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