The Ely miner. [volume] (Ely, Minn.) 1895-1986, 1910-01-14

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 wide scope
and applies to many combinations in
actual operation, rendering them unlaw-
full and subject to indictment and re-
straint.
Amendment Unnecessary.
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 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 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, it would seem that even
such incidental covenants in restraint
of interstate trade were within the in
hibition of the statute and must be con-
demned.
In order to avoid such result, 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 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 inciden-
| 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 intima-
tons, having the effect If sound, to
weaken the force of the statute by in
| GLIDING within it absurdly unimportant
| combinations and arrangements, and sug-
costing, therefore, the wisdom of chang
| ing it's language by limiting its appli-
| cation to serious combinations with in
! tent to restrain competition or control
| prices. reading of the opinions of the
| supreme court, however, makes the
| change unnecessary, for they exclude
| from the operation of the act contracts
affecting interstate trade in but 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 SUI
| preme court in more than a dozen opin-
ions has construed it in application to
various phases of business combinations
| and in reference to various subject mat
| ter. 1t has applied it to the union I'M
der one control of two competing inter-
| state railroads, to private manufacturers
| engaged in plain attempt to control
1T in orf
! of the country, including a dozen states.
| and to many other combinations affect
| ing interstate trade. The value of
| statute which is rendered more and more
| certain in it's meaning by series OF de-
| cisions of the supreme court furnishes
| 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.
Many people conducting great bust
nesses have cherished a hope and a be-
| lief that in some way or other line
| may be drawn between good trusts" and
| bad trusts" and that it is possible by
| amendment to the antitrust law to make
| a distinction under which good combina-
| tons may be permitted to organize, sup
press competition, control prices, and do
| it all legally If only they do not abuse
| the power by taking too great profit out
| OF the business. They point with force to
certain notorious trusts as having grown
| into power through criminal methods by
| the use of illegal rebates and plain cheat
| ing end by various acts utterly violative
of business honesty or morality, and urge
| the tablishment of some legal line of
| sc paration by which criminal trusts"
| of this kind can be punished, and they,
| on the other hand, be permitted under
| the law to carry on their business Now,
| the public, and especially the business
| public ought to rid themselves of the
| idea that such a distinction is practic-
| able or can be introduced into the stat
ute.
Certainly under the present antitrust
| law nc such distinction exists 1t has
| been proposed, however, that the word
reasonable" should be made a part of
| the statute, and then it should be left to
| the court to say what is a reasonable
| restraint Of trade, what is a reasonable
| suppression of competition, what is a rea-
| sonable monopoly. 1 venture to think that
| this is to put into the hands of the
| court a power impossible to exercise on
| any consistent principle which will in
| sure the uniformity of decision essential
| to just judgment. 1t is to thrust upon
| the courts a burden that they have no
precedents to enable them to carry, and
| to give them a power approaching
arbitration, the abuse of which might
involve our whole judicial system in dis
aster.
An Aid to Business Virtue.
In considering violations of the anti
trust law we ought, of course, not to
forget that that law makes unlawful,
methods of carrying on business which
before it's passage were regarded as evil
dence of business sagacity and success,
and that they were denounced in this act
not because of their intrinsic immoral
ity but because of the dangerous re-
suits toward which they tended, the con-
centration of Industrial power in the
hands of the few, leading to oppres-
sion and injustice. In dealing, therefore,
with many Of the men who have used
the methods condemned by the statute
for the purpose of maintaining a profit
able business, we may well facilitate a
change by them in the method of doing
business, and enable them to bring II
back into the zone of lawfulness. with
out losing to the country the economy
of management by which, in our domestic
trade the cost of production has been
materially lessened, and in competition
with foreign manufacturers our foreign
trade has been greatly increased.
Through all our consideration Of this
grave question, however, we must insist
that the suppression of competition, the
controlling Of prices, and the monopoly
or attempt to monopolize in interstate
commerce and business are not only I'M
lawful, but contrary to the public good,
and that they must be restrained and
punished until ended.
Asks National Corporation Law.
I therefore recommend the enactment
by congress of a general law providing
for the formation of corporations to en-
gage in trade and commerce among the
states and with foreign nations protect
ing them from undue interference by
the states and regulating their activities
so as to prevent the recurrence, under
national auspices, of those abuses which
have arisen under state control Such