Does Price Fixing Destroy Liberty?/Prices of Commodities Cannot be Made Fair by Governmental Regulation

by George Howard Earle, Jr.

CHAPTER V.

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Prices Cannot Be Made Fair by Governmental Regulation.

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The present inquiry necessarily leads to an ascertainment of whether experience has not already demonstrated not merely the dangers, but the fallacy of believing that the only effective way of fixing a fair price for commodities is by an usurpation of the fundamental right and liberty of the whole community, through barter, to fix such reasonable prices,—to determine what are proper prices through the "higglings of the market"; whether, the traditions of our race have not been wisely followed in excluding an arbitrary monopolistic price, as against the people's price, whether determined by a small or even as great a combination as the Government itself.

Men enter that form of "the pursuit of happiness" called "business" for the purpose of profit. Their exertions are stimulated in proportion to their hopes. This lies at the foundation of the law of supply and demand. The initial fallacy, which the law has so far exposed, is in assuming that high prices are necessarily excessive prices; for high prices are under a state of freedom and in the absence of restraints, whether by Government or anyone else, the sole permanent cure for scarcity. Competition is as automatic as the thermometer. Where free, by fluctuation in price resulting from it, it brings about both the necessary reduction in consumption, and in turn supplies the vital stimulant to production. Why is it that, notwithstanding the law of decreasing returns, sugar that in early days could not be bought for $1.00 a pound, has, in ordinary times, become one of the cheapest of commodities? The answer is obvious. The high price stimulated investment of capital, and the application of invention, genius and intense energy, which, in turn, stimulated production and the consequent competition that resulted in the decline always following. Exactly this same law is operating now, and it will result in a like inevitable decline. See how fully this economic law is exemplified in the present market of the leather and silk industries. Though, if the results of the investigation of all great economists be not incorrect, this decline is being retarded now only by the dangers and annoyances created by governmental power. Of course, it does not tend either to courage or clarity of judgment for a business man who may be making a thousand sales a day to fear that he may unwittingly be committing an equal number of criminal offenses, that may subject him to heavy penalties of fine and imprisonment, if some District Attorney and jury, desirous of getting bargains, might decide that he should have charged less for the commodities that he has sold. Indeed, if such be the law, and it be enforced—it cannot be impartially enforced, for all the judges, juries and district attorneys could not possibly pass upon the multitudinous cases that must arise and need investigation. Under such circumstances trade must stop, or become a mere criminal lottery.

As John Stuart Mill says:^[1] "Insecurity paralyzes, only when it is such in nature and in degree, that no energy, of which mankind in general are capable, affords any tolerable means of self-protection. And this is a main reason why oppression by the government, whose power is generally irresistible, by any efforts that can be made by individuals, has so much more baneful an effect on the springs of national prosperity, than almost any degree of lawlessness and turbulence under free institutions. * * * but no countries in which the people were exposed without limit to arbitrary exactions from the officers of government, ever yet continued to have industry or wealth." Continuing, Mr. Mill says:^[2] "All that governments can do in these emergencies, is to counsel a general moderation in consumption, and to interdict such kinds of it as are not of primary importance. * * * A limitation of competition, however partial, may have mischievous effects quite disproportioned to the apparent cause. * * * When relieved from the immediate stimulus of competition, producers and dealers grow indifferent to the dictates of their ultimate pecuniary interest; preferring to the most hopeful prospects, the present ease of adhering to routine."

And Mr. Mill forcibly points out how deleterious it is always to deprive people of the education, the creation of energy, independence and self-control, that result from their freely conducting their own business affairs: "There cannot be," he says,^[3] a combination of circumstances more dangerous to human welfare, than that in which intelligence and talent are maintained at a high standard within a governing corporation, but starved and discouraged outside the pale. Such a system, more completely than any other, embodies the idea of despotism.

