The Birmingham age-herald., 1911-05-26
THE DISSENTING OPINION IN HE
 STANDARD O|L CASE
Associate Justice Harlan Predicts Serious Results
 From Decision
BLOW AT INTEGRITY
 OF THE GOVERNMENT
The Chief Point of Justice Harlan's Attack Is Reasonable Re- straint" Clause of the
 Decision

Decision Washington, May 25.-Still as op. posed to the majority opinion of the supreme court of the United States in the Standard oil case as he was on the day that opinion was an- nounced, Associate Justice Harlan today filed in court his formal dis senting opinion in that suit | His oral attack on the court for hold ing that only unreasonable or u..due restraint on trade are in violation of | the law furnished the outline for to- | days broadside against the opinion. He went further, however, and criticised the court for modifying the decree of the lower court to permit the subsidiary companies to enter into l agreements among themselves and ex- | pressed a conviction that instead of the opinion giving quiet to the busi- ness in the country it would throw bus mess into confusion and invite widely extended and harassing litigation, the injurious effects of which would be felt for many years to come Ever since the case was decided on
 
 pairing his dissenting opinion and it was not complete until today. one of the last changes made, 1t Is said, was to insert quotation from the decision of Judge Taft. now President Taft, in the Addyson pipe case in which Judge Taft said that according to the decision of the supreme court, all restraints, wheth- CT reasonable or unreasonable under the common law, were forbidden by the statute.
 Justice Harlan brands as mlschievous the modification made by the court in ] tire decree of the lower eeart, perrait- tn suhsidisrH e3rVosatio1ls of she Standard Oil, after dissolution of the combination, to make normal and law ful agreement" among themselves.
 Quotes Chief Justice
 In this connection Justice Harlan l quotes the Chief Justice as saying that ] 1t "does not necessarily follow thao because of an Illegal restraint of trade or of attempt to monopolize or monopoiization resulting from the com bination and the transfer of the stocks of the subsidiary corporations to the New Jersey corporation, that like re- straint of trade or attempt to monopo- lize or d monopolization would neces- sarily arise from agreements between one or more of the subsidiary corpor ations after the transfer of the stock by the New Jersey corporation.' Taking his language in connection with other parts of the opinion" says Justice Harlan, the subsidiary companies are thus, in effect, lnformed--unwisely. | think-that although the New Jersey cor poration. being an illegal combination, must go out of existence, they may join in an agreement 10 restrain commerce among the states. if such restraint pe not 'unduer
 | Justice Harlan devotes himself largely to criticism of the court for holding that not every restraint of trade violates tne law. He reiterates that the court re- versed its former rulings in the trans Missouri freight and joint traffic associa- tion cases.
 The justice asks why. inasmuch as the court is unanimous in holding that the particular things done by the Standard oil company and Its subsidiaries in this case were illegal under the antitrust act whether in reasonable or unreasonable restraint of interstate commerce-why was it necessary to make elaborate argu- ment to 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.
 MT. Justice Harlan says the only an swer that could be given to this question | is that the court intended to decide that | it's deliberate judgment 15 years ago, to the effect that the act permitted no re- straint whatever of interstate commerce, whether reasonable unreasonable. was not in accordance with the rule of req son."
 Judicial Legislation
 'I have the authority of this court" he says. flor saying that such a course of proceeding on its part would be judicial | Legislation. "
 Justice Harlan maintains the court should have replied emphaticaly to tho | Standard Oil attorneys, when they insist ed upon a reversal of the former rul- ings'' of the court as follows:
 That question according to our prac- I tice is not open for further discussion lhere. This court long ago delioerateiy held:
 | "n) That the act, interpreting it's words in their ordinary acceptation, pro- hibits all restraints of interstate com merce by combinations in whatever form, | and whether reasonable or unreasonable. | "(2) The question relates to matters of public policy in reference to commercs among the states and with foreign na- tions, and Congress alone can deal with the subject
 s. This court would encroach upon the | authority of Congress. If under the guise | of construction, it should assume to de- l termine a matter of public policy.
 1. The parties must go to Congress and obtain an amendment of the antitrust act if they think this court was wrong in 1 its former decisions; and 1 ''5. This ceurt cannot and will not judi | cially legislate since its function Is to | declare tho law while 1t belongs to the | legislative department to make the law" The disposition of the case under con si6eration." continues the justice, ''ac- | cording to the views of the defendants,