Page:The Green Bag (1889–1914), Volume 23.pdf/101

 Mr. Morawetz on the Sherman Act

79

into the combinations, but because its

petitive conditions, though competition

effect was to restrain the interstate

be not wholly destroyed. . . . “Although a restriction of competi

commerce of the public by imposing

additional burdens upon this trade or

tion between competitors in a branch of

commerce. As stated by the Supreme Court, the natural and direct effect of such contracts or combinations was to maintain rates at a higher level than otherwise would prevail. . ..

trade may not of itself constitute monop olizing, it may be part of an attempt, combination or conspiracy to monopolize and therefore in violation of the statute. But if a restriction of competition of itself does not constitute monopolizing and is not part of an attempt, combina tion or conspiracy to monopolize, it

“3.

Cases involving contracts or com

binations that, without restraining the trade or commerce of others and without monopolizing, or attempting to monopolize trade or commerce, simply diminish com petition among those contracting or com bining.

E: "The Supreme Court never has de cided that contracts or combinations of this character are prohibited by the Anti-Trust Act. Although dicta may be found in the opinions of the court which, taken without regard to the context,

might seem to indicate that the court considered that all contracts and com binations restricting competition in any

degree were prohibited by the Anti

cannot by

any correct use of lan

guage be called ‘tending to create a monopoly.’. . . “The decision in the Sugar Trust case was one of the earliest decisions under the Anti-Trust Act and, in the opinion of the writer, cannot be reconciled with

the subsequent decisions of the Supreme Court. . . . In the Sugar Trust case the question was not whether Congress had constitutional power to prohibit a manufacturing corporation engaged in interstate commerce from purchasing a competitive business under all cir cumstances or conditions. The only

Trust Act, no such conclusion can fairly

be deduced from these opinions when considered in their entirety. . . . "4.

Cases involving attempts to mono

police, or combinations or conspiracies to monopolize any part of interstate or inter

national trade or commerce. _“According to common usage in mod

ern times, the phrase ‘to monopolize com merce’ means, by the elimination of

competition to secure to some individual or group of individuals control of all or of a largely preponderating part of the

commerce in some article.

The phrase

would not apply to a simple lessening of

competition leaving in existence reason ably competitive conditions; but it would apply to the act of concentrating control

constitutional question was whether Con gress could prohibit the purchase of control of competitive businesses under

the speciﬁc conditions prescribed in the Act, namely, when the purpose or the ef fect of the transaction was to monopolize interstate commerce; in other words, the

question was whether Congress could prohibit individuals and corporations from monopolizing interstate commerce by means of purchases of competitive businesses. . . . The fact that the Con stitution does not confer upon Congress the power to regulate the acquisition, ownership or use of property is no reason for holding that Congress cannot regulate interstate commerce in property, or that

Congress cannot prohibit persons en

of the commerce in any article to such

gaged in interstate commerce from com

a degree as to destroy reasonably com

bining their plants and businesses when