Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1911-05-25
H ARL. AN
ATTACKS
DECISION
Says Standard OIL 0pin-
ion Is Blow at
Integrity.
WILL CAUSE CONFUSION
IN BUSINESS WORLD
Supreme Court Justice Files
Dissenting Opinion. Attack
ing Maiority's Views.
WILL CAUSE CONFUSION
in BUSINESS WORLD

WASHINGTON, May 25-Associate
Justice John Marshall Harlan today
filed in the Supreme Court his formal
dissenting opinion In the Standard OIL
case Not satisfied with his oral dis
sent for the courts decision. as handed
down by Chief Justice White, Justice
Harlan entirely rewrote the steno-
graphic report of his remarks from the
bench. The oral dissent formed merely
a framework for the final document,
containing about 5000 words, put on
record today.
Justice Harlan brands as mischievous
the modification made by the court in
the decree of the lower court permit
ting subsidiary corporations Of the
Standard Oil, after dissolution Of the
combination to make normal and lawful
agreement" among themselves Chief
Justice White had characterized this
modification as minor matter"
The further declaration is made by
Justice Harlan that he is convinced
the courts opinion will throw the
business of the country into confusion
and invite widely-extended and har-
RAISING litigation, the injurious effects
of which will be felt for many years to
come"
| In connection with what he terms a
"mischevous modification" Justice
| Harlan quotes the chief justice as say
ing that at does not necessarily fol-
low that because an illegal restraint of
trade or an attempt to monopolize or
monopolization resulted from the
/ combination and the transfer of the
stocks of the subsidiary corporations
to the New Jersey corporation, that p
| like restraint of trade or attempt to
monopolize or monopolization would
necessarily arise from agreements be-
! tween one or more of the subsidiary
corporations after the transfer of the
stock by the New Jersey corporation"
Taking this language in connection
with other parts of the opinion" says
| Justice Harlan the subsidiary com
panies are thus, in effect, informed
unwisely, | think-that although the
New Jersey corporation being an ills-
! gal combination, must go out of ex-
istence, they may join in an agreement
to restrain commerce among the
States, IL such restraint be not 'un-
| due"
Criticfses Court.
AS in his oral remarks Justice Har-
Ian devotes himself largely to criticism
of the court for holding that not every
restraint of trade violates the law. he
| reiterates that the court reversed it's
| former rulings in the trans Missouri
freight and joint traffice association
cases.
Justice Harlan, referring to other de-
cisions as bearing out his interpreta-
tion of these decisions calls particular
attention to one of Judge Taft, now
! President now in the Addystone pine
case,
Judge Taft said," continues Justice
| Harlan, that according to the decision
! OF this court, in the freight association
case, contracts in restraint of inter-
state transportation We're within the
salute whether the restraints could be
regarded as reasonable at common law
| or not"
'on reading the opinion just deliv,
cred" he adds, the first inquiry will
be, that as the court is unanimous In
holding that the particular things done
by the Standard OIL Company and IT'S
subsidiary companies. In this case were
Illegal under the anti trust act whether
those things were in reasonable or un-
reasonable restraint of Interstate COM
an elaborate argument, as is done In
the opinion, to show that according to
the rule of reason the act passed by
Congress should be interpreted as II IL
contained the word unreasonable or
the word undue
Overturns Previous Opinion.
"The only answer which. in frankness,
can be given to this question is, that
-. 80 l.. l. Il /. \
liberate Judgment fifteen years ago to
the effect that the act permitted no re-
straint whatever of interstate COM
merce; whether reasonable or unrea-
sonable was not in accordance with
the rule of reason in effect the court
says that it will now, for the first
time, bring the discussion under the
light of reason and apply the rule of
reason to the questions to be decided.
/ have the authority of this court for
| saying that such course of proceed
ing on it's part would be judicial legfs-
! lation''
Justice Harlan maintains the court
should have replied emphatically to
the Standard Oil attorneys when they
insisted upon reversal of the former
rulings" of the court. as follows;
Courts Rulings.
THAT question, according to our
practise Is not open for further dis
cussion here. This court long ago de-
Iliberately held % that the act. in
terpreting its words in their ordinary
acceptation prohibits all restraints of
interstate commerce by combinations
In whatever form and whether reason
able or unreasonable; (2) the question
relates to matters of public policy In
reference to commerce among the
States and with foreign nations ami
Congress alone can deal with the sub
ject; 90 this court would encroach
] upon the authority of Congress, IL,