Out of a multitude of like considerations, two, at least, should not be passed without attention. The trade principles under discussion certainly have recognition in the constitutional provisions as to patents, that go to the extent of even creating monopolies. Such monopolists have not only a common right of determining their prices for their products, but they have a right of action against any one who dares compete with them. This has, however, always properly been held necessary and just, because the public forever after has the benefit resulting from the energy and improvement thus incited. But in their totality such inventions are trivial in comparison with those created by the stimulus of competition and increased production, which are never patented or extensively known. Such are the inventions, improvements and devices which are developed from day to day in the course of industry and business, and are directly attributable to the vitalizing forces which unfettered competition and freedom in trade nurse into being. Such single accretions may, in themselves, be relatively insignificant, but in their totality they are enormous. To say, therefore, that these benefactors to industry and trade are not to have the benefit and reward for the short period that competition does not take it away from them, but are even to be treated as criminals for taking the reward thus justly earned, is to violate the whole spirit of the Constitution.

Again, like considerations apply to what is called "turnover." The investigations made by Harvard University show that the variation in this respect between competitors is enormous. Of course, the obtaining of an adequate supply, which the Act looks to, is enormously aided by stimulating the profits resulting from multiplied output. If by industry, improvement and invention, a plant producing 1,000 barrels a day of a commodity can be increased, without increase of cost to the consumer, to 10,000 barrels a day, it is of enormous advantage to the public whether there be an immediate decrease in price or not. The stimulus, therefore, that should be given, for such increase of production must not only reduce scarcity, but must increase competition, and ultimately reduce prices. To say, therefore, that the seeking of this legitimate and highly beneficial reward, even for the short time it can be enjoyed, is to imperil a man in all the dangers of criminal prosecution, is to say that which is economically unsound. An exceedingly interesting discussion of this matter by Mr. Carl Snyder is to be found in the March-April 1920 Number of McClure's Magazine.^[4] He says, in part: "There has been one Bureau at Washington whose aggregate expenses now run beyond a million dollars, that has seemed to make its especial business distilling into the public mind every kind of vicious idea about business. * * * It has sent out report after report showing the enormous profits of this or that company or trade. But what kind of profit? Always the profits on the invested capital! Rarely, if ever, have these profits been figured on gross sales. Why? Because, however large the profits cited have been, on the invested capital, the average profits on sales have been something on the order that I have given above, usually less than five or six per cent., often half this, and in the case of the criminal band of meat packers, known as the 'Big Five,' they have often been below two per cent. And this brings us to the very heart of the question of 'profiteering.' I make bold to say that the public has relatively little interest in the earnings upon capital, and, in any event, a great deal less than in the question of the business ability of his butcher and baker and corner groceryman. It will often happen that one dealer will make two or three times as much on his invested capital as his neighbors and competitors, and yet sell his goods to the public at a lower price, or, what is the same thing, sell better goods for the same money. He will do this because he undersells his competitors. The matter is simply this: Some merchants will turn their capital over, ten, fifteen, twenty, twenty, and even twenty-five times a year (in the case of some retail grocers). Others only four or five times. That is their year's sales will total five, ten or more times the sum they have invested. The Harvard Bureau, which I have quoted, found that the average turnover in the retail grocery trade was about eight times a year. But the actual range was from twenty-seven times down to less than two times. Now, here was a very remarkable fact. In the Harvard Bureau Reports, the grocery store with the lowest cost of doing business had a turnover of nearly nineteen times a year. And, in general, the higher the turnover, the lower the day's expenses, and, therefore, lower prices to the public. * * * Natural monopolies and powerful combinations may perhaps very justly be brought under governmental control or restraint, though experience has shown that rarely, if ever, have such attempts been other than disastrous, and meant a yet higher cost to the public in the long run. But, in the case of ordinary commodities, the action is automatic and cannot fail. * * * The price of things—alike of goods, service, and everything that money can buy—is indeed the most exquisite bit of psychology in the world. At a certain price, a certain number of people will buy a given article. Raise the price of this article without raising the purchasing power and the demand will fall off. This was true from the beginning of human barter and trade, and this will be true down to the last set of human beings who burn the last bit of fuel available upon a cold and exhausted earth. It can never be otherwise; and if it were not so, to all intents, human trade and barter would be impossible. This is the pivotal fact upon which the commerce and industry of the whole wide world, mounting now into hundreds of billions of dollars in volume, rests."

