The Greenville journal. [volume] (Greenville, Ohio) 1850-1918, 1910-01-13

| ate with the boundaries OF the country.
| no state prosecution is able to supply the
needed machinery for adequate restraint
| 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 reason
| able restraint of trade. The expression
"restraint of trade" comes from the COM
| mon law, and at common law there we're
| 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 cases, IL would seem that even
such inci ntal covenants in restraint
OF intersta - trade were within the in
hibition of the statute and must be con-
demned.
In order to avoid such a result, I have
thought and said that 1t might be well
to amend the statute so as to exclude
such covenants from its condemnation. A
|
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 incden-
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 intma-
| tions having the effect II sound to
weaken the force of the statute by in
, cluding within it absurdly unimportant
! combinations and arrangements. and sug-
. | costing, therefore, the wisdom of chang
, ing its language by limiting its appli-
satiSn to serious combinations with in
tent to restrain competition or control
/ prices reading of the opinions of the
r supreme court, however, makes the
,hange 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 su-
[ | preme court in more than a dozen opin-
ions has construed it in application to
| various phases of business combinations
t | and in reference to various subject mat
| ter. 1t has applied 1t to the union un-
l der one control of two competing inter-
l state railroads, to private manufacturers
e engaged in a plain attempt to control
prices and suppress competition in a part
of the country, including dozen states.
I | and to many other combinations AFFECT
q | ing interstate trade. The value OF
. statute which is rendered more and more
= certain in its meaning by series or de-
q | Cisons of the supreme court furnishes a
strong reason for leaving the act as
it is, to accomplish its useful purpose,
even though If it were being newly en-
: acted, useful suggestions as to change OF
- phrase might be made.
: For Government Control.
I Many people conducting great bust
e nesses have cherished a hope and be-
: lief that in some way or other line
e may be drawn between good trusts" anc
'' bad trusts" and that 1t is possible by
II amendment to the antitrust law to make
i a distinction under which good combina'
l. tions may be permitted to organize, sup
:, press competition. control prices, and dc
; u it all legally il only they do not abuse
II the power by taking too great profit ou
3 certain notorious trusts as having grown
: into power through criminal methods by
n the use of illegal rebates and plain cheat
/ ing and by various acts utterly violauvt
r of business honesty or morality and urge
II the establishment of some legal line O.
" separation by which criminal trusts
# Of this kind can be punished, and they
: on the other hand, be permitted unde
q the law to carry on their business. Now
n the public, and especially the business
l. public, ought to rid themselves of thu
u idea that such a distinction Is practic
II able or can be introduced into the stat
II | ute.
u Certainly under the present anti-trus
y | law no such distinction exists. 1t ha!
q been proposed, however, that the wore
e reasonable" should be made part o
the statute, and then 1t should be left t.
tile court to say what Is reasonable
restraint of trade, what is reasonable
IS suppression of competition, what Is a rea
e sonable monopoly. venture to think tina
e this Is to put into the hands of th
4, court a power impossible to exercise oil
= any consistent principle which will in
le sure the uniformity of decision essentia
Re to just judgment. 1t is to thrust upol
% the courts a burden that they have N
precedents to enable them to carry, ant
!. to give them a power approaching
- arbitration, the abuse OF which nigh
n aster
= An Aid to Business Virtue.
In considering violations of the anti
=. trust law we ought, of course, not t
- forget that that law makes unlawful
"a methods of carrying on business whic
a. before it's passage were regarded as evi
ia dence of business sagacity and success
a. and that they were denounced in this &C
- not because of their intrinsic immoral
a ity, but because Of the dangerous re
A. suits toward which they tended the con
n centration of industrial power in tn
h. hands of the few, leading to oppres
n sion and injustice. In dealing, therefore
st with many of the men who have use
a. the methods condemned by the statut
n. for the purpose of maintaining a profit
n able business, We may we'll facilitate
r change by them in the method of doin
fe business, and enable them to bring
T. back into the zone of lawfulness with
hit | out losing to the country the econom
Of of management by which in our domesti
ne trade the cost of production has bee
es materially lessened. and in competitio
RS with foreign manufacturers our foreig
OF trade has been greatly increased.
re Through all our consideration of th
IN grave question, however, we must insi!
nc that the suppression of competition, til
~ controlling of prices, and the monopol
Vi or attempt to monopolize in interstat
pc commerce and business are not only III
,,t ne lawful. but contrary to the public goo,
~ ~ and that they must be restrained an
mm mm punished until ended
Asks National Corporation Law.
therefore recommend the enactmer
by congress of general law providin
IN for the formation of corporations to ell
I'LL gage in trade and commerce among II
es states and with foreign nations, protec
ISL ing them from undue interference
OF tho states and regulating their activitit
TO so as to prevent the recurrence, undo
ed national auspices, of those abuses whic
Sc have arisen under state control. Sue