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VOLUME 11,. NUMBER 20
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The Commoner.
ISSUED WEEKLY
Entered at tho Pontofllco at Lincoln, Nebraska,
as second-class matter.
Wiijmam J, llllYAN
Kdltor mid Proprietor
Pi ci l Ann L. MjcTt'Ai.iae
Aoclnto Editor
CilAM.Kfl W. JiTtYAN
Publisher
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THE COMMONER, Lincoln, Nob,
tho public policy in such case Is what the
statute enacts.
"If the law prohibits any contract or com
bination in restraint of trade or commerce, a
contract or combination of trade in violation of
such law is void, whatever may have been here
tofore decided by tho courts to have been the
public policy of the country on that subject.
"Tho conclusion which we havo drawn from
the examination above made into the question
boforo us is that the anti-trust act applies to
railroads, and that it renders illegal"
Of course, if it applies to railroads it applies
to any other combination.
"And that it renders illegal all agreements
which are in TOBtraint of trade or commerce, as
we havo defined that expression, and the ques
tion then arises whether the agreement beforo
us is of that nature."
And they held that it was.
JOINT TRAFFIC CASE
But the controversy did not end there. Two
years later another case came from the west,
known as tho joint traffic caso, decided in
171 U. S.
There tho question was whether a certain
traffic agreement in that case was in violation
of the anti-trust law. And what counsel were
hero then to enlighten the court?
Two of the very same counsel that were at
the former hearing J. 0. Carter, with able
associates; E. J. Phelps and then lastly for no
doubt there was infinite confidence in tho ability
of this new lawyer, brought in tho caso for tho
purpose of putting into the hands of this court
the light of reason, and to make them see what
was the real meaning of tho act that counsel
was George F. Edmunds of Vermont.
Is thoro any doubt that James C. Carter, E. J.
Phelps and George F. Edmunds would have gone
into every nook and corner of that caso and
found out every argument or thought that would
benefit the court in its reaching a conclusion?
It is quite interesting to recur to what tho
court daid about this attempt to havo it re
consider what it had deliberately said was tho
meaning of the act of congress,
READS SECOND OPINION
Let me read a little more:
"Finally wo are asked to reconsider the ques
tion decided in the trans-Missouri caso and to
retrace the stops taken therein because of the
plain error contained in that decision and the
widespread alarm with which it was received
and the serious consequences which have ' re
sulted, or may result, from tho law as inter
preted in that case."
And the court sayti:
"The opinion in the trans-Missouri caso gives
great force and stability to tho arguments
The Commoner.
against the decision finally' arrived at by the
court "
The court added that one of the benefits that
it had in that case was tho illuminating and
extraordinary able dissenting opinion written
in tho former case as well as in that case by
our learned chief justice who Is now at the
head of this court. They had the benefit of
his views. ..
It was after a full discussion of the questions
involved, and with a knowledge of tho views
entertained by the minority, as expressed in the
dissenting opinion, that the majority of the
court came to the conclusion that it did.
Soon after the decision a petition for rehear
ing of the case was made, supported by a
printed arguments in its favor and pressed with
an earnestness and vigor which was certainly
commensurate with the importance of the case.
This court, with caro and deliberation, and
also with a full appreciation of their importance,
again considered the questions involved in the
former decision. A majority of the court once
moro arrived at the conclusion it had first an
nounced, and accordingly it denied the applica
tion. THIRD RULING OF COURT
"Now, for the third time" says the court
back in 1897 "now, for the third time, the
same arguments are employed and the court is
again asked to recant its former opinion and
to decide the same question in direct opposition
to the conclusion arrived at in the trans-Missouri
caso.
"In fact, so close was tho division of this
court when the matter was under advisement,
together with the views of some of the judges
in the lower courts, that we were led to a most
careful scrutiny and examination of the argu
ments advanced by both sides. And it was after
such an examination was made that tho court,
came to the conclusion it did.
"It is not now alleged that the court, on the
former occasion, overlooked any argument for
the respondents or misapplied any controlling
point. It is simply insisted that, notwithstand
ing the arguments from the opposite view, the
court arrived at an erroneous result which, for
reasons already stated,, ought to be reconsidered
and reversed.
"As we have twice already deliberately and
earnestly considered the same arguments which
are now for a third timo pressed upon our
attention it would hardly be expected that our
opinion should now change from that carefully
expressed."
If anyone will take the trouble to run through
the briefs and arguments of these two cases he
will be perfectly satisfied that no view is now
pressed upon the court, either in the opinion
of the majority or in the arguments of counsel,
that was not brought to the attention of the
court in the two cases, one decided in 1876 and
the other in 1898.
