The Washington times., 1911-12-05
PRESIDENT TAFT .
ASKS SUPPLEMENT
T0ANTETRUST LAW
Message to Congress Urges
That Prohibitions Be Made
More Specific.
Continued from First Page.)

NAoiS SPSSillS.
Continued from First Page)
cussion of the topics that ought to be
brought to the attention of the National
Legislature ut It's first regular session.
Supreme Court Decisions.
In May last the Supreme Court
handed down decisions in the suits in
equity brought by the United States to
entoin tile further maintenance of the
Standard Oil trust and of the American
Tobacco trust, and to secure their dis
solution. The decisions are epoch
making and serve to advise tho business
world authoritstively of the SCOPE and
operation of the antitrust act of 1890.
The decisions do not depart in any subj
stantial way from the previous de-
cisions Of the court In constituting and
applying this important stat,:te. but
they clarity those decisions by further
defring the already admitted excep.
tons to the literal construction tf the
act. By the DEGREES. they furnish q
useful precedent as to the proper
method OF dealing with the capital and
property Of jllega! trusts. These de.
ctsions suggest the need and wisdom of
additional or suppler lental legislation to
make 1t easier foc the entire business
community to square With the rule Of
action and legality thus finally estah-
lished and TO preserve the benefit, free
dom. and spur of reasonable competition
without loss Of real efficiency or
progl esq.
Change in Form of Expression.
The statute in its first section declares
to be illegal "every contract, combina-
tion In the form of trust or otherwise. :.
or conspiracy. In restraint Of trade or
commerce among the several States or
with foreign nations" and in the Sec
Ond, declares guilty Of a misdemeanor
"every person who shall monopolize or
attempt to monopolize or combine or
conspire with any other person to mo-
nopolize any part Of the trade or COM
merce of the several States or with
foreign nations"
: In. two early cases, where the statute
was invoked to enjoin a transportation
rate agreement between interstate rail-
road companies, 1t was held that II was
no defense to show that the agreement
a. to rates complained of was reason
sDIs sas ssat e. ahs LAM because l.
against all contracts and combinations
in restraint Of trade whether reasonable
at common law or not 1t was plain
from the record, however. that the con-
would not have been deemed reasonable
at common law. In subsequent cases
the court said that the statute should
be given reasonable construction and
refused to include within its inhibition.
certain contractual restraints OF trade
which 1t denominated as incidental or
as indirect. So ..0I...
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 called
reasonable. In the Standard Oil and
Tobacco cases, therefore, the court
merely adopted the tests of the common
law and in defining exceptions to the
literal application Of the statute, only
substituted for the test Of being inci-
dental or indirect, that of being rea-
sonable, and this, without varying in
1ect OF the statute. In other words, all
the cases under the statute which have
now been decided would have been
decided the same way II the court had
the rule at common law. ... ....
1t has been said that the court, by
introducing 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 monopoly Of
such trade, Is condemned by the stat
ute. The most extreme critics cannot
instanceea case that ought to be con-
demned under the statute which is not
brought within its terms as thus con-
strued. t
J 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 of trade Is within the terms
0f the statute. This is wholly untrue.
A reasonable restraint of trade at COM
mon law is we'll understood and is clear
ly defined. 1t does not rest In the dis
cretion of the court. 1t must be limited
to accomplish the purpose of lawful
main contract to which, In order that II
shall be enforceable at all. 1t must be in
cidental. If it exceed the needs of that
contract. 1t is void.
The test of reasonableness was never
applied by the court at common law to
contracts or combinations or conspira-
cies in restraint of trade whose purpose
was or whose necessary effect would be
to stife competition, to control prices
or establish monopolies. The courts
never assumed power to say that such
contracts or combinations or conspira-
cies might be lawful IL the parties to
them were only moderate in the use of
the power thus secured and did not
exact from the public too great and
exorbitant prices. 1t is true that many
theorists, and others engaged in busi-
ness violating the statute, have hoped
that some such line could be drawn by
courts; but no court of authority has
ever attempted 1t. Certainly there is
nothing in the decisions of the latest
two cases from which such a dangerous
theory of judicial discretion in enforc-
Ing this statute can derive the slightest
sanction.
Growth in Force of Statute.
We have been twenty-one years max
ing this statute effective for the pur-
poses for which 1t 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, how
ever. the error of that judgment was
corrected, 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 a number are pend
ing, but juries have felt averse to con-
victing for jail sentences, and Judges
have been most reluctant to impose
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