Omaha daily bee., 1920-03-09
Good and Bad Trusts


There cannot be two sorts of laws for two
sorts OF trusts since bad trusts cannot survive
under the law against them, if it is enforced A
trust is good or bad according to its effect on
public interests, not according to its effect on
private interests; and that is equally true Of
labor trusts and capitalist trusts. The trade
unions may not yet believe that the Sherman
law is better protection for unions obeying
the rule of reason than the Clayton law which
the unions caused to be enacted to take them
out from the Sherman law. If these sayings
are too hard for acceptance it is because the
Sherman law is lot yet understood, after liti-
CATION which it is vexatous to think has been
as futile as unnecessary from the beginning:
does not change its color with shifts of public
sentiment and interpretations of political law
yerS. 1t is written declaration OF the common
law on the subject, and embodes the experience
OF centuries. 1t is no more possible or desirable
to amend or to repeal it than it is possible to
enact unreasonable statutes and have them
obeyed. The Sherman law means today exactly
what 1t meant when it was enacted, and just
what it was said 20 mean by Justice White, who
declared the rule of reason in the first important
case, and lived to find himself as chief justice
delivering decision to that effect as the opin-
ion OF the majority.
No apology is offered for remarks which are
warranted by the frequent current declaration
that the Steel trust is mot . trust" although
the decision in effect declares that it 10 trust"
word-and that it is entitled to live because
those who sought its life did 90 in error. The de-
eision is more important than the Steel trust BY
as much as the philosophy Of business 10 more
important than any application Of it to any. one
case. The meaning Of the decision has been
declared by the court itself. without the point
being publicly appreciated. The Steel trusts
case is the same under the law as that of any
other trust of like character; any trust of bad
character is in the same position the Oil Or
Tnho {rr,ek -. ,lro,,
from the condemnation of the law, because its
business accords with the rule of reason. The
nature OF its conduct has been such that it
never was obnoxious to the law.
1t is not exempted from the law because it
is good trust, or like trusts allowed to live
by license from the Department OF Justice,
amounting merely to freedom from prosecu-
ton. The Harvester trust, under the pressure
of conditions which excuse its procedure, took
from the public prosecutor permission to live
at his pleasure; The attorney general may
change his mind. There is sure to be another
attorney general, and no one can say what his
mind may be on the same subject. The Steel
trusts position, therefore, is better than that
OF the Harvester trust by as much as existence
under the law is better than existence at the
commission is now issuing its licenses. The
cattle traders and raisers were asking yesterday
that the packers should take out licenses. A
commission is the remedy for all trade ills. We
prefer the law, and right to life under the
law, without subsection to individual whim,
and with the corollary that offenders against
the law shall pay>the penalty. That is the pub
lies true protection.
The philosophy of the highest court is now
the philosophy of the law merchant and of all
traders under it. The courts language Isl:
We are unable to see that the public in
terest will be served by yielding to the con-
tention that the government e. and we
do see in contrary conclusion risk of in,
jury to the public interest including ma
terial disturbance of, and it may be serious
detriment to, the foreign trade. And in sub
mission to the policy of the law and its forti-
flying prohibitions the public interest is of
paramount regard.
In order to appreciate over what weary
road we have Travelled to reach a conclusion
visible and inescapable from the beginning, it
is only. necessary to recall the same courts
original position, as expressed by Justice Peck
ham in the railway case which is practically re-
versed by the law which has just passed into
effect:
The prohibitory provisions of said act
apply to all contracts in restraint OF interstate
or foreign trade or commerce without excep-
ton or limitation; and are not confined to
those in which the restraint is unreasonable.
Senators Capper and Borah are of the Onion
that 1t is now necessary to pass statate giving
effect to Justice Peckhams futile decision. If
that view prevails it will be necessary to trav-
erse again the painful road to the inescapable
conclusion from the reasoning of Justice White
in the same case not finally and fully declared
by the court itselfuntil the Steel case. How can
such statute be strengthened? How foolish
it is to think that it is more important under
what forms business shall be done than what
to express politely opinions regarding the quail
ty of the minds which would prostitute the law
to politics, and individual rather than party poll
tics at that?