The Richmond Virginian. (Richmond, Va.) 1910-1920, 1916-07-13

net expressly donn4 the acts. con-
tracts agreements or combinations
embraced in its terms, but addresses
itself to classes OF acts, and these
classes are broad enough to embrace
every conceivable contract or combi-
nation which can be made concerning
trade or commerce or the subject of
such commerce. by which interstate
or foreign commerce is unduly re-
strained.
2. The statute embraces only
those acts, contracts. agreements or
combinations which operate to the
prejudice of the public interest by
unduly restraining competition or un-
duly obstructing the course of trade.
3. Hereafter, in any proceeding. the
courts will have only to find the facts
and to them apply the settled law
determining whether the public inter-
ests are pretudiced by unduly re-
straining competition or unduly OBJ
structing the course of trade"
Mere Size Not the Test.
4. Mere size is not the test of re-
straint of trade or of monopoly. The
normal and natural expansion of any
business or enterprise Is not prohib-
tied by the statute.
The test Is whether the public is
prejudiced by unduly restraining
trade. not whether the enterprise is
big or little.
court will be granted only to prevent
present violations of the act and
threatened Or apprehended future vio-
lations Of it.
1t is, however. a present violation
of the law when the acts. contracts,
agreements or combinations inju-
riously restrain trade. either because
of their inherent nature or the evil
dent purpose of the acts, and thereby
destroy the "potentiality of competi-
ton" and become q perennial viola
ton" of the act. and the law Is pres
emily violated where the evil effects
of the past undue restraint or mon
opoly continue TO be effective and
gun.
s. 1t would seem that a decree of
dissolution will not be awarded for
an unsuccessful attempt to violate the
law. nor for an actual violation which
has ceased. But only where the in
herent nature of the combination or
agreement destroys the potentially
of competition" and 10 perennial
violation of the act.
President Hunton said that 1t may
be some comfort to know that Eng
I
solving this problem. There, without
statutory enactment, I'll contracts re-
straining trade were at first held TO
be void and against public policy.
Gradually, with tho change of COM
merctal conditions. the rule was modi-
fed and contracts in restraint of trade,
IL limited in time or space, were held
valid.
His Concept OF Sound Public Policy.
President Hunton concluded his ad-
dress as follows:
1t seems to me that the following
conclusions are sound and should be
recognized by Congress as sound
public policy:
/. Where the purpose and intent of
q contract Is normally 10 promote and
develop the business of the contract
Ing parties in accordance with the
| recognized rules OF trade and COM
merce. 1t should on no sound basis
OF public policy ba declared invalid
although its indirect effect may be
to decrease competition or destroy
competitors.
.. If the restraints OF trade are
merely ancillary to the main purpose
OF a lawful contract and necessary TO
protect the covenantee in the enjoy
ment of the legitimate fruits OF the
contract they should not be prohibit
ed by law.
Statement of the True Test
3. The true test should be that the
restraint upon trade imposed by the
contract must not be more than suf-
fcient to protect the party claiming
the benefit OF II.
4. II the primary purpose OF the
contract is TO decrease competition and
destroy competitors, to arbitrarily in
crease prices or to maintain them.
such q contract liz contraryto a sound
public policy and should be prohibit
ed by law.
Tho opinion of tbs individual upon
these questions can carry such weight
only as his intelligence, fairness and
character can give IT,
Uncertainty still remains as to what
acts unduly restraint trade trade, but,
as has been stated, It Is believed de-
ciSions OF the Supreme Court In the
near future will greatly decrease this
uncertainty and make 1t reasonably
certain what acts are lawful and what
unlawful under the Sherman anti
trust law.
Is not this act sufficient to meet all
Of the evils at which anti trust legis-
latson Is aimed?
We have seen that 1t forbids every
form OF contract or combination by
which interstate commerce can be
unreasonably or unduly restrained
II It vice to limit the freedom OF
contract by the prohibitions OF the
Clayton act and tho trade commission
actf
Is It wise from the standpoint OF
capital. or OF labor. Of the manu-
facturer. or the farmer, that business
should be restrained and limited. not
onfv nv the actual prohibitions az
these acts. but by the doubt and fear
as to what are the restrictions i'm.
posed by them9
Do not the restrictions upon the
freedom to contract. OF those engages
In interstate commerce, In the Clay
ton act, and the Federal Trade Com
sunission act. make II impossible for
our citizens to meet foreigners on
equal terms In international COM
merce?
Who possesses IN such an eminent
degree the qualities necessary to cor
kectly answer these questions as tho
lawyer?
rvxt-