The sun. [volume] (New York [N.Y.]) 1833-1916, 1911-05-16

Sliding Gears. Bosch Magnetic"
| G0eEhZERs
100 BROADWAY. Cor saith st. y Y.
BROokLyN. y. y i.o livingston st,
Newark. East Orange Montclair. Boston
! is thus harmoni7ed with and made. as IL
was intended to be- the complement Of
the first il becomes obvious that the
criterion to- he resorted TO in any given case
for tho purpose of asceriaining whether
violations of the sect ion have hepn COM
m'tted il the result of reason guided by
the established law aud by the plain duty
to enforce the prohibit ions of the act and
thus the public policy which iis restrictions
were obviously enacted 10 slibserve. And
/, Is worthy of observation. IA We have
previously remarked concerning the com
mon law, tina, although the statute by
| the Comprehensiveness Of the en,ifneras
tons embodied IN botn the first and sec
ond sect ions makes II certain that ita pur-
pose was to prevent undue restraint of
every kind or nature. nevert heless by thu
omission of any direct prohibition against
monopoly in tho concrete II indicates u
ConsCiorsnoss that the freedom OF the in
dvidual right to contract when not I'M
duly or improperly exercised was tho most
efficient means of the prevention Of mo-
nopoly. since tho operation of the Centrlfu
gal and Centrirctal forces resulting from
the righ, 10 freely contract was the means
10y which monopoly would be inevitably
prevented il no eNtraneous or SOY ereign
power imposed II and no right to make un-
lawful contracts having a monopolistic
tendency were permitted in other words
that freedom to contract was the essence
Of freedom from undue restraint ON the
right to contract.
SCOPE OF THE SHERMAN Law
In an analysis of the Government =
cont tentions a. to the scope of the Sher-
man law the Chief Justice made it clear
that the court In not prepared to declare
every contract. combination or act in
restraint of trade subject to the law
This is the part of the decision that has
brought relief TO the representatives of
the many big business concerns. The
Chief Justice said:
As the acts which may come under the
classes stated in the first section and the
restraint Of trade to which the section
applies are not specifically enumerated or
defined. it is obvious that judgment must
in every case be called into play in regard
to determining whether u particular act
is embraced within the statutory classes
and whether IL the act is within such
classes its nature or effect causes II to be a
restraint of trade within the intendment
require the conclusion either that every
contract. act or combination of any kind
or nature whether II operated as a rest raint
on trade or not, was within the statute
and thus the statute would be destrictiv.
OF all right to contract or agree or COM
bine in any respect whatever as to sub
jects embraced in interstate trade or
commerce. or If this conclusion were not
reached. then the contention would re-
quire II to be held that as the statute did
not define the things to which il related
and excluded resort to the only means by
which the acts to which it relates could
be ascertained the light Of reason-the
enforcement of the statute was impossible
because of its uncertainty. The merely
generic enumeration which the statute
makes Of the acts to which IL refers and
the absence of any definition of restraint
Of trade as used in the statute leaves
room for but one conclusion. which is
that it was expressly designed not to
unduly limit the application of the act by
precise information. but while clearly
fixing a standard. that is by defining the
ulterior boundaries which could not be
transgressed with impunity. to leave il
to be determined by the light Of reason
guided by the principles Of law and the
duty to apply and enforce the public
policy embodied in the statute. in every
given case whether any particular act or
contract was within the contemplation Of
the statute
UNLAWFUL COMBINATIONS.
Answering the contention of the Gov
ernment that the Supreme Court in the
case OF tho United States against the
Freight Association ,l88 L. s. and in
tho case against the Joint Tariff Assoca-
ton u1i L. S. held all contracts, COM
binations or acts in restraint OF trade
10 be unlawful under a literal interpreta-
tion of the Sherman law, the Chief Justice
said
Both of the cases involved the legality
OF combinations or associations of rail
roads engaged III interstate commerce
for the purpose Of controlling the conduct
of the parties to the association or COM
bination in many particulars. The as
sociation or combination was assailed
in each case As being in violation OF tho
statute. Ii was held that they were.
II is undoubted that in the opinion in
each case general language was made
use OF which when separated from its
context would Justify the conclusion
that il was decided that reason could
not be resorted TO for the purpose of
determining whether tho acts complained
OF were within the statute. IL is. how
ever. also true that tho nature and char
aCter OF the contract or agreement in
each case was fully referred TO and
Suggestions as TO their unreasonableness
pointsdH tout in order to indicate that
statute. AS the cases cannot by any
possible conception be treated as authori-
tative without the gertrude that reason
was resorted TO for the purpose of de-
Gliding them it follows rs Il matter of
course that II must have been held by
the light Of reason, since the conclusion
could not have been otherwise reached,
that tho assailed contracts or agreements
were within the general enumeration
Of the statute and that their operation
and effect brought about the restraint
OF trade which the statute prohibited.
This being inevitable the deduction
can in reason only be this; That in the
cases relied upon, il having been found
that the acts complained of were within
tho statute and operated to produce
the injuries which the statute forbade,
resort TO reason was not permissible
in order 10 allow that TO he done which
the statute prohibited.
ALL COMBINATIONS NOT unlawful.
The Chief Justice added that both the
decisions relied upon ny the Government
had been written by the late Associate