The daily sentinel., 1910-01-07

good. patriotic men as to the result
of continuance of this movement
toward the concentration In the
hands of n few of the absolute con-
troll of the prices of all manufactured
products.
The antitrust statute was passed
in 1890, and prosecutions were soon
begun under 1t. In the case of the
United States VS.. knight (known as
the sugar trust easel. because of the
narrow scope of the pleadings, the
combination sought to be enjoined
was held not to be included within
the prohibition of the act, because
the averments did not go beyond the
mere acquisition of manufacturing
plants for the refining OF sugar and
did not include that of a direct and
intended restraint upon trade and
commerce in the sale and delivery of
sugar across state boundaries in for
eign trade. The result of the sugar
trust case was not happy, in that it
gave other companies and combina-
tions seeking a similar method of
making profit by establishing an alb
solute control and monopoly in a par
ticular line of manufacture. a sense
of immunity against prosecutions in
the federal jurisdiction, and, where
that jurisdiction is barred in respect
to a business which is necessarily
commensurate with the boundaries
of the country, no state prosecution
is able to supply the needed machin-
cry for adequate restraint or punish
ment.
Following tine sugar trust decision.
however, there have come along, in
the slow but certain course of judicial
disposition, cases involving a con-
struction of the anti-trus. statute
and its application until now they
seem to embrace every phase of that
law which can be practically pre-
sented to the American public and to
the government for action. They
show that the antitrust act has a
wide scope and applies to many COM
0inations in actual operation, rem
dering them unlawful and subject TO
Indictment and restraint.
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 to the court the discretion to
determine what is a reasonable re-
straint of trade. The expression re
straint OF trade" comes from the
common law, and at common law
there were certain covenants incl
dental to the carrying out of main
or principal contract which were said
to be covenants in partial restraint
of trade and were held to be enforci-
BILE because reasonably" adapted to
the performance of the main or prin-
aifaa1 n and itnhar- ha
al language used by the supreme
court in several cases, it would seem
that even such incidental covenants
in restraint of interstate trade were
within the inhibition of the statute
and must be condemned. In order to
avoid such a result, | have thought
and said that It might be well to
amend the statute so as to eXclud.
such covenants from its condemna-
! tion. A close examination of the
later decisions of the court, however,
shows quite clearly, in cases present
ing the exact question. that such in
cidental restraints of trade are held
not to be within the law and are ex-
cluded by the general statement that,
to be within the statute. the effect
upon the trade of the restraint must
be direct and not merely incidental
or indirect. The necessity, therefore,
for an amendment of the statute, 50
as to exclude these incidental and
beneficial covenants in restraint OF
trade, held in common law to be rea
sonable, does not exist.
In some opinions of the federal
| judges, there have been intimations
having the effect, if sound. to weaken
the force of the statute by including
within it absurdly unimportant com
binations and arrangements, and sug-
gesting, therefore, the wisdom of
changing its language by limiting its
applications to serious combinations
with intent to restrain competition or
control prices. A reading of the opin-
ions 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 statute only to the
real evil aimed at by congress.
The statute has been on the statute
books now for two decades, and the
supreme court, in more than a dozen
opinions, has construed it in applica-
| tion to various phases of business
combinations and in reference to va
rious subject matter. 1t has applied
to the union under one control of
two competing interstate railroads;
to joint traffic arrangements between
| several inte' state railroads: to pri-
vate manufacturers engaged in a
plain attempt to control prices and
suppress competition in part OF