El Paso herald. (El Paso, Tex.) 1901-1931, 1911-09-18

eliminated from its operation those
harmless useful Incidental restraints
growing out Of lawful contracts which
are made Tor an entirely Ql11erent pur-
pose from that Of controlling prices or
maintaining monopoly by suppressing
competition and which have always
been recognized as properly enforce
able by courts OF both law and equity
Il repeat again that in spite of all
the denuuc1auOns that we have heard
Of the difficulties OF the supreme court
In the Standard OIL and and the To
baccO cases, there is not one who has
criticized them that can formulate
contract In restraint Of trade that
ought TO come within the statute that
does not come within it under the de-
cisiOn Of the supreme court
The Term fIleasonabIe.7
TT is said that the supreme court has
read something into the statute that
was not there before that Il has IN
serted the word reasonable before re-
straints of trade, when the same court
had said that this could not be prop
erly done, because congress had evil
IDENTIFY not intended to include such a
limiting word in the statute. This is
not fair TO the court. 1t is true that
the court, in the early days of the
construction of the statute, had SAID
that IL could not limit the statute IN
effect by excluding from its operation
what was deemed reasonable at COM
mon law. But as other cases arose 1t
found ii necessary to make exceptions
TO the literal operation of the words
restraint Of trade and it did so by
excepting what was minor, or Incl
dental or indirect and including only
those cases Wnere the chief object OF
the contract or combination was the
RESTRAINT. In doing so the court said that
II must give the statute a reasonable
construction and not one leading to
absurd or ridiculous results. In the last
two cases the court did not change the
substance Of the reasoning and scope
Of the previous difficulties, but only
Ha -frrrr 81
ed incidental and indirect as eX-
cluded from the operation of the stat
ute in the light Of reason, j. e., in con-
1Ormtry to the evil sought to be reach
the public Weal2 What combinations or
arran gemeuts can escape under this in
rerpretaton that any sensible man
would wish TO have cOndemnedE Did the
court not condemn the Standard Oil
company, the father of all trusts, in the
history Of which every form Of criminal
llIegallty was praciced? Did il not,
on the other hand, condemn the Tobac-
co Trust, of much later origin and
framed under the advice Of cunning
counsel for the very purposes Of evad-
ing the condemnation of the statute
and at the same time securing and en-
JOying the monopoly the trainers Of the
statute intended to prevent and pun
ish?
A Broad Distinction.
Now desire to call attention to a
Very broad distinction that many per-
sons have failed to draw or perceive |
between reasonable construction of the
statute which the supreme court has
insisted upon and the Introduction of
the word reasonable in the statute so
as 70 lead to a result by which com
bInarOns for the purpose Of restraining
trade with a view to controlling prices
ana main tanning a monopoly could be
held TO be reasonable and thus law
fuL Until the decision Of the supreme
court in these last two cases there was
a clearly defined hope in the minds of
many business men who had reached
TO conduct business on a free cOmpeti-
tive basis, and that it was necessary
TO secure mOnOpOlistic control of prices /
ana competition in order to make bust
ness reasonably profitable, that in
some way or other the statute could be
construed as to make it apply only to
unreasonable mOnOpOlies and uureasOn-
able exclusion Of competition and con-
troll Of prices.
In my message of January Z 1910
on the interstate commerce and anti
trust laws and federal INCORPORATION I
used this language;
Many people conducting great
businesses have cherished g hone and a
belief that In some way or other a line
may be drawn between good trusts
and bad trusts and that It Is posi-
Die by amendment TO the antitrust law
to make distinction under which
good combinations may be permitted II
organize, suppress competition control Z
prices and do II all legally if only they
do not abuse the power by taking too I
great profit out of the business They
point with force TO certain notorious I
trusts as having grown into power I
through criminal methods by the use Of /
illegal rebates and nlain cheating, and I
by various acts utterly violative of