Evening star. [volume] (Washington, D.C.) 1854-1972, 1911-01-02
TOBACCO CASEF|RST
Rehearing of Anti Trust Suits
in U. S. Supreme Court.
GOVERNMENT FILES BRIEF
Maintains the Right of Congress to
Regulate Commerce.
WOULD INCREASE ITS POWERS
National Legislation Supreme Except
Where It Conflicts With the
United States Constitution.
WOULD INCREASE ITS POWERS

Rehearing of the antitrust suits insti-
tuted by the government is scheduled in
the United States Supreme Court on the
call of the calendar. commencing Janu-
airy D. The government has filed it's brief
in the tobacco case. which probably will
be the first one reargued. to be followed
by the Standard Oil suit.
In its brief i'm the tobacco case the
government emphasizes its position that
the Sherman antitrust law should not
be interpreted so as to put the stamp of
illegality upon every sort Of restraint of
interstate foreign commerce. Such
a theory has been advanced before in the
interest of the good trusts as distin-
guished from the bad" ones.
Right of Congress Maintained.
At the same time the government de-
mands that the right of Congress to regu-
late interstate and foreign commerce be
preserved untrammeled. To this end it
would allow Congress the power to strike
at things possibly outside of interstate
commerce. such as monopoly OF manu-
facture, if the direct and necessary con-
sequence thereof be to nullify rules for
the regulation of interstate and foreign
commerce. The latter argument is set
more positive than it was year ago,
when it was mentioned rather incidentally
in the brief then submitted to the court.
The government starts with the promise
that the will of Congress I'm respect to the
power to regulate interstate and foreign
commerce Is the supreme law. unless
shown to conflict with some provision OF
the Constitution. The government asserts
that Congress has the power not only to
indicate it's will. but also the power to
enforce observance of II. So the conclu-
sion is reached that if a reasonable ne
cessity'' arises Congress may strike down
by statute a thing outside of interstate
or foreign commerce that interferes with
this supreme WILL
Discusses Reasonable Necessity"
In order for a reasonable necessity to
arise. 1t is said in the brief, a certain
nearness of relationship must exist be-
tween what the statute directly strikes
and interstate or foreign commerce. That
relationship, it is acknowledged. probably
is not susceptible of rigorous definition.
Mere indirect, incidental or remote
effect on commece is not SUFFICIENT the
government says, but whatever, as a
natural and probable consequence, will
occasion material hindrance to the effica-
cious operation of the lawful will of Con-
gress in reference thereto is near
enough
1T only asserts explains the govern
ment, power TO debar those engaged in
production manufacture from acts or
transactions the direct and necessary con-
sequence of which would be to nullify
rules for the conduct of Interstate COM
merce admittedly within the power of
Congress to prescribe. And this is but
to say that the power is real, supreme
From this point of view the government
contends that the majority OF the court
came to an erroneous conclusion in the
dent Roosevelt criticised last summer i'll
a speech.
Scope of Legislation.
There is a radical difference" says
the government, between permitting fed
eral power derived from the commerce
clause to operate on subjects not of COM
merce for the essential ends above indi-
Gated and it's restricted extension to any
thing affecting the same. And we SUBJ
nit, with diffidence, that failure to give
adequate weight to this distinction and
fully to recognize that the power to regu-
late commerce. for limited purposes and
under the circumstances pointed out, au-
thorizes legislation touching what is no
part thereof caused the majority to hold
in the United States against r. G. Knight
Company that the act prohibiting con-
tracts combinations, and monOpOlieS in
restraint of interstate commerce did not
apply to a monopoly of sugar refneries
which distributed their output therein.