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The Commoner.
,7
JUNE 16, 1911
over which it has constitutional power to legis
late, public policy in such a case is what tho
statute enacts. If the law prohibits any contract
or combination in restraint of trade or com
merce, a contract or combination made in viola
tion of such law is void, whatever may havo
been theretofore decided by the courts to havo
been the public policy of the country on that
subject. The conclusion which wo have drawn
from the examination above made into the ques
tion before us is that the anti-trust act applies
to railroads, and that it renders illegal all agree
ments which are in restraint of trade or com
merce as we have above defined that expression,
and the question then arises whether the agree
ment before us is of that nature."
. 1 have made theBo extended extracts from tho
opinion of the.court in the trans-Missouri freight
case in order to show beyond question that tho
point was there urged by counsel that the anti
trust act condeemed only contracts, combina
tions, trusts, and conspiracies that were in un
roasonablo restraint of interstate commerce, and
that tho court in clear and decisive language met
that point. It adjudged that congress had in
unequivocal words declared that every contract,
combination, In the form of trust or otherwise or
conspiracy In restraint of commerce among the
several states" shall bo illegal, and that no dis
tinction, so far as interstate commerce was con
cerned, was to be tolerated between restraints
of such commerce as were undue or unreasonable
and restraints that were due or reasonable. With
full knowledge of the then condition of the
country and of its business, congress determined
to meet, and did meet, the situation by an abso
lute, statutory prohibition of "every contract,
combination, In the form of trust or otherwise,
in restraint of trade or commerce." Still more,
in response to the suggestion by able counsel
that congress intended only to strike down such
contracts, combinations, and monopolies as un
reasonably restrained interstate commerce, this
court, In words too clear to be misunderstood,
said that to so hold was "to read into the act
by way of judicial legislation, an exception not
placed there by the lawmaking branch of the
government." "This," the court said, as we
have seen, "wo can not and ought not to do."
It thus appears that 15 years ago, when the
purpose of congress in passing the anti-trust act
was fresh in the minds of courts, lawyers, states
men, and "the general public, this court expressly
declined to indulge in judicial legislation, by
inserting in the act 'he Word "unreasonable." or
any other word of like import. It may be stated
here that the country at large accepted this view
of the act, and the federal courts throughout the
entire country enforced its provisions according
to the Interpretation given In the freight associa
tion case. What, then, was to be done by those
who questioned the soundness of the interpre
tation placed on the act by this court in that
case? As the court had decided that to Insert
the word "unreasonable" in the act would be
"judicial legislation" on its part, the only alter
native left to those who opposed the decision
in that case was to Induce congress to so amend
the act as to recognize the right to restrain Inter
state commerce to a reasonable extent. ' The pub
lic press, magazines, and law journals, the de
bates in congress, speeches and addresses by
public men and jurists, all contain abundant evi
dence of the general understanding that the
meaning, extent, and scope of the anti-trust act
had been judicially determined by this court,
and that the only question remaining open for
discussion was the wisdom of the policy declared
by the act a matter that was exclusively within
the cognizance of congress. But" at every ses
sion of congress since the decision of 189 G, the
lawmaking branch of the government, with full
knowledge of that decision, has refused to
change the policy it had declared or to so amend
the act of 1890 as to except from its operation
contracts, combinations, and trusts that reason
ably restrain interstate commerce.
But those who were in combinations that were
Illegal did not despair. They at once set up the
baseless claim that the decision of 1896 dis
turbed the "business interests of the country,"
and let it be known that they would never be
content until tho rule was established that would
permit interstate commerce to be subjected to
reasonable restraints. Finally, an opportunity
came again to raise the same question which
this court had, upon full consideration, de
termined in 1896. I now allude to the case of
Unites State v. Joint Traffic association, 171
U. S., 505, decided in 1898. What was that
case?
It was a suit by the United States against
more than 30 railroad companies -to have tho
court declare illegal, under the anti-trust act.
ff certain agreement between those companies.
Tho relief asked was denied in tho subordinate
federal courts and tho government brought tho
case here.
