Page:The Green Bag (1889–1914), Volume 20.pdf/782

 THE SHERMAN ANTI-TRUST LAW Justice would take its cue therefrom and never bring any action in relation thereto. Now, then, it is to be observed that this would enable any great combination to practically determine for itself what should and should not be a reasonable contract in restraint of trade. It is very clear that there can be no contract or agreement entered into by a manufacturing or indus trial corporation which is not bound to be ultimately reflected in the price to the con sumer; and the question as to whether or not a contract or a combination between it and another corporation is or is not in reasonable restraint of trade must ulti mately be determined by the question as to whether or not such contract or combina tion does or does not unduly increase the price to the consumer, and the price to the consumer is beyond all question the final test of the reasonableness or unreasonable ness, according to the theory of the pro posed amendment. I may say here that I am at all times and under all circumstances, unalterably opposed to placing in the hands of any administrative bureau the power to pass upon the price of products to the consumer and the power to supervise and regulate and control the busi ness of 87,000,000 of people. Mr. Smith, the commissioner who ap peared before the subcommittee, admitted that in case a contract or agreement was submitted to him for decision it would be necessary, in order to ascertain whether or not it was in unreasonable restraint of trade, to ascertain and determine what was the cost of producing the product. He said, as he was practically compelled to say, that the examination to be made by his Bureau would not be perfunctory and for mal and of a rubber-stamp variety, but that there would be intelligent and careful investigations for the purpose of developing the facts. That being the case, it is obvious that as to a large number of combinations in this country it would be impossible to determine within thirty days' time whether

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the proposed contracts or agreements were or were not reasonable, involving an investigation of the cost of producing the product, the question of their capitaliza tion, which are all involved legitimately in the question of determining what could be properly charged in order to produce a fair return to the parties engaged in the prose cution of the business. The great bulk of the large corporations would thus be able to file any contract or agreement that they saw fit to file and have it validated by the simple lapse of thirty days' time, during which it would be physically impossible for the Bureau of Corporations to pass even in the most perfunctory manner upon the question as to whether or not the contract or agreement in question was in unreason able restraint of trade. The result is that this ingenious scheme would result in the validation of substan tially every contract and agreement that would be filed by the great combinations in the country, and place entirely within their control the consumers who are inter ested in the price of their product, and would have provided a wholesa'e immunity bath on an immense scale for every large and vicious combination in the country — self-devised, self-prepared, and self-admin istered. No one came before the committee to even intimate or suggest the kind of con tracts contemplated, the purpose to be accomplished, the way in which it would be accomplished, and the effect upon the con sumers of the country. I have no hesitation in saying, so far as I am concerned, that in connection with the propriety of submitting the business of 87,000 ooo people to one bureau officer, I should decline under any and all circum stances to submit such a question by statute until I knew first what sort of a combination it was desired to have legalized and second, upon what principles of law the determination was to be reached. The hearings before the subcommittee, so far as