The Birmingham age-herald., 1911-05-16
DORA'S BUSINESS STREET
 SWEPT AWAY BY FLAMES
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been used in this case uiileSS lhe sCOhleAl compels to the contrary.
 l. He summarized his search into the com ] mon law and the law of the country at lthe time the sherman antitrust law was passed so far as the first section was concerned as follows:
 Whites Summary
 "A-That the context manfests that the statute was drawn in the light of the ex- isting practical conception of the law of restraint of trade because it groups as
 within. that class. not only contracts which were in restraint of trade in the subjec- tive sense, but all contracts or acts whicn Theoretically were attempts to monopolize, yet which in practice had come to be con sidered as in restraint of trade in a broad sense.
 "B-That in view of the many forms of contracts and combinations which were being evolved from existing economic con- ditions it was deemed essential by an all embracing enumeration to make sure that no form of contracts or combination by which an undue restraint of interstate or foreign commerce was brought about could save such restraint from condemna- tion The statute under this view evi-' denced the intent not to restrain the right to make and enforce contracts, whether resulting from combinations or otherwise. which did not unduly restrain interstzte or foreign commerce, but to proteH that commerce from being re- lst><ined by methods. whether old or new, which would constitute all interference that Is an undue restraint.
 "C-And as the contracts or acts en- braced in the provision were not ex- pressly defnedP since the enumeration addressed itself simply to classes of acts. those classes being broad enough to embrace every conceivable contract or combination whcih could be made concerning the trade or commerce or the subjects of such commerce and thus caused any act done by any of the enumerated methods anywhere in
 the whole field of human activity. to l be illegal, if in restraint of trade, it 1 inevitably follows that the provision necessarily called for the exercise of l judgment which required that some 1 standard should be resorted to for the purpose of determining whether the prohibitions contained in the statute had or had not in any given case been violated. Thus not specifying but in- dubitably contemplating and requiring a standard, it follows that 1t was in tended that the standard of reason which had been applied at the common law in this country in dealing with sub jects of the character embraced by the statute was intended to be the measure used for the purpose of de- termining whether in a given case particular act had or had not brought about the wrong against which the statute provided"
 The Second Section
 As to the second section he said the investigation of the common law and of law al the time the sherman act was passed established that 1t was intended to supplement the first and to make sure that by no possible guise could the public policy embodied in the first section be frustrated or evaded. Having in the first section forbidden all means of monopolization trade; that is, un- duly restraining 1t by means of ev- cry contract, combination, etc. the sec ond section, according to the chief jus tice seeks, if possible to make the prohibition to the act all the more complete and perfect by embracing all attempts to reach the end prohibited by the first section by any attempt to monopoliZe or monopoliZation thereof. even although the acts by which such results are attempted to be brought about or are brought about, be not em- braced within the general enumera-
 ton of the first section"
 | Here the chief justice first spoke of using the rule of reason" in applying | the statute to any given case. He said: ] And, of course, when the second sec- I ton is thus harnonized with and made, as 1t was intended to be, the comple- ment of the first, it becomes obvious that | criteria to be restored to in any given | case. for the purpose of ascertaining whether violations of the section have been committed, is the rule of reason guided by the established law and by the plain duty to enforce the prohibitions of the act and thus the public policy which its restrictions were obviously enacted to subserye. And it Is worthy of observa- tion, as we have previously remarked concerning the common law, that all though the statute by the comprehen- siveness of the enumerations embodied in both the first and second sections makes 1t assidiously certain that it's pur- pose was to prevent undue restraints of every kind or nature, nevertheless, by the commission of any direct prohibition against monopoly in the concrete, it in- dlcates consciousness that the freedom of the individual right to contract when not unduly or improperly exercised was the most efficient means for the proven tion of monopoly since the operation of the centrifugal and centripetal forces re- suting from the right to freely contract was the means by which monopoly would be inevitably prevented If no extraneous or sovereign power imposed it and no right to make unlawful contracts having a monopolistic tendency were permitted. In other words, that freedom to contract was the seance of freedom from undue restraint on the right to contract"
 Statutes Meaning
 The chief justice next considered the contention of the parties as to the mean ing of the statute. He said in substance the propositions of the government were reducible to the claim that the language of the statute embraced "every contract combination, etc, in restraint of trade" and left no room for the exercise of judgment but simply imposed the plain duty of applying its prohibitions to every error of the government on this point ing that the decisions of the court had decided in accordance of it's contentious
 This is true,' said the chief justice because as to the acts which may come under the classes stated in the first sec- ton 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 in order to determine whether particular act is embraced within the statutory classes and whether, if the act is within such classes, It's nature or ef- feet causes it to be a restraint of trade within the intendment of the act.
 "To hold to the contrary would re- quire the conclusion either that every contract, act or combination of any kind or nature, whether it operated a