The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1911-05-16

contracts, whether resulting from
combination or otherwise, which did
not undul yrestrain the interstate or
foreign commerce, but to protect that
commerce from being restrained by
methods, whether old or new, which
would constitute an interference that
Is an undue restraint.
"C-And as the contracts or acts
embraced in the provision were not
expressly defined, since the enumera-
ton addressed itself simply to classes
or acts, these classes being broad
enough to embrace every conceivable
contract or combination which could
be made concerning trade or COM
merce or the subjects of such COM
merce, and thus caused any act done
by any of the numerated methods any,
where in the whole field of human
activity to be illegal if in restraint
OF trade, 1t inevitably follows that the
provision necessarily called for the
exercise of judgment which required
that some standard should be resort
ed to for the purpose of determining
whether the prohibitions contained in
the statute had or had not in any
given case been violated Thus, not
specifying but indubitably contem-
plating and requiring standard, it
follows that it was intended that the
standard of reason which had been
applied as the common law and in
this country in dealing with subjects
of the character embraced by the sta
tute, was intended to be the measure
used for the purpose of determining
whether in given case a particular
NJ I, OH
wrong against which the statute pro-
vided."
AS to the second section, he said,
the investigation of the common law
and of law at the time the Sherman
act was passed, established that it
was intended to supplement the first
and to make sure that by no possible
guise could the public policy embodied
in the first section be frustrated or
evaded. Having in the first section
forbidden all means of monopolizing
trade, that is, unduly restraining it by
means of every contract, combination,
etc, the second section, according to
the chief justice "seeks if possible to
make the prohibition to the act all the
more complete and perfect by embrace
ing all attempts to reach the end pro-
hibited by the first section by any at
tempt to monopolize or monopoliza-
tion thereof, even although the acts
by which such results are attempted
to be brought about, or brought about,
be not embraced within the general
enumeration of the first section
Here the chief justice first spoke
of using the rule of reason" in apply
ing the statute to any given case. He
said:
Point of Concord.
"And, of course, when the second
section is thus harmonized with and
made, as it was intended to be, the
complement of the first, it becomes
obvious that the criteria to be resort
ed to in any given case for the pur-
pose of ascertaining whether viola
tions of the section have been COM
mitted, is the rule of reason given by
the established law and by the plain
duty to enforce the prohibitions of
the act and thus the public policy
which its restrictions were obviously
enacted to subserve. And it is worthy
of observation, as we have previously
remarked concerning the common
law, that although the statute by the
comprehensiveness of the enumera-
tion embodied in both the first and
second sections makes it assiduously
certain that tis purpose was to pre-
vent undue restraints of every kind or
nature, nevertheless, by the omission
of any direct prohibition against mon
opoly in the concrete, 1t indicates
consciousness that the freedom of the
individual right to contract when not
unduIy or improperly exercised was
the most efficient means for the pre-
vention of monopoly. since the opera
tion Of the centrifugal and centripetal
forces resulting from the right to
freely contract was the means by
| which monopoly would be inevitably
prevented if no eXtraneous or sover-
eign power imposed it, and no right
to make unlawful contracts having a
monopolistic tendency were permitted.
In other words that freedom to con-
tract was the sssence Of freedom from
undue restraint on the right to con-
tract"
Meaning of Statute
The chief justice next considered
the contention of the parties as to the
meaning of the statute He said in
substance the propositions of the
government were reducible to tlae
claim that the language of the sta
tute embraced every contract, COM
bination, etc.. in restraint of trade
and left no room for the exercise of
judgment. but simply imposed the
plain duty of applying its prohibitions
to every case within its literal Ian
guage. The error Of the government
ON this point, Chief Justice White
said, was in assuming that the de-
cisions of the court had decided in
accordance with its contentious.
This is true" said the chief JUS
tice, because as the acts which may
come under the classes stated in the
first section. and the restraint of trade