Evening star. [volume] (Washington, D.C.) 1854-1972, 1910-01-07

however, there have come along in the
slow but certain course Of judicial dis
position cases involving a construction
of the antitrust statute and Its appll-
cation until now they seem to embrace
every phase of that law which can be
practically presented to the American
public and to the government for action.
they show that the antitrust act has a
wide scope and applies to many combi-
nations In actual operation, rendering
them unlawful and subject to Indictment
and restraint.
The Supreme Court in several Of its de-
cisions has declined to read into the
statute the word unreasonable" before
restraint Of tra1e,S 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 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 carry
ing out of a main or principal contract
which We're said to be covenants in par
be enforcible because reasonably adapt
ed to the performance of the main or
principal contract. And under the gen.
eral language used by the Supreme Court
In several cases. it would seem that even
such incidental covenants in restraint of
of the statute and must be condemned.
No Need for Amendment.
In order to avoid such result, I have
thought and said that it might be we'll
to amend the statute so as to exclude such
covenants from its condemnation. A close
examination of the later decisions of the
court, however, shows quite clearly in
cases presenting the exact question that
such incidental 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 SO as to exclude these in
cidental and beneficial covenants in re-
straint OF trade held at common law to
be reasonable does not exist.
In some of the opinions of the federal
circuit judges there have been intima-
tons, having the effect. IL sound. to
weaken the force Of the statute by includ-
iflg within 1t absurdly unimportant COM
binations and arrangements. and suggest
ing therefore the wisdom of changing its
language by limiting its application to
serious combinations with intent to re-
strain competition or control prices. A
reading of the opinions Of the Supreme
Court. however. makes the change unnec-
essary. for they exclude from the opera
ton OF the act contracts affecting inter-
state trade in but small and incidental
way. and apply the statute 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 op.n-
ions has construed it IN application to
various phases of business combinations
and in reference to various subjects-mat-
ter. 1t has applied it to the union under
one control OF two competing interstate
railroads, to joint traffic arrange nents
between several interstate railroads. to
private manufacturers engaged in a plain
attempt to control prices and suppress
competition In part OF the country, In
GLIDING a dozen states, and to many other
combinations affecting interstate trade.
The value Of a statute which is rendered
more and more certain in it's meaning
by series Of decisions of the Supreme
Court furnishes strong reason for leav-
Ing the act as it is, to accomplish its use
full purpose, even though if 1t We're being
newly enacted useful suggestions as to
change of phrase might be made.
Duty to Investigate Clear.
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 history,
organization and purposes Of all the in
dustrial companies with respect to which
there is any reasonable ground for sus-
picion that they have been organized
for purpose. and are conducting bust
ness on plan which Is in violation of
the antitrust law. The work is a heavy
one, but 1T Is not beyond the power of
the Department of Justice, If sufficient
funds are furnished. to carry on the in
vestigations and to pay the counsel en-
gagged In the work. But such an investi-
CATION and possible prosecution of cor
ton affects the comfort not only of stock
holders but of millions Of wage-earn-
ers, employees and associated trades
men must necessarily tend to disturb the
to dry up the now flowing sources of
capital from its places Of boarding, and
produce a halt in our present prosperity
that will cause suffering and strained
circumstances among the innocent many
Tor the faults OF the guilty few.
Federal Charters.
The question which wish in this mes
sage to bring clearly to the considera-
ton and discussion Of Congress is wheth-
er In order to avoid such a possible busi-
ness danger something cannot be done by
which these business combinations may
be offered a means, without great finan-
cial disturbance. of changing the char
acter. organization and extent of their
business into one within the lines Of the
law under federal control and supervi-
sioA, securing compliance with the anu
trust statute.
Generally in the Industrial. combina-
tons called trusts" the principal bus
mess is the sale of goods in many states
and In foreign markets: in other words,
the interstate and foreign business far
exceeds the business done in any one
state. This fact will justify the federal
government in granting a federal charter
to such combination to make and sell
in interstate and foreign commerce the
products of useful manufacture under
such limitations as will secure a COM
pliance with the antitrust law. It is
possible SO to frame statute that while
1t offers protection to federal company
against harmful, vexatious and unneces-
sary invasion by the states. 1t shall sub
ject it to reasonable taxation and control
by the states. with respect to its purely
local business.
Good and Bad Trusts.
Many people conducting great bust
nesses have cherished hope and a be-
lief that in some way or other a line
may be drawn between good trusts"
and bad trusts and that 1t is
possible by amendment to the anti
trust law to make a distinction
under which good combinations may
be permitted to organize. suppress
control prices. and do it all