gress the right to regulate the ownership of stock in railroads chartered by State au thority is absolutely destructive of the Tenth Amendment to the Constitution, which pro vides that 'the powers not delegated to the United States by the Constitution, nor pro hibited by it to the States, are reserved to the States respectively or to the people.' This must follow, since the authority of Congress to regulate on the subject can in reason alone rest upon the proposition that its power over commerce embraces the right to control the ownership of railroads doing in part an in terstate commerce business. But power to control the ownership of all such railroads would necessarily embrace their organization. Hence it would result that it would be in the power of Congress to abrogate every such railroad charter granted by the States from the beginning if Congress deemed that the rights conferred by such State charters tend ed to restrain commerce between the States or to create a monopoly concerning the same. Besides, if the principle be acceded to, it must in reason be held to embrace every consolidation of State railroads which may do in part an interstate commerce business, even although such consolidation may have been expressly authorized by the laws of the States creating the corporations. It would likewise overthrow every State law forbid ding such consolidations, for if the owner ship of stock in State corporations be within the regulating power of Congress under the commerce clause and can be prohibited by Congress, it would be within the power of that body to permit that which it had the right to prohibit. Indeed, the natural reluc tance of the mind to follow an erroneous principle to its necessary conclusion, and thus to give effect to a grievous wrong aris ing from the erroneous principle, is an ad monition that the principle itself is wrong." Mr. Justice Holmes in his unexpected con currence in the dissent furnishes the most interesting opinion. He proposes to base his
opinion upon simple interpretation, but he cannot at times avoid the revealing of his social conscience any more than he can fail to exercise his literary art: "Great cases, like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of im mediate overwhelming interest which ap peals to the feelings and distorts the judg ment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and be fore which even well settled principles of law will bend. What we have to do in this case is to find the meaning oí some not very diffi cult words. . . . The provision has not been decided, and, it seems to me, could not be de cided without a perversion of plain language, to apply to an arrangement by which com petition is ended through community of in terest—an arrangement which leaves the •parties without external restriction. That provision taken alone, does not require that all existing competitions shall be maintained. It does not look primarily, if at all, to com petition. It does simply require that a party's freedom in trade between the States shall not be cut down by contract with a stranger. . . . To suppress competition in that way is one thing; to suppress it by fusion is another The law, I repeat, says nothing about com petition, and only prevents its suppression by contracts or combinations in restraint of trade, and • such contracts or combina tions derive tneir character as restraining trade from other features than the suppres sion of competition alone. . . . For again, I repeat, if the restraint on the free dom of the members of a combination caused by their entering into partnership is a restraint of trade, every such com bination caused by their entering into part nership is a restraint of trade, every such combination, as well the small as the great, is within the act. In view of my interpreta
