.
I1PRIL 15;;1904.
The Commoner.
'Mt
ion that ho concurs in
grounds of his own.
deed, with the rest of
holding that congress
tionally authorized to
Proceedings in the
Northern Securities Case.
J5he
perhaps wo should Bay
almost all men except lawyers fix
their eyes on the decision rendered by
a tribunal, and pay but little heed to
the opinions on which the decision is
based. Yet it should be obvious that
the direct effect of a given decision on
the case at bar may be one thing, while
the indirect, ultimate effect produced
by the opinion filed on the fate of similar but not identical cases may be
widely different. There is no doubt
that the judgment rendered on March
Many men
two leading cases to which wo have
-
d,
4
pie-suppos-
ed
so-call- ed
--
trans-Missou-
n,
taken
a'
invite-unnecessa-
last-nam-
ed
I
st
fa-ora-
ble
trans-Missou-
trans-Missou-
cou-stitutio-
ns
?
1
I
es
-
r
i
f
1
P
eo
m
,
eral individuals, separately owning
Some Petrker'JjTia'ures.
stock in two competing railroad comAfter all it doesn't appear that
panies, to place the control of both in
a single corporation. That corpor- Judge Parker is phenomenally strong.
ationthe Securities company was a It Is pointed out that he was elecCr
more instrumentality, by which sep- to
his present position "only .because,
arate railroad properties were to be
combined under one control. Justice the opposition failed to nominate Af
Brewer regards such a combination as candidate. In referring to Mr. Hill's
a no less direct restraint of trade, by rattack on Tammany and his proposal
destroying competition, than would to put Parker to tho tront as "tho
be the appointment of a committee to
regulate rates. He adds that if Hie "only" available democrat, a prdm(r
parties interested in the Great North- nent Tammany man ays:
"Tammany has not Issued pamphlets;
ern and Northern Pacific railroads
could, through the instrumentality of to say that while Mr, Goler was an exa holding corporation, place both lines cellent and able gentleman Mr. Hill'
under one control, then, in like man- association and Identification with him
ner, could the control of all the rail- defeated him.- Tammany has Issued
road companies in the country bo no circular attacking Mr Hill's preseventually placed in a single corpora-tid- ent candidate and officially shoeing
That is why Justice Brewer up- that Judge Parker's election was dup
held the adverse decree of the "United to the fact that one of the opposing;
political parties failed to nominate a
States circuit court. He upheld it
he looked upon the Northern candidate against lIm. .Tammany has
Securities company as against public not called attention , tp the fact thai
policy i. e., as an unreasonable com- Judge Parker's total vote in New York
bination in restraint of interstate com- was only 554,680,. whereas Mr. CclcV
merce. He deemed it his duty, how- received 655,398 votes, or 100,710 more
ever, to explain In his Separate optur than Parker, and was still defeated
ion that he would not deny the valid- for governor, and Bryan received 678,-3votes, or 133,706 more-thaParker
ity of a combination exercising restraint upon Interstate trade, providqJ and was still defeated for'r. president
'.
. .
,
Jonnstown Democrat
that restraint can fairly be decrib:
-
-
n.
bo-cau-
se
86
.
.!
ry
trans-Mis-spu-
Q
-
g
--
ihr-cour- t,
nt,
tho decision on as reasonable; much less would th
Ho agrees, in- dony tho right of an individual toafc-qui- ro
tho majority in
controlling interests in twp OXV
was constitu- moro competitive companies, He 'I&V
enact tho anti- it his duty to draw theso sharp aiid
trust law, provided tho statute is to deep distinctions,
lest tho broad
bear tho construction which ho, Justlco
language of tho opinion $&& '
Brewer, would give it. His own in- by Justice Harlan should tend to tin
terpretation differs matorially from sottlo legitimate business enterprise;'
that which is now announced by tho stifle or retard wholesale business 'acrest of the majority, and which, more- tivities, encourage
i in proper 1 Is regUfd
over, was embodied in the opinions of reasonable contracts, and
' V
filed by tho justices concurring in tho
litigation.