That being the state of the law, what was
to happen? What were these gentlemen to do9
"Why, there was nothing left to them. This
court having three times heard this question
argued and reached a conclusion, there was
nothing left for them but to go to congress and
get the Sherman act amended that this court
could not construe the new act as they had the
old one.
Now it Is laid down in some of the cases, and
it is common sense, that this court is bound to
know what everybody else in the community
knows, and therefore I say, without hesitation,
that everybody knows that there has not been
a session of congress since 1896, when that
original opinion was delivered but that some
body, taking the opposite view from what tho
court has said, has applied to congress to get
that law amended; but it never has been
amended, and there is not a man in the country
today who does not know that it never will be
amended by the congress of the United States
to mean what they wanted congress to have it
mean, and which congress refused to havo it
mean; to get tho courts so to construe it.
In the not very short life that I have passed
In this capital and the public service of the
country tho most alarming tendency of this
day, in my judgment, so far as the safety and
integrity of our Institutions are concerned is
the tendency to judicial legislation, so that
when men having vast interests are concerned
and they cannot get the law-making power of
the country which controls it to pass the legis
lation thoy desire the next thing they do is to
raise the question in some case, to get the court
so to construe the constitution or the statutes
as to mean what they wan it to mean. That
has not been our practice.
The reports of the decisions of this court aro
full of cases in which the litigants have urged
upon this court:
"You have, in a case heretofore, construed
this act of congress wrongly."
"Well," says the court, "that may be true,
but it is an act that relates to a question of
public policy. We have announced this as our
view. It has gone through the country and
been accepted and acted upon."
I suppose millions of dollars of property havo
changed hands under that decision of 1896
and 1898.
Prosecutions have been instituted, and I sup
pose men have been convicted and sent to jail
under the anti-trust act upon the construction
that this court has given to it.
The court, in the opinion in this case, says
that this act of congress means and embraces
only unreasonable restraint of trade in flat
contradiction to what this court has said fifteen
years ago that congress did not intend.
OLD RULINGS ACCEPTED
If you will take the trouble to look through
the Federal Reporter you will find that possibly
nearly every federal court in this country has
accepted those original decisions as the final
decision of this court as to the meaning of the
act of congress.
Now we are asked to change the rule and to
say:
"It may be true that, in the words of the
statute, this contract or this agreement is in
restraint of interstate trade. It may be. But
it is a lawful restraint of trade. It is a lawful
restraint."
Contrary to the decision of this court. I say
contrary to the practice and usages of this court.
If I mistake not, more than once at this term
a lawyer has been compelled to take his seat,
to stop the particular line of argument that ho
was pursuing, because he was arguing against
a former decision of this court on that very
question. He was wanting to hreak down that
former decision.
POINTS TO ANOTHER CASE
Within the last hour, at any rate, an opinion
has been handed down for this court today in
which, in a case arising under the safety ap
pliance act, it was said that such and such was
the safety appliance act, such and such was its
meaning; that this court has so declared it in
a case decided four or five years ago.
Now we said in reply to that:
"In view of these facts we are unwilling to
regard the question as to the meaning and scope
of the safety appliance act, so far as it relates
to automatic couplers on trains moving in inter
state traffic, as open to further discussion.
"If the court erred in the former case it is
open for the parties to apply for such an amend
ment of the statute as congress may in its dis
cretion deem proper. This court ought not now
disturb what has been so widely accepted and
acted upon by the courts as having been decided
in that case. A contrary course would cause
. infinite uncertainty ,if not mischief in the ad
ministration of the law in the federal courts."
VITAL POINT AT STAKE
Why do I Bay to undo the work of the
fathers? If there is any feature in our govern
mental system that is honored among the na
tions of the earth it is that provision of the
federal constitution which divides the depart
ments of government among three co-ordinate
branches legislative, executive and judicial;
and neither branch has the right to encroach
upon the domain of the other.
Practically the decision today I do not mean
the judgments but parts of the opinion, are to
the effect, practically, that the courts may, by
mere judicial construction, amend the constitu
tion of the United States or an act of congress.
That, it strikes me, is mischievous, and that
is the part of the opinion that I especially
object to.
I shall put my views in writing hereafter,
when I get an opportunity to do so. .
There is much more that I wanted to say, but
I cared only to emphasize that objection to tho
opinion of the court.
WILL IMPROVE VS
i.rJP16, St :Paul (Minn.) Pioneer-Press says:l
The democratic house at Washington is carry
ing out Mr. Taf t's plans so well that ho probably,
regrets he did not have one of that brand in
the first place."
w?uld be an improvement to give the demo
cratic house a democratic president, and flnallj;
a democratic senate for good measure. Mr.
lart does very well in some particulars, but a
real democrat in tho white house could do
much better. -
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