The Commoner.
MAY 2G, 1911
Justice John M. Hi
Special dispatch to the Chicago Record
Herald: Washington, May 16. The dissenting
opinion in the StandaTd Oil case delivered in tho
supreme court yesterday by Associate Justice
Harlan, orally and without notes, was available
in its entirety tonight for the first time. The
opinion is expected to be further elaborated
later.
Justice Harlan in his opinion stated from tho
bench held that his brother judges had no right
to usurp the functions of the legislative branch
of the government by writing into the statute
a differentiation between "reasonable" and "un
reasonable" restraint of trade. He declared
that congress had resisted all appeals so to
amend tho act and that there was every reason
to believe that such amendment never could be
put through tho legislative branch.
Under these circumstances and in their ex
tremity great aggregations of wealth applied
to the court in an effort to have it construe
the law in a way that would be a flat reversal
of what it had held on two previous occasions.
Justice Harlan declined to be a party to such
a reversal, and hence his dissenting opinion.
He denounced as "the most alarming tendency
of the day" the tendency to judicial legislation.
Men of power, he said, always were .trying to
get the courts to do what congress would not.
TEXT OF HARLAN'S OPINION
Justice Harlan said:
I feel constrained by a sense of duty to state
some objections which I have to the opinion of
tho court, which I have heretofore examined in
typewriting.
I shall not say anything about tho decree
except to say that upon hearing the arguments
on this act some years ago, and since my ex
amination of this case, I came to the conclu
sion that the decree of the circuit court was
substantially right in all particulars.
As to the -modifications referred to by the
learned judge, when I see the opinion and the
decree in print I can understand them better;
and in the opinion which I am hereafter to file
I can express my views distinctly as to those
modifications.
As to all the chief justice has said about the
illegal combinations of this oil company and
its coming within the anti-trust act I cordially
concur.
SEES CAUSES FOR ALARM
There are, however, some things in this
opinion, and some that are to result from this
opinion, which I think may very well alarm
thoughtful men, or many thoughtful men; and
I am unwilling to let them pass with any idea
that I approve them.
The anti-trust act of 1890 was passed at a
time when this country was in a state of great
unrest, arising out of enormous aggregation of
capital in a few hands, and arising out of com
binations which had their hands upon the throat
of this country in respect even to the necessi
ties of life; and congress had before it the great
question as to how these evils were to be
remedied, so faT as congress had the power to
remedy them.
The question was: What shall we do? They
finally, after great debate by able statesmen,
passed the anti-trust act of 1890.
PROVISIONS OF THE LAW
' Let me call your attention to a few of the
.words of that act. It provides, in section 1:
"That every contract, combination in form of
trust or otherwise, or conspiracy1'
Not in restraint of trade, as the learned chief
justice said in one part of his remarks, but
r " in restraint of trade among the
Beveral states and with foreign nations is hereby
'declared to be illegal."
Congress haB nothing to do with domestic
trade in the states, but as to Interstate trade
it has a great deal to do, and therefore it fell
.upon this policy.
The men who were in the congress of tho
.United States at that time knew what the com
mon law was about the restraint of trade. They
knew what restraints of trade at common law
' ;were lawful and what were unlawful. But con
gress said:
"The surest way to protect interstate com
merce is not to start upon any distinctions at
4X1 as to the kinds of trade; 'every' contract ha
restraint of trade among tho states is hereby
declared to be illegal."
QUESTION OF MONOPOLIES
Then, in tho Becond section:
"Every person who shall monopolizo or at
tempt to monopolizo or combine or conspiro
with any other person or persons to monopo
lize" Monopolizo what?
"Any part of intorstato trade or commerce
shall be liable to tho penalties prescribed by
this act."
What becomes, then, of the statement that
this act did not condemn monopoly in itself?
Did not these, men know what a monopoly was?
And when congress said that wo will punish
any man who monopolizes or attempts to mo
nopolize any part of interstate commerce, did
it hot know what it intended? That is not all:
"Every contract, combination In form of trust
or otherwise, or conspiracy in restraint of trade
or commerce among the states, is hereby de
clared illegal."
ANY RESTRAINT ILLEGAL
Therefore congress said to all the people of
this country:
"We are not going to bother the courts or
ourselves with any inquiries as to what con
tracts are in restraint of trade, reasonably or
unreasonably. We are not going to leave that
to any jury. We are not going to leave that
to any circuit judge.
"We will determine it as a part of the policy
of the United States, that, so far as Interstate
trade is concerned, no body or corporation shall
make or attempt to enforce a contract, any
contract, that in any degreo restrains interstate
trade."
Can anybody doubt the meaning of those
words? If you say two and two make four you
do not make it any plainer than these words
make out the intention of congress.
What occurred next? Lopk at this, step by
step, and I shall get, directly, to the part of
this opinion that I say may well alarm tho
"country, notwithstanding the many good things
that are in it, magnificently said.
TRANS-MISSOURI CASE
In 1896, fifteen years ago, a case was in this
court known as the trans-Missouri case. The
railroads in that case had come to make an
agreement about rates, and tho question was
whether or not that agreement was In violation
of the anti-trust law of 1890.
