The Birmingham age-herald., 1911-01-10
LIVELY ARGUMENT
 IN TOBACCO CASE. Attorneys for Defense Want Definition of Trusts
  A BASIS FOR ACTION Justice McI<enna Says That the Court Must Have Ground for Working Upon When Reading
 Decision
A BASIS FOR ACTION

| Washington, January 9-Where to draw
 the line between legal and illegal TO-
 straint of interstate commerce was the
 burden Of a rapid fire of questions today
 in the reargument before the supreme | court of the United States Of the dissoIu-
 tion suit against the American Tobacco
 corporations. Before they could be ap-
 swered another fusilade of questions con- corning what the Sherman antitrust law meant by the "monopolizing" of trade had opened.
 "Generalities are very good" said Jus tice Day to J. c. McReynolds, one of the
 attorneys for the United States. But il seems to me that the government ought
 to have an explanation now of what the law means of 'monopolizing' Mr. McReynolds had just resumed his argument when Justice Holmes asked: Do you think to buy out man and make covenant with him that he will not engage in the same business in a cer- tain time is unlawful" MT. McReynolds said that the supreme court had decided that the control of a major part of business was sufficient for | the courts to act, and that the business of the tobacco corporations came within | the line of decisions laying down that rule.
 Justice McKenna suggested that the court in arriving at a decision must have
 basis on which to work. He wanted
 to know on what basis the government would have it advance. The attorney repeated that the decisions of the court announced were sufficient to | decide the present case. 'lf I may say so. l believe" continued MT. McReynolds, that the court will
 make a great mistake if it attempts to decide in this case all the Sherman anti trust law means There is a borderand
 out wonder into which it is not necessary to go.''
 Chief Justice White suggested that
 where there was borderland there was
 border.
 Where is it?" inquired the chief jus tice.
 What is your theory of the law, I ask you, and you respond that your theory is that we have decided this case in your favor."
 MT. McReynolds said that if the court
 wanted his theory, notwithstanding the theory of the court, he would give it.. It was that the law intended to prevent interference with the free flow of com- petition in commerce between the states and that any combination sufficient to interfere with the free flow was within the Sherman antitrust law. He ex-
 plained that he had in mind a material
 and direct obstruction of commerce.. DO you maintain that it takes 51 per cent of trade to affect a material ob- struction?" inquired Justice Day. Your honors have held that 51 per cent was sufficient to come within the law" was the reply. "If a combination of less is held by this court to be suf- ficient, that is better. I do not believe that obstruction by two little fellows is sufficient"
 considered that "unreasonable' restraint was meant by the statute. MT. McReynolds replied that he did not;
 that material and direct" restraint rath- CT than "unreasonable'' was meant.
 In reply to the chief justice Mir. Mo-
 Renolds said that he considered the law distinguished between restraint of trade
 by an individual with millions in his pockets and restraint by a combination Of individuals using an incorporate form.
 MT. McReynolds concluded by stating that 'if you want size as a basis, we have it here; if you want intent we have intent to restrain; whatever you want, we have the essential clements in this case.'
 After McReynolds concluded Delaney Nicoll opened for the defense. He said he would try to show that the dark and sombre colors in which MT. McReynolds had painted the defendants were not true to life. No. increase in prices to the consumer had occurred since the organ izaton of the corporations. he said; but prices of leaf tobacco had nearly dou-
 bled. The lower court had announced, he added, that the record was reason able free from increases of coercion and oppression.
 The arguments will be continued to- morrow and the next day.