590
THE GREEN BAG
tracts in restraint of trade, upon which is predicated the element of reasonable or unreasonable, which are contracts between two individuals, by virtue of which one contracts himself out of trade, and combi nations or conspiracies tending to the monop ly of trade upon which the idea of reasonable or unreasonable never yet had been predicated by any well-considered de cision. As to contracts in restraint of trade as just defined, the Supreme Court of the United States held in the case of Cincin nati Packet Company v. Bay (200 U. S. 184) that they were not within its scope, saying : "There has been no intimation from any one, we believe, that such a contract made as a part of the sale of a business and not as a device to control commerce, would fall within the act and ... it would accom plish no public purpose, but simply would provi'de a loophole of escape to persons inclined to elude performance of their under takings, if the sale of a business and tem porary withdrawal of the seller necessary in order to give the same effect were to be declared illegal in every case where a nice scrutiny could discover that the covenant possibly might reach beyond the state line. We are of opinion that the agreement before us is not made illegal by either of the provisions thus far discussed." The Sherman anti trust law proceeds upon the theory that there are contracts and agreements monopolistic in their character which are in restraint of interstate trade and commerce. It is aimed throughout at contracts and agreements that tend to monopoly. That is its generic character. Section i provides that "every contract, combination in the form of trust or other wise, or conspiracy, in restraint of trade or commerce," etc., and "Every person who shall make any such contract or engage in any such combination or conspiracy," etc. Section 2 provides that "every person who shall monopolize or attempt to monop olize, or combine or conspire with any
other person or persons to monopolize, any part of the trade or commerce among the several states, or with foreign nations," etc. Section 3 provides that "every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or com merce," etc., and "every person who shall make any such contract, or engage in any such combination or conspiracy, shall be deemed guilty," etc. Section 6 provides that "any property owned under any contract or by any com bination, or pursuant to any conspiracy" (and being the subject thereof) "may be condemned." While the literal language of this act might include what is known at common law as contracts in restraint of trade, it is very clear that the dominating controlling purpose is to prevent contracts, agreements, combinations and conspiracies resulting in or attempting to create monop;ly. It is because the words "in re straint of trade or commerce" are used that the idea has obtained that the quali fication of reasonableness or unreasonable ness should be imported into this statute by construction. It is very ably suggested by Mr. Justice White in his dissenting opinion in the Trans-Missouri case, that the Sherman anti trust law should be construed upon the basis as to whether or not the combina tions or conditions that it undertakes to attack are or are not reasonable or unreas onable, and it has been suggested by dis tinguished men since that the law is open to that criticism. It was suggested — I heard a distinguished gentleman in another tri bunal the other day say — that it was intended by the framers of that law to subject it to the test as to whether the con ditions attacked were reasonable or un reasonable. I beg leave to submit that such a construction cannot be sustained. There is a contract in restraint of trade at common law. A contract in restraint of
- rade at common law is a contract by vir
