Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-02
HARLAN
GIVES HIS
OPINION
THE FOLLOWING is A FULL
STATEMENT OF JUSTICE HAR.
Ian IN DISSENTING FROM THE
OPINION OF THE SUPREME
COURT RECENTLY.


Associate Justice Harlan delivered
a vigorous dissent to part Of the de-
cislOn of the supreme court in the
tobacco case, although he agreed
that the American Tobacco company
and its accessory and subsidiary cor
poratiOns were members of an un-
lawful combination in violation of
the Sherman antitrust act
His dissent centered around two
points: First, he took issue with the
court for sending the case back to
the lower court.
81 have found nothing in the rec
ord" he said, (which makes me at
all anxious to perpetuate any new
combination between these compan-
les which the court comedies has at
all times exhibited a conscious
wrong-doing."
In the second place he reiterated,
the objections he expressed in the
Standard Oil decision of two weeks
ago to the adoption of the rule Of
reason" as a standard for ascertain
ing what restraints of trade violate
the Sherman antitrust law.
Point Raised.
These points we're made by Justice
Harlan in dissenting from the bench;
Il concur with some things said in
the opinion just delivered for the
court, but some observations are
made in the opinion from which / am
compelled to withhold my assent.
agree with the court in holding that
the principal defendant, the Ameri-
can Tobacco company, and its acces-
sorry and subsidiary corporations and
companies, including the defendant
English corporations, are co-opera-
tors in a combination which in and
Of ITSELF as well as each and all of
the elements composing it, whether
corporate or individual, whether con-
sidered collectively or separately, are
illegal under the antitrust act of
1890, and should be decreed to be in
restraint of interstate trade and an
attempt to monopolize and a monop-
olization of part of such trade
THE record in the case, | think, is
abundant to enable the court to rem
der decree containing all necessary
the evils of the combination in ques-
ton. But the court sends the case
back with directions further to hear
the parties so as to ascertain Whe-
ther a new condition can not be re-
created in harmony with the law. I
have found nothing in the record
which makes me at all anxious to
perpetuate any new combination
among these companies which the
court comedies had at all times ex-
hibited conscious wrong-doing.
To MOnOpOlize.
The court says: The history of
the combination is so replete with
the doing of acts which it was the
obvious purpose of the statute to for
bid, so demonstrative of the exist
ence from the beginning of a pur-
pose to acquire dominion and con-
troll of the tobacco trade, but by
methods devised in order to monopo-
lize the trade by driving competitors
out of business which ruthlessly car
ried out upon the assumption that to
work upon the fears or play upon the
cupidity of competitors would make
success possible
In my opinion, the decree below
Should be affirmed as to the tobacco
company and its accessory and sub
sldiary companies, and reversed on
the cross appeal of the government.
But my objections have particu-
larl reference to the parts of the
courts opinion which reaffirmS what
is said recently 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 rea-
SON in the construction of the Act of
Congress, which is, | think, ex-
pressed in language so clear and
simple that there Is no room what
ever for construction.
Takes Exception.
III | do not misapprehend the opin-
ion Just delivered, the court saws
that what was said in the opinion in
the Standard Oil case was in accord
ance with our previous decisions in
the Trans-Missouri and Joint traffic
cases, II we resort to reason. This
statement surprises me quite as
much as would statement that
black was white or white was black.
Let me say that as we all agree
that the combination in question was
illegal, under my construction of the
antitrust act, whether 1t contained a
prohibition of interstate trade that
was due or undue, or the word rea-
sonable or unreasonable, there was
not the slightest necessity to enter
on an agreement to show that the act
OF congress was to read as if it CON
tained the word unreasonable or
undue. All that the court says on
the subject is, | submit, obiter dlcta,
pure and simple"