The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1911-12-06
Rule of Decision Unchanged,
form of Expression Altered.

The. statute in Its first section de-
clares 10 be illegal every contract.
combination In the form of trust or
otherwise or conspiracy. In restraint
OF trade or commerce among the
several states or with foreign ma
iinns." and In the second. declares
guilty OF misdemeanor every per.
son who shall monopolize or attempt
to monopoliZe or combine or conspire
with any other person to monopolize
any part OF the trade or commerce
OF the several states or with foreign
nations"
In two carly cases. where the stat
ute was invoked 10 cnjoin trans
pnrtatlon rate agreement between
interstate railroad companies. II was
held that II was no defense 10 show
that the agreement as To rates COM
plained Of was reasonable at com.
mon law. because II was said thai
the statute was directed against all
contracts and combinations In re-
straint OF trade whether reasonable
at common law or not III was plain
from the record. however. that the
contracts complained Of In those
rases would not have been deemed .
reasonable at common law In sub
sequent cases the court said that the
statute should be given a reasonable
construction and refused to include
within Its inhibition certain con
tractual restraints OF trade which It
denominated as incidental or as In
direct.
These cases OF restraint or trade
that the court excepted from the op-
Grafton OF the statute were Instances
which,. at common law, would have
been called rea asonable. In the Stand
ard Oil and Tobacco cases. there
fore, the court merely adopted the
tests Of the common law. and In de-
lining exec ptions to the liberal appli-
cation OF the statute. only substi-
tuted for the test OF being incidental
or indirect. that Of being reason
able. and this. without varying In
effect OF the statute. In other words.
all the cases under the statute which
have now been decided would have
been decided the same way II thn
court had originally accepted In It's
construction the rule al common law
II has been said that tho court. by
introducing into the construction OF
the statute common law distinctions
has emasculated it. This is obvi-
ously untrue. by its Judgment every
OF interstate trade made with the pur-
pose or necessary effect OF controlling
prices by Sitting competition. or. OF
esta biishing in whole or In part
by the statute. The most extreme
critics can not instance case that
ought TO he condemned under the
statute which, is not brought within
It's terms as mus construed
Tho SUGGESTION is also made that
the supreme court by its decision in
the last two cases has committed 10
the court the underlined and un-
limited discretion TO determine whcth-
or case OF restraint or trade is
within the terms OF the statute This
Is wholly untrue, 4 reasonable re-
straint OF trade at common law is
we'll understood and is clearly defined.
IL does not rest In the discretion OF
the court II must he limited 10 ac
compIish the purpose of a lawful
main contract to which, in order that
il shall be enforceable at ALL, Ii must
be Incidental. Ii II exceed the needs
OF That contract. II is void
Tho test Of reasonableness was
never applied by the court at com
mon law TO contracts or combinations
or conspiracies in restraint of trade
whose purpose Vas or whose ncces-
sary effect would be 10 stiflc compc-
monopolins. The courts never u.s.
suned power 10 cav lhnt sucn con-
tracts or combinations or conspira-
cles might be lawful II the parties 10
them were only moderate in tho use
of The power thus secured and did not
exar, from the public too ercai and
e&oroiiant prices. II is true that
many theorists. and others engaged
in business violating the statute.
havc hoped that some such line could
he drawn by courts: but no court
ri authority has ever attempted IL.
Certainly there Is nothing in the de-
cisons al the latest two cases from
which such dangerous theory OF
judicial discretion in enforcing tlIis
statute can derive The slightest sane
tion.
We have hecn iwcnty-onc years
making this statute effective for the
p5mposes for which IL was enacted.
The Knight case was dlscouras nc
and SEEMED 10 remit 10 the states tho
whole available power to attack and