River Falls journal. [volume] (River Falls, Pierce County, Wis.) 1872-2019, 1910-01-13


or punishment
The supreme court In several of its
decisions, has declined to read Into the
statute the word unreasonable before
restraint of trade on the ground that
the statute applies to all restraints and
does not intend to leave the court the
discretion to determine what is a reason
able restraint of trade. The expression
restraint of trade" comes from the COM
mon law, and at common law there were
certain covenants incidental to the car
rying out of main or principal con-
tract which were said to be covenants in
partial restraint of trade, and were held
to be enforcible because reasonably"
adapted to the performance of the main
or principal contract, and under the
general contract, and under the general
language used by the supreme court in
several CO !. it would seem that even
such inci6 ntal covenants in restraint
of interstate trade were within the in
hibition of the statute and must be con-
demned.
In order to avoid such result 1 have
thought and said that it might be well
to amend the statute so as to exclude
such covenants from it's condemnation. A
close examination of the later decisions
of the court however, shows quite clear
ly in cases presenting the exact ques-
ton that such incidental restraints of
trade are held not to be within the law
and are excluded by the general state
ment that, to be within the statute, the
effect upon the trade of the restraint
must be direct and not merely inciden-
tai or indirect The necessity. therefore,
for an amendment of the statute so as
to exclude these incidental and bene-
fetal covenants in restraint of trade held
in common law to be reasonable, does not
exist.
In some of the opinions of the federal
| circuit judges, there have been intima-
| lions. having the effect, if sound, to
weaken the force of the statute by in
| Guiding within it absurdly unimportant
combinations and arrangements, and Sug-
costing therefore, the wisdom of chang
| ing it's language by limiting it's appli-
| cation to serious combinations with in
tent to restrain competition or control
prices A reading of the opinions of the
supreme court, however, makes the
change unnecessary, for they exclude
| from the operation of the act contracts
affecting interstate trade in but a small
| and incidental way. and apply the stat
| ute only to the real evil aimed at by
| congress.
The statute has been on the statute
| book now for two decades, and the SUI
preme court in more than dozen opin-
| ions has construed it in application to
various phases of business combinations
| and in reference to various subject mat
L
| der one control of two competing inter-
state railroads, to private manufacturers
engaged in a plain attempt to control
| prices and suppress competition In part
| of the country, including dozen states,
| and to many other combinations affect
| ing interstate trade The value of
| statute which is rendered more and more
| certain in its meaning by series of de-
cisionS of the supreme court furnishes
strong reason for leaving the act as
| it is to accomplish it's useful purpose,
| even though if it were being newly en-
| acted, useful suggestions as to change OF
| phrase might be made.
For Government Control.
| Many people conducting great bust
nesses have cherished a hope and be-
lief that in some way or other q line
may be drawn between good trusts" and
| bad trusts" and that it is possible by
| amendment to the antitrust law to make
| a distinction under which good combina-
| lions may be permitted to organize, sup
prcss competition, control prices, and do
| it all legally if only they do not abuse
| the power by taking too great profit out
| of the business. They point with force to
certain notorious trusts as having grown
| into power through criminal methods by
| the use of illegal rebates and plain cheat
ing and by various acts utterly violative
of business honesty or morality, and urge
| the establishment of some legal line of
separation by which criminal trusts"
Of this kind can be punished and they,
| on the other hand, be permi ted under
| the law to carry on their busi ness. Now,
| the public, and especially tie business
public ought to rid themselves of the
| idea that such a distinction is practic-
| able or can be introduced into the stat
| ute.
Certainly under the present antitrust
| law no such distinction exists. 1t has
been proposed, however, that the word
| reasonable" should be made part of
| the statute, and then it should be left to
| the court to say what is a reasonable
restraint Of trade, what is a reasonable
suppression of competition, what is a rea-
| sonable monopoly. 1 venture to think that
| this is to put into the hands of the
| court power impossible to exercise on
| any consistent principle which will in
| sure the uniformity of decision essential
| to just judgment. It is to thrust upon
| the courts a burden that they have no
precedentS to enable them to carry, and
| to give them a power approaching
| arbitration, the abuse of which might
| involve our whole judicial system in dis
aster.
An Aid to Business Virtue.
In considering violations of the anti
| trust law we ought, of course, not to
forget that that law makes unlawful,
before it's passage were regarded as evil
dence of business sagacity and success,
and that they were denounced in this act
not because or their intrinsic immoral
ity, but because of the dangerous re-
suits toward which they tended, the con-
centration of industrial power in the
hands of the few, leading to oppres-
sion and injustice. In dealing, therefore,
with many of the men who have used
the methods condemned by the statute
for the purpose of maintaining a profit
able business, we may we'll facilitate a
change by them in the method of doing
business, and enable them to bring it
back into the zone of lawfulness, with
out losing to the country the economy
of management by which, in our domestic
trade the cost of production has been
materially lessened, and in competition
with foreign manufacturers our foreign
trade has been greatly Increased.
Through all our consideration of this
grave question, however, we must insist
that the suppression of competition the
controlling of prices, and the monopoly
or attempt to monopolize in interstate
commerce and business are not only I'M
lawful, but contrary to the public good
and that they must be restrained and
punished until ended.
Asks National Corporation Law.
I therefore recommend the enactment
by congress of a general law providing
for the formation of corporations to en-
gage in trade and commerce among the
states and with foreign nations, protect
ing them from undue interference by
the states and regulating their activities
so as to prevent the recurrence under
national auspices, of those abuses which
have arisen under state control. Such
a law should provide for the issue of