The Detroit times., 1911-09-18

not be held 10 include contracts that I
were merely incidental restraints OF
trade and were not made for that prr-
In one OF these cases a man owned
some steamboats, that did an Interstate
business on the Ohio river. lie wished \
TO sell out. lie did sell out. and In the ,
sale OF the steamboats, he wished 70
sell the good Will OF the line which ne
had besn running. Accordingly ss
stipulated that he would not nim .hnas
same points for certain number o.
years. This was intorstate business
and hls contract was In restrain OF
IL was a mere incidental restraint; T. Q, !
incidental 20 the sale OF the good VIII, |
and so was not within the statute: !
This would haye been the same a a.
mortal such restraint as TINS mas
been held 20 be reasonable because
limited TO the necessity Of prsssrvlns
the good will which the vender was |
selling. and which but for such an |
agreement would be worth nothing.
In other words. the supreme court IN |
this case gave reasonable construc-
ton 10 the statute and eliminated from |
Its operation those harmless useiul.
incidental restraints growing Out oI
lawful contracts which are made tor
ar entirely different purpose from tnat
OF controlling prices or maintaining
monopoly by suppressing competition
and which have always been recognised
as properly enforSsabie ey courts s On
that, In spite OF all the denunciauons
that we have heard OF the decisions OF
the supreme court In the standard OH
who has criticized them that can Tor
mulate a contract In restraint or trade |
that ought TO cone within the statute
that does not come within IL under the
decision OF the supreme court
The Decision Explained
II IL said that the supreme court has
read something into the statute that
was not there before; that IL has IN
serted the word reasonable before
court had said that this could not be
properly done. because congress hud
evidently not intended TO include such
not fair 10 the court. II 10 true that /
the court. In the early days OF the
construction Of the statute. had SAID
that IL could not limit the statute In !
effect by excluding from Its operation
what was deemed reasonable at COM
mon law. But. as other cases arose,
IL found IL necessary 10 make excep-
tions TO the literal operation OF the
words restraint OF trade" and IL did
so by excepting what was minor. or In
cidental. or indirect. and Including only
those cases where the chief object OF
the contract or combination was the
restraint. In doing SO, the court said
that II must give the statute a reason
able construction and not one Leading
last two cases the court did not change
the substance OF the reasoning anu
scope of the previous decisions but
only treated the exceptions previously
termed "incidental and indirect" as ex-
cluded from the operation or the sta
tute In the light OF reason:i. g., In con-
formity to the evil sought to be
IsiSred the so public weaie what COM
binations or arrangements can escape
under this Interpretation that any SEN
sible man would wish TO have con
demncd? Did the court not condemn
the Standard Oil Co, the father OF all
trusts In the history OF which every
form OF criminal illegality was prac-
Condemn the tobacco trust. OF much
later origin and framed under the ad-
vice OF cunning counsel for the very
purposes OF evadlng the condemnation
curing and enjoying the monopoly the
trainers OF the statute intended TO pre-
vent aod punishf
Let me renew again the invitation
1 40 aIc 2, OF the supreme court to use
their legal imaginations and state the
facts of case mot condemned WITHIN
the rule OF construction put upon the
cluded within their construction OF IL.
which reasonable men would think it
wise or proper TO make criminal.
Now. desire to call attention to
sons have failed to draw OF perceive
between q reasonable construction OF
the statute which the supreme court
has insisted Upon and the introduction
OF the word reasonable" In the sta
tute, so as to lead TO a result by which
combinations for the purpose OF re-
straining trade with view TO con-
trolling prices and maintaining mo-
nopoly could be held TO be reasonable
and thus lawful. Until the decision OF
the supreme court In these last two
eases there was a clearly defined hope
In the minds of many business men,
who had reached the conclusion that
" was impossible to conduct business
on a free competitive basis, and that
tic control OF prices and competition
In order to make business reasonably
profitable. that I'm some way or other
the statute could be construed SO as
monopoiies and unreasonable exclusion
OF competition and control OF prices.
They had I'm their minds the thoIyht
could be set by which. " those who
enjoyed the monopoly and the restraint
OF competition and the control OF prices
did not abuse their power TO the point
profits their arrangements could De
held to be only reasonable and not
within the statute or punishable py
on the Interstate commerce' and anti
trust laws and federal Incorporation.
used this language:
Many people conducting great
businesses have cherished hope
and a belief that In some way or
other a line may be drawn be-
tween good trusts" and bad
trusts" and that II Is possible by
amendment to the ANTITRUST law
TO make distinction under which
good combinations may be permit
ted to organize, suppress compe-
tition control prices. and do II all i
legally N only they do not abuse
the power by taking too great
profit out OF the business. They
point with force TO certain notori-
ous trusts as having grown into
nv The use OF Illegal rebates and
plain cheating and by various acts
utterly violattve OF business hon
esty or morality. and urge the es-
Establishment of some legal line OF
separation by which criminal
trusts" OF this kind can be pun
ished. and they. or the other hand.
be permitted under the law TO
carry on their business. Now the
public. ought to rid themselves OF
the idea that such n distinction
IL practicable or can he introduced
into the statute Certainly under
tho present antitrust law no such
distinction exists. IL has been pro-
posed however that the word
reasonable" should be made h part
OF the statute, and then that "
should be left to the court to say
what r. reasonable restraint or
trade. what II a reasonable sup
preston OF competition, what ~
req sopable monopoly. I venture to Il
think that this II TO put into the II