The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-03-19
THE DISsOLy TION or tOMBINA.
TONS.
u II Authorized ny the Terms Ot the
sherman Law?

| 10 THE EDITOR OF The SUN-SU' Inc
pending Interstate trade bill proposes
to furnish the courts with the aid OF an
economic commission to arrange the
terms of their segregating DEGREES. Be-
fore extending the formula OF the Sher-
man law by this new legislation 1t Is
advisable to consider whether any
method OF dissolving trusts Is contem-
plated by Its tenor and prescriptions;
whether II has not provided entirely
different machinery for dealing with
these conditions when established.
| Does the sherman law authorize de-
crees dissolving or dis1ntegraung combi-
nations adJudged to be formed In VIOLA
ton of Its provisions? Are the powers
conferred on the courts by that statute
limited to intunctions against the
formation Of such combinations? In
view Of the judicial proceedings which
have already Occurred concerning the
so-called trusts, these questions may
seem belated. but ] believe that
their Justification will be found in
brief reference to the contents OF the
sherman law. Indeed, a complete Judi
cial examination on this point may pro-
duce a change in legal opinion con-
corning the remedial provisions of the
statute. a change as important as the
one which has occurred concerning the
true meaning OF restraint Of trade. To
contribute toward this result. let US
consider the provisions OF the law
which seem to exclude tho process Of
segregating trusts into their several
constituents.
The scheme OF the Sherman law con-
templates the prevention Of illegal COM
binations by the familiar remedy Of
| injunctlons. II likewise contemplates
the case Of failure on the part Of the
Government to invoke this prohibitive
remedy by timely litigation. There
upon II brings into action another class
of remedies. which are predcated upon
the continued existence of the combina-
ton. They include the forfeiture Of
certain property of the combination. the
recovery OF damages by injured indl-
viduals affected by its operation. and
the institution OF criminal proceedings
against the personalities engaged. I
submit that this sequence OF remedies
presents q coherent outline OF the legis-
lat!on against trusts. Compliance with
It's letter and spirit would avoid the
anomalies that have come about in the
administration OF DEGREES OF segrega-
ton. These anomalies have resulted
from the failure OF the Government 10
apply for prompt lnjunct.ve relief
against the formation OF these combina-
lions. This remissness has been fol-
lowed by efforts to blsect n consum-
mated combination, IA process which
the statute does not contemplate, but
on the contrary completely mega ives.
Let us inquire whether the language
Of the Sherman law does not empha size
l. Il, 4
In the first instance Congress has
taken every precaution To secure To- the
Government the injunctive relief which
would prevent the launching Of these
illegal combinations To the Federal
courts is given power TO prevent and
restrain" ITO enjoin and otherwise pro-
hibit" such organizations in the form
OF trusts or otherwise" Pending the
proceedings for that purpose the court
may make "such temporary restraining
order or prohibition" as 1t may deem
proper. Turning to the cognatc enact
ments, we find that ample special APP
preparations have been made for the
early ascertainment OF the facts sur
rounding the formation OF trusts The 80
pecuniary arrangements for the timely
preparation OF the suit are followed by
directions for preferential hearings al
all stages Of the litigation, including
the applications FOR preliminary re-
straint.
Surveying this body OF law. there can
he no doubt that Congress relied upon
the executive departments for suci
initial action as would prevent these
combinations from becoming operative
In case the Government failed to utilize
all these powerful weapons which the
Legislature had placed IN !ts hands
and supinely allowed IL combination Il
be established. the lawyers who framed
the statute felt bound 70 provide other
and appropriate forensic resources Il
meet such new situation They DID
not seek II reinstatc the Government
in the position which il would hav,
occupied AS the result of an INJUNCTION
at III. formative period. There IL nc
verbiagc in the statute which gives
color t. the claim that Congress Mt
tempted 10 provide for the recovery o.
the ground which might b" lost by
the larhos OF the Government No.
where in the Sherman law are found
the words dissolve or disint. CRATE" ol
any expression of similar import
Hence there Is an absence OF any war
rant In the language OF the Sherman
INV W justify NIi'Tt S'-'dIl'u SfElfeu'
tons. When the function Of restraining
remedies ceased TO apply Congress
, turned to an essentially different order
of relief, by special forfeitures. damag,
suits and personal penalties.
, II is curious to note how this simpl,
and logical order of relief has becom,
perverted. how these varied and gro
tesque segregations have grown up
, They are not the result of refusal b,
the courts TO award injunctions whoI
sought in due time by the Government
They are the outcome of the manner II
which successive Administrations hav.
failed to invoke the statute until afte
the event. They have in most instances
allowed the injunctive power against tn,
formation of these combinations TO re
main dormant though the knowledg,
of their inception was familiar or easil,
asCertainable. 1t Is not necessary I,
discuss the reasons of this apparen
, failure to execute the law, whether |
e is attributable to the knight decision o
e other causes. The fact remains that tn,
y department has allowed combination
to be contaminated and has afterwar,
: attempted to regain the lost groun,
: by substituting these so-called scgrega
! tons for the natural remedy by In
junction