The Cairo bulletin., 1911-12-06

NO Change In tho Rutc of Eecision
Merely In It's Fern os Expression.
] The 'tatuie In It's first section &c
clareS ia he ILLEGAL every contract
combination in the form of trust OF
otherwise or conspiracy in restraint
~ trade. or commerce among the sev
4 eral states or with foreign nations
and In the second declares gritty Of a
misdenleaner every person who shall
nlonopoli=e or attempt TO monapo'ige
or combine or conspire with any other
person To monopollze any part of the
trade or commerce Of the several states
or with foreign nations"
4 In two early cases. where the statute
4 was invoked to enioln Il tranSparta-
tion rate agreement between inter
state railroad companies. 1t WAS held
that 1t was no defense TO show that
the agreement rs 10 rates complained
| Of was reasonable Mt common law. be-
cGrsp II was Slil that the statute was
directed against Nh contracts and com
biaatioIfs III restraint uf trade. whether
4 ".
, was plain fsom the record however.
that The contracts complained Of in
| those cases would nor have been deem
ed reason0 bic at common law In sub.
sequent cases the court said that the
statute should be given Il reasonable
construction end refused to Include
within its inhibition certain colt:ac-
tual restraints OF trade which It de,
nominated as incidental or as indirect:
These cases of RESTRAINT OF trade that
the, court excepted from the operation
of the statute were instances witch
at common law would have been calf
ed reasonable. In the Standard OIL
and tobacco cases, therefore. the court
merely adopted the tests of the com.
mon law and in defining exceptions to
the literal application Of the statute
only substituted for the test OF being
incidental or indirect that. Of being
reasonable. and this without varying
In the slightest the actual scope and
effect Of the statute. In other words,
all the cases under the statute which
have now been decided would have
been decided the same way IL the
court had originally accepted In its
construction the rule at common law.
1t has been said that the court by in
Producing into the construction of the
statute common law distinctions has
emasculated It. This Is obviously I'M
true By its Judgment every contract
and combination in restraint Of inter
state trade made with the purpose or
necessary effect of controlling prices
by sitting competition or of establish
ing In whole or In part monopoly Of
such trade is condemned by the stat.
ute. The most extreme critics cannot
instance case that ought to be con-
demned under the statute which is not
brought within its terms as thus con.
strued.
The suggestion Is also made that the
supreme court by its decision in the
last two cases has committed to the
court the underlined and unlimited dis.
erection TO determine whether case OF
restraint OF trade Is within the ter'r'
Of the statute. This is wholly untrue.
A reasonable restraint Of trade at COM
mon law is we'll understood and Is
clearly defined. 1t does not rest In the
discretion OF the court. 1t must be
limited to accomplish the purpose Of a
lawful main contract to which in order
that 1t shall be enforceable at all 1t
must be incidental If it exceed the
needs of that contract it is void.
The test of reasonableness was never
applied by the court at comman law
to contracts or combinations or con-
Epiracies In restraint of trade whose
purpose was or whose necessary effect
would be to stiie competition. to con.
troll prices or establish monopolies
The courts never assumed power to
say that such contracts or combina-
tons or conspiracies might be lawful
IL the parties to them were only mod
crate In the use Of the power thus sc.
cured and did not exact from the pub
lie too great and exorbitant prices. II
Is true that many theorists and others
engaged In business violating the stat
ute have hoRed that some such line
could be drawn by courts, but no court
of authority has ever attempted IL.
Certainly there is nothing in the deci-
sions Of the latest two cases from
which such a dangerous theory Of ju.
dicial discretion In enforcing this stat.
ute can derive the slightest sanction.
Force and Effectiveness of Statute a
Matter Of Growth.
We have beeA twenty.one years maxi
Ing this statute effective for the pur-
poses for which 1t was enacted. The
knight case was discouraging and
seemed to remit to the states the whole
available power to attack and suppress
the evils of the trusts. Slowly. howev.
or. the error of that judgment was cor
rected, and only in the last three or
four years has the heavy hand of the
law been laid upon the great Illegal
combinations that have exercised such
an absolute dominion over many Of our
industries. Criminal prosecutions have
been brought, and number are pend.
ing. but juries have felt averse to con.
victlng for Jail sentences and judges
have been most reluctant to impose
such sentences on men Of respectable
standing In society whose offense has
been regarded as merely statutory.
Still, as the offense becomes better I'M
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