Page:The Green Bag (1889–1914), Volume 17.pdf/724

 DISSENTING OPINIONS whither the conformity thereto is now tending, we have seen from the record of the last two terms of the Supreme Court. At the former of those terms, a celebrated case was decided, which exhibits so curi ously and so frankly the evils of that prac tice, that an analysis thereof should be highly interesting, and most instructive. As all the world knows, the respective owners of two great competing railroad sys tems turned over a controlling amount of the stock of each road to a third corpora tion, organized for the purpose, in exchange for shares of the stock of the latter; thus placing both systems under the single man agement of the directors of the third cor poration, and giving to the stockholders of each road an interest in both. But the Sherman Act, passed for the "protection of trade and commerce against unlawful re straints and monopolies," invalidates every monopoly, and every contract, combination, trust, and conspiracy, in restraint of trade or commerce among the states, with foreign nations, and in all such territory as to which Congress may regulate commerce, and makes a violation of the act a crimi nal offense. The government accordingly brought suit to enforce this law against the corporations involved. To the lay mind, no doubt this situation would seem extremely simple; but at least, whether simple or obscure, the lay mind may rightly expect, in a matter of such striking public interest, that the law, whatever it is, be declared so clearly, so surely, and so finally, that he who runs may read. Let us look at the spectacle which this case pre sents. First and chief, the law of the land on the great issues there involved was settled by a minority of the Supreme,Court. Of the five who decide the case for the court, only four agree on the controlling principles which are to guide and restrain the great enterprises of the future; the fifth enters a protest which for the vigor of its dissent has never been surpassed by any dissenting

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opinion. Besides this, two dissenting opin ions are filed, in which the remaining four justices concur, and in which they declare their brethren quite mistaken at all points. The chief consideration in the case was whether the Sherman Act condemns not only those restraints on commerce which are unreasonable and injurious, but all restraints whatever. The minority hold that it applies to all restraints whatever, and this is now the law of the land. But with this vital decision, all the other judges wholly dis agree. This is not all. At all points the separate opinions filed reveal the same hopeless con fusion. The court decides that the mere existence of a combination constitutes a re straint on commerce. Mr. Justice Holmes, dissenting (with whom agree Mr. Chief Jus tice Fuller, Mr. Justice White, and Mr. Justice Peckham on every point in the case), maintains, on the contrary, that the mere existence of a combination is in itself no restraint, but that something must be done in furtherance thereof. The four judges for the court hold that any agreement preventing competition re strains commerce, that it need only be shown that it tends to restrain commerce, or competition, not that it really will result in a total suppression or a complete monop oly, and that to restrict free competition is to restrain free commerce. The four dis senting judges, however, contend that the act has nothing to do with fostering com petition; that it does not contemplate com petition at all; that otherwise any two per sons forming a partnership for an export trade would be liable criminally under the act; that a mere indirect influence on com merce of such an agreement as the one in question does not justify such a law; that if the principle laid down by the court be logically pursued, it will result that any influence, even the personal influence of one man, due to his eminent capacity or experi ence, whereby, though he owned but one share of stock in each road, lie might be