New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-12-06

statute which have now been decloed
would have been decided the same way
it the court had originally accepted IN
its construction the rule At common law.
1T has been said that the court, by in
Producing into the construction Ct the
statute common law distinctions, has
emasculated il. This is obviously untrue.
BY it's judgment every contract and
combination in restraint of interstate
trade made With the purpose or mecca
sary effect of controlling prices by
sitting competition or of establishing in
whole or in part a monopoly or such
! trade Is condemned by the statute. The
most extreme critics cannot instance
case that ought to be condemned under
the statute which Is not brought within
its terms as thus construed.
The suggestion is also made that the
Supreme Court 10y it's decision in the
last two cases has committed 10 the
court the underlined and unlimited dis
erection 10 determine whether a case Of
restraint of trade is within the terms OF
the statute. This is wholly untrue. 4
reasonable restraint of trade at common
law is well understood and is clearly de
fined II does not rest in the discretion
OF the court. 1t must he limited TO ac-
complish the purpose of a lawful main
contract 10 which, i'm order that it shall
be enforceable at ALL It must be Incl
dental If il exceed the needs of that
contract II is void.
: The test Of Teasond blcness was never
applied 10y the court at common law TO
contracts or combinations or Conspiracie
/ in restraint OF trade whose purpose was
or whose necessary effect would be 10
stine competition, 10 control prices or
esta biiSh monopolies. The courts never
assumed power TO say that such con-
tracts or combinations or conspiracies
might be lawful If the parties to them
Were only moderate in the use Of the
power thus secured and did not exact
from the public too great and exorbi-
tant prices. 1t Is true that many the
orists and others engaged in business
! violating the statute have hoped that
some such line could be drawn by courts;
| but no court OF authority has ever at
| tempted it. Certainly there is nothing
| In tho decisions Of the latest two cases
| from which such dangerous theory OF
| judicial discretion in enforcing this stat
ute can oorive the slightest sanction.
A Matter Of Growth.
We have been twenty-one years MAX
| ing this statute effective for the purposes
| for which il was enacted. The knight
case was discouraging and seemed TO re-
NIT to the states the whole available
| power 10 attack and suppress the evils
! Of the trusts. Slowly. however the er-
ror Of that judgment was corrected, and
! only in the last three or four years has
tho heavy hand Of the law been laid
upon the great illegal combinations that
| have exercised such an absolute domin-
ion over many Of our industries. Grim
! inal prosecutions have been brought and
a number are pending. but turies have
felt avcrse To conviCting for Jail SEN
fences. and judges have been most re-
lUctant 10 impose such sentences on men
Of respectable standing in society whose
offence has been regarded as merely
, STATUTORY. Still. as the offence becomes
better understood and the committing Of
II partakes more Of studied and delhcr-
ate defiance Of the law we can bc con-
ddent that juries viii convict individuals
and that Jail sentences will be imposed.
The Remedy by Dissolution.
IN the Standard oil case the Supreme
and Circuit Courts found the combina-
tion TO be 2 monopoly Of the interstate
business Of refining. Transporting and
marketing petroleum and its products,
effected and maintained through thirty
seven different corporations. the stock
OF which was held by 4 New Jersey com
pany. IL i'm effect commanded the dis
solution Of this combination. directed
the transfer and pro rata distribution
DN the NV Jersey company OF lllf
stock held 10y IL In the thirty-seven
corporations 10 and among its stock
holders: and the corporations and in
divldual defendants were enioned from
conspirins or combining to restore such
monopoly; and all agreements between
the subsidiary corporations tending TO
produce or bring about further viola
lions Of the act were enioined.
In the tobacco case The court found
that the indil idual defendants twenty
nine in number. had been engaged in a
successful effort to acquire complete
dominion over the manufacture. sale and
distribution OF tobacco i'm this country
and abroad. and that this had been done
by combinations made with purpose
and effect TO stfe competition, control
prices and establish a monopoly not
| only IN the manufacture Of tobacco. but
also Of tinfoi and licorice used i'm It's
manufacture and of it's products Of CT
gars, cigarettes and snuffe. The toba eco
suit presented n far more complicated
and difficult case than the Standard oil
suit for decree which would effectuate
! the will Of the court and end the viola
| ton Of the statute. There WAS here
no single holding company as in the case
Of the STANDARD on Trust The main
company VAS the American Tobacco
! Company. = manufacturing, selling and