The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-07-02
ORDINATIONS.
When Are They In Restraint Of
Trade?-The German system.

or the supreme u OF which the
Standard OH case and the tobacco
case are conspicuous examples, have
been handed down involving the In
depreciation Of the Sherman act.
Other cases. such as the steel trust
case and the Harvester case. have
been decided by inferior Fede al
courts and are now pending In the
Supreme Court. The Clayton act and
the Federal Trade Commission act
have been passed. Where are We now
on the questions raised by these
laws and decisions? What combina-
tons are lawful and what not lawful
Our corporations and business inter-
ests want to know.
| have long maintained that the
movement toward combination to
escape competition is almost as m,ich
Of a natural law in the world of indus
try al the rise Of the tide IL in the
world of nature. For more than a
hundred years, however. the Consti-
tuition. the Legislatures and the
courts OF the United States nave been
endeavoring to prevent or curb this
tendency. How far. i'm the light OF
reason" have they succeeded?
Underlying the questions decided
by the courts we have the i've oppo-
site Ideas, that Of individualism on
the n hand and hat of socialism,
or cooperation, on the other. Mr..
Theodore Roosevelt and the Progress
sive party have declared for coopera-
ton and governmental supervision. The
other political parties. differing on
other questions, are tending in the
same direction, but they ask us o
10 interfere with business IL it be
good business and not too big.
The Progressives and the Socialists,
on the other hand, ask that business
big business-if 1t is to continue big
n they think IL will and ought to
continue big" be supervised. pro-
tected and corrected by the Govern
ment. And. as part of the protection
that they ask for. they ask for tariff
protection.
The idea back OF the Frogressives
Is the German idea. The Germans
had previous to the wal achieved
great Industrial success. That sue
cess, their friends claimed, was partly
at least due to governmental super
vision and control Of individuals, OF
corporations and of their work and to
a protective tariff. The aim OF the
Germans was to make their empire a
self-sustaining. self-conta!ned country.
n they succeeded until the burden
Of mllitarism began TO prove too great
a weight; their country, not unduly
blessed by nature. prospered mate
rally. Since 1879 they have had a
protective tariff. They have had
trusts or c~artels. of which the syndi-
cate known as the Steel Works
Union, containing t%hlrty-one large
works in Rhenish Westphalia and
elsewhere. Is a conspicuous example.
1t was their steel trust. They mad a
W~estphalian coke syndicate or trust
which sold it's cox outside Of Ger
many at half the price at which II
sold 1t IN Germany. Our trusts nave
been known TO do similar things.
German trusts have driven out of
business the smaller sellers Of the
trust articles. just as the tobacco
trust has done here. Every example
OF what can be done by commercial
s~yndicalism fortified by a protective
tariff can be found in Germany, In
1879. when the German tariff law went
into operation, there were fourteen
cartels or trusts In Germany. Now
there are over 1000. This would
eeem to support Mr.. Havemeyer's tes-
timony that the tariff is the mother
OF trusts"
But Germany has no Sherman law,
II has had NJ Clayton law. or Federal
Trade Commission law. 4 good Illus
tration OF the German method OF deal
ing with trusts Is found In the potash
law of 1910. This law provides FOR
imperial control over the production
and selling price of potash salts until
1926. The question Of allotments of
the sales is determined by a commits
sion, OF which the chairman and two
other members are chosen by the
Chancellor OF the Empire and the
others by the potash mine owners.
Previous to the passage of this law
there had been a potash trust or syn
dictate, and the directors of the trust
determined the price at which potash
should be sold and 20 whom.
The New York Code OF civil Pro-
cedure provides an illustration, which
lawyers will understand. OF the differ
ence between German and American
ways of dealing with trusts. We In
New York have our legal procedure
regulated and determined by a stat
ute or statutes known as the Code of
Civil Procedure. Other States and
England have rules Of practice. These
rules OF practice can be changed by
the Judges. "A small and expert body,
from time TO time. our New York
procedure u be construed by the
courts and can only be changed and
amended by the Legislature with diff
Guilty and delay. The result IL that
much Of the time OF our courts Is taken
up with constituting and handing down
decisions upon the technicalities OF
practice. So the United States has
its Sherman act. its Clayton and other
acts, which must be construed In each
particular case by the courts. Stat
utes are i~nf,exible ard the courts mus,
decide In each case whether they have
been i~nfringed or not. And the CUES
tions arising under the statutes men
toned are often not so much ques-
tons Of law as OF political economy
or sociology.
In Germany each alleged case Of
monopoly or infringement of tn,
rights OF the people may be deter
mined by the Legislature as It arises
as II was in the potash case. Their,
are no general acts which have to b,
construed by the courts 10 see whethel
they apply to each particular case o,
mot aNnAnt VAa., ~. ..