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The Commoner.
Harlan Says the Court Makes Black White
; and White Black; "People Will Not Submit"
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Ninety Millions of People All Sorts of People With All Sorts of Opinions Are Not
Going to Submit to the Usurpation by the Judiciary of the Functions of Other Depart
ments of the Government and Power to Declare Public Policy of the United States"
Washington, May 29. (Special to New York
World) Associate Justice Harlan delivered a
vigorous dissent today to part of the decision of
the supreme court of the United States in the
Tobacco trust case, although ho agreed that the
American Tobacco company and its accessory
and subsidiary corporations were members of
an unlawful combination in violation of the
Sherman anti-trust act. He said:
"I concur with some things said in the opinion
just delivered for the court, but some observa
tions are made in the opinion from which I am
compelled to withhold my assent. What I have
now to say must necessarily bo oral, for the
court's opinion was not delivered to me until
late Saturday evening, and it has been impos
sible for me, since then, to put in writing the
views which I deem it necessary to express. I
do not refer to this by way of complaint, for
the delay in delivering to me a copy of the
opinion of the court has no. doubt been unavoid
able. I will hereafter prepare and file a written
opinion expressing my views fully.
AN ILLEGAL COMBINATION
"I agree with the court in holding that the
principal defendant, the American Tobacco com
pany, and its accessory and subsidiary corpora
tions and companies, including the defendant
English corporations, are co-operators in a com
bination which, in and of itself, as well as each
and all of the elements composing it, whether
corporate or individual, whether considered
collectively or separately, are illegal under the
anti-trust act of 1890 and should be decreed to
be in restraint of interstate trade and an attempt
to monopolize and a' monopolization of part of
such trade.
"The evidence in the record is, I think, abun
dant to enable the court to render a decree con
taining all necessary details that will effectually
suppress the evils of the combination in ques
tion. But the court sends the case back with
the direction to further hear the parties so as
to ascertain, whether a new condition cannot
be recreated in harmony with the law. I have
found nothing in the record which makes me at
all anxious to perpetuate any new combination
among these companies, which the court con
cedes had at all times exhibited a conscious
wrong-doing.
"The court says: 'The history of the combi
nation is so replete with the doing of acts which
it was the obvious purpose of the statute to for
bid, so demonstrative of the existence from the
beginning of a purpose to acquire dominion and
control of the tobacco trade, but by methodg
devised in order to monopolize the trade by driv-
ing competitors out of business, which were
ruthlessly carried out upon the assumption that
to work upon the fears or play upon the cupidity
of competitors would make success possible.'
FORM OF THE DECREE
"Why should this court with a record before
it that enables it to indict that corporation, and
to Bay, In substance, that it is an enemy and
a menace to the public interests, order this, case
to the circuit court, not to exercise its discretion,
but to hear the parties again by evidence or
otherwise, to see If they cannot create a condi
tion consistent with the law? I will not now
say what should be the details of the decree or
the order hereafter to be made, nor speculate
as to what the details of that decree should be,
when this miserable combination is given an
opportunity to let itself down easy before the
public, after what it has done toward the public
according to the language of this court it will
"THE COMBINATION IN QUESTION
ILLEGAL UNDER ANY CON-
STRUOTION."
"Why should tliis court with a record
before it that enables it to indict that
corporation and say It is an enemy mid
a menace to the public interests order
tliis cose to the circuit court to see if
they cannot create a condition cinsistcnt
with the law?" "Tliis miserable combi-
. .nation is given an opportunity to let
itself down easy before the public."
be time enough to speak on that subject when
we have the decree before us.
"I will, however, say now that in my opinion
the decree below should be affirmed as to tho
tobacco company and its accessory and subsi
diary companies, and reversed on the cross-appeal
of tho government.
"But my objections have particular reference
to those parts of the court's opinion which re
affirm what it said recently in tho Standard Oil
case about tho former decisions of this court
touching the anti-trust act. Wo aro reminded
again, as we were In the Standard Oil case, of
the necessity to apply the 'rule of reason' in the
construction of the act of congress which is, I
think, expressed in language so clear and simple
that there is no room whatever for construction.
