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Show DISSENTING OPINION OF JUSTICE HARLAN IN THE RECENT STANDARD OIL DECISION I WASHINGTON. May 1T.-Jut!e Hr-tftn Hr-tftn d.wttntin opinion. 4llvrd omJly an without note, wag aratiahto In Its ntlrvty for tha fir, tin ntgM and reevlYwl dimi careful coniWwration. avn vt in opinion i not Iq Ita final form and undoubtedly will bm r-vtly lto-rmtad. lto-rmtad. Juatlra Hartaui aald In part; "I faal cmtatrAlnad by a .naa of tluty t atat. aoma ob)ct.on which I hava to opinion of tha court, which I ha-vt haretofnra examined In typewriting . "I ahall not aar anythln about tha dacraa aicapt to aay that .upon haarln th anrumenta on thla art aoma year aajo, and alnoa nty axamlnatlod of thla raaa. I cam to th eonrlualon that tha darra ot tha circuit court waa aub-atantlally aub-atantlally right In all nartlculara. "Aa to all tha chief Jim ilea hae tatd bout tha initial combination of thla oil f company and Ma comltuj within tha antl-tmat antl-tmat act. J cordially concur. Thara ara. S however, aome thlnira In thla opinion which t am unwltlinjr to Wt paaa with any Maa that 1 approve them. j Act ti Placnmrt 11 i raaaonabla reetralnt of trada. but all tha oontracta ara Included n auch Ian and no avoapttona or I Imitation can ha added without placing In the art that which baa bean omitted by oonaraaa. ConaTraat Should Act " 'If tha act oujrht to read aa eon tended for hy defendanta. cotiareaa la the body to amend It. and not thla court, by a proceea of Judicial leslalatlon wholly unJuatiflable. Tha public .policy of tha fovernmenl la to be found In Ha atat utea and when they have not directly pole n. then In the doclalona of the courta The oonclualon which w have drawn from the examination abov made Into- tha queation before ua la that the antl-truat act appllaa to railroads, and that It render illegal all aareeraenta which are In restraint of : trade t commerce, aa we hava defined that axpreaflon. and tha queatlon than arlaea whether the agreement before ua la of that nature. "And they held that It wa. But thai controversy did not end there. Two J years later another caae came from tha i weat. aa tha Joint traffic caae, decided In 171 U. ti. "There the Question was whether a I certain traffic agreement In that case waa In violation of tha antl-truat law. "Thla court, with care and deliberation, delibera-tion, and alao with a full appreciation of their Importance, aaaln conaldered the questions Involved In tha former derision de-rision A ma)orlty of the court oore more arrived at the conclusion. It had first announced, and. accordingly. It denied de-nied the application. Maka It Emphatic. ' "Now," ftif the Third 11 ma."" layt tha court, hack m IWT, 'the same argu-menta argu-menta are employed, and the court la again eaked to recant Its former opinion and to decide, tha same queatlon (n direct di-rect oppoaltion to the conclusion arrived at In tha trans-Missouri caae.' In fact, so eloae was tha devlalon of thla court when the matter waa under advisement, together with the vlewa of en me of the judges In the lower courta. that we were led to a moat careful scrutiny and ex-lamination ex-lamination ot the arguments advanced by I both sides. And It waa after auch an "The antitrust act of I" waa paaaed J - at a time when thla country waa In a j atate n great unreal, arising out of an enormous aggregation of capital In a few l . tiande, and arising out of a combination t which had their Tianda upon the throat ; of this country: and congreee had before tt the great question aa to how these I evils were to he remedied. Tha question was: What ahall we do? "They anally, after great debate by able statesmen, paaaed the antl-truat act of UW. Let ma call your attention to a , few of tha words of that act. It provides Iq section 1 : IJ " "Thet My "ptifitra, wmbinnttnn In j form of truat or otherwlae, or conspiracy not In restraint of trade, aa tha learned i chief Juatloa aald In one of hla remarks but In restraint of trade among the eev- ; ' eral states and with foreign nations, la hereby declared to be 1 1 legal. ' "Cong rase baa nothing to do with domestic do-mestic trade In tha states, but aa to interstate in-terstate trade It hae a great deal to do, i and therefore It .fell upon this policy. But congress said: The surest way to protect Interstate commerce Is not to start upon any distinction at all as to the binds of trade, but every contract In restraint of trada among tha states. Is kerehy declared ta be Illegal.' "Then, la the second eectkm: Every