The Conflicting Opinions in the Merger Case. tion of the statute, I do not go further into the .question of the power of Congress. That has been dealt with by my brother, White, and I concur in the main with his views. I am happy to know that only a minority of my brethren adopt an interpretation of the law, which in my opinion would make eternal the bclluni omnium contra omnes and disintegrate society so far as it could into individual atoms. If that were its intent I should re gard calling such a law a regulation of com merce as a mere pretence. It would be an attempt to reconstruct society. I am not concerned with the wisdom of such an at tempt, but I believe that Congress was not entrusted by the Constitution with the power to make it and I am deeply persuaded that it has not tried." The four opinions that have been given upon this merger case to a certain extent must all be taken into the account in any estimate of the decision. These conflicting opinions leave us much in doubt, but they also give us much information. Certain things should be held to be settled by the majority, notwithstanding the dissent of the minority. But it must be recognized also that many things remain unsettled by reason of the division of the Court. Upon the whole, therefore, we may say nothing of this whole adjudication without qualification. No doctrine can be deduced from any one opinion with safety unless the limitation put upon it by some other opinion is made in the same statement. Now that the gist of the opinion of each of the justices has been given separately, the more difficult task will be undertaken of discovering how they stand with relation to one another upon the prin cipal points in issue. Perhaps the two most general questions as to the Federal trust legislation are first, as to its validity, and, second, as to its extention. Whether the present anti-trust law is constitutional, and by anticipation what anti-trust laws would be permissible is the
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first problem. The second question is, to what restraint of trade the present act ap plies, and against what forms of consolida tion it may be enforced. And yet in a way, these problems cannot be separated, since the constitutionality of a statute depends upon the extention that it may have, while conversely limitation of its scope may save its constitutionality. Upon the whole it is as a complex question like this, rather than as a series of questions, that the judges have treated the case. That anti-trust legislation may be consti tutional in general must be regarded as set tled beyond dispute. M>r. Justice Harían is quite justified in claiming that it does not go beyond due process of law to forbid by legis lation combination on restraint of trade. "All rights which men have in a civilized society are held subject to the established police power of the State"; and the suppression of conspiracy when injurious to the public has been within that power from time imme morial. It should be noted, however, what Mr. Justice Brewer points out, that "the scope of the act should be held to be limited by the power which each individual has to manage his own property and determine the place and manner of its investment; as free dom of action in those respects is among the inalienable rights of every citizen.'1 This distinction makes unnecessary the warning of Mr. Justice White that "the enforcement of the act means a subjection to absolute gov ernment unrestrained by any of the prin ciples which are necessary for the perpetua tion of' society and the protection of life, liberty and property." It avoids also the absurdity to which Mr. Justice Holmes Would reduce the matter, that "if the act is construed to affect the purchaser of shares in two railroad companies because of the effect it will have upon the competition of these roads, the mere existence of that man may become a crime." Federal legislation, of course, can on'v pffect interstate commerce:
