The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1911-05-26
Harlan Files Dissenting
Opinion in Standard
Oil Case. IF
HIS ASSOCIATES
I TAKEN TO TASK
He Holds That constitutional
Power of Congress Has Been
Usurped by Court, Which
Reversed Itself in Hand
ing Dow Opinion.
Foresees Litigation.

Washington, D. c., May 25.-Associate
Justice John Marshall Harlan to-day
Med In the Supreme Court his formal
oissenting opinion in the Standard Oil
case Not satisfied with his oral dis
sent from the courts decision. as
handed down by Chief Justice White
Justice Harlan entirely rewrote the
stenosraphic report of his remarks from
the bench. The oral dissent formed
merely framework for the final doc
ument, containing about 5000 words,
put on record to-day.
justice Harlan brands as mischieyous
the modification made by the court in
the decree of the lower court permit
ing subsidiary corporations OF the
STANDARD OIL. after dissolution Of the
combination. TO make normal and law
III! agreement" among themselves
Chief Justice White had characterized
this modification as minor matter"
a Menace to Business.
The further declaration Is made by
Justice Harlan that he is convinced
the courts opinion will throw the bus
mess of the country Into confusion and
| invite widely extended and harassing
| litigation. the Injurious effects of,which
VIII be felt for many years to come"
In connection with what he terms a
mischievous modification Justice
Harlan quotes the Chief Justice as say
ing that 1T does not necessarily fol-
low that because an Illegal restraint of
trade or an attempt to monopolize or
! monopolizat ion resulted from the com
blnotion and the transfer Of the stocks
OF the subsidiary corpora lions to the
New Jersey corporation, that a like re-
straint OF trade or attempt TO nonop-
F., Ollie or monopolization would neces-
sarily arise from agreements between
one or more Of the subsidiary corpora
| tons after the transfer of the stock
by the New Jersey corporation"
Taking this language in connection
with other parts OF the opinion" says
Justice Harlan, the ubsldiary compa-
niles are thus. in effect, informed-un-
wisely, think-that although the New
Jersey corporations. being an illegal
combination, must go out OF existence,
they may join in an agreement to re-
strain commerce among the States, If
such restraint be not 'undue.,"
Former Ruling. Reversed.
As In his oral remarks, Justice Har-
Ian devotes himself largely 10 criticism
of the court for holding that not every
restraint of trade violates the law. He
retterates the court reversed Its former
rulings in the trans Missouri freight
and joint traffic association cases.
| quoting several hundred words from
each of these opinions, Justice Harlan
says:
These utterances show so clearly
| and affirmatively as to admit OF no
doubt that this court, many years ago.
! upon the fullest consideration, inter
| preted the antitrust act S prohibiting
and making Illegal not only every con-
tract or combination, in whatever form,
| which was in restraint of interstate
| commerce. without regard to its rea-
! sonahleness or unreasonableness, but
all monopolics or attempts to monopo-
| lie any part of such trade or com
merce."
| Justice Harlan. referring to other
decisions as bearing out his interpre-
tation of these decisions. calls particu-
lar attention TO one OF Judge Taft, now
President in the Addystone pipe case
Judge Taft said" continues Justice
Harlan. that, according TO the decision
of this court in the freight association
case. contracts in restraint of Inter-
sta.e transportation were within the
statute whether the restraints could be
regarded as reasonable at common law
or not
Senator Nelson Quoted.
The justice. in further support OF
the statement that the whole country.
including the courts and Congress, I'M
y
hibited quotes at length from an ad-
verse report made in 1909 by Senator
Nelson, on behalf OF the Senate judi
ciary Committee In reference to bill
! proposing to amend the Sherman anti
| trus. law to distinguish between rea-
sonable and unreasonable restraints.
after what has been adjudged ;"
Justice Harlan says, upon full con
sideration as TO he meaning and scope
| of the antitrust act, and in view OF
| the rsa ges OF this court when attorneys
! for litigants have attempted to reopen
questions that nave been deliberately
decided confess to no little surprise
| as to what has occurred in the present.
"On reading the opinion just deliv-
cred" he adds. the first inquiry will
be that as the court is unanimous In
holding that the particular things done
by the Standard OIL Company and it's
subsidiary companies In this case were
illegal under the antitrust act, wheth-
or those things were In reasonable or
: unreasonable restraint OF interstate
commerce. why was 1t necessary to
4 make an elaborate argument, is done
in the opinion. &c show that. according
to the rule of reason the act passed
by Congress should be interpreted as
If it contained the word unreasonable
or the word undue.
Wrong Fifteen Years Ago.
The only answer which in frankness
can be given 10 this question Is that
the court intends to decide that IT'S de-
liberate Judgment fifteen years ago. to
| the effect that the. act permitted no
restraint Whatever of Interstate COM
morce. whether reasonable or unrcason-
/ a BILE, was not In accordance with the
rule OF reason In effect, the court
says that 1t will now, for the first time.
bring the discussion under the light
J OF eason' and apply the rule of rea-
SON to the questions to be decided. [
hnve tho authority OF this court for
| saying that SUCH course OF proceed