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5
The Commoner.
VOLUME 11, NUMBER 2J
Justice Harlan's Great Dissenting Opinion
Villi toxt of JuBtlco John M. Harlan's dissenting opinion In tho Standard Oil case, delivered in tho
supremo court of tho United States, May 15, 1911.
mcrco was concerned, might not be dominated
Mr. Justico Harlan, concurring in part and
dissenting in part:
A sonso of duty constrains mo to express tho
objections which I havo to certain declarations
in tho opinion just delivered on behalf of tho
court.
I concur in holding that tho Standard Oil
company of Now Jersey and its subsidiary com
panies constitute a combination in restraint of
intorstato commerce, and that they havo at
tomptod to monopolize and havo monopolized
parts of such commerce all in violation of what
is known as tho anti-trust act of 1890. (26 Stat,
209, c. 647.) Tho evidence in this case over
whelmingly sustained that view and led tho
circuit court, by its final decree, to order tho
dissolution of the New Jersey corporation and
tho discontinuance of tho illegal combination
botweon that corporation and its subsidiary
companies.
In my judgment, the decree below should havo
boon afllrmod without qualification. But tho
court, while affirming tho decree, directs some
modifications in respect of what it characterizes
as "minor mattors." It is to bo apprehended
that thoso modifications may provo to be mis
chievous. In saying this I havo particularly In
view the statement in tho opinion that "it does
not necessarily follow that becauso an illegal
restraint of trade or an attempt to monopolize
or a monopolization resulted from tho combina
tion and the transfer of tho stocks of the subsi
diary corporations to the New Jersey corpora
tion, that a like restraint of trade or attempt
to monopolizo or monopolization would neces
sarily arise from agreements betweeri one or
moro of the subsidiary corporations after the
transfer of tho stock by the New Jersey corpora
tion." Taking this language, in connection with
other parts of tho opinion, tho subsidiary com
panies are thus, in effect, informed unwisely,
I think that, although the New Jersey corpora
tion, being an illegal combination, must go out
of existence, thoy may join in an agreement to
restrain commerce among the states if such
restraint be not "undue."
In order that my objections to certain parts
of the court's opinion may distinctly appear, I
must state tho circumstances under which con
gress passed tho anti-trust act and trace tho
course of judicial decisions as to its meaning and
scope. This is the more necessary because the
court, by its decision, when interpreted by the
language of its opinion, has not only upset the
long-settled interpretation of the act, but has
usurped the constitutional functions of the legis
lative branch of the government. With all due
respect for tho opinions of others, I feel bound
to say that what the court has said may well
cause some alarm for the integrity of our insti
tutions. Let us soe how tho matter stands.
All who recall the condition of the country
in 1890 will remember that there was every
where among tho people generally a deep feel
ing of unrest. Tho nation had been rid of human
slavery fortunately, as all now feel but tho
conviction was universal that the country was
in real danger from another kind of slavery
Bought to be fastened on tho American people,
namely, tho slavery that would result from
hv vfiat combinations and monopolies, having
power to advanco thoir own selfish ends, regard
less of tho general interests and welfare, con
gross passed tho anti-trust act of 1890 in theso
words (tho bold face type here and elsewhere
in this opinion are mine):
"Sec. 1. Every contract, combination in tho
form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among tho
several states, or with foreign nations, is hereby
declared to be illegal. Every person who shall
make any such contract or engage in any such
combination or conspiracy, shall bo deemed
guilty of a misdemeanor, and on conviction
thereof, shall bo punished by fine not exceeding
$5,000, or by imprisonment not exceeding ono
year, or both said punishments, in the discretion
of tho court.
"Sec. 2. Every person who shall monopolize,
or attempt to monopolize, or combine or conspire
with any other persons or persons, to monpo
llze any part of the trade or commerce among
the several states, or with foreign nations, shall
be deemed guilty of a misdemeanor, and, on
conviction thereof, shall be punished by fine
not exceeding $5,000, or by Imprisonment not
exceeding one year, or both said punishments,
in the discretion of tho court.
"Sec. 3. Every contract, combination in form
of a trust or otherwise, or conspiracy, in re
straint of trade or commerce in any territory
of tho United States, or "of tho District of Colum
bia, or in restraint of trade or commerce between
any such territory and another, or between any
such territory or territories and any state or
states or the District of Columbia, or with foreign
nations, or between the District of Columbia
and any state or states or foreign nations, is
hereby declared illegal. Every person who shall
make any such contract or engage in any such
combination or conspiracy shall be deemed guilty
of a misdemeanor, and, on conviction thereof,
shall be punished by fine not exceeding $5,000,
or by Imprisonment not exceeding one year, or
both said punishments, in the discretion of the
court." (26 Stat. 209, c. 647.)
The Important inquiry in the present case is
as to the meaning and scope of that act In its
application to interstate commerce.
In 1896 this court had occasion to determine
the meaning and scope of the act in an important
case known as the trans-Missouri freight case.
(166 U. S., 290.) The question there was as
to the validity under the anti-trust act of a
certain agreement between numerous railroad
companies, whereby they formed an association
for the purpose of establishing and maintaining
rates, rules, and regulations in respect of freight
traffic over specified routes. Two questions were
Involved: First, whether the act applied to rail
road carriers; second, whether the agreement
which was tho basis of the suit which the United
States brought to have the agreement annulled
was Illegal. The court held that railroad car
riers were embraced by the act. In determining
that question the court, among other things
said: '
"The language of the act includes every con-
w uul, uuiuDinauon m uie rorm or trust or other-
aggregations of capital in tho hands of a few J wise, or conspiracy in restraint of trade or com-
lndiViduals and, corporations controlling, for
thoir own profit and advantage exclusively, the
entire business of the country, including tho
production and sale of the necessaries of life.
