Evening star. [volume] (Washington, D.C.) 1854-1972, 1911-12-05
No Change in the Rule of Decision
Merely in It's Form of Expression.

merely III 4LS OTu VI Exp cSSAoA.
The statute in its first section declares
to be illegal every contract, combination
in the form of trust or otherwise, or
conspiracy. in restraint Of trade or COM
merce among the several states or with
foreign nations and in the second de-
clares guilty of misdemeanor every
person who shall monopolize or attempt
to monopolize or combine or conspire
with any other person to monopollZe any
part of the trade or commerce of the
several states or with foreign nations.
In two early cases, where the statute
was invoked to enjoin transportation
rate agreement between interstate rail-
road companies. 1t was held that 1t was
no defense to show that the agreement
as to rates complained of was reasonable
at common law, because it was said that
the statute was directed against all con-
tracts and combinations in restraint OF
trade, whether reasonable at common law
or not It was plain from the record,
however, that the contracts complained
of in those cases would not have been
deemed reasonable at common law In
subsequent cases the court said that the
statute should be given a reasonable con-
struction. and refused to include within
IT'S inhibition certain contractual re-
straints of trade which 1t denominated as
incidental or as indirect.
These cases of restraint of trade that
the court excepted from the operation OF
the statute were instances which, at COM
mon law, would have been cailed reason
able In the Standard Oil and tobacco
cases, therefore, the court merely adopt
ed the tests of the common law, and IN
defining exceptions to the literal applica-
ton of the statute only substituted LOT
the test of being incidental or indirect
that of being reasonable, and this without
varying in the slightest the actual scope
and effect of the statute In other words,
all the cases under the statute Whlcn
have now been decided would have peen
decided the same way IL the court had
originally accepted IN It's construction INC
rule at common law.
Itshas been said that the court, by in
PRODUCING intoif the construction OF the
statute common-laW distinctions, mas
emasculated it. This Is obviously untrue.
Bv ito judgment every contra and COM
bination in restraint OF. interstate trade
mode with the purpose or necessary erect
of controlling prices by sitting compe-
tition. or Of establishing In whole or IN
part a monopoly of such trade, is con-
demned by the statute. The most ex-
IRENE critiss cannot instance a case
that ought to be condemned under the
statute which Ms not brought within It's
terms are thus construed.
The suggestion is also made that the
Supreme Court by it's decision in the last
two cases has committed to the court
the underlined and unlimited discretion to
determine WQGlQoT n case OI IcotIduut "a
trade is within the terms of the statute.
This is wholly untrue. A reasonable re-
straint of trade at common law Is well
Understood and is clearly defined. 1t
does not rest in the discretion of the
court. 1t must be limited to accomplish
the purpose of lawful main contract to
which, in order that 1t shall be enforc-
ible at all, it must be incidental. If 1t
exceed the needs Of that contract it is
void. > .
The test of. reasonableness was never
applied by the eoart at common law to
contracts or combinations or conspira-
cies in restraint of trade whose purpose
was or whose necessary effect would be
to stifie competition, to control prices or
establish monopolies. The courts never
assumed power > to say that such con-
tracts or combinations, or conspiracies
might be lawful If the parties to them
were only moderate in the use Of the
power thus secured and did not exact
from the public too great. and exhorbitant
prices. II. Is. true that many theorists
and others engaged in business violating
the statute have hoped that some such
line could be drawn by, COURTS; but no
court of a,Ith6rity has ever attempted 1T.
Certainly there is nothing In the decisions
OF the latest two cases from which such
a dangerous Il, cory of judicial discretion
in enforcing the statute can derive the
slightest sanction