ri
decisions rendered in tho
In view of tho opinions expressed
and Joint Traffic cases. Justice by; tho four justices who dlssenUfd'
Brewer holds thnt tho two
from tho decision of tho court, and'of
decisions wero right, but that the opin- tho soparatc opinion filed by the'
fifth,
ions filed in defense thereof went too or pivotal, justice, It is easy to underfar. Ho now thinks that, Instead of stand why Attorney General Knox
holding, as a majority of tho justices should declaro that tho federal gov
did in the two cases last named, that ernment has no intention of "running
the anti-tru- st
act prohibited all con amuck" among tho corporations actracts, reasonable or unreasonable, in cused of violating tho anti-trunet
actual or possible restraint of inter- He knows that, in tho case of many
state trade, tho ruling should have of those corporations, the government
been that tho contracts presented in has much less reason to expect a
ri
tho
and Joint Traffic
decision, now that the attltuao
cases were, in themselves,-unreasona-bl- e
of tho court has been defined by tho
restraints oe interstate trade, and, proceedings of March 14, than It had
therefore, within the scope of the act. when that attitude was presumed to
Congress, he thinks, -- did not intend have been definitely indicated by tho
by that act to reach and destroy such decisions rendered and by the opinions
contracts in partial restraint of trade filed In the
ri
and Joint
as had been pronounced reasonable by Traffic cases. Then the governmcLt
a long series of decisions at common felt sure, under the general principle
law. He thinks, moreover, that tne propounded, of a favorable decision
general language of the" anti-tru- st
act In every case. Now it knows that tho
is necessarily limited by the power general principle has- - been discarded
which an individual unquestionably by tho majority of the court by mahas under our federal and state
jority wo here mean Justice Brewer
to manage his own prop- added to Chief Justlco Fuller and Jut-tlcerty, and to determine the place and
Peckham, White, and Holmes
Justice that every case will have to be tried
.manner of its investment.
Brewer docs not hesitate to describe on its Specific merits; and that"' tho
freedom of action in these respects as judgment of tho tribunal can by no
among the inalienable rights of every means bo foreseen. It does not folcitizen. Applying this principle to low, of course,- that absolutely noth- the Northern Securities case, he' goes ing will be done in tho way of prose
on to say that, had it appeared tnat cutions under tho anti-tru- st
act. OthMr. James J. Hill was the owner of a er suits aro already pending, and havo
majority of the stock: in the Great been more or less advanced toward
Northern Railway company, he could final adjudication. A report sent on
.not, by any act of congress, bo de- February 11 by tho department of
prived of the right of Investing his justlco to the houso of representatives
surplus means In the purchase of stock showed that no fewer than twehf-throf the Northern Pacific Railway comactions had been begun, aJlct
pany, although such purchase mi&ht which had been expedited under tho
tend to vest in him, through that authority of the recent act of conownership, a control over both com- gress. Fourteen railroad injunction
panies. In other words, tho right cases aro before tho United Stales
which all other citizens had of pur- circuit court at Chicago, and three
chasing Northern Pacific stock couM cases those against the beef trust;
not be denied to Mr. James J. Hill against the Nashville, Chattanooga &
by congress, because of his ownership St. .Louis railway, ahd against Baitdi
of stock in the Great Northern com- and others, are already on appeal bepany,.
fore the United States supreme court.
taot
Justice Brewer holds, however,
We may, therefore, count upon a furindi
single
a
no such investment by
att
ther elucidation of tho anti-tru- st
competitive
two
on tho part of tho highest federal trividual in the stock of
companies is presented in the North- bunal at no distant' date. Harper's'
ern Securities case. What was hore Weekly.
,',
exhibited was a combination by sevanO-sweopin-
referred.
