The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-09-18
TAFT ON TRUSTS.
(Continued from Fac one.l

really a retrOgrade step and one which
seemed to limit much the operation of
the statute. 1t encouraged the organi-
cation of combinations which the same
court has since found violate the
statute. The case could not be effec-
lively presented to the court because
! the record had not been properly made
up, and the questions arising were
treated in the opinion in such a way
4 as to give the impression that the
operation of the law would be most re-
! stricted, because of the limits of fed
/ eral Jurisdiction. Indeed some law
hesitate to say that under this decision
there was little hope of reaching the
evil aimed at through federal action.
1t has required twenty years of litiga-
ton to make the statute clear. But
now it is clear.
Question for Bryan.
1 shall not attempt to give it a close,
lawyer-Itke Interpretation, but 1 think
1t is not departing from the declara-
ton of the court to say that they find
made for the purpose of excluding
competition, controlling prices, or of
maintaining monopoly, in part or in
WhoIe, is contrary to the statute and is
subject to injunction and indictment
under this statute in the federal courts
where it affects Interstate trade.
Now, I would like to ask Mr.. Bryan
or any of the other publicists and
opinion as the surrender of the rights
of the people and usurpation of judi
cial power to tell the public what par
t1cular contract or restraint of inter-
state trade he would condemn which
would not be condemned within this
definition of the court. The difficulty
with the literal construction of the
statute is that it would denounce d
great many minor or incidental re-
straints of trade, which made the
statute ridiculous and weakened it's eff
feet and lent support to the criticisms
and contemptuous treatment of the
statute by those who were opposed to
its passage and enforcement.
For instance, take the instance cited
by federal circuit judge in which he
said that under the literal construction
of the statute which must be en-
forced, if there were two persons do
ing WagOn-express business across q,
state line and they united in a part
nership, the union in the partnership
would be a restraint of Interstate trade
in violation of the statute. Such a re-
suit is really a reductio ad absurdum,
and no one who was in favor of max
ing the statute effective for the pur-
poses for which it was passed, and had
any intelligent appreciation of what
the statute was intended to accom-
plish and what it meant, would con-
tend for such construction. 1t is true
preme court there was statement
made that the term reasonable" could
not be introduced into the statute be-
cause congress had not put it there
Judge, when case arose presenting a
restraint of trade that must be con-
demned as unlawful if a literal mean
ing were to be given to the statute, |
said in so many words that it must be
reasonably continued, and that it must |
not be held to include contracts that |
were merely incidental restraints of
trade and were not made for that pur- |
pose. 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 the Stea m boats |
he wished to sell the good will 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 a GER
tain number of years. This was inter |
state business and his contract was in |
restraint of trade, but the supreme |
tai restraint, j. e., Incidental to the sale |
of the good will, and so was not 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
limited to the necessity of preserving |
the good will which the vender was |
selling, 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 its T
operation those harmless useful Incl |
dental restraints growing out of lawful |
contracts which are made for an en-
tirely different purpose from that of |
controlling prices or maintaining a |
by Suppressing competition /
and which have always been recog-
nlzed as properly enforceable by courts |
of both law and equity. I repeat again |
that in spite of all the denunciations |
that we have heard of the decisions of !
in he oil
and the Tobacco cases, there is not |
one who has criticized them that can
formulate a contract in restraint of I
trade that ought to come within the
statute that does not come within it un-
der the decision of the supreme court
The Word Reasonable
1t is said that the supreme court has
read something into the statute that |
was not there before: that it has in
serted the word ''reasona bIe' before re-
stralnts of trade, when the same court
had said that this could not be properly
done. because congress had evidently
not intended to include such a limiting
word in the statute. This is not fair TO |
the court. It is true that the court, in
the early days of the construction of L
the statute, had said that it could not
limit the statute in effect by excluding
from its operation what was deemed
at common law. But as
other cases arose it found it necessary
to make exceptions to the literal opera
tioH u the WoIuS restraint OF trade,
and it did so by excepting what was
minor, or incidental, or indirect, and in
Guiding only those cases where the
chief object of the contract or combina-
ton was the restraint In doing so tile
court said that it must give the statute j.
a reasonable construction and not one L
leading to absurd or ridiculous results. H
In the last two cases the court did not L
change the substance of the reasoning
and scope of the previous decisions but
only treated the executions previously
termed incidental and indirect" as
excluded from the nraara rinra of h,