The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1910-01-08

particular line of manufacture, a sense
of immunity against prosecutions in the
federal jurisdiction, and where that juris-
diction is barred in respect to a business
which is necessarily commensurate with
the boundaries of the country, no state
prosecution was able to supply the needed
machinery for adequate restraint or pun
isEment.
Wide Range of Cases.
Following the sugar trust decision, how
ever there have come along in the slow
but certain course of judicial disposition
cases involving a construction of the anti
trust statute and Its application until now
they seem to embrace every phase of that
law which can be practically presented
to the American public and to the govern
ment for action. They show that the anti
trust act has wide scope and applies to
many combinations in actual operation,
rendering them unlawful and subject to
indictment and restraint.
The supreme court in several of It's de-
cisions has declined to read into the stat
ute the word unreasonable" before re-
straint of trade on the ground that the
statute applies to all restraints and does
not intend to leave to the court the dis
CT elton to determine what is a reasonable
restraint of trade. The expression re
straint of trade comes from the COM
mon law, and at common law there were
certain covenants incidental to the carry
ing out of a main or principal contract
which were said to be covenants in par
tial restraint of trade, and were held to
be enforcible because ''unreasonably'
adapted to the performance of the main
or principal contract. And under the gen.
eral language used by the supreme court
In aau oil +t1A4
such incidental covenants in restraint of
interstate trade were within the inhibi-
ton of the statute and must be con-
demned.
In order to avoid such result 1 have
thought and said that 1t might be we'll to
amend the statute so as to exclude such
covenants from Its condemnation.
Restraint Of Trade.
A close examination of the later de-
cisions of the court, however, shows quite
clearly in cases presenting the exact
question, that suchincidental restraints
of trade are held not to be within the
law and are excluded 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 direct. The necessity, therefore, for
an amendment OF the statute so as to
covenants in restrain of trade held at
common law to be reasonable, does not
exist
In some of the opinions Of the federal
court judges there have been intimations
having the effect IL sound, to weaken the
force of the statute by including within
its absurdly unimportant combinations
and arrangements and suggesting, there
fore, the wisdom of changing its language
nv linifipe~ IFS a 70 ca,-iot
binations with intent to restrain compe-
titlon or control prices. A reading of
the opinions of the supreme court, how
ever, makes the change unnecessary, for
they exclude from the operation of the
act contracts affecting interstate trade In
but small and incidental way. and APP
ply the statute only to the real evil aimed
at by Congress.
The statute has been on the stat
ute books now for two decades. and the
supreme court In more than a dozen
opinions has construed II In application
to various phases of business combina-
tons and in reference TO various sub
1ects matter. 1t has applied to the union
under one control of two competing In
terstate railroads. to joint traffic ar
rangements between several interstate
railroads, to private manufacturers en-
gagged in plain attempt to control prices
and suppress competition in part OF
the country, Including dozen states
and to many other combinations affecting
interstate trade. The value of a statute
which is rendered more and more GER
tain in its meaning by series of de-
cisions of the supreme court furnishes
a strong reason for leaving the act as II
is to accomplish its useful purpose, though
were it being newly enacted useful sug-
gestions as to change of phrase nigh,
be made.
Duty Of Executive.
1t is the duty and the purpose Of the
executive to direct an investigation by
the department of Justice, through the
grand jury or otherwise, into the his
/ tory, organization and purposes Of ali
the industrial companies with respect t.
which there is any reasonable ground
for suspicion that they have been or
ganized for a purpose and are conducting
business on a plan which is in violation
of the antitrust law. The work is a
heavy one but 1t Is beyond the powe.
of the department of justice, If sufficient
funds are furnished to carry on the in
vestigatlons and to pay the counsel en-
| gagged in the work
! But such an investigation and possible
prosecution of corporations whose pros
perity or destruction affects the COM
forts not only of stockholders, but OF