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not this court have said, under these facta, 'Tula
corporation violate a law of congress and slop
there and stop there? Why wag it necessary
for us to go in an olahorato and ingenious ar
gument, 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 the word 'unreasonable?'
Whothor it contains thoso words or not is of
no consequence in this case under this act. If
there ever was a case since tho organization of
this court in which a vast amount of an
elaborate and able opinion is pure obiter dicta
obitor dicta pure and simple it is tho opinion
delivered by the court in this case, as to tho
construction of this anti-trust act of 1890. I
can not oscapo that conclusion."
As Justico Harlan well says, in order to find
tho defendant companies guilty it was not
necessary for tho court to discuss tho question
of reasonableness or unreasonableness, for in
both cases the court decided that tho defendants
woro guilty even if the anti-trust law was
amended so as to prohibit, not every contract in
restraint of trade but only contracts that un
reasonably restrain trade. The court might
have met tho arguments of tho counsel for the
defendants by saying: "The question' which
you raise is immaterial and irrelevant. It is not
necessary for us to decide whether tho defen
dants would be guilty, if tho statute were con
strued according to the contention of tho
government. Wo may 'assume for the purposes
6f this case, without deciding tho question on
its merits, that the law reads as you say It
ought to read, still defendant companies aro
guilty of not only unreasonable restraint of
trade but of outrageous and inexcusable re
straint of trade. They can not hope to oscapo
under any contructlon of the law. In finding
against them, however, it is not necessary for
us to consider hypothetical cases. Wo are deal
ing with the cases before tho court. These de
fendants aro undoubtedly guilty. They aro
guilty of clear and unmistakable violation of
the law and they can not escape the conse
quences by questioning tho language of tho
statute; they would be guilty if we construed tho
statute, as they ask, to prohibit only unreason
able restraint." Tho court might have said this,
and if it had done so it would have been acting
in harmony with precedent, but instead of doing
this the court goes out of its way to interpret
the law, not fnr the benefit of those th.en before
the court but for the benefit of those who may
hereafter be brought before the court. Tho
public recognizes that the decision is Important,
not because of its eifect upon the Standard Oil
company and tho Tobacco company, but be
cause it furnishes a new Interpretation of the
law an interpretation that brings a smile to
tho face of every trust magnate but arouses
deep concern in the breasts of thoso who regard
a private monopoly as indefensible and In
tolerable. Fifth The decision of tho court is so revolu
tionary that it not only reverses a decision that
has stood for fifteen years, but it amends a law
enacted by congress, which the court refused to
amend in the Trans-Missouri Freight case. It
is true that Chief Justice White, then an asso
ciate justice, dissented, but according to our
law the decision of the majority of the court
stands as tho decision of the court even when
- that majority rests upon the opinion of ono
-justice; and to make it stronger still, even
when the opinion of that justice has changed
between two arguments of the case, as did the
opinion of one of the justices in the income
tax case. It is no slight matter for the supreme
. court of the United States to reverse itself upon
an important question, because a reversal can
not but affect rights based upon the former de
cision and interests built up upon that decision
as a foundation. But tho reversal of a former
decision is the more serious when such reversal
involves an encroachment upon the legislative
branch of the government. Justice Harlan in
his dissenting opinion very properly calls atten
tion to the language of the court when this
identical question was before them in the Trans
Missoiiri Freight case. Ho quotes the following
from the decision in that case: "To say, there
fore, that the act excludes agreements which
aro not in unreasonable restraint of trade, and
which tend simply to keep up reasonable rates
for transportation, is substantially to leave the
question q$ unreasonableness to tho companies
t themselves. But assuming that agreements of
this nature are not void at 'common law and
that tho various cases cited by the learned
courts below shfcw it, the answer (to the state
ment of their validity now is to bo found in
the terms of the statute under consideration.
The Commoner.
Tho arguments which have been addressed to
us against tho inclusion of all contracts in
restraint' of trade, as provided for by the lan
guage of the act, have been based upon tho
alleged presumption that congress, notwith
standing tho language of the act, could not have
intended to embraco all contracts, but only such
contracts as woro in unreasonable restraint of
trade. Under these circumstances wo aTe, there
foro, asked to hold that tho act of congress
excepts contracts which aro not in unreasonable
retralnt of trade, and which only keep rates up
to a reasonable price, notwithstanding the lan
guage of tho act makes no such exception. In
other words, we are asked to read into the act
by way of judicial legislation an exception that
is not placed there by the lawmaking 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 tho language it
used. This we can not and ought not to do.
If the act ought to read, as contended for by
defendants, congress Is the body to amend it
and not this court, by a process of judicial
legislation whollv unjustifiable."
"Itwiirbe seen tEat tne coufl aTTtnat Time
not only refused to amend the anti-trust law
by inserting the word "unreasonable," but de
clared that it had no constitutional right to do
so. The court now does the very thing which
the court then declared to be unconstitutional.
..What higher condemnation is there than con
demnation spoken by the highest court of our
land? Of course, the last decision supersedes
any former decision. If the court declares today
that the Insertion of the word "unreasonable"
in the anti-trust law would not be judicial con
struction but a legislative act, prohibited by the
constitution If the court decides that today,
and next year a new set of judges reverses the
decision, the new decision would stand as tho
' supreme law of the land, but it would not
lessen the moral weight of the former decision.
The court which decides that it has no right to
exercise a certain power thus deciding against
itself must have weight with an unprejudiced
mind., even though the court, composed of
different judges, decides later that it possesses
the power formerly denied. We understand the
natural tendency to enlarge upon one's powers
a tendency from Which courts are not entirely
free, and we dan not at onco rid our minds of
tho improssion that tho opinion, or the former
court deserves careful consideration.