person who shall monopolise or attempt to monopotlsse or combine or coneplre with any other person or persona to monopolise' mo-nopolise' "Monopolise what T Any part of tnter-etate tnter-etate trade or commerce shall be llsble to the penaltlea prescribed by thla act.' . Monopoly Oondamnsd. "What become,, then, of the .tatement that thla act did not condemn monopoly In Itself? DM not theee men know what a monopoly was? And when congreee said that w. will punish any man that monopolise, or attempt! to monopolise, any part of the Interstats commerce, did It not know what It Intended t That la aot ail: " 'Bvery contract, combination In form of trust, or otherwise, or conspiracy In restraint of trade or commerce among the Slates, Is hereby declared Illegal.' "That queatlon Involvea the conetruc-tlon conetruc-tlon as to the scope and meaning of that .. antl-truat law. "Therefore, one tees said te all the people of this country: " 'We are not going to bother the courta or ourselves with any Inqulrlee aa to what contracts ars m reetrsJnt of trede reasonably or unreasonably. We are M going to leave that to any jury. We are not going to leave that to any circuit Judge. We will determine It ae a part of the policy of the t'nlted States, thst. So far aa mteretate trade la concerned, con-cerned, no body or corporation ahall make or attempt to enforce a contract, any contract that In uv Arm ru raatralns examination waa made that the court came to the conclusion It did. "It Is not now aHtgad that the court, on the former occaatan. overlooked any argument for the respondsnts, or misapplied mis-applied any controlling point. It la simply sim-ply Insisted that, notwithstanding the arguments from ths opposite view, the court srrlved st sn erroneous result which, for reasons slready stated, ought to be reconsidered and reversed. Ae we hsve twice already deliberately and earn, estly considered the same arguments whlcl. are now, for a third time, preeeed upon your attention. It would hardly be expected that our opinion ehould now change from that craefully expressed. Mo New Vlwi Prssssd. "If anyen. will laks the trouble to run through the briefs and argumenta of these two cases . they will be perfectly satisfied that no view le now preeeed upon the court, either In the opinion of the majority, or In the arguments of counsel, that waa not brought to th. at-tentlon at-tentlon of the court In the two caaea, one decided In HM and tb. other In lit. "That being the state of the law, what waa to happen? What were theee gentlemen gen-tlemen to do? Why, there waa nothing left to them. Thle court having three tlmea beard this question argued and reached a conclusion, there was nothing left for them but to go to eongree. and get th. harm an act amended. "The moot alarming tendency of thla day. In my judgment, so far aa the safety and Integrity of our Inetltutlone are concerned, con-cerned, le the tendency to Judicial legislation, legis-lation, ao that, when men having vast Intereete ara concerned, and they cannot get the law-making power of the country coun-try te pass the legislation they desire, the next thing they do la ta raise the question ques-tion In Kim ease, te get the court ao to construe the constitution or tha atatutee as to mean what they want It to mean. That hae not been our practice. "The court. In the opinion In thla ease, says - this act of congreee means and embrace, only unreasonable restraint of trade a flat contradiction to what thla court baa said fifteen year, ags that eon-greea eon-greea did not Intend. Asked to Chang. Bala. "Now, we are asksd to rhangs the rule and t. say: 'It may be true that. In the words of the statute, thl. contract or thla agreement la In reetralnt of interstate trede. It may be, but It la a lawful restraint re-straint of trade. It la n lawful restraint. re-straint. "Within th. last hour at any rata a s-Helon s-Helon haa been handed down for thle court today In which. In a caae arising under the safety appliance act. It waa said that auch and auch waa tha safety appliance act. such and such waa Ita meaning: that thle court ha. declared It la a. eass decided four or Ave year, ago. Now we aald In reply to that: " In new of lh.ee facta, we ara .n-wllllng .n-wllllng to regard the question aa to the meaning and aco pa of the aafety appliance appli-ance act. ao fsr aa It relatee to auto- ; Interstate trade.' fsrtlnsat Question. "Csb anybody doubt the meaning of those woroeT "In laM. fifteen veers ago. n case waa In th s court, known aa the trane-Missouri trane-Missouri caae. The rallroede In that caae had come to make an agreement ahnuf rates, and the queetlon waa whether thet agreement was In violattoa of the antl-truat law of Use. -' "What did this court aay ? Pardon m. 