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The Green Bag

by the bare majority of one vote in the highest tribunal of the land, the members of which were by instinct con servative; and this result is to be ex plained not so much by the radical leanings of any of the judges as by an attitude of mechanical obedience to a command of Congress, in a spirit which seems to have assumed that Con gress was seeking to create rather than to restate juridical principles. The artificial interpretation of the law dates from the opinion rendered by Mr. Justice Peckham in the case of United States v. Trans-Missouri Freight Association,18 in which he held that the Sherman act applied to reasonable as well as unreasonable restraints of trade, without any distinction whatever. When he wrote this opinion he had before him the opinion in the case of United States v. E. C. Knight Co.,19 in which case Mr. Justice Harlan had recognized, in a dissenting opinion pre pared with much care, the propriety of a reasonable partial restraint of trade, citing Oregon Steam Navigation Co. v. Winsor,20 and many other cases. Mr. Justice Peckham was not bound by precedents within the United States Supreme Court to hold the Sherman anti-trust act applicable to contracts in reasonable restraint of trade. He did, however, feel .himself bound by what appeared to him the obvious intent of the framers of the statute. Justice White, dissenting, declared that this construction of the Sherman act would be "tantamount to an assertion that the act of Congress is itself un reasonable" (p. 344). With Justice White also dissented Justices Field, Gray and Shiras. This artificial decision, reached only by a bare majority l8166 U. S. 290, 41 L. ed. 1007, 17 S. C. 540. '•156 U. S. 1, 39 L. ed. 325. w20 Wall. 64.

of the court, has had the effect of mold ing the law of interstate commerce in conformity to the imputed will of Congress. If the doctrines laid down by the Supreme Court had been con trolled by such reasoning as that of Mr. Justice Harlan in the Knight case,21 of Mr. Justice White in the TransMissouri Freight Association case,22 and of Mr. Justice Brewer in the North ern Securities case23 the present situa tion would not have arisen. It was by no means incumbent upon the Supreme Court to adopt a literal, narrow construction of the Sherman act. It was within their province to interpret the spirit of the act and to differentiate clearly between the evil combinations which • Congress wished to suppress under the authority of the interstate commerce clause, and the combinations which are not in jurious to the public welfare and are not condemned as dangerous monopolies by the common law. Instead of the decisions of the Supreme Court being molded absolutely by an exceedingly strict construction of the act, the de velopment of the law could have been brought about within the Supreme Court itself without violence to the statute, through the natural expansion of the common law to render it applicable to the phenomena of the modern industrial world. This, in fact, would have been the normal way of proceed ing. Mr. Justice Peckham in the next im portant case to come before the court. United States v. Joint Traffic Associa tion,24 refused to overrule the TransMissouri Freight case,25 three out of eight Justices dissenting, and he 2>156 "166 »193 "171 "166

u. U. U. U. U.

s. S. S. S. S.

1. 290. 197. 505, 43 L. ed. 259. 290.