The Birmingham age-herald., 1911-05-17

1 penalties prescribed by this act" and ed the question, 'Monopolize what?" He then says:
 What becomes, then, of the state ment that this act did not condemn monopoly in itself? Did not these men know what monopoly was? And when Congress said that we will punish any man that monopolizes or attempts to monopolize any part of interstate com merce, did 1t not know what 1t in- tended? That is not all. The act says "every contract, combination in form of trust or otherwise, or conspiracy | in restraint of trade or commerce among the states is hereby declared illegal"
 l 9Th erefore Congress said to all the people of this country: We are not going to bother the courts or ourselves with any inquiries as to what con- tracts are in restraint of trade reason- ably or unreasonably We will deter mine 1t as a part of the policy of the United States that, so far as inter state trade Is concerned, no body or coporaion shall make or attempt to en- force a contract, any contract, that in any degree resrains interstate trade.
 Justice Harlan then cited the trans 1 Missouri case which was in violation of the Sherman law as charged and l In which it was argued that the act did ] not embrace reasonable restraint of trade but only unreasonable restraint of trade. He read from the late Jus tice Peckhams ruling on this case as follows:
 "'While the statute prohibits all combinations in the form of trusts or oth erwise. the limitations are not con- fined to that form alone. All combina- tions which are in restraint of trade or commerce are prohibited, whether in the form of trusts or in any other z. . rf Ctt tka1 fIa inr traffic case in which practically the same points were under fire and which resulted the same, and said:
 What Was to Happen
 That being the state of the law. what was to happen? What were these people | to do? Why, there was nothing left to
 them. This court having three times | heard this question argued and having
 reported conclusion, there was nothing
 left for them but to go to Congress and
 get the Sherman act amended in that this court could not construe the new r act as they had the old one.
 Now, it is laid down in some of the
 cases and 1t Is common sense, that this court is bound to know what everybody else in the community knows and, there s fore, I say, without hesitation, that 7 everybody knows that there has not been session of Congress since 1896 when |
 somebody, taking the opposite view from
 what the court has said, has not applied to Congress to get that law amended i; l but 1t never has been amended and there 1 is not a man in the country who does not know that 1t never will be amended | by the Congress of the United States to mean what they wanted Congress to l have 1t mean, and which Congress re- fused to have 1t mean, to get the courts | so to construe It.
 "The most ardent tendency of this day. in my judgment, so far as the safety and integrity of our institutions are con | cerned Is the tendency to judicial legis- lation so that when men having vast interests are concerned, and they cannot get the lawmaking power of the coun- try, which controls 1t, to pass the leg | islation they desire, the next thing they do is to raise the question In some case.
 to get the court to so construe the con stitution or the statutes as to mean what | they want it to mean. That has not | been our practice. The reports of the decisions of this court are full of cases in which the litigants have urged upon l this court. You have in a case here tofore, construed this act of Congress | wrongly
 !" We'll says the court, that may be true, but it is an act that relates to
 question of public policy. We have an- l nounced this as our view It has gone
 through the country and been accepted and acted upon
 "The court. in the opinion on this case, | says that this act of Congress means and embraces only unreasonable restraint of trade, in fiat contradiction to what this court said IS years ago that Con- 1 gress did not intend
 "If you will take the trouble to look | through the federal reporter, you will find that possibly nearly every federal scourt in this country has accepted these original decisions as the final decision of 1 this court as to the meaning of the act | of Congress"
 "Practically the decision today, I do not mean the judgment but parts of the | opinion, are to the effect that the courts may. by mere judicial construction. amend the constitution of the United States or an act of Congress That, 1t strikes me, Is michievous and that is the part of the opinion that I especially ob- | ject to.
 "rhere Is much more that I wanted to ] say. but cared only to emphasize that objection to the opinion of the court