The Birmingham age-herald., 1911-05-30
JUSTICE HARLAN
 AGAIN D|SSENTS IN TOBACCO CASE
Opposes the Courts Order Sending Case Back to
 Lower Court
AGAIN OBJECTS TO
 RULE OF REASON
Agrees Defendant Is an Illegal Com bination in Restraint of Trade in Violation of Sherman
 Antitrust Laws

Antitrust Laws Washington, May 2a-Associate Justice
 Harlan delivered a vigorous dissent to-
 day to part of the decision of the supreme
 court of the United States fin the tobacco
 case, although he agreed that the Amer
 ican Tobacco company and its accessory
 and subsidiary corporations were mem
 bers of : ! ualawful combination in viola
 tor of the sherman antitrust law. | His dissent as expressed from the bench centered around two points. First, he took issue with the court for sending the | case back to the lower court. T have found nothing in the record
 he said. which makes me at all anxious
 to perpetuate any new combination among these companies which the court
 comedies had at all times exhibited
 conscious wrongdolng.
 | In the second place, he reiterated tno
 objections he expressed in the Standard | oil decision of two weeks ago to the ! adoption of the rule of reason" as standard for ascertaiping what restraints of trade violate the Sherman antitrust law.
 These points were made by Justice
 Harlan in dissenting from the bench: T concur with some things said in tho opinion just delivered for the court, but
 some observations are made In the opin-
 ion from which I am compelled to with
 hold my assent. What I have now to say must necessarily be oral, for the
 courts opinion was not delivered to me
 until late Saturday evening. and 1t has
 been impossible for me. since then, to
 put in writing the views which I deem it necessary to express. I do not refer to this by way oil complaint. for the delay in delivering to me a copy of the opinion
 of the court has no doubt been unavoid-
 able. 1 will hereafter prepare and file \ written opinion expressing my views | fully.
 ! Agree as to Being Trust
 -"r agree with the court in helding that
 the principal defendant, the Ameriger
 Tobacco company and it's accessorg,. tne
 subsidiary corporations and compsaa<no
 including the defendant English corporal 1 tions, co-operators in combination,
 illegal under the antitrust act of~isaa.
 and should be decreed to be in restraint
 of interstate trade.
 The evidence in the record Is. l think, abundant to enable the court to render
 decree containing all necessary details that will effectually suppress the evils or
 the combination in question. But the court sends the case back with directions to further hear the parties so as to as- certain whether a new condition cannot
 be recreated in harmony with the law. I have found nothing in the record which
 makes me at all anxious to perpetuate any new combinations among these com panies.
 "The court says, the history of the | combination is so replete with the do- | ing of acts which it was the obvious pur- | pose of the statute to forbid. so demon | strative of the existence from the be- l ginning of q purpose to acquire dominion l and control of the tobacco 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 play upon the cupidity | of competitors would make success pos sble I will say now that in my opin- | ion the decree below should be affirmed
 as to the Tobacco company and it's ac-
 cessory and subsidiary companies. and | reversed on the cross appeal of the gov ernment Some Objection Found
 But my objections have particular ref | erence to those parts of the courts l opinion which reaffirm what it said re- | centiy in the Standard oil case about the former decisions of this court touching
 the antitrust act. We are reminded again as we were in the Standard oil case of
 the necessity to apply the rule of reason in the construction of the act of Con- gress which Is, I think, expressed in lan- guage so clear and simple that there is no room whatever for msconstruction. Congress, with full and exclusive power over the whole subject has signihed it's purpose to forbid every restraint of in-
 terstate trade in whatever form, or to whatever extent, but the court has as- sumed to insert in the act by construc- tion, merely, words which makes Con gress say that 1t means only to prohibit | undue restraint of trade.
 If I do not 'msapprehend the opin- | ion just delivered. the court says that l what was said in the opinion in the Standard Oil case was in accordance with I our previous decisions in the trans-Mis-
 sour and joint traffic cases, If we re- | sort to reason.' This statement sur prises me quite as much would a
 statement that black was white or white
 was black.
 | Tt is scarcely just for the court at | this late day to say or intimate that Justice Peckham and his colleagues, who agreed with him. interpreted the act of l Congress without regard to the rule of l reason or to assume that the act was, | for the first time in the Standard oil case, | interpreted in the light of reason.' The | rule of reason, am sure, does not justi- | fy the perversion of the plains words of | an act of Congress in order to defeat the | will of Congress.
 By every conceivable form of express sion Justice Peckham and his associates | in the Trans Missouri and joint traffic | cases, said that the act of Congress did | not allow restraint of interstate trade to | any extent or in any form, and three times distinctly rejected the theory per- | sistently advanced that the act should be construed as if it had in 1t the word un- | reasonable. or undue But now the
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