That question involved the construction as to
the scope and meaning of that anti-trust law.
Who was here to instruct the court on that
occasion? We hear a good deal about the
"lamp of reason." We hear that the time has
come when wo should hold up tho light of
reason and look at this act; as if the men of
that day, freshly after the pasage of the act,
were moving about in darkness and did not
know what they were doing or saying.
Let us see who were the men In the case that
were moving about In darkness and did not
have tho light of reason by which to Interpret
the act.
In the first place, there was here in that
case I well remember it; and I said at the
time I had never heard, in all my professional
life, a more magnificient argument than was
made in that case who was here in that case
to enlighten the court?
LEGAL EXPERTS IN CASE
First, tho attorney general of tho United
States, William F. Guthrie of New York, Jphn
F. Dillon of New York, James C. Carter, the
leader of the American bar of that day; Ed
ward J. Phelpa of Vermont, Lloyd W. Bowers,
as representing some of the railroads one of
the greatest lawyers this country ever has had,
and John G. Johnson of Philadelphia was on
one of the briefs.
Those were the men who were before this
court at that time. And what was their con
tention? That that act of congress did not
embrace reasonable restraint of trade, but only
unreasonable restraint of trade. That was the
question that they pressed upon this court.
What dl& this court say? Pardon me for
reading a little to show exactly what was in
their minds.
QUOTES JUSTICE PECKHAM
It is said in an opinion delivered by a great
Jurist, Mr. Justice Peckham:
"While tho statute prohibits all combinations
in tho form of trusts or otherwise, tho limita
tions aro not confined to that form alone. All
combinations which aro in restraint of trado or
commorco aro prohibited, whether in tho form
of trusts or in any other form."
And then they camo directly to tho question
prossod by these eminent lawyers upon the at
tention of tho court, and tho court said in tho
opinion:
"The next question to bo discussed Is as to
what Is tho true construction of tho .statute,
assuming that it applies to common carriers by
railroads. What is tho meaning, tho court
asks, of the language used In tho statute, that
every contract, combination in tho form of
trusts, or otherwise, or conspiracy in restraint
of trade or commorco among the states; or with
foreign nations, is hereby declared to bo
illegal?"
MEANING IS ANALYZED
"What is tho meaning of that?" asks tho
court. "Is it confined to a contract or combi
nation which is only an unreasonable restraint
of trade or commerce, or docs it include what
tho language of tho act plainly and in terms
covers :'all contracts of that nature' all con
tracts that restrain trado at all among tho states
aro prohibited by this statute.
"It Is now, with much amplification or argu
ment, urged that this statute, in declaring
illegal every combination in tho form of trust
or otherwise, or conspiracy in restraint of trado
or commorco, does not mean what tho languago
used therein plainly imports, but that it means
only to declare illegal any such contract which
is In unreasonable restraint of trado, whilo
leaving all others unaffected by tho provisions
of the act; that the common law "
Wo hear a good deal about that In this
opinion
"That tho common law meaning of the term
'contract in restraint of trado' includes only
such contracts as aro in unreasonable restraint
of trade, and where that term is used In tho
federal statute it is not Intended to Include all
contracts in restraint, but only thoso which aro
In unreasonable restraint thereof."
DECISION OF TPIE COURT
That was tho argument of these eminent
lawyers. Tho court says:
"By tho simple use of the term 'contract in
restraint of trade' all contracts of that nature,
whether invalid or otherwise, would be included,
and not alono that kind of contract which was
Invalid and unenforceable as being In unreason
able restraint of trade.
"When, therefore, tho body of tho act pro
nounces as illegal every contract or combina
tion in restraint among tho several states, tho
plain and ordinary meaning of such language Is
not limited to that kind of contract alone which
is in unreasonable restraint of trade, but all the
contracts are Included in such language, .and no
exceptions or limitations can bo added without
placing in the act that which has been omitted
by congress."
QUOTES OPINION FURTHER
Another part of tho same opinion reads:
"Tho arguments which have been addressed
to us suggest that tho inclusion of all con
tracts in restraint of trade, as provided for by
tho language of tho act, have been based upon
tho alleged presumption that congress, notwith
standing tho language of the act could not have
intended to embrace all contracts, but only such
contracts as were in unreasonable restraint of
trade.
"Whether that be tho result or not we do not
know and cannot predict. These circum
stances" I call attention to thoso words:
"These circumstances are not for us. If the
act ought to read as contended for by defen
dants congress Is tho body to amend It, and not
this court, by a process of judicial legislation
wholly unjustifiable.
"Large numbers do not agree that the view
of the law taken by defendants is sound or true
in substance, and congress may, and very prob
ably did, sharo in that belief in passing the act.
PUBLIC POLICY IN STATUTES
"The public policy of the government is to
be found in Its statutes, and when they havo
not directly spoken, then in tho decisions of
tho courts and tho constant practice of the
government officials; but when the lawmaking
power speaks upon a particular subject over
which it has constitutional power to legislate