Page:The Green Bag (1889–1914), Volume 16.pdf/466

 Rh

417

AN interesting discussion of the Merger On this point, the first opinion seems cor Case is printed over the initials "J. C. G.." rect, although the dangers of the abuse of the power are so great and so obvious that in the May issue of the Harvard Lau1 Review. one reaches the conclusion with reluc The writer, whom one may guess to be Pro tance. ... fessor Gray, reduces the case to its lowest II. Has Congress declared them to be terms. He says : criminals? Three Jerseymen, whom ve will call Mor gan, Hill and Lamont, own each a cart and What does the Statute make criminal? one horse. Their occupation is the carrying First: It makes criminal "Every contract, of eggs and chickens from the neighboring combination in the form of trust or otherwise, farmers to a market town over the New - or conspiracy, in restraint of trade or com merce among the several States, or with for York border. They agree to form a corpor eign nations." Secondly: It declares that ation under the name of the Interstate Poul "Every person who shall monopolize, or «ittry Traffic Association. The only capital tempt to monopolize, or combine or conspire they turn in consists of their horses and with any other person or persons, to mono carts, except a few dollars contributed to pay polize any part of the trade or commerce for their charter. Are they criminals liable among the several States, or with foreign to be fined $5000 apiece and imprisoned for nations" shall be deemed guilty of a crime. a year? This simple but typical case seems to serve The prevention of competition is not crim better to test the doctrines laid down in the inal unless it is a restraint of trade or a mon Merger decision than the sensational facts opolizing. which were there actually before the court A contract in restraint of trade is some There are two questions: thing well known to the common law. It is I. Could Congress declare such men to a contract by which a person carrying on a business agrees with another to abandon or be criminals? T I. Has Congress declared them to be restrict that business. criminals? Monopolizing a business is excluding out I. Congress has full power over inter siders from carrying on the business. state commerce. The power to regulate com In our typical case, and in the case of the merce includes the power to destroy it by an Northern Securities Company, there was no embargo or by a prohibitive protective tariff, contract by which a person or corporation and such regulation can be enforced by abandoned or restricted his own business. criminal statutes. If a junction of interest is a restraint of Can Congress say to a person actually en trade, then two expressmen who have been gaged in interstate commerce: "You shall carrying on business between the city of not dispose of a share in your business in New York and Jersey City became criminals such a way as will put you under a tempta by forming a partnership. Such an inten tion to carry on interstate commerce in a tion is not to be lightly attribute;! to a remanner we deem injurious to the public?" spect^ble legislative body like Congress. Neither was there any monopolizing of Would an Act of Congress to that effect be constitutional? the business. If our egg-collectors had com Harían, Brown, McKenna, and Day, JJ., bined to drive or keep another person off hold that it would be constitutional, and so. their route, they would have violated the perhaps, does Brewer, J. Act. If the Great Northern Railway Com Mr. Justice White (with whom it would pany and the Northern Pacific Railway seem that Fuller. C. J.. and Holmes and Company had combined to keep another Peckham, JJ., agree) thinks that it would railroad out of the territory which they not. served, that would have been a monopoly.

.