Gilpin observer., 1911-12-07
the statute common law distinctions.
has emasculated It. This is obviously

untrue. BY its judgment every con-
tract and combination in restraint of
Interstate trade made with the purpose
or necessary effect OF controlling prices
by sitting competition. or of establish
ing in whole or in part monopoly of
such trade. Is condemned by the stat
ute. The most extreme critics cannot
instance case that ought to be con-
demned under the statute which Is not
brought within its terms as thus con-
strued.
The suggestion is also made that the
Supreme court by its decision in the
last two cases has committed to the
court the underlined and unlimited dis
erection to determine whether case
OF restraint of trade is within the
terms of the statute. This Is wholly
untrue. A reasonable restraint of
trade at common law is we'll under
stood and is clearly defined. 1t does
not rest in the discretion of the court.
1t must be, limited to accomplish the
purpose Of a lawful main contract to
which, in order that it shall be en-
forceable at all. 1t must be Incidental.
If 1t exceeds the needs of that contract
it Is void
The test of reasonableness was
never applied by the court at COM
mon-law to contracts or combinations
or conspiracies in restraint of trade
whose purpose was or whose neces-
sary effect would be to stifle competi-
ton. to control prices, or establish
monopolies. The courts never as
sumed power to say that such con-
tracts or combinations or conspira-
cies might be lawful if the parties to
them were only moderate in the use
OF the power thus secured and did
not exact from the public too great
and exorbitant prices. 1t is true
that many theorists, and others en-
gagged in business violating the
statue. have hoped that some such
line could be drawn by courts: but
no court of authority has ever at
tempted 1t. Certainly there Is moth
ing in the decisions of the latest two
cases which should be a dangerous
theory of judicial discretion in en-
forcing this statue can derive the
slightest sanction.
Force and Effectiveness of Statute a
Matter of Growth.
We have been twenty-one years
making this statue effective for the
purposes for which it was enacted.
The Knight case was discouraging
and seemed to remit to the states the
whole available power to attack and
suppress the evils of the trusts.
Slowly. however. the errors of that
judgment was corrected. and only in
the last three or four years has the
heavy hand of the law been laid upon
the great Illegal combinations that
have exercised such an absolute do
minion over many of our industries
Criminal prosecutions have been
brought and a number are pending,
but juries have felt averse to convict
ing for jail sentences. and judges have
been most reluctant to impose such sem
fences on men of respectable standing
in society whose offense has been
regarded as merely statutory. Still.
as the offense becomes better under
stood and the committing of It par
takes more of studied and deliberate
defiance OF the law. we can be conf
dent that juries will convict individ-
uals and that Jail sentences will be
imposed.
The Remedy In Equity by Dissolution.
In the Standard Oil case the Su-
preme and circuit courts found the
to be monopoly of the
interstate business of refining, trans
porting, and marketing petroleum and
Its products. effected and maintained
through thirty-seven different cor
porations. the stock of which was
held by New Jersey company. 1t
In effect commanded the dissolution
Of this combination. directed the
transfer and pro-rata distribution by
the New Jersey company OF the
stock held by it in the thirty-seven
to and among its stock.
holders. and the corporations and In
dividual defendants were enjoined
from conspiring or combining to re-
store such monopoly; and all agree
ments between the subsidiary corpor.
ations tending to produce or bring
about further violations of the act
were enjoined.
In the Tobacco case. the court
found that the individual defendants.
in number. had been en-
gagged In a successful effort to ac-
quire complete dominion over the
sale, and distribution of
in this country and abroad,
and that this had been done by COM
binations made with n purpose and
effect to stife competitions control
prices. and establish a monopoly. not
only in the manufacture OF tobacco,
but also Of tin-foil and licorice used
in its manufacture and of its products
of cigars. cigarettes. and snuffs The
tobacco suit presented a far more
complicated and difflcult case than
the Standard Oil suit for decree
which would effectuate the will OF the