Atlanta semi-weekly journal. (Atlanta, Ga.) 1898-1920, 1911-05-26
BREAKERS AHEAD!
WARMING SOUNDED
BY JUSTICE HARLAN
In Dissenting Opinion Filed on
Thursday in Standard Oil
Case, Kentuckian Foretells
Business Chaos

WASHINGTON, Nay 2a-DeciaElhs ne
is convinced the federal supreme courts
decision IN the Standard oil case will
throw the business OF the country into,
confusion and invite widely extended and
harrassing litigation. the injurious eff
fects OF which will be felt for many
wear. To come Justice Harlan filed his
formal dissenting opinion today. This Is
an amplification OF the oral dissension
Justice Harlan rendered from the courts
decision.
Justice Harlan brands as mischievous
the modification made by the court In
the decree OF the lower court, permit
ting subsidiary corporations Of the Stand
ara oil. after dissolution OF the coEnbina-
ton. to make normal and lawful agree
ment' among themselves
in this connection Justice Harlan
quotes the chief justice as saying that It
uoes not necessarily follow that because
OF an Illegal restraint OF trade or an
attempt to monopolize or a monopoliza-
zion resulting from the combination and
the transfer OF the stock OF the subsi-
diary corporations TO the New Jersey
corporation that like restraint OF trade
or attempt 10 monopoltze or monopo-
llzation would necessarily arise from
combination OF one or more OF the sub
sidiary corporations after the transfer Of
the stock by the New Jersey corpora
ton.
Taxing this language in connection
with other parts OF the opinion" says
Justice Harlan. the subsidiary COM
panies are thus. IN effect. informed-un-
wisely. I thInk-that although the New
Jersey corporation. being an Illegal COM
bination. must go out OF existence, they
may join in ian agreement 10 restrain
commerce among the states Of such re-
straint be not undue
The justice asks why. inasmuch as
the court is unanimous In holding that
the particular thinks done by the Stand
ard OIL company and its subsidiaries in
this case were illegal under the anti
trust act. whether in reasonable or un-
reasonable restraint OF interstate COM
merce-why was IL necessary TO make
an elaborate argument TO show that, &C
cording to the rule OF reason the act
passed BY congress should be interpret
ed as IL il contained the word 'unrea-
sonable' or the word undue
Mr.. Justice Harlan says the only an
swcr that can be given TO this question
il that the court intends to decide its
deliberate Judgment. Is years ago, to
the effect that the act permitted no re-
srraint whatever OF interstate COM
merce, whether reasonable or unreason-
able. vas not IN accordance win the.
rule OF reason
Il have the authority OF this court"
he says. for saying that such a course
OF proceedinz on its part would be
.jusdfcial egislation-
Justice Harlan maintains the court
should have replied emphatically 10 the
standard Oil attorneys when they in
sisted upon a reversal OF the former
rulings Of the court as follows:
That question according 20 our prac-
tice. is not open for further discussion
here This court long ago deliberately
held:
III That the act. interpreting its
words in their ordinary acceptation pro-
hibits ALL restraints OF interstate com
merce BY combinations in whatever
form. and whether reasonable or unrea-
sonable-
(2) The question relates TO matters
or public policy in reference TO COM
merce amor states and with foreign
nations and congress alone can deal with
the subject;
f3) This court would encroach upon
the authority OF congress. II under the
Euise Of construction. IL should assume
TO determine a matter OF public policy:
90 The parties must go to congress
and obtain an amendment Of the anti
trust act n they think this court was
wrong in its former decisions: and.
judicially legislate. since its function is
TO declar ethe law. while ii belongs to
the executive department to make the
law.
The disposition Of the case unoer
consideration continues the justice.
-accordin gto the views of the defend-
ants. winll. IL is claimed. quiet and give
rest 10 the business OF the court
On the contrary. / have strong con-
viction that il vii Throw the business
OF the country into confusion and invite
widely extended and harrassing htiga-
ton. the injurious effects OF which will
be felt for many years TO come"
Missouri freight and joint traffic asso-
ciation cases
NELSON'S REPORT QUOTED.
Justice Harlan refers to numerous other
decisions as bearing out his interpreta
ton OF these decisions. The justice in
further support OF the statement that the
whole country including the courts and
congress, understood that every re-
straint was prohibited. quotes at length
from an adverse report made in 1909 by
Senator Nelson on behalf OF the senate
judiciary committee IN reference to
hin proposing TO amend the Sherman
antitrust law TO distinguish between rea-
sonable and unreasonable restraints.
When congress prohibited every con-
tract. combination OF monopoly in re-
straint OF commerce IL prescribed a sin
pie. definite rule that all could under
stand. and which could be easily applied
by every one wishing to obey the law.
and not TO conduct their business in-vio-
latioa OF law. But now il is TO be feared.
we are to have. in casesNwithout num-
Der. the constantly recurring inquiry
difficult 70 solve BY proof