'for reeding a Utile from an opinion delivered de-livered by Mr. Justice Peckham: " While the statute prohiMie all combinations com-binations In ths form of trusts or other- 'wlee, the llmllattone are not confined to thet form alone All combination, which are In restraint of trade or comnterce , are prohibited whether In I Be form of truets or In sny other form. " 'The .next queetlon to be discussed is re to what Is ths true construction . of the etatute. eesumlng thst It appllee to common carriers by railroad. " 'What Is ths mesnlngr the court asks of the language ueed In the ' ststuts. thst every contract, combination combina-tion In the form of truete. or .therwlee. or conspiracy In reetralnt of trede or commerce among the statee. or with for-eis-n nattooa, la hereby declared to be HKgal Ail Held Hiatal. it m now, witn much argument, urged that this statute. In declaring 11-lal 11-lal every com W nation In the form, of trust or otherwise, or conspiracy In restraint of trade or commerce, does not meen whet the language used therein plainly Import, but that It means only to declare llsgal any such contract which la ta unreasonable restraint of trads. while leaving all others unaffected by the provisions of the act: that the common lawmeaning of the term "contract "con-tract In restraint of trade" Includes only on-ly such contracts as are unreaaonabie reetfslnt of trade, and where thai terra Is ad in the federal statute. It Is not Intenoed to Include ail contracts In reetralnt. but only thosv which are unreasonable un-reasonable restraint thereof. " 'By the si mole use of the term "con tree in restraint of trade," all contracts of that nature, whether Invalid or other wtee, wiiuM be Included and not alone that kind of contract which was Invalid ' and unenforceable aa being In unreasonable unreason-able .restraint uf trade. When, therefore, there-fore, the body of the act pronounces as ' Wteea! every contract or com M net Ion In restraint of trade, among the several statee. the pteln and ordinary meaning of such language la not limited to that kind of contract alone whtrh te In un- matle oeuplere on transmorlng Interstate traffic aa open to further discussion.' If the eourt erred In the former caae. It le open for the parties to apply, for auch an amendment of the statute aa eongrem may. In Ita discretion, deem proper. This court ought not now disturb what has been se widely accepted and acted upon by the courte aa having been derided In thet caae. A contrary course would cauee Infinite uncertainty. If not mischief. In ths administration of tha law la the federal fed-eral eourta, "It te suite true that what was said in thst case concerned only the Uvea and the limbs of railroad employee, and pas-eengers. pas-eengers. However Important the law may be. we will not conelder the queetlon as to whether this former construction Is right, because If we are wrong, go to congress and get the legislation. Ma B Dam, Msnac ' "That Is tha one case. While thla happens to be a caee of an overshadowing overshadow-ing combination of such vast wealth and enormeue power that It may fairly be deemed a menace to the general business Interests of the country: but thle difference dif-ference ought not to Induce us to depart from a settled, wholesome rule which, being faithfully observed, will guard ths Integrity and secure the eafety of the nation and of Ite Inetltutlone agalnet the ettacke of those who would undermine all lew and who would, for the eake of pree-ent pree-ent edvante.es and ende. he willing te unnn the work of the fathers. "Why do I say undo the wot of the fethere? If there le any feature In our j governmental aystera thst Is ssteemed i among the nations of the earth. It la that provision of the federal constitution which dlvldee the departmente of gov. eminent among three co-ordinate hretirhes leglsletlve. executive and Judicial, Ju-dicial, and neither branch haa the right to encroach upon the domain of the other. "FVsrtlcellT the decision today I do not mean tha Judgment, but parts of the opinion, ere to the effect practically that the cuiirta may. bv mere Judicial con-triictlnn. con-triictlnn. amend the constitution of the ir "d .'ales or an act of congress. Thst. It strikes me. Is mischievous, end I!1".! "J!1 nf-,h "Pinion that I especially espe-cially object to." I |