The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1914-03-25

Continued From Page Three.
contracts, provided they were not mo-
~noIolles, contrary to public policy, or
immoral.
Also, in this country, in Colonial
days, the laws were rigid concerning
computations and contracts in re-
stralnt of trade. But here also there
was a gradual amelioration until CO.
operation was permitted along many
lines, including division of territory,
limitation OF output, and even fixing
OF prices; provided, always, that as a
result Of the cooperation the combina-
lions or contracts did not result in
monopoly, or were not general, were
not immoral, and were not contrary
to public policy.
Thus we see that the laws in regard
to combinations and contracts in re-
straint of trade went through a sim
liar evolution, both in this country and
in England, and that the laws finally
became very liberal. In other coun-
tries England and America, the
laws relating to cooperation are also
liberal. By gradual development the
principle has been reached for most
civilized nations that freedom in trade
meAns freedom to combine as we'll as
to compete.
This was the situation il this coun-
II y dlSOp "llSu ia 1851 tue SHERMAN law
was enacted; and Immediately the
wheels, so far as cooperation was con-
cerned, were turned back to the on
ditions Of the Middle Ages. All COM
binations and contracts in restraint of
trade were prohibited: and this ap-
piled to the latter ever if limited in
extent and confined in time. This ma
tional legislation led to an influenza
Of similar legislation in the states, and
Tyifhjo q Paur Hoorc fhfrfv cfa foS had
passed statutes against combinations
and contracts in restraint of trade,
many Of them even. more drastic than
the Sherman law.
The question now arises: What
were the results Of these statutes?
The Sherman act contained two separ-
ate provisions; one of which prohibit
ed every contract and combination in
the form Of trust or otherwise in
restraint of trade as Illegal; another
section provided hat monopoly or at
tempt to monopoliZe was Illegal.
BY the public it was supposed that
every contract and combination in
restraint of trade meant what the
words said, and that congress in US
ing these words meant, to pass a new
and drastic law replacing the COM
mon law; indeed the earlier decisions
of the supreme court took this point
OF view and held that aSonaDleneS
or unreasonableness Of a contract or
combination was immaterial.
However, in the Standard Oil and
tobacco cases, the court took a new
position; they stated that only re-
straint Of trade which was undue
was meant to be covered by the law
(although the word undue" is no
where in the act); hat the restraint
meant that which was not permitted
under the common law: and, therefore,
that only contracts or combinations
were prohibited by the law which
were unreasonably in restraint OF
trade.
Why was this change of front
made? Well, Of course, I do not
know; but it Is a fair conclusion that
the Investigations of the supreme
court led them to the view If the
Sherman act were enforced in exact
compliance with it's terms, this would
create an impossible situation. There
fore, they inserted the words undue"
or unreasonable" into the law, SO as
to make 1t accord with common law;
and thus started a second cycle of