Under our constitution the court has the final
word as to a law, and the only way in which
the public can protest against judicial legisla
te is through the legislative branch of the
government. While the constitution divides the
federal government into three branches, each
independent of the other, it gives to the supreme
court the power of interpretation, and this
transcends, for the time bGlng, the powers vested
in the legislature. But the people are not
mocked; they can by legislation restrict the con
struction of the court and'prohibit a construc
tion which will nullify a statute.
Then, too, the people can reach a court
through the changes that are constantly occur
ring in the personnel of the court. It would
have been difficult fifteen years ago to conceive
of such a change In the court as would result
in an eight-to-one decision overruling the de
cision of that date, but, since such a change has
taken place, it is possible to conceive of another
change during the next fifteen years that will
bring at least a majority of the court back to
the rule that prevailed before the so-called "rule
of reason" took violent possession of the court.
It is possible, also, that congress may see fit to
express its disapproval of the construction
placed upon the anti-trust law by the court in
the Standard Oil and Tobacco cases. It may
see fit to pass some of the bills already intro
duced, snecifically declaring that tho inw nm
hibits all restraint of trade not merely un
reasonable restraint.
While I think that this ought to be done in
order that the present law- may not be robbed of
such strength as it possesses, such legislation
should be accompanied by further legislation
that will fix arbitrarily the percentage of the
total product which one corporation can control.
The law, as it formerly stood and as it was
previously construed, was uncertain enough
it was difficult for. a corporation to know
exactly what it might or might not lawfully do,
but this uncertainty is greatly increased by
tho insertion of the word "unreasonable," The
democratic platform of 1908 set forth a remedy
which would, in the opinion of thoso who urge
it, afford, substantial relief to the public with
out doing injustice to any corporation. The
VOLUME 11, NUMBER 27
platform contemplates the licensing of any cor
poration engaged in interstate commerce, when
that corporation controls as much as 25 per
cent of the total product; corporations controll
ing a less proportion would not be affected By
tho plan. Corporations taking out tho proposed
license would be subject to any restrictions that
congress thought necessary to the proper con
duct of their business, .as well as to the laws
of any state in which they did business, and
no corporation would be permitted to control
more than one-half of tho total product'. We
should have this additional legislation clearly
and specifically drawing the line between tho
corporations engaged in legitimate work and
the corporations which are engaged in unlawful
transactions. Such legislation is demanded in
the interest of the public and in the interest
of legitimate business as well. It is not right
to assume that any large percentage of our busi
ness men desire to engage in transactions which
are harmful to the public, and those who are
engaged in intentional wrongdoing should be
segregated and subjected to punishment. Legi
timate business has too long had to bear the
odium thrown upon it by those guilty of con
duct indefensible in morals as well as repugnant
to the letter -and spirit of the statutes.
Before passing from this branch of the sub
ject it may be worth while to inquire whether
the court, in entering upon judicial legislation,
does not encourage those who favor a change
in the method of selecting judges. Whatever
may be said in favor of the appointment for
life of men engaged in INTERPRETING the
law, no good reason can be given for the 'ap
pointment, especially for life, of a LEGISLA
TIVE body. Nothing is more abhorrent to our
institutions than an appointive legislative body.
Even the United States senate is elective and
its members hold office for a specified term, and
yet the sentiment in favor of popular election
is so strong that we are upon the eve of a
change which will make senators elective by
direct -vote of the people. If the supreme court
is to become a legislative body what-reason can
be given for not making it elective also? The
people would submit much more willingly to
. judicial legislation if they had a chance to elect
the judges for fixed terms. Will they consent
to legislation on important questions by a court
whose members are not only appointed by the
president but appoited FOR LIFE? Justice
Hurlau thus answers the question: "Nobody
can tell what will happen. When this American
people come to the conclusion that the judiciary
of this land is usurping to itself the functions
of the legislative department of the government,
and, by judicial construction only, is declaring
what is the public policy of the United States,
we will find trouble. 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 departments
of the government and the power on its part
to declare what is the public policy of the
United States."
Sixth Attention has been called to a number
of questions raised by the decision of the
court but there is one point which above all
others, challenges the attention of the public at
this time. What will be the effect of the court's
decision on the statute which it CONSTRUES
(to use its language) or, (to use the language
of the dissenting justice) VIRTUALLY RE
PEALS? The anti-trust law of 1890 reads:
"EVERY contract, combination in the form of
trust or otherwise, or conspiracy in restraint
of trade or commerce, etc." The court declares
that the statute should be construed (or
amended) to read "Every contract, combina
tion in the form of trust or otherwise or con
spiracy in UNREASONABLE restraint of trade
or commerce, etc." Of one thing there is no
doubt, namely, that this construction or amend
ment of the law excludes from the penalties of
the act SOME corporations that might, by the
construction placed upon It fifteen years ago,
be found guilty of a violation of the law. That
is, it LESSENS the number of corporations to
which it applies, and to this extent WEAKENS
the law as a protection to the public.
To understand this decision we must remem
ber th,at after the decision of fifteen years ago
the great corporations attempted to secure an
amendment to the law EXACTLY IN LINE
WITH THE PRESENT DECISION. While this
effort has been continuous it is only necessary
to refer to the attempt cited by Justice Harlan
in his dissenting opinion. This instance is used
not only because it is a recent attempt (made
in 1909) but because the judiciary committee
, of the senate filed an elaborate repqrt, setting
. forth the reasons why the yord "unreasonable
.
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