Page:The Green Bag (1889–1914), Volume 16.pdf/351

 304

from entering into combinations in restraint of trade. The function of the State to inter fere to maintain the ordinary processes of competition from such attack- cannot be de nied. It isv however, at present, not consti tutional to prohibit an individual from acquir ing such property as he will for any purpose that he pleases. The difference between these two things arises from the greater potentiality of the combination for the dis ruption of the industrial order. This is the result of United States v. Trans-Missouri Freight Association, United States v. Fruit Traffic Association, Addystone Pipe Com pany v. United States and Northern Securi ties Company v. United States. In the second place, Federal legislation may interfere in all business operations that affect interstate commerce in any direct way, and confederacy to raise prices or to divide markets is within this. On the other hand, the Federal Government may not interfere to regulate the conduct of business opera tions that have no direct effect upon inter state commerce, as the manufacture of com modities or the wages of laborers. Upon that point United States v. E. C. Knight and Hopkins v. United States are to be compared with Addystone Pipe and Steel Company v. United States, and Northern Securities Company v. United States. Third, all combinations of every sort are within the prohibition, whether in the form of-pools, 'or trusts/ or holding corporations, or other device. If the fact of existing con spiracy be established, it is enough. The great question still remains unsettled wheth er the single corporation which buys out right the properties of former companies with intent to monopolize, is subject to dis solution. The case of the Northern Securities Company v. United States is more nearly that than is the case of Montague v. Lowry; and obviously the law has gone far beyond

United States v. Trans-Missouri Freight As sociation and Addystone Pipe and Steel Company v. United States in that respect. There is still the conspicuous distinction that in the case of the holding corporation, a combination of existent corporations re mains in existence defying the law; while in the case of the single corporation it is diffi cult to find a continuing combination against the law after the transaction is complete. As a last point, it is to be remarked again, that by the opinion of five justices at least, the prohibition may extend only against un reasonable restraint of trade. To sum the matter up, the present anti-trust law is now held remedial, not substantial in its provis ions. What is a combination in restraint of trade, or to monopolize it, remains a com mon law question; the statute simply pro vides effective Federal procedure—the in junction and the indictment. Without doubt this is the most important result of the con flict of the opinions in the Merger Case. By this alone a great advance is to be marked from United States v. Trans-Missouri Freight Association to Northern Securities Company v. United States. The portentous thing in all of these deci sions is the force of the Federal Government. Upon the whole, one feels the conviction that there is power enough in the Federal -Gov ernment to deal with the trust problem. It will be well if that proves to be the outcome. What the situation requires is uniform regu lation. This it can have alone from the gen eral government. It means perpetual anar chy for the industrial situation unless the artificial lines of the States be ignored and the commercial interests of the country be treated as a whole. The fate of the nation must be entrusted to the national govern ment. Concessions may be made by the majority judges to the minority judges in all but this.