Before indicating the main points of
the opinion filed by Justice Brewer,
the. fifth, or pivotal, member of
let us mark the two principal
grounds on which four justices 1ml-le- r,
Peckham, and White, democrats,
and Holmes, republican declined tc
assent to the decision rendered by tuo
majority. These grounds were, fiist,
that congress was without power to
regulate the acquisition and ownership
con14 by five out of the ninejustices
of stock In the Great Northern and
stituting the- United States supreme Northern Pacific railways by the
court affirmed the decree by which Northern Securities company; and,
the four judges composing the Uniced secondly, that, even if such power
States circuit court for the district ot were vested in congress by the constiMinnesota pronounced invalid the tution, it had not been exercised in
merger pi the Grgat "Northern and the anti-tru- st
act. The first ground
Northern Pacific 'railways in the is set forth with lucidity and cogency
Northern Securities company. It is in the opinion which was read by Jusequally certain that hereafter every tice White, and in which Chief Justice
case identical with that1 presented oy Fuller arid Justices Peckham and
the Northern Securities company will Holmes concurred; while the second
be decided in the same way, provided, ground is considered at length In a
of course, the five justices who con- separate opinion of Justice Holmes,
curred In the decision rendered on which explains what the jurist believes
March 14 shall adhere to .the opinions to bo the true interpretation of the
then filed by them. It should,, at the federal statute. Justice Holmes said
same time, be recognized that the that while the merger of the Great
opinion which was read by Justice Northern and Northern Pacific lines
Harlan, and in which three of his had undoubtedly been entered upon
colleagues-:concjiirre.differsVmatei iai-- y with the intent of ending competition
from thatignedby;Justice Brewer, between the two railways, yet he did
act was
though he also concurred in the dtc:-sio- n. not think that the 'anti-tru- st
"
It Is", therefore, Indispensable meant to be applicable to transactions
that those who would forecast the of that sort, because the statute
bearing of the proceedings of March
that a contract in restraint
14 in the United States supreme court of trade would be made with an outon other existing or future aggrega- sider. If, however, his interpretation
tions of capital should fasten their of the statute be" overruled, he should
gaze on the principles asserted or de- concur with his colleagues, Chief Jusductions drawn, by the fifth, or pivotal, tice Fuller and Justices Peckham and
judge, for thus they may be enabled to White, in holding that the constitution
divine the fate of corporations or never authorized congress to regulate
combinations which differ in a givui the acquisition and ownership of the
important particular from the Norih-er- n railway stocks in question by the
Securities company. The outcome Northern Securities company. Nor did
of such a scrutiny is that, while tne he refrain from expressing his prodecision is undoubtedly fatal to liio found gratification that at least four
Northern Securities merger in the of the nine judges constituting the
present form thereof, the opinion, court had refused to adopt an interact which,
viewed collectively, are actually reas- pretation of the anti-tru- st
to inaugtend
"trusts" by in his judgment, would
suring to tne
and to'
war,
which we mean combinations of capi- urate an eternal social
tal undertaken with a view to effic- disintegrate society into its individual
iency and economy in the sense tnat atoms. To call such a law, as the
act is when interpreted by
they indicate, a marked recession of anti-tru- st
opinion on the part of Justice Brewer Justice Harlan, a regulation of com-a
and also on the part of Chief Justice merce is, Justice Holmes thinks,
rather an atFuller and Justices Peckham and mere pretense. It is society.
With
White with whom their new col- tempt to reconstruct
Jusattempt
league, Justice Holmes, concurs from the wisdom of such an
to
himself
the position previously taken by a ma- tice Holmes does not deem
beri
be now directly concerned, but he
jority of the court In the
not entrusted
Freight association and Joint lieves that congress was
the power
with
inconstitution
may,
by the
Traffic association cases. We
perdeeply
deed, take for granted that Justice to make it, and he is also not tried to
Harlan and his three colleagues who suaded that congress has
that Justice Wl"Lc,
concurred in the opinion read by nim make it. We add
and in
Justices BrownrMcKenna and Day-- will in the opinion which he read,
rewuiuiu, "u
adhere to the position now taken Which Justices ivuiier,
the condenounced
concurred,
by them, which is a sweeping one, and Holmes
anti-tru- st
act embodwould be fatal .to the trusts because struction of the
rendered by the
it pronounces all .combinations of cap- ied in the decision
assei-tiomajority of the court, as the
ital that do or may exercise any
repower
by implication, of a
whether reasonable orunrea-sonabl- e, pugnant
rights
to all the fundamental upon
upon interstate trade to he
and property
liberty,
act, which of life,
violations of th& anti-tru- st
must reb,.
act is also declared to1 be a constitu- which all just government
concurs with
Now Justice Brewer McKenna,
tional exercise of the powers deleand
gated to congas?.. It is clear, how- Justices Harlan, Brown,decree issued by
the
ever, that this position is no longer
tfSited
States circuit court agairst
the
thattf a majority of, the .court, though
company. He
it unquestionably coincides with Chat tWNbrthem Securities
opin
separate
by majority in the shows, however, in his
previously
le-strai-
If.V
-v'
i
m
,1;
m
mi