Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-09-18
Upholds Decisions in Corporation Cases Handed
Down bp Supreme Court
Greater Part of Criticism Come From PEOPLE
Ignorant of Law
To=day's Address First of Political Speeches
of Western Tour

decisions under the law cannot be
said to have been fortunate. The de-
cision in what was known as the
Sugar Trust case-the knight case
was really retrograde step and one
which seemed to limit much the oper.
alton of the statute. 1t encouraged
the organization of combinations
which the same court has since found
violate the statute. The case could
not be effectively presented to the
court because the record had not been
properly made up, and the questions
arising were treated in the opinion
in such way as to give the impres.
sion that the operation of the law
would be most restricted. because of
the limits of federal jurisdiction. In.
deed, some law officers Of the govern.
ment did not hesitate to say that un-
der this decision there was little hope
of reaching the evil aimed at through
federal action. 1t has required twenty
years of litigation to make the statute
clear. But now it IS clear.
I shall not attempt to give it a
close, lawyer.like Interpretation, but
l think it is not departing from the
declaration of Sc court to say that
they find any contract in restraint Of
trade, made for the purpose of exclud-
ing competition, controlling prices, or
of maintaining monopoly, in part or
in whole, is contrary TO the statute
and is subject to Injunction and indict-
ment under this statute in the federal
courts where it effects interstate
trade.
Now, would like to ask Mr.. Bryan
or any of the other publicists and pur-
lists who have been denouncing this
opinion as the surrender of the rights
of the people and the usurpation of
judicial power, to tell the public what.
particular contract or restraint of in
terstate trade he would condemn
which would not be condemned within
this definition of the court. The dif-
l.culty with the literal construction of
the statute is that it would denounce
a great many minor or incidental re-
of trade, which made the
statute ridiculous and weakened its
effect and lent support to the criti-
cisms and contemptuOus treatment of
the statute by those who were op-
posed to it's passage and enforcement.
For instance, take the instance cit
ed by federal circuit Judge in which
he said that under the literal construc
ton of the statute which must be en-.
forced, if there were two persons do.
ing a wagon express business across
a state line and they united in q part
nership, the union in the partnership
would be a restraint of interstate
trade in violation of the statute.
Such a result is really a reductio ad
and no one who was in
avor of making the statute effective
or the purposes for which it was
passed and had any intelligent apprec.
alton of what the statute was intend
ID to accomplish and what it meant.
would contend for such construction
t is true that in one of the decisions
# the supreme court there was a
tatement made that the term "reas-
nable" could not be introduced into
he statute because Congress had not
ut it there, but the very same court
nd the very same judge, when
ase arose presenting restraint of
rade that must be condemned as un-
awful if literal construction were
, be given to the statute, said in SO
lany words that it must be reason
bly, construed, and that it must not
e held to include contracts that were
lerely incidental restrainst of trade
nd were not made for that purpose.
l one of these cases man owned
ome steamboats, that did an inter-
ate business on the Ohio river. He
ished to sell out. He did sell out.
nd in the sale of the steamboats, he
ished to sell the good will of the
ne which he had been running. Ac.
)rdingly he stipulated that he would
ot himself engage in that business
etween those same points for cer-
in number of years, this was inter-
ate business and his contract was
restraint of trade, but the supreme
,urt held that it was a mere inciden-
i restraint, i. e., incidental to the
lie of the good will, and so was not
ithin the statute This would have
zen the same at common law, where
ON time immemorial such a re-
raint as this has been held to be
.asonable because limited to the ne
sssity of preserving the good will
hich the vendor was selling, and
hich but for such an agreement
ould be worth nothing. In other
Continued on page 81