New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-05-30
HARLAN D!SSENTS IN
VIGOROUS FASHION
Objects. as in Standard Oil Case.
to Application of "Rule
of Reason
THWARTS CONGRESSES WILL
Takes Issue with Sending Case
Back to Lower Court-"Not
Anxious to Perpetuate Any
New Combination.

New Combination
Washington. May 29.-Associate Jus
tice Harlan delivered a vigorous dissent
to-day 10 part of the decision of the Su-
preme Court Of the United states in the
Tobacco case. although he agreed that
the American Tobacco Company and It's
accessory and subsidiary corporations
were members of an unlawful combina-
ton in violation of the Sherman anti
trust act.
His dissent. as expressed from the
bench. centred around two points.
First, he took issue with the court for
sending tie case back to the lower court.
Il have found nothing in the record"
he said. which makes me at all anxious
20 perpetuate any new combination
among these companies which the court
comedies had at all times exhibited a
conscious wrongdoing."
In the second place, he reiterated the
objections ne expressed in the standard
Oil decision of two weeks ago to the
adoption Of the rule OF reason" as a
STANDARD for ascertaining what re-
straints Of trade violate the Sherman
antitrust law.
These points were made by Justice
Harlan in dissenting from the bench:
concur with some things said in the
opinion just delivered Tor the court, but
some observations are made IN the opinion
from which am compelled 10 withhold my
| nc
essarily be oral. fCr the court opinion was
not delivered 70 me until late SATURDAY
evening. and IL has been impossible for me
since then to put IN writing the views
which deem il necessary "a express. 40
not refer TO this by way OF complaint: ior
the delay in delivering 70 me copy OF the
opirion OF the court has no doubt been un-
avoidable ! will hereafter prepare and NE
a written opinion expressing my views fulS'
Agrees with Courts Conclusion.
agree with the court in holding that the
principal defendant. the American Tobacco
Company. and IT'S accessory and subsidiary
corporations and companies. including the
erdant English corporations, are coop,
orators in & combination which. IN ana
OF itself, as We'll as each and all OF the
elements composing u. whether corporate
or individual. whether considered collec-
lively or separately. are Illegal under me
antitrust act o. 1890. and should be decreed
to he in restraint Of interstate trade and an
attempt % mOnopolze ana a mohopoIlzd-
tiOn of part of such trade.
The evidence in the record Is, l THINK
abundant 10 enable the court 70 render a
Cecree containing all necessary details that
will effectually suppress the evils OF me
combination IN question. But the court
sends the case back with directions 10 iui
Their hear the parties so as 70 ascertelIii
whether a new condition cannot lie recreated
IN harmony with the law ] nave FOUND noth,,
ing IN the record which makes me at al
anxious to perpetuate any new son, son Oi ma.
ton among these companies WnGn Ihe
court comedies had at all times SNMhten u
conscious wrongdolng.
.linaticn is so replete with the doing OF aCts
which IL MAS the obvious purpose OF the
statute 10 forbid. SO demonsrauNe OF the
existence from the beginning ct q, purPVse
"a acoGirs-1iominion and conuol OF thc 70
I2ico trade but by methods devised IN
ordor - n1onouolize the trade by drlNlhs
C0mueti-~rs out Of business, Whlcn w, {
rlithlfeslI-Carried ont upon the assumption
that +c..work uprn the fears or pay upon
tn cuniditv Of competitors would ma re
SS il %@ oTirion sSold '4 be the form
- the decree. nor speculate as 70 Nnat
the details ought 70 ne .lt WIN -
time enough T. sneak on that subject Wheh
~ bavo The decree before rs ] will. how
over saw now that ~ my opinion the de-
cree below should be affirmed rs 70 the 70
siciaiv companies, ond reversed on '"'
cross-appa3l OF the government.
Objects AGAIN to "Rule of Reason"
f.f T1E directions nave pol tIN. .i@4 iVi'i
erce 10 those parts of the courts OPINION
which reafrrm what ~ said recently IN the
Standard oil case about the former deols-
iCre IF this court touching the antitrust
act We are reminded again, as We were
in the STANDARD oil case. Of the necessity
10 spplv the rule OF reason in the con
s;ruction Of the act ~ congress, WIacn ~, ~;
I think. expressed I'M language 30 clear ana
sinule that there Is no room whatever loT
cons-~uCtion Congress. with iuil ana eN-
elusive power over the whole SunleCt, ma
si.nifed its purpose to forbid every re-
sfraint If interstate trade, IN WnateNer
fCrn, or 10 whatever extent. hut the court
80 oesuroed 10 insert in the act. 10y con-
etruction merely. words which make on
rress saw that n means only 70 prompl'
"undue" restraint 90 1ra0e -
II do not rnisapprehend the opinion 1uSt
delivered the court saws that Wnat 'Wos
said i'm the opinion in the Standard on case
Wa I'm accordance with our previous Qe-
cisions in the Transmissouri ana JOINT
Tran cases II We resort 20 reason. rms
etatenoent surprises me quite as much as
yyould statement that black was wnlte or
white was black. II j. scarcely Just Ior me
court a. this late DAY 20 say or lntlnal e
NAT Justice Peckham and his coUoaSueS.
who agreed with him. interpreted the act
of Congress without regard TO the RUE OF
reseon." or 10 assume that the act was
FOR the first time IN the Standard OH case
interpreted in the light Of reason. j. ne
"r,lle Of reason am sure does not lusurF
the perversion Of the plain words OF an act
of congress in order 20 defeat the VIII OF
Congress.