The Green Bag
472
court, perhaps the ultimate result will not be
greatly difi'erent, except to throw a greater urden on the government in getting at and es tablishing the facts in each case. There is not much in the common law rule of reason,
except its uncertainty, to
ive comfort to any
of the large trusts to classi y themselves among the sheep instead of among the goats." There is a very full review of case law, classified
under distinct sub-headings.
"There is not much
in the common law rule of reason, nor in the cases reviewed. to furnish much of aid or comfort to
such existing institutions as are similar to those
- hat'have been challenged in the courts hereto
ore. "The Future of Anti-Trust Legislation." By Gilbert H. Montague.
Editorial Review, v. 5,
p. 619 (July). "Criminal statutes, it is obvious, should be absolutely definite in their terms, and any uncertainty should, if possible, be avoided. Eminent lawyers have expressed the fear that
indefiniteness and uncertainty lurk in the lan uage of the Sherman Act, because, to quote the Supreme Court in the Standard Oil case: — "‘As the acts which may come under the
classes stated in the first section and the restraint of trade to which that section a plies are not specifically enumerated or definecl)— it is obvi ous that judgment must in every case be called into play in order to determine whether a par ticular act is embraced within the statutory classes, and whether if the act is within such
classes its nature or effect causes it to be a re straint of trade within the intendment of the act.‘ . . . "The futility of indiscriminate anti-trust statutes has long been demonstrated by business experience, and more recently by the highest judicial authority in the United States. The anti-trust statutes in force in many of the states must be pruned of indefinite and impracticable prohibitions in order to be truly effective. What particular form such statutes should take will depend, in large measure, on how workable the federal anti-trust statute,as now interpreted,
is found to be. Such a statute should forbid no method of organization evolved out of normal competition. Yet it should prohibit, in compre hensive fashion, every improper interference with trade and competition." "Review of the Opinions of the Supreme Court of the United States in the Standard Oil and Tobacco Cases." By Albert H. Walker. 73 Central Law Journal 21 (July 14). "The motives of Chief Justice White in com posin and promulgating his Standard Oil or his obacco obiter dicta . . . were probably based upon the following sincere, though errone ous, opinions relevant to the science of eco nomics: — "First. Restraint of competition always con stitutes restraint of trade, and would therefore
always be prohibited by the Sherman Law if the statutory phrase ‘restraint of trade’ were to be construed without any limitation-_ “Second. Restraint of competition is in many
cases economically wise and ethically proper; and when it is so it ought not to be the subject only way to prevent the Sherman of “Third. statutelrkl‘he prohibition. Law from prohibiting manycases of economically wise and ethically roper restraint of competi tion is to construe the statutory words ‘restraint of trade’ by means of some limitation which will confine those words to non-ethical restraint of trade, and that result can be accomplished only by limiting them by some such word as ‘unrea
sonable’ or ‘undue’ or ‘injurious.’ "The line of argument suggested in the last three paragraphs has long been sincerely enter tained by many excellent men, including Chief Justice White; but all of those men must have
overlooked one particular p in the argument, the undeniable existence 0 which quite vitiates its conclusion. That gap consists in the eco nomic fact that restraint of competition never does, when it is ethical, result in restraint of
trade, and therefore never falls within the un limited statutory phrase ‘restraint of trade‘ as that phrase is used in section 1 of the Sherman aw."
Municipal Corporations. "The Quasi-Con tractual Obligation of Municipal Corporations." By Jerome C. Knowlton. 9 Michigan Law Re view 671 (June). "The courts have considerably modified their views on the question involved, during the past thirty years, and to an extent that renders a recovery in quasi contract a inst municipal corporations very doubtful." he author ana lyzes what he calls a "truly bewildering" mass of cases, under the topics, "Liability for Money Had and Received," "Liability for Labor and Material Furnished," and "Le islative Prohibi
tion of the Quasi-Contractual Old Age Pensions.
bligation."
"The Constitutionality
of now. Old Age American Pensions." Political By Science Prof. Frank Review, I. Good v. 57 p. 194 (May).
“Whether the [United States Supreme] Court will carry this idea of the local autonomy of the states in deciding what should be the remedies to be applied to the evils attendant upon an intense industrial life under conditions of free dom of individual action, of course cannot be
said, but the logic of the argument cannot be avoided if the Court can be brought to see that the difference in conditions due to the varied occupations of the people in different parts of the country are in reality just as great as the differences in climate and social conditions which were recognized in the opinions from which quotations have been 'ven. . . . "Our conclusions t en as to the constitu tionality of old age, accident and sickness pen sions are, assuming that the courts do not change their view: — "1. Such pensions when provided by state action are not prohibited by the Fourteenth Amendment or any other provision of the federal Constitution, particularly if they are confined to indi ent persons. "2. f not confined to indigent persons they