Manifestly, prices fixed by the whole world in its untrammeled and free markets have thrown about them, certainly so far as the trade and commerce of this country are involved, the protection of the Constitution of the United States, and for the Act to declare them when thus fixed unreasonable and excessive would be confiscatory. The Courts having, prior to the time of the Constitution, defined what is just and reasonable compensation, or, as the Constitution defines it, "fair compensation," now by statute to deny this meaning, so long established, must be in plain defiance of the Constitution, as well as all historical and economic precedents.

Returning from this digression to the subject under inquiry. The etymology of the word "competition" is perfectly obvious. People compete when they seek an object together. In its legal sense and significance, it is an act directed to the purpose of acquiring a common thing or end individually and as against others. It will later be shown that, so far as price fixing of commodities is concerned, this common seeking, because of the enormous difficulties of the subject, is the only practical and effective method. Indeed, not merely that the law permits it, but requires it as essential to the preservation of constitutional liberty. The Supreme Court, in its recent opinion in the case of United States vs. Union Pacific R. R. Co.,^[5] unanimously and succinctly says: "To compete is to strive for something which another is actively seeking and wishes to gain. * * * To preserve from undue restraint the free action of competition * * * was the purpose which controlled Congress in enacting this statute,^[6] and the Courts should construe the law with a view to effecting the object of its enactment. Competition * * * consists not only in making rates * * * , but includes the character of the service rendered. * * * The consolidation * * * creates a combination which restrains interstate commerce within the meaning of the statute, because, in destroying or greatly abridging the free operation of competition theretofore existing, it tends to higher rates."

Again the same tribunal says, in the case of the United States vs. Reading Company:^[7] "The evil is the combination. Without it the several groups * * * have the power and motive to compete. That each may for itself advance the price * * * or cut down the production, is true. But in the power which each other group would have to compete would be found a corrective."

A very valuable statement of this truism is to be found in the unanimous opinion of one of the ablest Courts^[8] in the United States, Mr. Justice Van Devanter, now of the Supreme Court, participating as a Circuit Court Judge. In this case, Whitwell vs. Tobacco Co.,^[9] the fundamental principle is thus, again, announced: "The right of each competitor to fix the prices of the commodities which he offers for sale * * * is indispensable to the very existence of competition. Strike down or stipulate away that right, and competition is not only restricted, but destroyed. * * * Contracts of competitors in the production or sale of merchantable commodities to deprive each competitor of the right to fix the prices of his own goods, the terms of the sale, or the customers to whom he shall dispose of them, and either to fix these prices, terms, and customers by the agreement of the competitors, or to intrust the power to dictate them, * * * necessarily have the effect either to stifle competition entirely, or to directly and substantially restrict it, because such contracts deprive the rivals in trade of their best means of instituting and maintaining competition between themselves. * * * Each had the right to fix the prices at which it would dispose of them, and the terms upon which it would contract to sell. * * * There is nothing in the Act of July 2nd, 1890 (Sherman Anti-Trust Act), which deprived any of these competitors of these rights. If there had been, the law itself would have destroyed competition more effectually than any contracts or combinations of persons or corporations could possibly have stifled it. The exercise of these undoubted rights is essential to the very existence of free competition, and so long as their exercise by any person or corporation in no way deprives competitors of the same rights, or restricts them in the use of these rights, it is difficult to perceive how their exercise can constitute any restriction upon competition or any restraint upon interstate trade. The acts of the defendant * * * are nothing more than the lawful exercise of these unquestioned rights which are indispensable to the existence of competition or to the conduct of trade. * * * An attempt by each competitor to monopolize a part of interstate commerce is the very root of all competition therein. Eradicate it, and competition necessarily ceases—dies. Every person engaged in interstate commerce necessarily attempts to draw to himself, and to exclude others from, a part of that trade; and, if he may not do this, he may not compete with his rivals, all other persons and corporations must cease to secure for themselves any part of the commerce among the States, and some single corporation or person must be permitted to receive and control it all in one huge monopoly. The purpose of the Act of July 2nd, 1890, was, however, to prevent the stifling of competition, not to destroy it or to foster monopoly, and any construction of any of its provisions which would give it such an effect is unreasonable and inconsistent with the object and spirit of the law. It is an interpretation which fosters the mischief it was passed to remedy."

