Arizona republican., 1911-12-06


II straints of trade which it demon
mated as incidental or indirect.
These cases OF restraint of trade
that thee curt excepted from the
operation of the statnte were in
stances which. at common law. would
have been called reasonable In the
Standard Oil and tobacco cases. there
fore. the court merely adopted the
tests Of the common law. and in de-
filming exceptions 10 the literal ap-
plication OF the statute, only sub
Stituted FOR the test OF being Incl
dental or indirect. that OF being rea-
sOnab,e and this. without varying
ia the slightest the actual scope ana
effect Of the statute. IN other
words, all the cases under the statute
which have now been decided would
if the court had originally accepted
have been decided the same way
in its construction the rule at common
law
II has been said that the court
by Introducing into the construction
of the statute cOmmon-laW distinc-
tons. has emasculated il. This il
obviously untrue. BN its Judgment
every Ontract and combination in
restraint of interstate trade mad
with the purpose or necessary effect
al controlling prices by SIjfling COM
Petition, or OF establishing ia whO,c
u in part Il mOnOpol! of such trade
is condemned by the statute The
most extreme critics cannot instance
a case that ought 10 he condemned
h., f.I -
brought within its terms as thus con-
Structcd.
The suggo sti0n is also made that
the supreme court by its decision in
the last Two cases has committed To
The court the underlined and unlimited
discretion Ia determine whether Il
! case Of restraint 81 trade is within
| the terms 81 the statute. This is
wholly untrue. reasonable restraint
Of trade NJ common law is well un~
| derStood ana is clearly defined. IL
does not rest in the discretion o!
the court. II must be limited u
accomplish the purpose of lawful
| main contract to which. in order that
| l. shall be enforceable Al all. Ii
! must be incidental. If it exceed the
| ik''-tS OF liisil tbItIdtl, IL IL Nbiu-
The test OF reasonableness was
never applied by the court At common
! law 10 contracts or combinations OF
Conspiracies in restraint Of trade
( whose purposes was or whose neces-
sary effect would be 10 stiile COM
! petition. to control prices or establish
monopOlie%. The courts never aSSum-
! ed power 10 say that such contracts
| or combinations or conSpirac.es might
| be lawful If the parties to them we're
only moderate in the use Of the power
| thus secured and did not exact from
! the public too great and cxhorbitant
| prices. II is true that many theor-
lists, and others engaged in business
violating the statute have hoped that
some such line could BE- drawn by
courts; hut no court Of authority
has ever attempted il Certainly there
! is nothing in the decisions Of the
latest two cases from which such ii
GaLg. theory II judicial discre-
ti"n in enforcing this statute can
derive the slightest sanction.
Force and Effectiveness OF Statute
Matter Of Growth.
! We have been twenty-Onc years
/ making this statute effective for the
purposes for which il was enacted.
| The Knight case was discOuraging
and seemed 10 remit To the states the
whole available power 10 attack and
suppress the evils of the trusts Slow
! ly, however. the error of that judg-
ment 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 do
! minion over many OF our industries.
| Criminal prosecutions have been
| brought and a number are pending
| but jurieS have felt adverse To con-
| victing for Jail sentences and judges
/ have been most reluctant 10 impose
such sentences on men Of respectable
| standing in society whose Offense has
been regarded as merely statutory.
Still, as the offense becomes better
| understood and the committing of
! il partakes more Of studied and de-
| iiberate defiance of the law. We can
| be confident that juries will con-
Wet individuals and that Jail sen
| fences will be imposed.
The Remedy in Equity by Dissolution.
In the Standard Oil case the su-
preme and circuit courts found the
combination 10 be a monopoly of the
! interstate business OF refining. trans
porting and marketing petroleum and
its products, effected and maintained
through thirty-Seven different cor
porations. the stock OF which was
held by New Jersey company. IL
I in effect commanded the dissolution
Of this combination. directed the
transfer and pro rata distribution by
the New jersey company OF The
stock held by it in the thirty seVrn
corporations to and among its stock
holders: ana the corporations and in
dividual defendants We're enjoinrd
from conspiring or combining To Re-
store such monopoly; and al agree
inents between the subsidiary corpora
TORS terdins Ia produce or bring
about further violations of the act
WIRE cnjo!ned
Ia the tobacco case, the cOur.
found that the individual defendants.
twenty in number. had been en-
gagged in 2 successful effort to ac-
quire complete dominion over the
manufacture. sale. and distribution
OF tobacco in this country and abroad.
ard that this had been done by