Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1911-05-26
POINTS OUT WHERE IT IS WEAK
Says Courts Opinion Will Greatly
Disturb Nations Business.
DECLARES ARGUMENT FAULTY
Subsidiary Companies Granted Right
of Undue Restraint"
OBJECTS TO MODIFICATION OF LAW
Ruling of Justice white AbOut Nor
NAL and Lawful Agreements
Among Corporations Con-
trary 60 Precedents.

WASHINGTON, May 25.-Associate Jus
tice John Marshall Harlan today filed in
the supreme court his formal dissenting
opinion in the Standard Oil case Not sat
isfied with his oral dissent from the court $
decision as handed down by Chief Justice
" hite, Justice Harlan entirely rewrote the
stenographic report OF his remarks from
the bench. The oral dissent formed merely
framework for the final document, con-
tanning about 5000 words put on record
today.
Justice Harlan brands as mischievous the
modification made by the court in the de-
cree Of the lower court permitting sub
sidary corporations of the Standard Oil
after dissolution OF the combination 70
make normal and lawful agreement
among themselves. Chief Justice White
had characterized this modification as a
minor matter"
Tho further declaration is made by Jus
tice Harlan that he is convinced the courts
opinion will throw the business of the
country into confusion and invite widely
extended and harassing litigation. the in
furious effects of which will be felt for
many years to come"
In connection with what he terms a
"mischievous modification Justice Harlan
quotes the chief justice as saying that 1T
does not necessarily follow that because
an illegal restraint of trade or an attempt
to monopoloze or monopolization resulted
from the combination and the transfer Of
the stocks OF the subsidiary corporations
to the New Jersey corporation, that a ike
restraint of trade or attempt to monopo-
lie or monopolization would necessarily
arise from agreements between one or more
of the subsidiary corporations after the
transfer of the stock by the New Jersey
corporation
"Auth orises Due Restraint
Taking this language in connection with
other parts of the opinion" says Justice
Harlan. ''the subsidiary companies are
thus in effect informed-unwisely, / think
that although the New Jersey corporation
being an illegal combination must go out
OF existence they may. join In an agree
neut 10 restrain comnherce among the
states. tf such restraint be not undue"
AZ In his oral remarks Justice Harlan
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 its former rulings
in the Transmissouri freight and joint
traffic association cases Quoting several
hundred words from each OF these opin-
ons, Justice Harlan says:
These utterances show. so clearly and
affirmatively as to admit OF no doubt that
this court many years ago, on the fullest
consideration interpreted the antitrust act
as prohibiting and making illegal not
only every contract or combination in
whatever form was in restraint Of inter
state commerce without regard to its rea-
sOnableness or unreasonabeness, but all
monopolies or attempt to monopolize any
part OF such trade or commerce"
Judge Taft'a Decision Cited
Justice Harlan. referring to other de-
cisions as bearing out his Interpretation
of these decisions, calls particular attention
TO one of Judge Taft. now president, in the
Addystone Pipe case.
Judge Taft said" continued Justice Har-
Ian, that according to the decision of this
court in the freight association case CON
tracts in restraint of interstate transporta-
tion were within the statutes whether the
restraints could be regarded as reasonable
at common law or not"
The justice in further support OF the
statement that the whole country including
the court and congress understand that
every restraint was prohibited, quotes
at length from an adverse report made in
1909 by Senator Nelson on behalf OF the
senate judiciary committee in reference to
a bill proposing to amend the Sherman
antitrust law to distinguish between rea-
sonable and unreasonable restraints.
"on reading the opinion just delivered" /"
Justice Harlan adds, the first inquiry
would be that as the court is unanimous
in holding that the particular things done
by the Standard OIL company and its sub
sidiary companies, in this case were illegal
under the antitrust act, whether those
things were in reasonable or unreasonable
restraint OF interstate commerce, why was
II necessary to make elaborate argument
CONTINUED on secord Page)