Page:The Green Bag (1889–1914), Volume 20.pdf/263

 THE GREEN BAG those restraints and monopolies which are made unlawful in the body of the statute. It is to the statute itself that resort must, be had to learn the meaning thereof, though a resort to the titje here creates no doubt about the meaning of and does not alter the plain language contained in its test." (P- 327-) After restating the contention we are con sidering, the Court continued : "The term is not of such limited signifi cation ... A contract may be in re straint of trade and still be valid at common law. Although valid, it is nevertheless a contract in restraint of trade, and would be so described either at common • law or elsewhere. . . . When, therefore, the body of an act pronounces as illegal every con tract or combination in restraint of trade or commerce among the several States, etc., the plain and ordinary meaning of such language is not limited to that kind of con tract alone which is in unreasonable restraint of trade, but all contracts are included in such language, and no exception or limita tion can be added without placing in the act that which has been omitted by Congress." (P. Jn this case it was argued that the agree ment " for maintaining reasonable rates" was necessary to the life of the railroads, that in the absence of such reasonable restraint as that imposed by the agreement, unrestricted competition, by the peculiar nature of railroad property, spelled ruin. The court took issue with this contention, and then concluded, — " These considera tions are, however, not for us. If the Act ought to read as contended for by defend ants, Congress is the body to amend it." (P- 34o). This decision and the doctrines just quoted were adhered to by the Supreme Court upon motion for a rehearing and reiterated in the Joint Traffic Association case (174 U. S. 505, 573-575) in the face of most earnest and able argument and repre sentation of the " widespread alarm with which it was received " (p. 573), yet coun sel for the combinations were so slow to believe that this was not the vulnerable

point of the Act of 1890, that in almost every decision under the Act the Court has found it necessary to hold that the common law test of reasonableness is not applicable. The opinion of Mr. Justice Brewer in the Northern Securities case (193 U. S. 197, 360) may be believed, by reason of some of its broader statements, to be a yielding to this contention, but the writer prefers to regard it as merely stating the rule exepting from the Act " those minor contracts in partial restraint of trade," which the Supreme Court has since held distinctly were not directly in restraint of trade and hence not condemned by the Act. (Vide infra.) RELATION OF COMPETITION TO TRADE Since it was decided that no success would reward a contention in each case that the restraint imposed on trade was reason able, the defenders of the combinations took this bolder stand, that it was not estab lished that there was any restraint of trade at all. In the case- immediately following the Trans-Missouri case in the Supreme Court, the United States v. Joint Traffic Asso ciation (171 U. S. 505, 558-559), the Court states this change of contention in this wise: "It is . . . said . . . that the point there in decided . . . was simply that all con tracts, whether in reasonable as well as in unreasonable restraint of trade, were included in the terms of the Act, and the question whether the contract then under review was in fact in restraint of trade in any degree whatever was neither made nor decided." The argument was well supported by Mr. Carter, for the Joint Traffic Association, as follows : "It (the agreement), does, indeed, pur port to restrain competition, although in very slight degree and on a single point. That is one of its objects, and if competition and commerce were identical, being 'but different names for the same thing, then indeed, in assuming to restrain competition even so far, it would be assuming in a corres