The foregoing sound reasoning by the Court as shown in this statement of legal and economic principles, may be applied with peculiar force to the Lever Act, affording a true guidance, not only in seeking its intendment, but also in prescribing a liberal interpretation of its terms necessarily involved in the act of enforcing it.

An important case upon the question of the right of the owner to fix the price of his commodities in his own free discretion in the course of free competition is that of United States vs. Colgate,^[10] for not only is there cited therein an ample collection of authorities, including decisions of the Supreme Court, but the case itself was affirmed on appeal to the Supreme Court.^[11] Judge Waddill, in the lower Court, says:^[12] "* * * how far one may control and dispose of his own property; that is to say, whether there is any limitation thereon if he proceeds in respect thereto in a lawful and bona fide manner. That he may not do so fraudulently, collusively, and in unlawful combination with others, may be conceded. * * * But it by no means follows that, being a manufacturer of a given article, he may not, without incurring any criminal liability, refuse absolutely to sell the same at any price, or to sell at a named sum to a customer. * * * Authorities to sustain this view might be cited almost without number." After citing many cases, he continues:^[13] "The indictment should set forth such a state of facts as to make it clear that a manufacturer, engaged in what was believed to be the lawful conduct of his business, has violated some known law, before it is haled into Court to answer the charge of the commission of a crime. In the instant case, the Court's conclusion is that the averments of the indictment, * * * read in the light of the defendant's inalienable right to deal lawfully with his own property, the handling, trading in, and disposing of which is made the subject of this indictment, fail to charge any offense, either in restraint of trade and commerce, under the Sherman Act, or any other law of the United States."

The Supreme Court quotes largely from this opinion. It says:^[14] "The retailer, after buying, could, if he chose, give away his purchase, or sell it at any price he saw fit; * * * his course in these respects being affected only by the fact that he might by his action incur the displeasure of the manufacturer," etc. Indeed, this language is quoted twice in the opinion by the Supreme Court, which then says:^[15] "The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce—in a word, to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the Act does not restrict the long recognized right of a trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstance under which he will refuse to sell." The Colgate case was one where a dealer not only fixed the prices of the articles which he manufactured and sold, but went still further and refused to deal with others who would not maintain the prices which he had established for his goods. In the recent opinion of Mr. Justice McReynolds in United States vs. Schrader's Sons,^[16] a case where an effort was made to fix and hold a uniform price for an article, he says: "The evil is, indeed, as it always has been to take away dealers' control of their own affairs, and thereby destroy competition, and restrain the free and natural flow of trade." I hesitate to quote Professor Fisher's "Stabilizing the Dollar," published this year, because of the difficulty of resisting a re-printing of the whole work, but one passage I must include in this review. He says:^[17] "It will do no good, of course, to rail at the lucky winners in the lottery. The public was greatly mistaken in attributing low prices to the 'strangle-hold' of wicked bond-holders, and is equally mistaken today in attributing high prices to the personal turpitude of profiteers. * * * How can we blame a business man (especially one who, as an officer of a corporation, acts in the interests of others whose capital he is managing) for getting the best prices he can? We cannot expect him to sell below the market. In fact, if market conditions cause profits to fall into his lap, he would be recreant in duty to throw them away."

