The commoner. (Lincoln, Neb.) 1901-1923, July 14, 1911, Page 2, Image 2
i PC V- w 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 . - - .. . . . V1 "'"" V- .!,- II I -k r . 'v - .