The sun. [volume] (New York [N.Y.]) 1833-1916, 1908-03-27
The Proposed Special Tribunal Of
ReasOnablencsS.


The President proposes a change in
our statutory law relating to contracts
which We venture to say is without a
precedent in American legislation.
1t is generally believed by those who
have studied the practical application
Of the Sherman antitrust law and the
results Of its enforcement, so far as it
has been enforced, that it operates in
many instances u%nfavorably to the true
interests Of the public, in absolutely pro-
hibiting all contracts whatsoever which
happen 10 be in restraint Of trade. The
conditions Of commerce in modern times
are perceived TO be such that many COM
binations are beneficial, if not indeed
essential, to the welfare Of the COM
munity, Notwithstanding the fact hat
TO some extent they fall within the cate
CORY Of contracts in restraint of trade.
The conclusion follows that trade agree
ments should not be forbidden by law
simply because they fall within this cate
CORY, and TO this end the President sug-
gests that the reasonableness Of any
given contract should be adopted as the
test Of its validity and that commercial
and business combinations should be
forbidden only in those cases where the
restraint which they impose upon trade
is unreasonable in its character. Sena-
tor FORAKER suggests the same thing and
proposes the direct way TO effect il.
But with whom would Mr.. ROOSEVELT
leave the determination of the vitality i'm
portant question whether a given con-
tract in restraint Of trade is or is not
reasonable? Not in The first instance to
the courts, to which it must come ulti-
mately, but 10 a member OF his Cabinet,
The Secretary Of Commerce and Labor, In
other words, he would have the statute
provide that all contracts in restraint Of
trade are unlawful until the courts de-
clare them lawful, except such as may be
deemed reasonable by the Secretary Of
Commerce and Labor, or his subordinate,
the Commissioner Of Corporations. II that
officer does not forbid the contract, or,
in the p~hraseology of the message, issue
a prohibition against it within sixty days
after it is filed with him, then the con-
tract or combination can be disapproved
orforbidden only after notice andhearing,
with a reasonable provision for summary
review on appeal by the courts
This is really a most remarkable propo-
sition. The adoption by Congress Of
the Presidents suggestion would SUBJ
ject the validity of all contracts in re-
straint Of trade to the fiat Of one Of the
executive departments Of the Federal
Government. The question Of reasona-
bleness or unreasonableness as applied
to the construction and Interpretation
Of an agreement is essentially judicial
in its nature, and yet il is proposed by
Mr., ROOSEVELT that the decision of that
question shall be confded to an admin
istrative officer who may have no legal
or Judicial training or experience what
ever.
We venture to assert that no such
extraordinary and far reaching power
has ever yet been conferred upon any
single officer in the history of the Ameri-
can Government.
Under such an arrangement the va
lidity of every important trade combi-
nation would practically be dependent
upon the will and approval of the Presi-
dent Of the United States.