However true this may be, it is unfortunate that Professor Fisher, although it was not relevant to the purpose of his book, did not use his illuminating mind to show how great such failure of duty would really be; for, where a business is a continuing one, such profits are always more than apt to be entirely illusory, and ultimately absolutely necessary to balance inevitable loss!

Let us refer again for a passing moment to the hypothetical case of the sugar refiner, which was discussed in Chapter I. Raw sugar advanced in price within the past year from five to ten cents per pound, and thence to twenty cents per pound, and even still further. If the refiner sold his sugars at a reasonable profit on the first price of five cents, the inevitable consequence would be that he could "replace" only half of his necessary supplies. And then suppose, this supply, though only one half his requirement, again advanced to twenty cents per pound for raw sugars, and he took but a living profit. He would have come within the Government's contention as to his duty under the terms of the Lever Act, even though each "turnover" in such a course of business, would bring him that degree closer to financial ruin. On the other hand, let us assume that this refiner, when sugar advanced from five to ten cents, based his profit upon that replacement price, and did likewise when the twenty-cent price was reached. Undoubtedly it would be regarded as an atrocious case of profiteering, though for him not to do so would bring his refinery to disaster. And due regard must be given by the refiner to the immeasurable anxieties of taxation and risk of enormous declines in the value of his stock on hand which must follow from the stimulus to increase supply arising from such high prices. So that whilst, on the one hand, there may be complaint of prices on the part of consumers, it is safe to say that there is no sugar refinery whose management is not beset with the gravest apprehension under the present conditions, and under the meaning sought to be given to the Lever Act.

As was to be expected, this revision to what were believed obsolete ideas has actually revived the ideas of the mercantile system, which Adam Smith was supposed to have forever laid to rest, with all its injurious absurdities.

Jacob H. Hollander, the able professor of Political Economy at Johns Hopkins University, has also called attention to the fact that the Government itself is largely responsible for that supposed form of profiteering, of necessity, appearing in the accounts of every business which held a large stock of goods. Indeed, the supposed offense is really thrust upon them. He says:^[18] "It is a symptom of the disease, not the disease itself. Profiteering is the effect, not the cause of the high cost of living. Those who have been trying to make the American people believe that profiteering causes high prices are in a class with the quacks who will tell a consumptive that his loss of weight is due to his high color, instead of saying that both are the symptoms of the tissue destroying bacillus. The answer is that inflation is due to financial mistakes of the Administration at Washington, (1) while we were getting ready for war, (2) while we were at war, and (3) after the war was over. During each of these periods, the Treasury permitted, and indeed, encouraged an increase in the country's money supply, and the certain prospect of rising prices."

Surely it would be justifiable reiteration to weigh again the thoughts of Professor Laughlin in his "Money and Prices," to which reference has several times been made. He says:^[19] "As a fall of prices inures to the benefit of creditors, a rise of prices would inure to the benefit of debtors. If it would be wrong to have legislation favoring the creditor class, so it would be wrong to have legislation favoring the debtor class. * * * Think of a civil polity, which in the interest of one set of persons should undertake to regulate the prices of goods in the country's markets. * * * If we are to enter upon that path, it is well to know whither it leads. One such step in Socialism leads to another, and the outcome is the subversion of existing society. * * * Shall we accept dishonor, or shall we disappear down the unknown path of Socialism? One or the other must we choose, if the public is pleased to occupy itself in the future with the price question. * * * And so soon as the forces operating on price are understood to be complex, and of a nature not to be interfered with by legislation, we shall be free from a dangerous agitation."