Such a danger was thought to be then immi
nent, and all felt that it must be met firmly
and by such statutory regulations as would
adequately protect the people against oppres
sion and wrong. Congress therefore took up
the matter and gave the whole subject tho
fullest consideration. All agreed that tho na
tional government could not, by legislation, regu
late the domestic trad carried on wholly within
the several states for power to regulate such
trade remained with, because never surrendered
by, the states. But, under authority expressly
granted to it by tho constitution, congress could
regulate commerce among the several states
and with foreign states. Its authority to regu
late such commerce was and is paramount, duo
force being given to other provisions of the
fundamental law devised by the fathers for the
safety of the government and for the protection
and security of the essential rights inhering in
rlife, liberty, and -property.
Guided by these considerations, and to tho
end that the people, so far as .interstate com
merce among tho several states or with foreign
iiuuuutj. do tar as me very terms or the statute
go, they apply to any contract of the nature
described. A contract therefore that is in re
straint of trade or commerce is by tho strict
language of the act prohibited, even though such
contract is entered into between competing com
mon carriers by railroad, and only for the pur
poses of thereby affecting traffic rates for the
transportation of persons .and property. If such
an agreement restrains trade or commerce, it is
prohibited by the statute, unless It can be said
that an agreement, no matter what Its terms,
relating only to transportation can not restrain
trade or commerce. We see no escape from the
conclusion that if an agreement of such a nature
does not restrain It the agreement is condemned
by this act. Nor is it for the sub
stantial interests of the country that any one
commodity should be within the sole power and
Bubject to the sole will of one powerful combi
nation of capital. Congress has, so far as its
jurisdiction extends, prohibited all contracts or
combinations in tho form of trusts entered into
for tho purpose of restraining; trade and com
merce. While the statute prohibits
all .combinations in tho form of trusts or -other?
wise, the limitation is not confined to that form
alono. All combinations which are in restraint
of trade or commerce are prohibited, whether in
tho form of trusts or in any other form what
ever." (U. S. v. Freight Asso., 166 U. S., 290,
312, 324, 326.)
The court then proceeded to consider tho
second of tho above questions, saying:
"Tho next question to be discussed is as to
what is the true construction of the statute,
assuming that it applies to common carriers by
railroad. What is the meaning of the language
as used in the statute, that 'every contract,
combination in the form of trust or otherwise,
or conspiracy In restraint of trade or commerce
among the several states or with foreign nations,
is hereby declared to be illegal?' Is it confined
to a' contract or combination which is only in
unreasonable restraint of trade or commerce, or
does It include what the language of the act
plainly and in terms covers, all contracts of that
nature? It is now with much amplification of
argument urged that the statute, in declaring
illegal every combination in the form of trust
or otherwise, or conspiracy in restraint of trade
or commerce does not mean what the language
used therein plainly imports, but that it only
means to declare illegal any such contract which
is in unreasonable restraint of trade, while leav
ing all others unaffected by the provisions of
the act; that the common-law meaning of the
term 'contract in restraint of trade includes only
such contracts as are in unreasonable restraint
of trade, and when that term is used in the
federal statute It is not intended to include all
contracts in restraint of trade, but only those
which are in unreasonable restraint thereof.
By the simple use of the term 'con
tract in restraint of trade,' all contracts of that
nature, whether valid or otherwise, would be in
cluded, and not alone that kind of contract
which was invalid and unenforceable as being in
unreasonable restraint of trade. When', there
fore, the body of an act pronounces as illegal
every contract or combination in restraint of
trade or commerce among the several states, etc.,
the 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 contracts are included in such language, and
no exception or limitation can be added without
placing In the act that which has been omitted
by congress. If only that kind of
contract which is in unreasonable restraint of
trade be within the meaning of the statute,- and
declared therein to be Illegal, it is at once ap
parent that the subject of what is a reasonable
rate is attended with great uncertainty.
To say, therefore, that the act excludes agree
ments which are not in unreasonable restraint
of trade, and which' tend simply to keep up
reasonable rates for transportation, is substan
tially to leave the question of unreasonableness
to -the companies themselves. But
assuming that agreements of this nature are not
void at common law and that the various cases
cited by the learned courts below show it, the
answer to the statement of their validity now is
to be found in tho terms of tho statute under
consideration. The arguments which
have been addressed to us. against the inclusion
of all contracts in restraint of trade, as pro
vided for by the language of the act, have been
based upon the alleged presumption that con
gress, notwithstanding the language of the act,
could not have intended to embrace all contracts,
but only such contracts as were in unreasonable
restraint of trade. Under these circumstances
we are, therefore, .aslred to hold that the act of
congress excepts contracts which are not in
unreasonable restraint of trade, and which only
keep rates up to a reasonable price, notwith
standing the language of the act makes no such
exception. In other words, we are asked to read
Into the act by way of judicial legislation nn
exception that is not placed there by the law
making branch of the government, and this is
to be done upon the theory that the impolicy of
such legislation is so clear that it can not be
supposed congress Intended the natural import
of the language used. This we can not and
ought not to do.
v "? the act 0llSht to read, as contended for by
the defendants, congress is tho body to amend it
and not this court, by a process of judicial legis
lation wholly unjustifiable. Large numbers do
not agree that the view taken by defendants is
sound or true In substance, and congress may
and very probably did share in that belief in
passing the act. The public policy of the govern
ment Is to be found in its statutes, and when
they havo not directly spoken, then in the de-
?uB the courts and the constant practice
of the government officials; but when the law
making nower speaks upon a particular subject,
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