Evening star., 1911-05-30
JUSTICE HARLAN TAKES ISSUE
WITH PARTS OF THE DECISION
Holds to Views That Were Expressed by
Him in Standard Oil Case as to the
"Undue" Restraint of Trade.

The dissenting opinion of Justice HaS-
Ian in the American Tobacco Company
case was as follows:
II concur with some things said in the
opinion just delivered for the court, but
some observations are made in the opin-
ion from which am compelled to with
hold my assent. What have now to say
must necessarily be oral, for the courts
opinion was not delivered to me until late
Saturday evening, and it has been I'm
possible for me since then to put in writ
ing the views which I deem it necessary
to express. l do not refer to this by way
of complaint. for the delay in delivering
to me copy of the opinion of the court
has no doubt been unavoidable. I will
hereafter prepare and file written opin-
ion expressing my views fully.
the principal defendant. the American
Tobacco Company. and its accessory and
subsidiary corporations and companies,
including the defendant English corpora
tons. are co-operators in a combination
which. in and Of ITSELF, as well as each
and all of the elements composing it,
whether corporate or individual, whether
considered collectively or separate. are
illegal under the antitrust act of 1880,
and should be decreed to be in restraint
monopolize and q monopolization of part
of such trade.
"The evidence in the record Is, ] think,
abundant to enable the court to render a
decree containing all necessary details
that will effectually suppress the evils Of
the combination in question. But the
court sends the case back with directions
to further hear the parties. so as to ascer-
tain whether new condition cannot be
recreated in harmony with the law.
Il have found nothing in the record
which makes me at all anxious to perpet-
uate any new combination among these
companies, which the court comedies had
at all times exhibited a conscious wrong
doing. The court says: The history OF
the combination is SO replete with the
doing Of acts which 1t was the obvious
purpose of the statute to forbid, SO de-
monstrative of the existence from the be-
ginning OF purpose to acquire dominion
and control of the tobacco trade. not by
the mere exertion OF the ordinary right
to contract and to trade, but by methods
devised In order to monopolize the trade
by driving competitors out Of business
which were ruthlessly carried out upon
the assumption that to work upon the
fears or play upon the cupidity of COM
petitors would make success possible
For Reversal on Cross-Appeal.
II will not now say what in my opin-
ion should be the form Of the decree. nor
speculate as to what the details ought
to be. 1t will be time enough to speak on
that subject when we have the decree
before us. 1 will, however. say now that
in my opinion the decree below should be
affirmed as to the tobacco company and
its accessory and subsidiary companies.
and reversed on the cross-appeal of the
government.
But my objections have particular ref
erence to those parts Of the courts opin-
ion which reaffirm what 1t said recently
in the Standard Oil case about the former
decisions OF this court touching the anti
trust act. We are reminded again, as we
were in the Standard Oil case, OF the ne
cessity to, apply the rule of reason In
which is. / think, expressed in language
so clear and simple that there Is no room
whatever for construction. Congress.
with full and exclusive power over the
whole subject. has signified its purpose
to forbid every restraint OF interstate
trade. in whatever form, or to whatever
extent. but the court has assumed to In
sert in the act. by construction merely.
words which make Congress say that 1t
means only to prohibit undue restraint
Of trade.
III do not misapprehend the opinion
just delivered, the court says that what
was said in the opinion in the Standard
OH case was In accordance with our pre-
VlOuS OeCl8lO0S In TIC tIau<1O1S8Our1 ana
joint trafiic cases. IL we resort to rea-
son. This statement surprises me quite
as much as would q statement that black
was white or white was black. It is
scarcely just for the court at this late
day to say or intimate that Justice Peck
ham and his colleagues who agreed with
him interpreted the act OF Congress
without regard to the rule Of reason
or to assume that the act was, for the
first time in the Standard OIL case, in
terpreted In the light Of reason The
rule of reason am sure, does not JUS
tify the perversion Of the plain words
Of an act Of Congress in order to defeat
the will Of Congress,
The "Hule Of Reason"
'By every conceivable form of ex-
preston Justice Peckham and his as
sociates IN the transmissouri and joint
trafic cases said that the act of Con-
gress did not allow a restraint OF in
terstate trade to any extent or in any
form. and three times distinctly re-
jected the theory persistently ad-
vanced that the act should be construed
as IL II had in II the word 'unreason-
able or undue But now the court. in
accordance with what 1t denominates
the rule Of reason In effect, inserts in
the act the word undue and makes