Weekly journal-miner., 1911-09-20
TAFT DEFENDS 0|L AND
 TOBACCO DECISIONS
(Continued From Page l.)

f0ibTftu. VI tUPTf NfTf INO
 sons doing a wagonexpress business
 across n state line and they united in
 n partnership. the union in that part.
 nership would be n restraint of inter
 state trade in violation of the stat.
 ute. Such n result is reduction and
 absurdum, and no one who was in
 favor of maKing the statute effective
 for the purposes for which it was
 passed and had any intelligent ap-
 preciation of what the statute was
 inteaded to accomplish and what it
 meant, would contend for such a con.
 struction. It is true that in one of
 the decisions of the supreme court there was a statement made that the term reasonable' could not be in.
 ;rodueed into the statute because congress had not put it there, but the
 very same court, and the very same
 judges, when case arose present.
 ing a restraint of trade that must be
 condemned as unlawful if literal
 meaning were to be given to the
 statute, said in SO many words that
 it must be reasonably construed, and
 that it must not be held to include contract. that were merely incidental
 restraints of trade and were not
 made for that purpose. In one of
 these cases a man owned some steam.
 boats that did an interstate business
 on the Ohio river. He wished to sell
 ont. He did sell out and in the sale
 of the steamboats he wished to sell
 the good will of the line which he
 had been running. Accordingly, he
 stipulated that he would not himself engage in that business between those
 same points for a certain number of years. This was interstate business
 and his contract was in restraint of
 trade, but the supreme court held
 that it was mere incidental re-
 straint, 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 restraint as this has
 been held reasonable because limited to the necessity of preserving the
 good will which the vender was sell.
 ling. and which. but for such m agreement would he worth nothing.
 In other words the supreme court in this case gave reasonable con struction to the statute and elimin-
 ated from it's operation those harm. less useful incidental restraints
 growing out of lawful contracts which nre made for an entirely diff ferent purpose from that of control ling prices or maintaining monopoly by suppresslng competition and which have always been recognized 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 difficulties of the supreme court in the Standard Oil and the Tobacco cases. there is not one who has criticized them that can formulate a contract in restraint of trade that ought to come within the statute that does not come with. in it under the decision of the su. preme court.
 It Is said that the supreme court has read something into the statute that was not there before; that it has inserted the word "reasonable' be- fore restraints of trade, when the same court had said that this could not he properly done, because cong. ress had evidently not intended to include such n 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 the sta. tute. had said that it could not limit | the statute in effect by excluding from it's operation what was deemed ] reasonable at common law. But as other cases arose it found it neces. | sary to make exceptions to the literal | operation of the words "restraint of | :rade' and it did SO by exceptins what was minor, or incidental, or in. direct, and including only those cases where the chitf object of the contract or combination was the restraint. In doing SO the court said that it must give the statute reasonable con. struction and not one leading to ab. surd or ridiculous results. In the last two eases the court did not change the substance of the reason. ing and scope of the previous diff. culties, but only treated the exeep. tions previously termed "incidental and indirect,' as excluded from the operation of the statute in the light of reason. ie., in conformity to the evil sought to be reached. Now, in what way has this injured the pub. Tic wealf What combinations or ar rangements can escape under this in. terpretation that any sensible man would wish to have eondemnedf Did | the court not condemn that Standard Oil company, the father of all trusts, in the history of which every form of criminal illegality was pract. icedf Did 1t not, on the other hand, condemn the tobacco trust, of much later origin and framed under the advices of cunning counsel for the very purposes of evading the con. demnation of the statute and at the same time securing and enjoying the monopoly the framers of the statute intended to prevent and punishf
 Now, l desire to call attention to n very broad distinction that many per. sons have failed to draw or perceive between reasonable construction of the statute which the supreme court has insisted upon and the introduc- tion of the word Unreasonable in the statute so as to lead to result by which combinations for the purpose of restraining trade with view to