New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-05-17
out placing in the act that which mas w.
omitted by Congress" .ds.

out placing in the act that which has oeeH
omitted by Congress ra.ds.
Another part OF the same opinion ad
The arguments which have peen OF
dressed to US suggest that me ,rs 'tis as pro-
vided for by the language OF me a,,,,ontion
been based upon the alleged he ian
that C OF ,bs rod no have intended
10 embrace all contracts. pu, on. rss,raint
contracts as were in UNREASONABLE resuit or
of trade. Whether that be tne nradict.
not we do not know, and canho'
These circumstance" -
/ call attention to those words. nat for
These circumstances are n.oo ~,
US II the act ought to rssd i a the BODY to
amend IL. and not this court. ny ,,a,str;hahle.
Of judicial legislation wholly unluS hn lev
Large numbers do not agree tnat ti1 is
90 Sound or true in substance, and Congress,
NAV. and very probably did. share ~ Ne Nc,
belief in passing the act. The punIS IN is
Of the government is to be tounua irectiv
statutes-and when they have not uIi
spoken. then in the decisions OF me GU ,,a,n
and the constant practice or the sonLino
ment officials; but when the la"n,dhn;sscrt
power speaks upon a partlcu,fai nower to
over which II has constitutional po"e 80
legislate the public policy IN suo o,, mo-
is what the statute enacts. II the iaW re-
hibits any contract or comninallon -, -, p,
straint Of trade or commerce, coz 20 s,rch
or combination OF trade in violation Oh 80
iar, Is void whatever may have been here
tofore decided by the courts 10 nav h;ect
public policy OF the country on the 81 -,
The conclusion which we have drawn Iros,i
The examination above made into the ques
ton is that the antitrust act spp'''ioo ~
railroads and that IT renders illesaaI ads I,
or course If II applies 10 the raillod u
applies TO any other combination i all
~ And that II renders illeeal az
agreements which are In restIalnt , ~ az.
or commerce. as We have detneu 'i'a ariseq
.,,I
wbether the agreement before US is OF that
nature.
is there any doubt but that james "a.
Carter. e. ]. Phelps and George GJ
munds would have gone INTO ever md
and corner OF a famous trainc CdSe' d.,
found out every argument or thought ,na u =.
would benefit The court in It's reacnIns "a a
conclusion? Let me read niue iiio'0 "
what the court said -,aor ,be
Finally. we are asked 10 rscollsiuJI' 80 90
question decided i'm the trans missouri 80
and to retrace the steps taken thsrtIii' ue
cause OF the plain error contained IN M.
decision and the wdsspread alarm WIN
which it was received ana ene sSf' or NAV
soon result from the law as interpreter III
that case. The opinion In the trans MIS- MIS-
souri, case gives great force and staellI'y
10 the arguments against the decision nildl-
" arrived al by the court.
Chief Justice White Quoted.
The court added that one o.. the benefits
that II had I'm that case was the lllumlnat :
ing and extraordinarily able nlsseh ,,.nii
opinion written In the former case as wei
as in that case by our learned Chiet JUS
tice who is now at the head OF this court
They had the benefit Of his views
II was after a full discussion OF the ques-
tions involved and with knowledge OF the
views entertained by the minority. as @X-
pressed in the dissenting opinion. mat the
majority Of the court came to the conclu-
This court is bound to know what every
body else in the community knows, ana
therefore | say without hesitation that
everybody knows that there has not been
original opinion was delivered, but that
somebody, taking the opposite view from
what the court has said. has apphed 10
Congress 10 get that law amended, but II
never has been amended. and there is not
a man I'm the country to-day who does not
know that II never will be amended by inc
Congress Of the United States 70 mean
what they wanted Congress 10 have II
mean. and which Congress refused TO have
II mean: to get the courts so to construe II.
Fears Judicial Legislation.
In the now not very short life that have
passed In this capital and the public service
OF the country the most alarming tendency
of this dav. I'm. nv Judgment. so far as the
sa fety and integrity OF our institutions are
concerned is the tendency 10 judicial legts-
| litiOn. so fnHf, Wnen men ndNlnp vast III
| terests are concerned. and they cannot get
the lawmaking power Of the country when
controls II TO pass the legislation they de-
sire. the next thing they do is 10 raise the
question In some case to get the court 10
construe the Constitution or the statutes as
to mean what they want II 10 mean. That
has not been our practice.
7 suppose millions OF dollars OF property
have changed hands under those decisions
Of 1886 and 1898
Prosecutions have been instituted. and
suppose mon have heen convicted and sent
to jail under the antitrust act upon the
construction that this court has given 10 II.
| The court in the opinion I'm this case
SAYS that this act OF Congress means and
embraces only unreasonable restraint OF
trado-in fiat contradiction to what this
gress did not intend
T. Won will take the trouble 10 look
through the Federal Reporter YOU will ind
| that possibly nearly every federal court in
! this country has accented those original de-
! cisions as the final decisions of this court
as 70 the meaning OF the act Of Congress.
/ Now ne are asked 10 change the rule and
1T NAV be true that in the words Of the
statute this contract or this agreement is
! in restraint ~ interstate trade. II may be
| But II is a lawful restraint 81 trade. II is
! a lawful restraint
Contrary to the decision ~ this court.
say. contrary 70 the practice and usages
| Of this court
Refers TO Precedents.
II ! mistake not. more than once AT this
term a LAWYER has been compelled 70 take
| his seat. 10 stop the particular line OF
| argument that he was pursuing, because he
was arguing against a former decision OF
| this court on that very question He was
wanting 10 break down that former de-
cision.
Within the last hour. az any rate. an
| opinion has been handed down for this
| court to-day in which. in a case arising
under the safety appliance act. II was said
| that such and such was the safety APP
| piance act. such and such was its mean
ing. that this court has 50 regarded II In a
case decided four or Ave years ago. Now.
We said in reply ~ that.
In view ri these facts. We are unvill-
ing 10 regard the question as 10 the mean
ing and scope Of the safety appliance act.
so far as II relates 10 automatic couperS
on trains moving interstate traffic, as open
TO further discussion II the court erred
| in The former case. II Is open for the par
ties 20 apply for such an amendment Of
the statute az Congress may in its discre-
zion deem proper This court ought not
now disturb what has been so widely ac-