The Wheeling intelligencer. [volume] (Wheeling, W. Va.) 1903-1961, 1911-05-16


act had or had not brought about the
wrong against which the statute
| provided"
Effort to Guard Law.
As to the second section he said
the investigation OF the common law
and OF law at the time the Sherman
act was passed. established that Il
was intended TO supplement the first
ana to make sure that by no possible
gulse could the public policy, en-
bodied In the first section be frus-
trated or evaded. Having in the first
section forbidden all means of mon.
opo.zing trade. that Is. unduly re.
straining II by means OF every con-
tract, combination. etc, the second
section. according TO the chief Justice
seeks II possible to make the prohi.
bition to the act all the more com.
plete and perfect by embracing all
attempts to reach the end prohibited
by the first section by an attempt 10
monopolize or monopolization there
OF. 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"
The Rule Of Reason.
Here the chief Justice first spoke
OF using the rule OF reason" in ap-
plying the statute TO any given case.
/ lie said:
And. OF course. when the second
section IL thus harmonized With and
made. as II was intended to. be. the
complement OF the first. Il becomes
obvious that the criteria to be re-
I sorted to I'm any given case for the
] purpose OF ascertaining whether yio-
lations OF the section have been com.
mitted. is the rule OF reason guided
by the established law and by the
plain duty TO enforce the prohibitions
or the act and thus the public policy
which its restrictions were obviously
enacted TO subsege. And IL is wor-
tiny or observation as we have pre-
Viously remarked concerning the
common law, that although the
statute by the comprehenziveness OF
the enumerations embodied in both
the first and second sections makes
II assiduously certain that it's purpose
was to prevent undue restraints OF
every kind or nature, nevertheless.
by the omission OF any direct prohi.
J billion against monopoly in the con-
crete. Indicates a consciousness that
the freedom OF the individual right 10
contract when not unduly or improp-
erly exercised was the most efficient
means for the prevention of mon
opoly, since the operation OF the
centrifugal and centripetal forces re-
sulting from the right to freely con-
( tract was the means by winch mon
opOly would be inevitably prevented
II no extraneous or sovereign power
imposed 1t. and no right 10 make un-
lawful contracts having a monop-
olistic tendency were permitted. In
other words that freedom 10 contract
was the essence OF freedom from I'M
due restraint on the right to con
tract"
Meaning Of the Statute.
The chief Justice next considered
the contention OF the parties as 20
the meaning OF the statute. He said
In substance the propositions of the
government were reducable TO the
claim that the language OF the statute
embraced every contract. combina-
ton, etc. in restraint OF trade" and
left no room for the exercise OF iudg-
ment. but simply imposed the plain
duty OF applying its prohibition to
every case within its literal language.
The error OF the government on this
point. Chief Justice White said. was
in assuming that the decisions OF the
court had decided in accordance with
contentious.
This is true" said the chief Jus.
lice. because as the acts which may
come under the classes stated in the
first section. and the restraint Of
trade 10 which that section applies
are not specifically enumerated or de-
fined. II is obvious that Judgment
must in every case be called into plav
In order 10 determine whether a par
iicular act Is embraced within the
statutory classes. and whether II the
act is within such classes its nature
or effect causes II 10 be a restraint OF
trade within the intentment OF the
act.
TO hold 10 the contrary would re.
quire the conclusion either. that every
contract. act or combination OF any
kind OF nature. whether IL nDerated
q restraint on trade or not was with
iu the statute and thus the statute
would be destructive OF all right 10
contract or agree or combine in any
respect whatever as 20 subjects ON
braced in interstate trade or com.
mercc. or n this conclusion were not
reached. then the contention would
require ~ 20 be held that as the
statute dif not define the things 10
which Il related and excluded resort
io iho only means by which the acts
io which 30 relates could be ascer
tanned the light 81 reason-the en-
forccment ~ the statute vas impoqst
bic because or its uncertainty.
Only One Conclusion.
The merely generic enumeration
which tho statute makes 81 tho acts
to which 10 refers and the absence of
any definition % restraint ~ trade "a
used Do the statute leaves room for
/ bur one conclusion. which is that n
3 VAS expressly designed not 10 unduiy
limit the application % the acf bv
precise definition. but while clearly
liking standard That is. by defining
Tho Interior boundaries which could
not DO transVressed with IMMUNITY IN
leave ~ ~ be- determined by the Ughi
OF reason. guided by The principles o'
Iaw and tho duty 10 applr and on
'rrrn Tho public policy embodied In
the statute IN every given case
n'fl'r any particular act or con.