The Calumet news., 1911-12-05

state railroad companies. It was held
that II was no defense to show that
the agreement as to rates complained
OF was reasonable at common law. be-
cause IL was said that the statute was
directed against all contracts and COM
binations I'm restraint OF trade. whether
reasonable ut common law or not. IL
was plain from the record. however.
that the contracts complained Of I'm
those cases would not have been deem
cd reasonable at common law. In sub
sequent cases the court said that the
statute should be given reasonable
construction and refused to include
within its inhibition certain contrac-
tual restraints OF trade which II de-
nominated as incidental or as indirect.
These cases of RESTRAINT of trade that
the court excepted from the operation
OF the statute were instances which
at common law would have been call
ed reasonable. In the Standard OF
and tobacco cases, therefore. the court
merely adopted the tests of the com
mon law and in defining exceptions to
the literal application of the statute
only substituted for the test OF being
incidental or indirect that OF being
reasonable. and this without varying
in the slightest the actual scope and
effect of the statute. In other words.
all the cases under the statute which
have now been decided would have
been decided the same way If the
court had originally accepted in its
construction the rule at common law.
1t has been said that the court by in
Producing into the construction Of the
statute common law distinctions has
true. BY its Judgment every contract
and combination in restraint of inter
state trade made with the purpose or
necessary effect of controlling prices
by sitting competition or Of establish.
ing in whole or in part n monopoly of
such trade is condemned by the stat
ute. The most extreme critics cannot
instance n case that ought to be con-
demned under the statute which is not
brought within its terms rs thus con-
strued.
The suggestion Is also made that the
supreme court by its decision In the
last two cases has committed to the
court the underlined and unlimited dis.
cretion TO determine whether case OF
restraint ~ trade is within the terms
Of the statute. This is wholly untrue.
A reasonable restraint OF trade at COM
mon law is well understood and is
clearly defined 1t does not rest In the
discretion of the court. 1t must be
limited to accomplish the purpose OF a
lawful main contract to which in order
that it shall be enforceable at all 1t
must be incidental. If 1t exceed the
needs of that contract it is void.
The test of reasonableness was never
applied by the court at comman law
to contracts or combinations or con-
spiracies in restraint Of trade whose
purpose was or whose necessary effect
would be TO stife competition. TO con
troll prices or establish monopolies
The courts never assumed power to
say that such contracts or comblna-
tions or conspiracies might be lawful
If the parties to them were only mod
crate in the use of the power thus Sc
cured and did not exact from the pub
lie too great and exorbitant prices. 1t
is true that many theorists and others
engaged in business violating the stat
ute have hoped that some such line
could be drawn by courts, but no court
of authority has ever attempted it.
Certainly there is nothing in the deci-
sions of the latest two cases from
which such dangerous theory OF ju
dicial discretion in enforcing this stat
ute can derive the slightest sanction.
Force and Effectiveness of Statute a
Matter of Growth.
We have been twenty-one years max
ing this statute effective for the pur-
poses for which it was enacted. The
knight case was discouraging and
seemed TO remit to the states the whole
available power TO attack and suppress
the evils of the trusts. Slowly. howev-
er. the error of that judgment was cor
rected, and only in the last three or
four years has the heavy hand of the
law been laid upon the great Illegal
combinations that have exercised such
an absolute dominion over many of our
industries. Criminal prosecutions have
been brought, and number are pend
ing, but juries have felt averse to con-
victing for Jail sentences and judges
have been most reluctant to impose
such sentences on men of respectable
standing in society whose offense has
been regarded as merely statutory.
Still. as the offense becomes better un-
derstood and the committing Of 1t par
takes more of studied and deliberate
defiance of the law we can be conf
dent that juries will convict individu-
ais and that jail sentences will be i'm
posed.
The Remedy In Equity by Dissolution.
In the Standard Oil case the supreme
and circuit courts found the combina-
tion to be a monopoly of the interstate
business of refining. transporting and
marketing petroleum and its products,
effected and maintained through thir-
ty-seven different corporations, the
stock of which was held by New Jer-
sey company. 1t In effect commanded
the dissolution of this combination, di-