It is important to state the points urged In
that case by tho defendant companies charged
with violating the anti-trust act, and to show
that tho court promptly met thorn. To that end
I make a' copious" extract from the opinion in
the Joint traffic case. Among other things, tho
court said:
"Upon comparing that agreement tho ono In
the joint traffic cases, then under consideration,
171 U. S., 505 with the ono sot forth in tho
case of United States v. Trans-Missouri Freight
association, 166 U. S 290, tho great similarity
between them suggests that a similar result
should be reached in tho two caBes (p. 558.)"
Learned counsel in the joint traffic case urged
a reconsideration of tho question decided in the
trans-Missouri case, contending that "the de
cision in that case the trans-Missouri freight
case is quite plainly erroneous, and the conse
quences of such error are far-reaching and dis
astrous and clearly at war with justice, and
sound policy, and the construction placed upon
tho anti-trust 'statute has been received by tho
public with surprise and alarm." Thoy sug
gested that tho point made in tho joint traffic
case as to the meaning and scope of tho act
might have been but was not made in tho
previous case. Tho court said (171 U. S., 559)
that "tho report of tho trans-Missouri case
clearly shows not only that the point now taken
was there urged upon the attention of tho court,
but It was then intentionally and necessarily
decided.1'
.The question whether -the court should again
consider the point decided in the trans-Missouri
case was disposed of in tho most decisive lan
guage, as follows:
"Finally, we are asked to reconsider the ques
tion decided In the trans-Missouri case, and to
retrace the steps taken therein, because of tho
plain error contained in that decision and tho
widespread alarm with which it was received
and the serious consequences which havo re
sulted, or may soon result, from tho law as
interpreted in that case. It Is proper to remark
that an application for a reconsideration of a
question but lately decided by this court is
usually based upon a statement that some of
tho arguments employed on the original , hear
ing of the question .have been overlooked or mis
understood, or that some controlling authority
has been either misapplied by tho court or
passed over without discussion or notice. While
this is not strictly an application for a rehearing
in the same case, yet in substance It is the same
thing. The court is asked to reconsider a ques
tion but just decided after a careful investiga
tion of the matter involved. There have here
tofore been in effect two arguments of precisely
the same questions now before the court, and
the same arguments were addressed to us on
both those occasions. The report of the trans
Missouri case- shows a dissenting opinion de
livered in that case, and that the opinion was
concurred in by three other members of the
court. That opinion, It will be seen, gives with
great force and ability the arguments against
the decision which was finally arrived at by
the court. It was after a full discussion of the
questions involved and with the knowledge of
the views entertained by the minority, as ex
pressed in the dissenting opinion, that the ma
jority of the court came to the conclusion it
did. Soon after the decision a petition for a
rehearing of the case was made, supported by
a printed argument in its favor, and pressed
with an earnestness and vigor and at a length
which were certainly commensurate with the
importance of the case. This court, with caro
and deliberation and also with a full apprecia
tion of their importance, again considered the
questions Involved in its former decision. A
majority of the court once more arrived at the
conclusion it had first announced, and accord
ingly it denied the application. And now for
the third time the same arguments are em
ployed, and the court is again aBked to recant
its former opinion, and to decide the same
question in direct opposition to the conclusion
arrived at in the trans-Missouri case. The
learned counsel while making the application
frankly confess that the argument in opposition
to the decision in the case above named has
been so fully, so clearly, and so forcibly pre
sented in the dissenting opinion of Mr. Justice
White in the freight case that it is hardly
possible to add to it, nor is it necessary to re
peat it. The fact that there was so close a
division of opinion in this court when the matter
was first under advisement, together with the
different views taken by somo of tho Judges of
tho lower courts, led us to tho most caToful and
scrutinizing examination of tho arguments ad
vanced by both sides, and It was nftor such an
examination that tho majority of tho court camo
to tho conclusion It did. It Is not now
alleged that tho court on tho former occasion
overlooked any argumont for tho respondents or
misapplied any controlling authority. It is
simply insisted that tho court, notwithstanding
tho arguments for an opposite view, arrived at
an erroneous result which, for reasons already
stated, ought to bo reconsidered and reversed.
