692
THE GREEN BAG
able to dictate policies and so restrain com petition between them, will be unlawful, and that upon such a principle there is no phase of life in which Congress might not interfere. The court holds that the agreement in question restrains "that freedom of com merce which Congress intended to recognize and protect, and which the public is entitled to have protected"; that the trade which is to be protected against restraint is the trade of the general public, and that the combina tion of these two roads is a restraint of such trade and a monopoly within the meaning of the act. The four dissenting judges, however, contend that the act has no such meaning, but that contracts in restraint of trade are only those restraining the trade of one of the contracting parties, not thai of the general public; that the contract here is, therefore, not a contract in restraint of trade, because the restraint is not on the trade of the parties to it, but on that of others; that the inhibition against restraint of trade "simply requires that a party's freedom in trade between the states shall not be cut down by contract with a stran ger"; that the combination in question must be considered, if anything, a monopoly, but it would be unreasonable to condemn every combination which monopolizes; for if it is valid to grant exclusive powers to one rail road, a combination of two railroads obtain ing thereby exactly the same powers as might be lawfully granted to the one, should be valid also; that the principle announced by the court, if developed, would condemn a charter granted to one company to oper ate two new and competing roads, bought by it; that it would be absurd to send Mr. Morgan to prison "for buying as many shares as he liked of the Great Northern and the Northern Pacific, even if he bought them both at the same time and got more than half the stock of each road"; and yet that result would follow from the decision of the court; that "the Act of Congress will not be construed to mean the universal dis
integration of society into single men, each at war with the rest, or even the prevention of all further combinations for a common end"; and that if the decision of the court is correct, "then a partnership between two stage-drivers who had been competitors in driving across a state line, or two merchants once engaged in rival commerce among the states, whether made after or before the act, if now continued, is a crime." The court holds that the question is one of commerce, and that Congress had power to regulate commerce in the way attempted by the act. Mr. Justice White, with whom the other dissenting judges agree, maintains that this is no question of commerce, but merely of the ownership of stock in a rail road. The court holds that no action of a state, granting a charter authorizing a combina tion like the present, can be valid as against an act of Congress; the dissenting judges maintain that the state law must govern where the question is simply, as here, one of ownership of stock in a state corporation. The court decides that the power to regu late commerce includes the power to regu late the oivncrship of the instruments of com merce; the dissenting judges hold that it does not; they make a distinction between those instruments and the ownership of them, and contend that while Congress may regu late the former, the latter is a mere matter of private property, beyond the interference of Congress, and wholly within the purview of the states. The court holds that such power has in this case been validly exercised by Congress; but the dissenting judges maintain that even if Congress had such power, it has not been validly exercised by the act in question. The decree in the case, affirmed by the Supreme Court, while it forbids the use of the stock of the holding company, authorizes the return of their stock to the original owners, and does not restrain them from exercising the control resulting from such ownership. The dissenting judges consider
