The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-01-31

competition among those engaged In
interstate commerce. In this decision,
however, which was the last one OF the
general character referred to and was
rendered by n FIVE to four vote Of the
court, Justice BREWER. while concur
ring in the judgment Of the court that
the particular combination sought to
be effected by the Northern Securities
Company was Illegal, expressed the
view that the former decisions OF the
court were Of altogether too sweeping
II nature and that the Sherman law did
not forbid all combination whatever Of
any sort or kind. 1t was only prohibit
tive Of those contracts which were in
direct restraint of trade and were un-
reasonable and against public policy.
1t was apparent, thus. that 80 far
as the decision Of the court concerned
an calculation Of the real meaning Of
the Sherman act the majority Of the
court was ranged against the opinion
which was actually rendered accom-
panying the judgment. inasmuch as on
this point Justice BREWER sided with
the minority. 1t Is also apparent that
the construction Of the law which was
thus limited at differed materially from
those formally made In the years i'm
medlately preceding.
Some time thereafter the court rem
dered decisions in the Trans Missouri
Freight Association. the Joint Traffic
Association and many other cases
which threw sidelights upon the gen
eral intent Of the statute but did not
modify materially the Northern Sc
curities decision. The law to all In
tents and purposes was still construed
as prohibiting any combination Of pre-
viously competing concerns.
Then came the famous decision Of
the Circuit Court Of the United States
for the Northern District Of New York,
In which Judge LAcoMRE used the IL.
lustration Of the express wagons In
which he declared that even So small n
restriction of trade as that involved in
the merger OF two rival local express
companies doing business across State
line made the merger Illegal. This i'm
posed upon the Supreme Court Of the
United States the duty. which 1t could
not escape, of defining just how far
and how minutely the prohibition OF
the law against any combination ex.
tended: and all this resulted at last
In the still more famous rule Of rea-
son" decision of the Supreme Court in
bacco companies cases. in which the
court held that while the Standard
Oil Company and the American 10
bacco Company were specifically VIC.
lations Of the statute. yet the chief
matter determining the legality or H.
legality OF any combination was the
dominant purpose In the minds Of the
people making the combination. II
the event showed that their dominant
purpose WAS to create monopoly In
restraint Of trade then the combna-
tion was Illegal. But II. on the other
hand, the dominant motive and pur.
pose Of those taking part in the trans
action WAS really the extension apd de-
velopment Of trade In an honest and
straightforward sense. then n more IA
vorabe view might be taken Of what
they had done.
We repeat that It is now clear to
our lawyers and even to business lay.
men OF the country that daylight will
never break In upon the Sherman law
until the Supreme Court makes an ap-
plication in sucrecling cases OF the
laid down IN the Standard Oil and
American Tobacco decisions. Congress
may legislate back and forth. but the
validity OF It's legislative acts will still
remain In the air.
Some time In the next two or three
years the cases Of the United States
Steel Corporation and the International
Harvester Company will come before
the Supreme Court. and then finally 1t
is TO he hoped the feet of business men
will be guided Alright and clearly by the
words spoken by the court. In these
great cases. as most people are now
aware, the issue presented is very diff
ferent from that offered in any previous
case, and 1t may be stated in the fol.
lowing words
Here are two corporations against
whose conduct practically nothing can
be alleged. They have never oppressed
anybody or made the way Of any COM
petitor hard or been the subject Of COM
plant from the general public. The
proof as to the existence of any mo-
n"poly on their part or OF any attempt to
secure monopoly Is weak, II 1t has not
failed entirely, and II Is conceded that
the operation Of the companies has been
beneficial to the trade Of the country.
Nevertheless It is admitted that these
companies were to greater or less
extent combinations Of previously COM
petitive organizations. Is such combi-
nation sufficient to place upon the COM
panies the stamp Of illegality"
When this question is answered in
the affirmative or negative by the Su-