The conclusions reached in the foregoing authorities show convincingly that upon this subject matter our contemporary thought, both from the angle of the law and political economy, is in harmony with the development of English opinion as expressed in the decision of Lord Justice Bowen in the Mogul Steamship Company case, referred to at length in the foregoing pages. The comprehensive analysis and helpful discussion of the very considerations paramount in this inquiry make relevant one further allusion to this classical opinion. "What then," Lord Bowen says,^[20] "are the limitations which the law imposes on a trader in the conduct of his business? * * * His right to trade freely is a right which the law recognizes and encourages. * * * No man, whether trader or not, can, however, justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction, and molestation are forbidden; so is the intentional procurement of a violation of individual rights, contractual or other. * * * But the defendants have been guilty of none of these acts. They have done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the interest of their own trade. * * * I can find no authority for the doctrine that such a commercial motive deprives of 'just cause or excuse.' * * * All commercial men with capital are acquainted with the ordinary expedient of sowing one year a crop of apparently unfruitful prices; * * * and until the present argument at the Bar, it may be doubted whether * * * merchants were ever deemed to be bound by law to conform to some imaginary 'normal' standard of freights or prices, or that Law Courts had a right to say to them in respect of their competitive tariffs, 'Thus far shalt thou go and no further. * * * I myself should deem it to be a misfortune if we were to attempt to prescribe to the business world how honest and peacable trade was to be carried on in a case where no such illegal elements as I have mentioned exist, or were to adopt some standard of judicial 'reasonableness,' or of 'normal' prices, or 'fair freights,' to which commercial adventurers, otherwise innocent, were bound to conform."

Mr. Justice McKenna, in the often followed opinion delivered in the National Cotton Oil case, well says:^[21] Its (monopoly's) dominant thought now is, to quote another, 'the notion of exclusiveness or 'unity'; in other words, the suppression of competition by the unification of interest or management, or, it may be, through agreement and concert of action. And the purpose is so definitely the control of prices that monopoly has been defined to be 'unified tactics with regard to prices.' It is the power to control prices which makes the inducement of combinations and their profit. It is such power that makes it the concern of the law to prohibit or limit them. And this concern and the policy based upon it * * * has expression * * * in a well-known national enactment. * * * competition, not combination, should be the law of the trade."

And so is established the proposition that the Statutory and Common Law, in relation to public policy, is that the public welfare is best served by giving the power and liberty of price fixing as to commodities to the whole body of our people, worked out through competition, and protected from control by any lesser group or groups, or even the Government itself. This has all resulted from the demonstration by experience, as is stated in the Northern Securities case:^[22] "That the natural effect of competition is to increase commerce, and an agreement whose direct effect is to prevent this play of competition restrains instead of promotes trade and commerce." To such an extent, indeed, did it prevent trade, that it became necessary to constitute it a criminal offense to do those things that by their necessary operation tend "to deprive the public of the advantages that flow from free competition."

Mr. Justice Holmes, in the same case, points out that: "At times Judges need for their work the training of of economists and statesmen, and must act in view of their foresight of consequences."

Indeed, no tribunal has been more conscious of the necessary point of view than the Supreme Court itself, as is shown by its decisions hereinbefore referred to, and particularly in the Knoxville Water Company case,^[23] where the Court by a unanimous opinion points out the impropriety of guesses as a basis of judicial action, and gives warning that values would become unsettled and confidence destroyed by denying to private property its just reward.

Of course, the Knoxville Water Company case involved an enterprise necessarily non-competitive and monopolistic by nature,—a class of cases both limited and, from their very character, requiring State control; but it has now been demonstrated by actual results that even in this simple and limited class of cases, there could not be a solution without the aid of everybody, and that aid, having failed the Court, the disaster predicted by it has now to be faced. Taxation to make up the consequent deficits must run into large sums of money; the dislocation of business from inadequate transportation facilities to even greater sum; and the final results of checked enterprise and impaired development must inevitably follow. One almost wonders whether even in the necessary monopolies, it would not have been better to have left them to that free competition through which Liberty works to best results. But can any one reasonably conclude that even economically it is well or even possible, in relation to commodities where a still more flexible adjustment is imperative, to throw the ultimate determination of the millions of daily transactions upon the Supreme Court of the United States? Apart from the fact that no Court, even of supermen, could ever transact all the business of the United States, it is equally clear that that business could not be carried on if, with the hourly fluctuations that must take place in the value of commodities, every dealer in them must wait for the time necessary to ascertain whether he was legitimately engaging in business or had committed criminal offenses beyond number.

