Arizona republican., 1911-01-10
TOBACCO TRUST ARGUMENT
The Attorney for the United
States Takes the Ground
That Case Has Already
Been Decided in Favor of
the Government.

| Washington, Jan. 9-Where to draw
the line between the legal and Illegal
restraint of interstate commerce was
the burden of questions today in the
re-argument before the federal supreme
court of the dissolution suit against
the American Tobacco corporation.
Before they could be answered, an
other fusillade Of questions concerning
what the Sherman antitrust law
means by 'monopolizing of trade" had
opened.
"Generalities are very good" said
Justice Day to ]. c. McReynolds, at
tOrney for the United States. but it
seems to me that the government ought
To have an explanation now of what
the law means by monopOliizing.'
Mr.. McReynolds had just resumed
his argument when Justice Holmes
asked: DO YOU think that To buy out
a man and make a covenant with him
that he will not engage in the same
business for a certain time is unlaw-
ful?"
McReynOlds said that the supreme
court had decided that the control of
the major part of a business is suffi-
cient for the courts to act, and that
the business Of the tobacco corporation
came within Inc Of decisions iayi.
dowa that rule
If / may say so. believe" continued
McReynolds. that the court will make
great mistake # il atterapts 10 de
eide Ia this case that that is all thai
the Sherman antitrust law means.
There is a borderland cut yonder into
- = -. a.. q
Chief Justice White suggested that
where there was a borderland there
was a border Where is it?" inquired
the chief Justice What is your theory
Of the law, l ask you. and you respond
that your theory is that We have de-
cided this case in your favor"
McReynOlds sid that If the court
wanted his theory. Notwithstanding the
theory of the court, he would give il.
Ii was that the law intended To pre-
vent interference with the free flow
of competition in commerce between
states and that any combination that
was sufficient To interfere with il, was
within the Sherman antitrust law. He
explained that he had in mind the ma
terial and direct obstruction of com
merce.
DO you maintain that it takes 81
per cent of a trade to effect a material
obstruction" inquired Justice Day.
Your honOrs have held that 81 per
cent was sufficient to come within the
law" was the response. IF a cOmbina-
ton of Tess is held by this court to be
sufficient. that is better"
> Justice Burton wanted to know If he
considered that unreasonable" re-
straint was meant by the statute. Nc
Reynolds replied that he did not; that
material and direct" restraint rather
than unreasonable" was the mean
ing.
In reply To the chief justice, Mercy
nOlds said he considered that the law
distinguished between restraint of
trade by an individual with millions in
his pocket and restraint by a combina-
ton of individuals using a corporate
form.
He concluded by stating: IF you
want size. as a basis, we have it here
IL you want intent, we have intenet TO
restrain. Whatever you want, we have
the essential elements in this case"
When Mr. McReynOlds concluded,
Delaney NicOl opened for the defend
ant He said he would try to show
that the dark and sOmbre colors in
which Mr.. McReynOlds had painted the
defendants were not true.