Page:The Green Bag (1889–1914), Volume 20.pdf/772

 THE SHERMAN ANTI-TRUST LAW tue of which a man disables himself from engaging in a particular occupation, busi ness or profession. He agrees not to prac tice his profession or engage in his business for a certain number of years or within a certain locality, or a corporation agrees not to" sell its goods within a certain locality or during a certain time, or, as the note in Angier v. Webbar (92 Am. Dec. 751) puts it, "Contracts which impose an unreason able restraint upon the exercise of a business, trade or profession are void, but contracts in reasonable restraint thereof are valid." Now, that is the common-law contract in restraint of trade. But there are other conditions that disturb us vastly more than these contracts in restraint of trade, because contracts in restraint of trade at common law were simply constructively against pub lic policy and very few of them ever did any appreciable injury. The combinations and conspiracies that tend to monopoly and therefore increase the price of a product are an entirely distinct legal proposition. They are the evils against which the Sherman anti-trust law is aimed. It is con• tracts and combinations in the form of trusts or otherwise or conspiracies, not contracts that restrain one individual from engaging in a profession or in a business for a certain number of years or in a cer tain locality, that are clearly within the intention of that statute. Now, I wish to call attention to this fact: that at common law and under the decision of the courts, from the days of the early common law down even until now, the idea of reasonableness or unreasonableness has never been predicated upon a combination or conspiracy that tends to monopoly. It is always and only predicated upon con tracts technically in restraint of trade, or that tend to exclude a man for a certain number of years or within a certain space. Every case referred to by the distinguished Justice of the Supreme Court who dissented in the Trans-Missouri case as sustaining the view that reasonableness or unreasonableness

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should, under the Sherman anti-trust law, be the test, is a case at the common law where the court were passing upon a con tract technically in restraint of trade. No single case that he refers to involves con tracts or agreements or conditions that tended to monopcly. In that respect his citations were foreign to the controlling purpose of that statute. There are two distinct legal propositions — contracts in restraint of trade and combi ra tions and conspiracies that tend to monopo lies. I think I can safely say that from the time when monop lies were first discussed the books do not contain a single case based upon contracts or agreements or conspira cies that tend to monopoly, and therefore improperly and unduly increasing the price of a product, in which the term "reason able" or "unreasonable" is predicated upon that condition — no case where that is relied upon as an element under such cir cumstances. On the other hand, where the facts satisfy the court that the condition tends to monopoly it is held unlawful with out qualifications or limitations. While the term "restraint of trade" is used in defining the offense in the Sherman anti-trust law, it is evidently used upon the theory that a monopoly or an attempt to monop lize trade would operate as a restraint upon inter state and foreign commerce, rather than in the artificial sense that a contract between two individuals that impaired the right of one to engage in trade for a certain time or within a certain locality would be a re straint of that commerce. The definition is inaptly in part based upon the commonlaw term "restraint of trade," while the act is not intended to apply to such contract but to such contracts and combinations as tend to monopoly. This whole question was discussed in a very able and exhaustive opinion by Hon. William H. Taft, circuit judge, sitting in the circuit court of appeals in the case of the United States v. Addyston Pipe and Steel Company et al. (85 F. R. 271, 302). He says: