Evening star., 1911-05-25
,etween reasonable and unreasonable re-

between reasonable and unreasonable re-
straints.
After what has been adjudged," Justice
Harlan says. upon full consideration as
to the meaning and scope of the anti
trust act, and In view of the usages OF
this court when attorneys Tor hugants
have attempted to reopen questions that
have been deliberately decided, l confess
to no little surprise as to what has occur
red In the present
''On reading the opinion just deliv-
sred," he adds. the first inquiry VIII
be, that as the court IS unanimous IN
holding that the particular things done
by the Standard OH Company and Its
subsidiary companies In this case We're
illegal under the antitrust act, whether
sonable restraint of interstate commerce.
why was it necessary to make an eiab-
crate argument, as is done in the opin-
ion, to show that according to the rule
should be Interpreted as II 1t contained
the word unreasonable or the word
undue
Wrong Fifteen Years Ago.
"The only answer which, in frankness.
can be given to this question fs that
the court intends to decide that its de-
nberate judgment, fifteen years ago. to
the effect that the act permitted no re-
straint whatever of interstate commerce
whether reasonable or unreasonable.
was not In accordance with the rule of
reason In effect the court says that
it will now, for the first time, bring the
discussion under the light of reason and
tions to be decided. L have the authority
of this court for saying that such a
course of proceeding on it's part would
be judicial legislation. -
should have replied emphatically to the
Standard Oil attorneys when they in
sisted upon d reversal of the former
rulings of the court, follows:
THAT question. according 10 our prac-
tice, is not open for further discussion
here. This court long ago deliberately
held ID that the act. interpreting It's
words in their ordinary acceptation, pro-
hibits all restraints of interstate COM
merce by combinations in whatever form
and whether reasonable or unreasonable:
t2) the question relates to matters of pub
lie policy in reference to commerce among
the states and with foreign nations, and
Congress alone can deal with the sub
ject; 90 this court would encroach upon
the authority of Congress if. under the
guise of construction, it should assume
to determine matter of public policy
t6 the parties must go TO Congress and
obtain All amendment of the antitrust
act If they think this court wrong
in Its former decisions, and t5l this court
cannot and will not judicially legislate,
since its function is TO declare the law,
while il belongs to the legislative depart
Tnent TO make the law.
Not Offensive to Rule.
Then referring to the phrase which
Chief Justice White used in his opinion,
Justice Harlan adds: Such a course, ]
am sure. would not have offended the
rule OF reason"
At the conclusion OF his opinion JUS
tice Harlan acknowledged that his
brethren had deemed it best to pursue a
different course from that which he ad-
vocated.
They have now said," explained the
justice, "to those who condemn our for
mer decisions and who object to all leg
islatiye prohibitions of contracts, COM
binations and trusts in restraint of in
terstate commerce, you may now re-
strain such commerce, provided you are
reasonable about It; only take care that
the restraint is not undue
The disposition of the case under con-
sideratfon, according to the views of the
defendants, will, 1t is claimed. quiet and
give rest to the business of the coun-
try On the contrary, / have a strong
conviction that 1t will throw the busi-
ness OF the country into confusion and in
vtte widely extended and harassing liti-
CATION. the injurious effects of which will
be felt for many years to come.
When Congress prohibited every con-
tract, combination or monopoly in re-
straint of commerce. 1t prescribed SIM
pie definite rule that all could understand
and which could be easily applied by
every one wishing to obey the law, and
not to conduct their business in violation
of law.
Thinks Litigation Likely.
''But now 1t is to be feared we are to
hava in cases without number, the con-
stantly recurring inquiry-difficult to solve
BY proof-whether the particular contract,
combination or trust involved In each case
10 or is not an unreasonable or undue
restraint of trade. Congress, in effect.
said that there should be no restraint of
trade in any form, and this court SOL
ennnly adjudged many years ago that
Congress meant what it thus said In clear
and explicit words. and that 1t could not
add TO the words of the act.
But those who condemn the action Of
Congress are now, in effect. informed
that the courts Will allow such restraints
Of interstate commerce as are shown not
to be unreasonable or undue"
The justice incorporated in his pre-
pared opinion in effect what he said
orally in dissenting In regard to the dan
gers OF judicial legislation.
THE supreme law OF the land" he
added, (which is binding alike upon all
upon presidents. congresses. the courts
and the people-gfves to Congress and to
Congress alone authority to regulate in
forbids any restraint of such commerce
In any form. all must obey its mandate.
To overreach the action Of Congress
merely by judicial construcuon-that is
by indirection|is a blow at the integrity
Of our governmental system and in the