The Bridgeport evening farmer., 1911-06-21
'UnreasonabIe'' As
 Applied To Trusts
A Review of Chief Justice Whites Famous Dictum
 in Standard Oil Case
(By Albert H. Walker, Author of The History of the Sherman
 

Supreme Court in the trust cases are remarkable for the large amount of space to obiter dicta. These decisions mark an important period in corpor- ate evolution and indicate an appar- ent change in the relations of our highest tribunal to business enter prises and in the courts practice in dealing with statutory laws that are not popular with financiaI interests. The following article dealing with the Chief Justices obiter dicta was writ ten by Albert H. Walker, of the New York bar, a recognized authority on constitutional law. MT. Walker is a fluent writer and the article should prove as interesting as it is instruc- tive.H
 (Moody's Magazine.)
 The written opinion of Chief Jus tice White, in the Standard Oil case, is composed of twelve thousand words. The first four thousand and the last three thousand words. relate 10 the case. But the middle five thousand words are all devoted to an argume ent on question whether the word "unreasona ble'' should be inn piled in the Sherman law; so as to limit it's prohibitions of restraint pr Of monopolization of interstate or in- ternational trade or commerce, 60 such restraint or monopolization as may be unreasonable" That argu-
 
 the affirmative side of that question; and in reaching that result he made statements, the importance of which depends upon whether they are cloth ed with the Sanctity of a judicial de- cision of the Supreme Court of the United States. or are only the obiter dicta of the Chief Justice.
 The distinction between the deci- sion of a court and the obiter dicta of judge, is known to all lawyers; but as this article is intended also for 1aymen, it is suitable to say that a decision of a court is it's solution of a litigated controversy, and that an obiter dictum of a judge is a state ment of some idea upon which that solution does not depend. Any state ment in a judicial opinion is there fore an obiter dictum, if it could be reversed without affecting the decis- ion of the case.
 The opinion of Chief Justice White in the Standard OiI case, that the word unreasonable should be inn piled before the word restraint and also before the word ''monopolize,' in the Sherman Law, can be reversed without affecting the decision of that case; because that decision found the Standard Oil Company guilty of re- stra1nt of interstate commerce, and also guilty of monopolizing interstate commerce, even if such restraint and
  word "unreasonable"; and because the removal of that limitation would not lessen the guilt of the Standard Oil Company, or logically lead to any change in the decision of the court. For these req sons, it is quite unde-- niable that the decisions of the Stand- ard Oil case did not depend in the slightest degree upon the presence or obSence of any such limitation upon the statutory word restraint or the statutory word ''monopolize," as Chief Justice White, in his five thousand those words; and for these reasons also, it follows that all those portions of his written opinion which appear to be intended to operate to thus linn It those statutory words, are obiter dicta.
 In the Carr case, decided by the Su- preme Court in 1879, an opinion de- livered by Justice Bradley, without any dissent from any other justice, contained an obiter dictum which was repudiated by decision of the Supreme Court, which was made four years afterward. in the Lee case. These two cases disclose the law reIe- want to obiter dicta so perfectly and so interestingly, that they ought to be generally understood.
 The Carr case was an action Tn equity, brought by the United States. in the United States Circuit Court for the District of California against Carr, to settle the question whether cer- tain real estate in San Francisco, was the property of the United States, or was the property of MT. Carr The United States claimed that real es- tate. by virtue of its original appro- priation for public use by the military authorities of the government in 1847 and also by virtue of a deed executed December II, 1852, by the Mayor of san francisco under the authority of the Common Council of that city, the land having been pueblo" land belonging to the municipality of San Francisco, prior to the American con- quest of California. Carr claimed title to the real estate in controversy who had taken possession of the property in 1849, without having any paper title at that time; and also by virtue. of an ordinance of the Com mon Council of San Francisco, of June 20, 1855, which relinquished to White and his grantees, whatever title the city had to the property at that time. But as the city had no title to the property in 1855 having deed- ed to the United States in 1852, it was apparent that MT. Carr had no m eritorious case.
 In this situation of affairs, MT. Carr sought to hold the property in con- troversy by virtue of certain judg- ments which had been rendered in a California state court in 1865, in cer- tain actions of ejectment, which had been brought in that court by parties in privity with him against Hastings and others, who held possession of the property as agents of the United States. Those agents were defended in those suits by the United States District Attorney for the District of on the ground that the United States was the real owner of . the property. But the state court, having decided against the defendants on that question, rendered judgments in eJectment against the agents of tn United States, and MT. Carr invoked these judgments in the Federal Court as res judicatas (for matters settled at law), and, as establishing the title in him. But the Tinted States Circuit Court in California. m the first instance, and the Suprem Court of the United States, on Cars appeal to that tribunal. decided that the Judgments in the state court were not res judicata, because the United States was not party to the cases in which those judgments were ren- dered; and also decided that the ac- tion of the District Attorney, in de- lending the defendants, did not bind the United States to the results of the suits These two points were all the points which were decided by the Supreme Court in the Carr case
 But Justice Bradley inserted in the opinion which he rendered in that case. the following obiter dictum.
 Tn some cases (perhaps it was so in the present caSe), it might not be until after suit brought that the possession attempted to be assail-