New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-09-19

great many minor or incidental restraints
OF trade, which made the statute ridicu-
lous and weakened its effect and lent sup sup.
port to the criticisms and contemptuous
treatment of the statute by those VINO
were opposed TO Its passage and enforce
nent.
For instance, take the instance cited ny
federal circuit judge, In which ne sdlu
that under the literal construction OF Ine
statute which must be enforced, IL tneIe
were two persons doing wagon-eNpress
united in partnership. the union in the
partnership would be restraint OF lnteI
state trade In violation or the stslute
Such result is really reducto au az,
sCrdum, and no one who was in FAVOR Oh
making the statute effective for the pur
poses for which II was passed ana nau
any intelligent appreciation OF Whst tis
statute was intended to accomplish anu
what il meant, would contend FOR such
construction. II is true that IN one OF the
decisions OF the Supreme Court there was
statement made that the term reason
able" could not be introduced INTO tue
statute because Congress had not put IL
there, but the very same court, ana the
very same judge, when case arose pre-
senting q restraint OF trade That must DE
condemned as unlawful II literal mean
ing were 10 be given TO the statute, said
in so many words that IT must be reason
ably construed, and that II must not De
held TO include contracts that were merely
incidental restraints Of trade and were not
made for that purpose.
In one Of these cases a man owned some
steamboats, that did an interstate business
on the Ohio River. He wished to sell out
He did sell out. and in the sale OF me
steamboats, he wished TO sell the goodwill
OF the line which he had been running Ac-
Cordingly, he stipulated that he would not
himself engage in that business between
those same points for certain number o,
years. This was interstate business, ana
his contract was in restraint OF trade out
the Supreme Court held that II was mere
incidental restraint e., incidental 10
the sale Of the goodwill, and so was hol
within the statute This would have been
the same at common law, where from time
immemorial such a restraint as this has
been held TO be reasonable because Inn
tied TO the necessity OF preserving the
and which but for such an agreement
would be worth nothing. In other words,
the supreme Court in this case gave a
reasonable construction TO the statute and
eliminated from It's operation those harm
less useful incidental restraints growing
cut Of lawful contracts which are made Tor
an entirely different purpose from that OF
controlling prices or maintaining a mo-
nopoly by suppressing competition ana
hich have always been recognized as
properly enforceable by courts OF both
law and equity
| repeat again that in spite Of all the
denunciations that we have heard Of the
decisions of the Supreme Court in the
Standard Oil and the Tobacco cases,
there is not one who has criticised them
that can formulate a contract in re-
straint Of trade that ought to come
within tho statute that does not come
within il under the decision Of the Su-
preme Court.
Nothing Read Into" the Law.
II is said that the Supreme Court has
read something into the statute that, was
4 81.
word reasonable" before restraints OF
trade, when the same court had said that
this could not be properly done. because
Congress had evidently not intended 10 III
clude such a limiting word I'm the statute.
This is not fair 10 the court. 1t is true
that the court. i'm the early days OF the
construction of the statute, had said thdt
ID could not limit the statute in effect by
excluding from its operation what was
deemed reasonable at common law. But
as other cases arose II found IL necessary
10 make exceptions to the literal oReraIoh
of the words restraint Of trade and II
did so by excepting what was minor or
incidental. or indirect, and including only
those cases where 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 rldlcu-
lous results.
In the last two cases the court did not
change the substance Of the reasoning ana
scope Of the previous decisions but only
treated the exceptions previously termed
Incidental and Indirect as excluded from
the operation of the statute in the light OF
reason, T. e.. in conformity to the EVIL
sought TO be reached. Now, in what way
has this injured the public veal? what
combinations or arrangements can escape
under this Interpretation that any senslDle
man would wish to have condemned? Did
the court not condemn the standard Oh
Company, tho father Of all trusts. IN the
history OF which every form OF crlmlldi
- IN
the other hand, condemn the ToDacco
Trust, of moela- ater-orlgin- and iraned
under the advice of cunning counsel for
the very purposes of evadlng the con-
depnati0n of the statute and at the same
time securing and enjoying the monopoly
the trainers Of the statute intended TO pre-
vent and PUNISH!
Te, me renew again the invitation TO any
81 the yoclferous critics of the decision OF
the Supreme Court 10 use their lesdl I'M
agiuations and state the factS OF case
not condemned within the rule OF c0hslIuc-
tiOn nut upon the statute by the supreme
Court but included within their cOhstru,,
ton OF #. which reasonable men Mouid
think II wise or proper TO make criminal
Now, ! desire 10 call attention TO a very
broad distinction ahat many persons nav nav
failed 10 draw oreperceive between rea-
coma bIe construction Of the statute when
the Supreme Court has insisted upon ana
the introduction of the word reasonable
I'm the statute. so as to lead TO result ny
which combinations for the purpose OF re
straining trade. with a view 10 controllns
prices and maintaining a monopoly. coulo
( be held to be reasonable and thus lawful
| Until the decision Of the supreme Court IN
these last two cases there was clearly
| defined hope in the minds OF many busl-
ness men. who had reached the conclusion
/ that e was impossible to conduct business
/ on a free competitive basis, and that II was
/ necessary to secure monopohstic controi OF
/ prices and competition in order to make
/ business reasonably profitable, that in some
/ way or other the statute could be construed
) so a s 70 make IL apply only 20 unreasonaDle
/ monopolies and unreasonable exclusion OF
/ competition and control OF prices. They
! had IN their minds the thought that In
! some way or other standard could be SCI
/ by which If those who enjoyed the mo.
! nopoly and the restraint OF competition ana
| the control Of prices did not abuse theil
power 10 the point Of seeking from the
/ public exOrbitant profits, their arrange
! uonts could be held 10 be only reason able
and not within the statute or puhishabl'
/ by law.
I In my MESA .e OF January j, 1910, on the
! interstate commerce and antitrust laws
and federal Incorporation ] used this Ian
/ Many people conducting great businesses
! have cherished a hope and belief that IN
! some way or other q line may be drawn
| between good trusts and bad trusts and
| that Il Is possible, by amendment 10 the
antitrust law TO make a distinction under
which good combinations may be permitted
| 10 organize, suppress competition. control
prices. and do Il all legally II only they do
not abuse the power by taking too great
| profit out of the business. They point with
| force to certain notorious trusts as having
! grown into power through criminal meth
| DDS by the use OF Illegal rebates and PLAIN
cheating and by various acts utterly viola
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