As wo have twlco already deliberately and
earnestly considered tho same arguments which
aro now for a third time pressed upon our atten
tion, it could hardly bo expected that our opinion
should now chango from that already expressed."
These utterances, taken in connection with
what was previously said In tho trans-Missouri
freight case, show so clearly and affirmatively
to admit of no doubt that this court many years
ago, upon the fullest consideration, interpreted
the anti-trust act ns prohibiting and making
illegal not only every contract or combination,
in whatever form, which was In restraint of
interstate commerce, without regard to its
reasonableness or unreasonableness, but all
monopolies or attempt to monopolize "any part"
of such trade or commerce. Let me refer to a
few other cases In which the scopo of the decision
in tho freight association case was referred to:
In Bomont v. National Harrow Co. (186 U. S.,
70, 92) tho court said, "It is truo that it has
been hold by this court that tho act (anti-trust
act) included any restraint of commerce, whethor
rcasonablo or unreasonable," citing United
States v. Trans-Missouri Freight association (166
U. S., 290); United States v. Joint Traffic as
sociation (171 U. S., 505) Addyston Pipo, etc.,
Co. v. United States (175 U. S., 211). In Mon
taguo v. Lowry (193 U. S., 38, 46,) which in
volved the validity, under tho anti-trust act, of
a certain association formed for tho salo of tiles,
mantels, and grates, tho court, referring to the
contention that the sale of tiles in San Fran
cisco was so small "as to be a negligible quan
tity," held that tho association was, nevertheless,
a combination in restraint of interstate trade or
commerce in violation of tho anti-trust act. In
Loewo v. Lawlor (208 U. S., 274, 297) all tho
members of this court concurred In saying that
tho Trans-Missouri, Joint Traffic, and Northern
Securities cases "hold In effect that tho anti
trust law has a broader application than the pro
hibition of restraints of trado unlawful at com
mon law." In Shawnee Compress Co. v. Ander
son (1907) (209 U. S., 423, 432) all the mem
bers of tho court again concurred in declaring
that "it has been decided that not only unreason
able but all direct restraints of trade are pro
hibited, the law being thereby distinguished from
tho common law." In United States v. Addyston
Pipe Co. (85 Fed. Rep., 278) Judge Taft, speak
ing for the circuit court of appeals for tho Sixth
circuit, said that according to tho decision of
this court In the freight association case "con
tracts In restraint of interstate transportation
woro within tho statute, whether tho restraints
could bo regarded as reasonable at common law
or not." In Chespeake & Ohio Fuel Co. v.
United States (1902) (115 Fed. Rep., 610, 619)
the circuit court of appeals for the Sixth circuit,
after referring to the right of congress to regu
late interstate commerce, thus Interpreted tho
prior decisions of this court in the Trans-Missouri,
the Joint Traffic, and tho Addyston Pipo
& Steel Co. cases: "In the exercise of this right
congress has seen fit to prohibit all contracts in
restraint of trade. It has not left to tho courts
tho consideration of tho question whether such
restraint is reasonable or unreasonable, or
whether the contract would havo been Illegal at
the common law or not. Tho act leaves for con
sideration by judicial authority no question of
this character, but all contracts and combina
tions are declared illegal if in restraint of trade
or commerce among the states."
As far back as Robbing v. Shelby Taxing Dis
trict (120 U. S., 489, 497) it was held that cer
tain local regulations, subjecting drummers en
gaged in both Interstate and domestic trade,
could not be sustained by reason of the fact that
no discrimination was made among citizens of
tho different states. The court observed that
this did not meet the difficulty, for the reason
that "Interstate commerce can not be taxed at
alL" Under this view congress no doubt acted,
when by the anti-trust act it forbade any re
straint whatever upon Interstate commerce. It
manifestly proceeded upon the theory that in
terstate commerce could not be restrained at all
by combinations, trusts, or monopolies, but mi
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