Page:Earle, Does Price Fixing Destroy Liberty, 1920, 137.jpg

Rh not go without comment. Judge Hazel then continues: "Presumably, Congress intentionally used the words 'unjust or unreasonable rate or charge' without qualification or the inclusion of a maximum price or standard to the end that there be a determination by the jury  * * *  in view of existing economic conditions." But he continues, properly: "In determining such question it is essential to consider all the facts and circumstances, whatever they may be, relating to the exacted rate or charge," having, however, frankly said further in the opinion that:  "Candor compels the admission that the objection of uncertainty is not altogether free from doubt." It is, however, believed that had he examined the real economic principles involved, he must have concluded that there could be no doubt that the Act as he assumed its meaning was unconstitutional; that even because of his own grave doubts upon this question of Constitutionality, he would have interpreted the Act to be in pari materia to the Common Law and the Sherman Act. He would not have supposed that the class of monopolistic enterprises, because of the necessity of curbing monopolies, established a general rule. On the contrary, he should have seen that because they could not properly be curbed by the better rule of freedom in trade, where prices would be fixed in free competition, the cases of monopolies constituted an exception to the general rule. As he himself points out: "It is essential to consider all the facts and circumstances" in matters where the most essential perhaps are inevitably still contained in the womb of the future.