Evening star. [volume] (Washington, D.C.) 1854-1972, 1911-05-16

tue pfOuiDltcu results. Inc dlHuiSuttS.
ii any. is involved in determining what
| is intended by monopolize. But this
| ambiguity is readily dispelled in the light
of the previous history OF the law of re-
straint of trade to which we have re-
| ferred and the indication which it gives
of the practical evolution by which mo-
nopoly and the acts which produce the
same result as monopoly, that is, an UNI
due restraint of the course of trade, all
came to be spoken of as. and to be. in
Intent of Second Section.
"In ether words having by the first
section forbidden all means of monepoliz-
ing trade. that is. unduly restraining 1t
by means of every contract, combination,
etc, the second section seeks. # possi-
BILE, to make the prohibitions of the act
all the more complete and perfect by EN-.
bracing all attempts to reach the end
prohibited by the first section. that IS,
restraint Of trade, by any attempt 10
monopolize. or monopoliZation thereof,
even although the acts by which such
results are attempted to be brought about
or are brought about be not embraced
within the general enumeration of the
| first section.
"And. Of course, when the second Sec
ton lis thus hnrmOulzed with and made,
as 1t was intended to he. the compile
lnent Of the first. IL becomes obvious
that the criterin to he resOrted to In
any given ease for the purpose Of as
certainine whether VIOLATIONS. Of the
| section have been committed. Is the
| rule Of reason, guided by the estab-
lished law and by the plain duty to
enforce the prohibitions of the act and
tiOnn were obviously enacted to sub
serve.
"And it is worthy Of observation. as we
have previously remarked concerning the
by the comprehersiveness of the emu
merations embodied in both the first and
second sections makes 1t assduousiy GER
tain that Its purpose was to prevent I'M
due restraints of every kind or nature,
nevertheless by the omission OF any OIL
rect prohibition against monopoly in the
concrete 1t indicates consciousness that
the freedom of the individual right TO
contract when not unduly or Improperly
exercised was the most efficient means
for the prevention of monopoly. since the
operation of the centrifical and centrl-
pedal forces resulting from the right to
freely contract was the means by Whicn
monopoly would be inevitably prevented
f no extraneOus or sovereign power I'M
posed it and no right to make unlawful
contracts having a monopolistic tendency
were permitted. In other words. that free-
dom of contract was the essence or 1ree-
dom from undue restraint
Coming then to consider the contentious
that the construction thus given to the
statute. although 1t may he reasonable,
is erroneous, because the text says every
contract or combination. etc. and there.
fore leaves no room for judgment, but
exacts the simple duty OF applying the
statute to every case within Its literal
language, the opinion says:
Where the Error Lies.
'1'he error involved lies in assuming the
matter to be decided. This is true because
as the acts which may come under the
classes stated in the first section and the
restraint Of trade to which that section
applies are not specifically enumerated
or defined. 1t is obvious that Judgment
must in every case be called into play
i'm order to determine whether part1cu-
lar act iS embraced within the statutory
classes. and whether, if the act is within
such classes. its nature or effect causes II
| to be a restraint of trade within the in
| tendment of the act.
ITO hold to the contrary would require
the conclusion either that every contract.
act or combination of any kind or nature.
whether 1t operated as restraint on trade
| or not. was within the statute. and thus
the statute would be destructive of all
| right to contract or agree or combine
| in any respect whatever as to subjects
| embraced in interstate trade or COM
| merce: or if this conclusion were not
reached, then the contention would re-
QOlre II TO De IelO lHdt DIS the StdluIO
did not define the things to which 1t re-
lated and excluded resort to the only
means by which the acts to which it re-
| lates could be ascertained-the llSht Oh
reason-the enforcement of the statute
was impossible because of its uncertainty
"The merely generic enumeration
which the statute makes OF the acts 10
| which 1t refers and the absence of any
definition of restraint of trade as used
I'm the statute leaves room for but one
.S<v> os hot
pressly designed not to unduly limit
the application Of the act by precise
definition, hut while clearly fixing a
| standard-that fs. by defining the ul-
| terror boundaries which could not he,
Ifransgressed with impunity-tO leave 1t
to be determined by the light Of rea-
son, guided by the principles Of law
and the duty to apply and enforce the
public policy embodied in the statute,
in every given case whether any par
ticular act contract was within the
contemplation of the statute.''
Former Decisions Cited.
Disposing of the contention that the
opinions in the United States agt Freight
Association, 16G L. S.. 300. and United
States agt. Joint Traffic Association, ~
u. s., 5O5 exclude the right to thus reason
in interpreting the statute the opinion
declares that the general language of
those decisions has been subsequently eX
planned and held not to justify the broad
significance attributed to them. The opin-
ion says:
And in order not in the slightest de-
gree to be wanting in franlness, we say
that in SO far, however, as by separating
the general language used in the opinions
in the freight assOciat ton and joint traf-
fic cases from the context and the subject
and parties with which the cases were
concerned it may be conceived that the
language referred to conflicts with the
construction which we give the statute,
they are necessarily now limited and quail
conclusion IF are to adhere to the
many cases decided in this court in which
the antitrust law has been applied and
enforced and II the duty to apply and en-
force that law in the future is to continue
to exist. The first is true, because the
construction which we now give the
statute does not in the slightest degree
conflict with a single previous case de-
cided concerning the antitrust law aside
from the contention as to the freight as
ISOLATION and joint traffic cases. and be-
cause every one of those cases applied the
rule of reason for the purpose of de-
termining whether the subject before the
court was within the statute. The second
is also true, since. we have already
pointed out. unaided by the light of
reason, it is impossible to understand how
the statute may in the future be enforced
and the public policy which 1t establishes
be made eff1cacious.'
Disposing Of contention OF the