The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1911-07-03
MIR. WALKERS REVIEW.

Mr. Albert II. Walker Of the New
York bar has issued pamphlet cru
cjsm of Chief Justice White s dlcta IN
the Standard Oil case. Explaining his
purpose and defining his basis, MI
Walker saws that the Chief Justice s
opinion, composed of twelve Thousand
words. is divided into two parts. Inc
first four thousand and the last three
thousand words relate TO the case, the
middle five thousand are all obiter
dicta.'' being devoted altogether to an
argument on a question whether the
word unreasonah hle D'should be nipple ed
in the Sherman law so as to limit ITS
prohibition in restraint. or of monop-
oI;za+iop of interstate or International
trade or commerce, TO such operation:
or such restraint, or monopollzatlon as
should be q reasonable. - Making his po-
sition clear. Mr. Walker explains lucldly
what the term "obiter dictum'' means,
stating that a decision of the court IS
lis solution of Iitigsted controversy,
and that the "'obiter dictum of
nudge is statement of some idea upon
which that solution does not depend.
"Any statement in a judicial opinion, -
saws Mr.. Walker, E1is therefore an
obifer dictum if it could be reversed
without affecting. the decision in the
case, +" and he proceeds TO show that
the argument of the Chief Justice III
the five thousand words interpolated
between the four thousand and the
three thousand which really 90 TO the
root of the case. could be reversed or
disregarded without any injury to the
real decision Of the ease as made.
Mr.. Walker proceeds to illustrate his
position by showing that an "obitel
dictum' of Justice Bradley was sub
seouentllv reversed without reversing
the case. and he cites other eases OF
the same character, some of these ez
pressly in point as precedents. Hc
shows that Chief Justice White is ar
1 old offender in holding to this ''un
reasonable - idea; that he was alone ii
urging il in dissenting opinion against
court united but for himself in th'
Trans Missouri Trade Association case
but that now he, pushes this view IL
the way of an obiter dictum," merel,
because he has an opportunity to do so
Mr.. Walker further shows by prece
dent and illustration that the fact tina
other justices did not dissent on ac
straint upon them in overturning thos
'sobiter dicta' later on. Here also b
gives precedent and authority, showini
that merely because n Justice does no
dissent from the "obiter dicta = tina
is no reason to assume that he agree
with them The justices remain silen
in such eases, not caring TO argue mat
ter that is not pertinent to the cast
and which they would be at perfec
liberty later on TO set aside when il i
necessary to do so in order to rcall
decide case on legal principles.
This latter is a proposition which TIL
Tribune urged at the time that tn
Standard Oil had been found in dc
fault. that the question of "unreasor
! able - or ''rea sonable' restraint 0
Z. trade did not come before the oour
the record establishing that the Star
dard Oil Company was guilty, no ma
ter which view was taken as to tn
possibility of considering a case tina
G was a reasonable restraint of trad,
+ The only question before the court wa
n the guilt Of the STANDARD Oil Company
e as TO its unreasonable - restraint {
@ trade there was no question. And so
Q was entirely unnecessary to raise th
{ question in that case. aud Chief Justi'
) White, in raising H. appears TO has