Page:Earle, Does Price Fixing Destroy Liberty, 1920, 084.jpg

84 be with such increase of a never extinguished competition as it might be guessed would have existed * * *  ''with exclusion of the actual effect of other abnormal influences,  * * *  is a problem that no human ingenuity could solve. The reason is not the general uncertainties of a jury trial, but that the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect to the acutest commercial mind. The very community, the intensity of whose wish relatively to its other competing desires determines the price that it would give, has to be supposed differently organized and subject to other influences than those under which it acts."  Turning to the Nash case, the learned Justice continues: "That deals with the actual, not with an imaginary condition other than the fact.''  * * *  But if business is to go on, men must unite to do it and must sell their wares. To compel them to guess on peril of indictment what the community would have given for them if the continually changing conditions were other than they are, to an uncertain extent; to divine prophetically what the reaction of only partially determinate facts would be upon the imaginations and desires of purchasers, is to exact gifts that mankind does not possess."

This case has been again and again followed by the Supreme Court, as is seen in the Collins case, in the Malone case, and in United States vs. Pennsylvania Railroad Co. As Mr. pointed out in the Collins case, a man is not bound to determine his