nashville In
i 1907. Neither the laws the repeal OF which
has been proposed nor the speeches re-
| ferred to have made national prosperity
any more than declamations against racs
suicide or attempted spelling reform have
availed.
IL is impossible Tor one who can use his
| ayes for intellectual purposes TO look through
the nineteenth and tweusy-irst volumes OF
the Congressional Record and decisions by
the Supreme Court without discerning what
a half baked enactment Is the sherman law
OF 1890 Even Secretary TAFT said or it at
Bath. Me-. In september iSoo' tnat congress
| did not seem TO know now 10 describe that
which it denounced. but quitting the task
| leit tne courts '" uiS0"'ei ''o 0"e"Ve' '" "e
| punished.
The chairman OF the JUDICIARY committee
| OF the House when reporting tho Dill said
| (2i Congressional record, page A'OsoD that
| Just what contracts in the form OF trusts
or what consptracies VIII be in restraint OF
trade or commerce. mentioned in the bill
will not be known until the courts have CON
strued or interpreted this provision But
| into those matters bare majority OF the