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The Green Bag

scrupulously avoiding the exercise of powers which they have not and fear

the limitations of the organic law.

Why

shall that oath rest more lightly upon

lessly exercising those which they have.

one than the other?

But this duty of keeping within the limits of the organic law is one which does not rest upon the judicial branch

conscience may the legislator say, as he too often does, ‘I will not consider that

In the forum of

with any greater force than it rests upon

to the Courts.’ Yet, as we all know, this

the co-ordinate departments of govem ment. The lawmaker no less than the judge exercises his oihce under the same solemn obligation to support and uphold

is not an unusual attitude for a legis lator who ﬁnds questionable legislation desirable if valid. This is not honest, nor is it expedient.”

side of the matter—that I will turn over

Mr. Morawetz’s Views on the Sherman Act N the opinion of Mr. Victor Mora wetz, “the actual decisions of the

Supreme Court, with the exception of the decision in the Sugar Trust case, are consistent with a harmonious construc tion of the Act [i.e., the Sherman anti

trust law] which would effect its purpose without preventing any business combi nations or arrangements necessary to

and it is eminently proper that con tracts, combinations or conspiracies of that character, when in restraint of inter state or international trade or commerce,

should be prohibited by an Act of Con gress furnishing effective remedies for

its enforcement. . . . "2.

Cases involving contracts or com

binations of public carriers to increase

secure economy in production and in

the rates or tolls payable by the public in

trade, and without interfering with any business methods that ever have been regarded as lawful and proper."1 Mr. Morawetz divides the cases aris ing under the Act into four classes, and

respect of interstate commerce. . . . “These traﬁic cases are not authority for the doctrine that a contract or com

discusses these classes at some length. To quote a few extracts :-— "1. Cases involving contracts, combi nations or conspiracies to restrain the trade or commerce of other persons, or

bination among merchants or manu

facturers would constitute a restraint of interstate commerce, prohibited by the ﬁrst section of the Anti-Trust Act, on the sole ground that the effect of the

of the public generally. "Contracts, combinations or conspir acies by means of physical force, or by means of threats of damage, or boy cotting, to prevent other persons, or the

contract or combination was to restrict competition among the parties. Rail way companies fumish the transporta tion necessary to enable the public to engage in interstate trade or commerce, but they are not themselves engaged in interstate trade or commerce. In the

public generally, from carrying on trade or commerce are illegal at common law,

traffic cases the stoppage of competition was in restraint of interstate commerce

1 "The Supreme Court and the Anti-Trust Act," by Victor Morawetz. 10 Columbia Law Review 687 (Dec.). An ampliﬁcation of Mr. Morawetz's article in the New York Times of Oct. 9, 1910.

and unlawful, not because it restrained commerce

of the

railway companies

which made the contracts or"r entered