Page:The Green Bag (1889–1914), Volume 17.pdf/237

 22O

THE GREEN BAG

The opinion of Vice-Chancellor Green against the combination has this significant paragraph : ' ' This freedom of business action lies at the foundation of all commercial and industrial enterprises —- men are willing to embark capital, time, and experience therein, because they can confidently assume that they will be able to control their affairs ac cording to their own ideas, when the same are not in conflict with law. If this privi lege is denied them, if the courts cannot protect them from interference by those who are not interested with them, if the management of business is to be taken from the owner and assumed by, it may be, irresponsible strangers, then we will have come to the time when capital will seek other than industrial channels for invest ments, when enterprise and development will be crippled, when interstate railroads, canals, and means of transportation will be come dependent on the paternalism of the national government, and the factory and the workshop subject to the uncertain chances of cooperative systems." The best reasoned case upon this whole general problem remains to be stated — Martelle v. White, 185 Mass. 255. It plainly appeared in this case that the Granite Man ufacturers' Association, of which defendants were members, had a by-law that prohibited under penalty any member from having business transactions with non-members. Acting under the by-laws, the association investigated charges which were made against several of its members that they had purchased granite from a party "not a mem ber" of the association. The charges were proved, and under the section above quoted it was voted that the offending parties "should respectively contribute to the funds of the association" the sums named in the votes . These sums ranged from $ i o to $ i oo . The party "not a member" was the present plaintiff, and the members of the association knew it. Most of the customers of the plaintiff were members of the association, and after these proceedings they declined

to deal with him. This action on their part was due to the course of the association in compelling them to contribute .as above stated, and to their fear that a similar vote for contribution would be passed should they continue to trade with the plaintiff. The opinion of Mr. Justice Hammond in this case is so excellent in its grasp of the general situation as it stands at the present moment, that it would be well if all of it could be printed here; but perhaps this extract will show the advance in the reasoning upon this problem: "The case presents one phase of a general subject which gravely concerns the interests of the business world and in deed those of all organized society, and which in recent years has demanded and received great consideration in the courts and elsewhere. Much remains to be done to clear the atmosphere, but some things at least appear to have been settled, and cer tainly at this stage of the judicial inquiry it cannot be necessary to enter upon a course of reasoning or to cite authorities in support of the proposition that while a per son must submit to competition he has the right to be protected from wrongful inter ference with his business." " The next ques tion is whether there is anything unlawful or wrongful in the means used as applied to the acts in question. Nothing need be said in support of the general right to com pete. To what extent combination may be allowed in competition is a matter about which there is as yet much conflict, but it is possible that in a more advanced stage of the discussion the day may come when it will be more clearly seen and will more dis tinctly appear in the adjudication of the courts than as yet has been the case, that the proposition that what one man lawfully can do any number of men acting together by combined agreement lawfully may do, is to be received with newly disclosed quali fications arising out of the changed condi tions of civilized life and of the increased facility and power of organized combina tion, and that the difference between the