Professor Laughlin upon this subject calls attention to one of the peculiar results of rate fixing in relation to monopolies, saying:^[24] "It is a strange development—indeed, a curious travesty on justice—that the railway, which, by reason of its low cost of transportation, has practically destroyed the farming interests of the East, should be regarded by the farmer of the West as the vampire sucking out the blood of his agricultural profits; and yet the Western lands could have been opened to seaboard markets only by means of it and its low rates. The Eastern farmer must justly regard the railway, and the resultant competition of the richer farm land in the West, as the cause of his ruin and the force which has driven him to new employments; yet the Western farmer would not now be in existence if it were not for the railway. The proof that it has served the Western farmer well is to be found in the sad ruins of Eastern agriculture." And Professor Laughlin might have added to this that even now in his new occupation, the Eastern farmer, as well as the rest of the community, has to be enormously taxed to pay for the inadequacy of the returns to those who have thus aided in his ruin.

To the writer it seems that only second to the dangers of destroying Liberty is the danger of overburdening the Supreme Court of the United States. It was America's greatest invention in government—that it should be respected, even revered, is in the same degree of importance in the safeguarding of Liberty as that free competition should not be disturbed as the only safe method of fixing commodity prices. It is futile, therefore, to attempt to place upon it duties impossible of performance. Nor as shown by the cases might the Court take kindly to having thrust upon it the task of becoming the final arbiter in the "pricing" of commodities. The thinker may understand that the fault was legislative, not judicial, but the mass of men will always feel that there is nothing so unsuccessful or discouraging as failure, and will attribute that failure to the final actors. Much could be added to show the impossibility of replacing any body, any government or governmental agency as a successful substitute for all the peoples of the world, acting jointly and by means of free competition, as the price fixers of non-monopolistic commodities.

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1. See Mills' Political Economy, Vol. 2, page 384.
2. Mills, Political Economy, Bk III, Chap. III, Sec. I (Vol. II, page 433).
3. Mills, Political Economy, Vol. II, page 450.
4. "McClure's Magazine," March-April, 1920, page 23, article entitled "Who is Profiteering?"
5. United States vs. Union Pacific R. R. Co., 226 U. S. 61 (see page 87). 1912.
6. The Sherman Anti-Trust Law, Act of Congress of July 2nd, 1890.
7. United States vs. Reading Company, 226 U. S. 324 (at page 353). 1912.
8. United States Circuit Court of Appeals for the Eighth Circuit.
9. Whitwell vs. Continental Tobacco Co., 125 Fed. Rep. 454 (at page 459). 1903.
10. United States vs. Colgate, 253 Fed. Rep. 522. 1918.
11. United States vs. Colgate, 250 U. S. 300. 1919.
12. Id., 253 Fed. Rep. (see page 525).
13. Id., 253 Fed. Rep. (see page 528).
14. Id., 250 U. S. (at page 306).
15. United States vs. Colgate, 250 U. S. (at page 307).
16. United States vs. Schraders' Sons, Inc., 252 U. S. 85 (see page 100). Decided March 1st, 1920.
17. Fisher's "Stabilizing the Dollar" (at page 59).
18. Jacob H. Hollander's Article in New York Times of Sunday, May 2nd, 1920, entitled "How Inflation Touches Every Man's Pocketbook."
19. Laughlin's "Money and Prices" (at page 187, 188 and 189).
20. Mogul Steamship Co. vs. McGregor, 23 Q. B. D. 611; 1892 Appeal Cases 25. (See 23 Q. B. D., at page 614.)
21. National Cotton Oil vs. Texas, 197 U. S. 115 (see page 129). 1905.
22. Northern Securities Company vs. United States, 193 U. S. 197 (see page 331). 1904.
23. City of Knoxville vs. Knoxville Water Co., 212 U. S. 13. (Discussed in Chapter I.) 1909.
24. Laughlin's "Money and Prices," page 161.