Arizona republican., 1911-09-19

l court, in the early days of the con 1 struction of the statute, had said that
 it could not limit the statute in cr- 1 feet by excluding from Its operation what was deemed reasonable at com mon law. But as other cases arose 1t found it necessary to make eXccp- tions to the literal operation of tha words restraint of trade" and it did ! so by excepting what was minor. or l Incidental or indirect, and including | only those cases where the chief object of the contract or combination
 was the restraint. In doing SD, the | court said that it must give the statute a reasonable construction and | not one leading to absurd or ridicu- lous results.
 Did the court not condemn the Standard oil company, the father of
 all trusts, in. the history of which ev-
 cry form of criminal illegality was practiced? Did it not, on the other hand, condemn the tobacco trust. of ! much later origin and framed under | the advice of cunning counsel for | the very purpose of evading the con demnation of the statute and at the same time securing and enjoying the
 monopoly the framers of the statute intended to prevent and punish?
 Let me renew again the invitation to any of the vocifcrouS critics of ! the decision of the supreme court to
 use their legal imaginations and state
 the facts of case not condemned within the rule of construction put upon the statute by the supreme court, but included within their cou- struction of il, which reasonable men would think it wise or proper to make criminal
 Now I desire to call attention to a very broad distinction that many persons have failed to draw or per ceive between a reasonable construc-
 tion of the statute which the su- preme court has insisted upon and
 the introduction of the word reason able" in the statute so as to lead to
 result by which combinations for
 the purpose of restraining trade with
 view to controlling prices and main
 taining a monopoly could be held
 to be reasonable and thus lawful. Until the decision -of the supreme
 court in these last two cases, there was a clearly defined hope in the
 minds of many business men that
 in some way or other the statute could be construed as to make it apply only to unreasonable monOpu-
 lies and unreasonable exclusion of
 competition and control of prices
 They had in their minds the thought
 that in some way or other a stand
 ard could be set by which if those
 who enjoyed the monopoly and the
 restraint of competition and the con
 trol of prices did not abuse their
 power to the point of securing from
 the public eXorbitant profits. their
 arrangements could be held to be only
 reasonable and not within the statute
 or punishable by law. In my mes
 sage of January seventh, 1910. on the
 interstate commerce and antitrust
 laws and federal incorporation,
 used this language:
 Many people conducting great
 businesses have cherished a hope and
 belief that in some way or other
 line may be drawn between good
 trusts and bad trusts" and that
 it is possible by amendment tO the
 anti-t trust law to make a distinction
 under which good combinations may
 be permitted to organize. suppress
 competition, control prices and do it
 all legally if only they do not abuse
 the power by taking too great profit
 out of the business. They point with
 force to certain notorious trusts as
 having grown into power through
 criminal methods by the use of ille-
 gal rebates and plain cheating, and
 by various acts utterly violatiye of
 business honesty or morality, and
 urge the establishment of some legal
 line of separation by which "crim-
 inal trusts" of this kind can be pun
 ished, and they, on the other hand,
 be permitted under the law tO carry
 on their business. Now. the public,
 and especially the business public,
 ought to rid themselves Of the idea
 that such a distinction is practicable
 or can be introduced into the statute
 Certainly under the present anti
 trust law no such distinction exists
 It has been proposed. however, that
 the word reasonable" should be made
 part of the statute, and then that
 it should be left to the court to say what is reasonable restraint of
 trade, what is a reasonable suppress
 sion of competition. what is a reason able monopoly venture to think that this is to put into the hands of the court power impossible to exercise on any consistent principle which will insure the uniformity of decision essential to just judgment It is to thrust upon the courts a burden that they have no precedcnts
 to enable them to carry. and to give them d power approaching the arbi- trary the abuse of which might in- voIve our whole judicial system in disaster
 This paragraph has been quoted and spread on the record of the sen ate on the motion of a senator who considered this to be at variance with the decision of the supreme court. ln- stead of being at variance, it is in exact accord with those decisions. Again from those who have given up free competition as an economic force that ought to be encouraged
 or enforced. and who are utterly op- | posed to the spirit of the antitrust law. we have frequently heard the | question, Well, suppose you convict those large combinations under the
 statute. what are you going to do
 about it? You can. perhaps, send l some men to the penitcntiary fOl