The sun., 1910-05-09

FsolRne Association case Il inteFrgeted h
the light Of bis subssqusna explanation oi
that vote. u d difloula 70 80 how The plopo.
aition OF NJ. Justice Harlan can b dsduoed
from that deciflOn, a proposition that bids
galr 10 produce tho CONSEQUENCES which
Mr.. Justice Brewer 80 iOTolhly depicts.
Mr.. Justice Brewer cOnCUErod with ne
majority 10 lls conclusions. but basas that
conclusion noe upon TIE proposition thha
reasonable a. we'll a. unreasonable ~
stFalhts are within the scope Of the act.
proposition which he disavoWp. hut upon
the fact that the agreement presented for
consideration vas. In bis judgment. 40 un-
reasonable restraint aud II Involved no M
consistency 10 cOnstrns the acc ~ did the
minority. while voting with the majority
20 declare the freight as4oolatiOn illegal
The character Of the particular contract
bsfous the cOtUe seems 10 have had para
mount inhuence In determining the vote
Of Mr.. Justice Brewer, While the inference
that might BE- drawn from that vote vas
apparently for the moment ovenOoked.
Mr.. Justice Brewer says that While he
conourred with the majority In their con-
ciugions. ne did not think that the reasons
given could be sustained IN hll respects;
and Il may bo remarked that though there
lhay be Instances where the reasoning 70 .
Conoluaion may be q matter Of indifference.
provided the conclusion is correct. IN cases
where the reasoning h not merely q mental
process but an authoritative and nnal con-
siruction Of . statue Il becomes . matter Of
the utmost Importance 10 deteTmlne whether
. vote simply determines q specific case or
establishes q rule Of general and permanent
application.
Il ls dinlcult 20 bslIsvs that Mr.. Justice
Brewer intended 10 establish by hls vote IN
the Freight Association case a rule which
appears 20 b a. variance with hls visws as
sKprss-ed IN . subsequent opinion.
IL may b suggested that q discussion Of
the question at this late day Il merely aca-
demic: that the record shows that ave jus
tices cORcurrsd IN cOnsiruing tho act 10
include reasonable a. well a. unreasonable
restraints Of interstate trade and that there
the matter ends.
Il Is true the record ahOWa the conclusion
arrived At by i've Justicea. but u does not
on its facs correctly disclose the construc-
ton put upOn the Law by q majority Of the
court.
When . person Il called upon 10 testify
IN a court Of Law he h snioinsd to tell not
only the truth but the whOls truth. and shall
court record ~ permitted to testify less
fullyp
The record tells the truth. namely. that
hvs Justices deci ided against the legality
Of the freight association. but n II told the
whole truth II would add but Justices White.
Gray. ShiFas. Field and Brewer united in
considering that reasonable rest RANTS Of
Interstate trade Wers not unlawful
ls there not Justification for looking
behind the record and inqurlng into the
facts With reference 10 q vote upon a aues-
ton Of such far reaching Importance a.
the construction Of . drastic and revolu-
ti0nary Law. and II the record without auaii-
ncatiOn leads 10 an erroneous CONCLUSION
Ia Il Drofiileas even At this late day to en-
deavOr 70 point out . portion Of the truth
which the record Omits Ia mentiOnp
Mr.. justice White IN his dissenting opn-
Ion IN tho Northern Securities case tsT7,
says The natural reluctance Of the lind
TO follow an erroneous principle TO lie neces-
sary conclusion and thus 10 give eject
10 grtovous wrong arising from the srro-
neOus principle is an admOniti lon that the
principle h WONG and the reluctance
10 apply q drastic construction 10 the anti
trust act noted at the beginning Of this
article may b. IN admoniiion that thers
is something wrong with the doctrine that
even reasonable restraints Of inteFutate
trade are within tho prohibition Of the
sherman Law.
CouFts Of last resort have been known
70 Feesds from an un1enabls poaition by
distinguishing cases, and peFhapa Il may
not be too much 10 hope that tho supreme
Court may sss its Way clear 20 distinguish
between the recorded vote in the FREIGHT
Association case and the unrocOrdsd facts
In regard 70 that vote ~ revealed IN a subss-
quent opinion. MALcOIM CAMPBEtI.
NEW 8ORE. MMy5.