The Birmingham age-herald., 1911-12-06
President Taft Sends His
 Message To Congress
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 to be illegal "every contract. combination in the form of trust or otherwise, or con
 spiracy in restraint of trade or commerce among the several states or with foreign nations and in the second, declares guilty of a misdemeanor 'every person who shall monopolize or attempt to mo nopolize or combine or conspire with any other person to monopolize any part or the trade or commerce of the several
 states or with foreign nations"
 Tn two early cases. where the statute
 was evoked to enjoin transportation rate agreement between interstate raii-
 road companies, it was held that 1t was no defense to show that the agreement as to rates complained of was reasonable at common law, because it was said that the statute was directed aganst all contracts and combinations in restraint or trade whether reasonable at common law or not. It was plain from the record, now ever, that the contracts complained or III those cases would not have been deemed reasonable at common law. In suhse- quent eases the court said that the satute should be given reasonable construction and refused to include within it's inhtbi- lion. certain contractual restraints or trade which it denominated as incidental
 or as indirect.
 These cases of restraint of trade that the court excepted from the operation or the statute were instances which, at com- mon law would have been called reasoh- able. In the Standard Oil and Tobacco cases, therefore, the court merely adopted the tests of the common law. and Tn de- fnine executions to the literal application of the statute only substituted for the test of being incidental or indirect, that of heinz reasonable, and this, without varying in the slightest the actual scope end effect of the statute. In other words all the cases under the statute which have not been decided would have been decided the same way if the court had originally accepted in it's construction the rule at common law.
 It has said that the court. by introduc- ing into the construction of the statute common law distinctions, has emascu- lated it. This is obviously untrue. By its judgment every contract and combination iii restraint of interstate trade mane with the purpose of necessary enect or controlling prices by stif1ing compettloh' or of establishing in whole or in part monopolv of such trade. is condemned by the statute. The most extreme critics can not instance a case that ought to be con den1ned under the statute which IS not brought within it's terms as thus con- strued
 The suggestion is also made that the supreme court by it's decision in the last two cases has committed to the court the undefined and unlimited discretion to de- terrnine whether a case of restraint or trade Is within the terms of the statute This is wholly untrue. A reasonable re- straint of trade at common law is well understood and is clearly defined It does not rest in the discretion of the court It must be limited to accomplish the pur- pose of a lawful main contract to which, in order that it shall be enforceable at all. it must be incidental If it exceed the needs of that contract it is void.
 The test of reasonableness was never ap- piled by the court at common law to con- tracts or combinations or conspiracies in restraint of trade whose purpose was or whose necessary effect would be to stitie to control prices, or establish The courts never assumed power to say that such contracts or com l fdnatfons or conspiracies might be lawful if the parties to them were only moder- ate in the use of the power thus secured and did not exact from the public too great and eXorbtant prices. It IS true that many theorists. and others engaged in business violating the statute, nave hoped that some such line could be drawn bv courts: but no court of authority has f.ver attempted-i it. Certainly there is notn- ing in the decisions of the latest two cases from which such. as.dangerous theory or .iudicial discretont in enforcing this stat ute can derive the slightest sanction.