The Conflicting Opinions in the Merger Case. of Congress the public convenience and the general welfare will be best subserved when the natural laws of competition are left un disturbed by those engaged in interstate commerce, and as Congress has embodied that rule in a statute, that must be, for all, the end of the matter, if this is to remain a Gov ernment of laws, and not of men. Many sug gestions were made in argument based upon the thought that the Anti-Trust Act would in the end prove to be mischievous in its con sequences." Undoubtedly, the most important feature of the Merger Case is the opinion of Mr. Jus tice Brewer, for in this, although concurring, pains are taken to limit the operation of the act to unreasonable restraint of competition, as this excerpt will show: "I cannot assent to all that is said in the opinion just an nounced, and believe that the importance of the case and the questions involved justify a brief statement of my views. First, let me say that while I was with the majority of the Court in the decision in United States v. Freight Association, (166 U. S. 266,) followed by the cases of United States v. Joint Traffic Association, (171 U. S.. 505,; Addystone Pipe & Steel Company v. United States, (175 U. S. 211,) and Montague & Company v. Lowry, decided at the present term, and while a further examination (which has been induced by the able and exhaustive argu ments of counsel in the present case) has not disturbed the conviction that those cases were rightly decided, I think that in some re spects the reasons given for the judgments cannot be sustained. Instead of holding that the Anti-Trust Act included all contracts, reasonable or unreasonable, in restraint of interstate trade, the ruling should have been that the contracts there presented were un reasonable restraints of interstate trade, and as such within the scope of the act. That act, as appears from its title, was leveled at only 'unlawful restraints and monopolies.' Congress did not intend to reach and destroy
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those minor contracts in partial restraint of trade which the long course of decisions at common law had affirmed were reasonable and ought to be upheld. The purpose rather was to place a statutory prohibition with pre scribed penalties and remedies upon those contracts which were in direct restraint of trade, unreasonable and against public pol icy. Whenever a departure from common law rules and definitions is claimed, the pur pose to make the departure should be clearly shown. Such a purpose does not appear and such a departure was not intended. . . . I cannot look upon it as other than an unreasonable combination in restraint of interstate commerce—one in conflict with State law and within the letter and spirit of the statute and the power of Congress. Therefore, I concur in the judgment of af firmance. I have felt constrained to make these observations for fear that the broad and sweeping language of the opinion of the Court might tend to unsettle legitimate busi ness enterprises, stifle or retard wholesome business activities, encourage improper dis regard of reasonable contracts and invite un necessary litigation." Mr. Justice White, as might have been predicted, based his dissent upon the rights of the States: "Under this conception of the power of the States, universally prevailing and always acted upon, the entire railroad system of the United States has been built up. Charters, leases and consolidations un der the sanction of State laws lie at the basis of that enormous sum of property and those vast interests represented by the railroads of the United States. ... If the question be looked at with reference to the powers of the Federal and State governments, the general nature of the one and the local character of the other, which it was the purpose of the Constitution to create and perpetuate, it seems to me evident that the contention that the authority of the National Government under the commerce clause gives to Con