"Congress, with full and exclusive power over
the whole subject, has signified its purpose to
forbid EVERY restraint of interstate trade In
whatever form or to whatever extent, but the
court has assumed to insert In the act, by con
struction merely, words which make congress
say that It means only to prohibit 'undue' re
straint of trade.
"If I do not misapprehend the opinion just
delivered, the court says that what was said In
the opinion in the Standard Oil case was in
accordance with our previous decisions in the
trans-Missouri and joint traffic cases, if we 're
sort to reason.' This statement surprises me
quite as much as would a statement that black
was white or white was black.
"It is scarcely just for the court at this late
day to say or intimate that Justice Peckham
and his colleagues, who agreed with him, In-
terpreted the act of congress without regard to
the 'rule of reason' or to assume that the act
was, for the first time in the Standard Oil case,
interpreted in the 'light of reason.'
"The 'rule of reason,' I am sure, does not
justify tho perversion of the plain words of an
act of congress in order to defeat the will of
congress.
REVERSING CONGRESS
"By every conceivable form of expression
Justice Peckham and his associates In the trans
Missouri and joint traffic cases said that the act
of congress did. not allow restraint of interstate
trade -to any extent or In any form, and three
times distinctly rejected the theory persistently
advanced that the act should be construed as If
it had in it the word 'unreasonable' or 'undue.'
But now the court, in accordance with what it
denominates the 'rule of reason, in effect, in
serts in the act the word 'undue,' and makes
congress say what it did not say, what it plainly
did not intend to say and what, since the pas
sage of the act, it has explicitly refused to say.
"It has steadily refused to amend the act so
as to allow a restraint of interstate commerce
that was 'reasonable' or 'duo.' In short, tho
court now, by JUDICIAL LEGISLATION, In
effect, AMENDS AN ACT OF CONGRESS relat
ing to a subject over which that department of
tho government has exclusive cognizance. With
out intending in tho slightest dogreo to undor
rato tho ability of my brothren, I bog to say
that In my judgment Justice Peckham and his
assistants in tho former cases wero guided by
the 'rule of reason,' and knew quite as well as
others what tho rules of reason required when
tho court sought to ascertain the will of congress.
"MINDS UNMYSTIFIED"
"They did not grope about In darkness, but In
discharging tho solemn duty put on them by tho
constitution they stood out with minds un
mystified, in tho full glare of tho 'light of
reason,' and felt and said time and again that
tho court COULD NOT and ought not, under tho
constitution, to usurp tho functions of congress
by Indulging in judicial legislation.
"They said that to insert by construction tho
word 'unreasonable' or 'undue' in the act of con
gress would bo judicial legislation. Lot mo say
also that as wo all agree that tho combination
in question was illegal under any construction
of tho anti-trust act, whother It contained a pro
hibition of Interstate trade that was duo or un
due, or tho word reasonable or unreasonable,
there was not tho slightest necessity to enter
upon an argument to show that tho act of con
gress was read as if it contained the word 'un
reasonable' or 'undue.' All that tho court says
on tho subject is, I submit, OBITER DICTA,
puro and simple.
PEOPLE WILL NOT SUBMIT
"Nobody can tell what will happen. When
this American people come to the conclusion that
tho judiciary of this land Is usurping to itself
tho functions of tho legislative department of
tho government, and by judicial construction
only is declaring what is tho public policy of
the United States, wo will find trouble. Ninety
millions of people a"-, sorts of people with ail
sorts of opinions are' not going to submit to
the usurpation by the Judiciary of tho functions
of other departments of tho government and tho
power on Its part, to declare what Is the public
policy of tho United States.
"More than that, and still more than that,
it is a very serious matter. What does It
matter, so far as this case is concerned, whether
that act of congress contains the word 'reason
able' or does not contain the word 'reasonable?'
Wo will agree every man on this bench agrees
that this is an organization in violation of
tho act of congress, whether the word 'reason
able' is or is not in the act. It is a violation
of tho law of congress. Then, why could not
this court have said, under these facts, 'this
corporation violates a law of congress,' and stop
there and stop there? Why was it necessary
for us to go on. In an elaborate and ingenious
argument worthy of the genius of the chief
Justice, and attempt to show that this act should
bo interpreted as if it contained the word
'reasonable' or tho word 'unreasonable?' "
00
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