Such legislation would restore normal competitive conditions to corporations engaged in private business. Competition between corporations of normal size and power would do the rest. "Competition is the life of trade. Monopoly is the death of competition." Competition, released from the grasp of monoply, would become again the natural regulator and promoter of honorable business and legitimate profits. Soon after the decisions in the Oil and Tobacco cases, construing and upholding the Sherman law, President Taft in an address on the Trusts said: "It needed these two great decisions to teach the business public that at least not in the supreme tribunal of this country would the claim be listened to, that in this day and generation we have passed beyond the possibility of free competition as consistent with proper business growth, or that we have reached a time when only regulated monopoly and the fixing of prices by governmental authority are consistent with future progress. We did get along with competition; we can get along with it. We did get along without monopoly; we can get along without it; and the business men of this country must square themselves to that necessity. Either that, or we must proIceed to state socialism and vest the government with power to run every busi the platform of his party. He is, in the full sense of the word, their Representative. The three platforms in the order of their dates are as follows: Republican Platform "The Republican party is opposed to special privilege and to monopoly. It placed upon the statute book the interstate commerce act of 1887 and the important amendments thereto, and the anti-trust act of 1890, and it has consistently and successfully enforced the provisions of those laws. It will take no backward step to permit the re-establishment in any degree of conditions which were intolerable.' Democratic Platform "A private monoply is indefensible and intolerable. We therefore favor the vigorous enforcement of the criminal as well as the civil law against trusts and trust officials, and demand the enactment of such additional legislation as may be necessary to make it impossible for a private monopoly to exist in the United States.'' Progressive Platform "The corporation is an essential part of modern business. The concentration of modern business, in some degree, is both inevitable and necessary for National and International business efficiency. But the existing concentration of vast wealth under a corporate system, unguarded and uncontrolled by the Nation, has placed in the hands of a few men enormous, secret, irresponsible power over the daily life of the citizen-a power insufferable in a free government and certain of abuse. This power has been abused in monopoly of National resources, in stock watering, in unfair competition and unfair priv ileges, and finally, in sinister influences on the public agencies of State and Nation.' It thus appears that the People of the United States-the rank and file of the voters of every one of the great National parties, are emphatic in their denunciation of monopoly. There is no doubt as to what they wish and earnestly desire in relation to monopolistic corporations. They know, as well as our Senators and Representatives, that the creation of monopolistic corporations and the toler I ance of their operations, the concentratration of modern business under a system of State legislation which enables corporate bodies, unlimited as to size and uncontrolled by the Nation, to destroy competition, fix prices of labor, exploit our various manufactures and monopolize our National resources, have brought about the industrial conditions that now prevail in this country-conditions which men of all parties unite in saying are intolerable and insufferable in a free government. Perhaps this statement, as to unanimity of men of all parties, in condemnation of monopolistic corporations is too broad; for, in the Progressive party are many multi-millionaires, like "Mr. George W. Perkins, organizer of the Steel Trust and the Harvester Trust," who favors "large units of business, " and demands the co-operation and aid-financial and diplomatic of the Federal government in order to enable them to compete with their "great commercial rivals in Europe-hungry for international markets-golden opportunities of which they are rapidly taking advantage.' The plank of the Progressive party making such demand was undoubtedly dictated by the competitors for the commerce of the world.' Moreover, these gentlemen do not belong to the rank and file of the real Progressives. It remains true that Republicans and Democrats and real Progressives are united in denouncing private monopoly as an intolerable-an unsufferable evil. 66 The monopoly evil results from the creation of monopolistic corporations and their control of the industries of the country. The manifest remedy is to prevent the creation of such corporations; that is, corporations of sufficient size and power to control the industries of the country. The problem now before Congress is: Where is the power to prevent the creation of monopolistic corporations and how can the power be effectively exercised? When these questions are rightly answered the problem is solved. The problem is one above partisanship. In order to clear the way for the prohiibition of monopolistic corporations throughout the United States, it is only necessary to follow the provision of the Federal Constitution as to its amendment and then extend to every part of the territorial jurisdiction of the United States the principles of the Act of Congress, approved July 2, 1890, entitled, An act to protect trade and commerce against unlawful restraints and monopolies. The amendment to the Constitution might be as follows: The Congress shall have power to prevent and suppress monopolies throughout the United States by appropriate legislation.'' Without such a constitutional provision Congress is powerless to enact laws to prevent the creation by State legislation of such monopolistic corporations as own the coal, iron and copper mines of West Virginia, Colorado and Michigan, and have been for nearly a year in deadly conflict with their employees. com "Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or merce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor. Sec. 2. Every person who shall monopolize or attempt to monopolize 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, shall be deemed guilty of а misde meanor. In these sections are embodied only the general principles of the common law, with the difference that the offenses here named as misdemeanors were only unlawful at common law. Looking at the title of the Sherman law, we see that it is aimed at unlawful restraints and monopolies. In the language of the Supreme Court, as late as Dec. 1, 1913, the Sherman law is broadly designed to reach all combinations in unlawful restraint of trade, and tending, because of the agreements or combinations entered into, to build up and perpetuate monopolies.'' Straus v. American Publishers' Asso., 34 Supreme Court Reporter, 84, 87. No corporation is within the condemnation of the Sherman law unless it makes an agreement in restraint of trade or is of monopolistic size and power. RESTRAINT OF TRADE The most difficult part of the problem for the prevention of monopolies throughout the United States has been solved by 670234 the decisions of the Supreme Court, construing and upholding the Sherman Anti-Trust Act. That high tribunal has settled the meaning of the terms “restraint of trade" and "monopolize or attempt to monopolize, as used in the body of the Sherman law, by construing them in according with their meaning at common law. Not every restraint of competition is a restraint of trade at common law. There is a wide difference between agreements and combinations which are, and those which are not, injurious to the interests of the public. The distinction is often overlooked or confounded by the ablest judges in discussing contracts in restraint of trade. The two phrases "'restraint of competition'' and law and in the law of this country at the time of the adoption of the Anti-Trust Act only embraced acts or contracts or agreements or combinations which operated to the prejudice of the public interests by unduly restricting competition or unduly obstructing the due course of trade or which, either because of their nature or effect or because of the evident purpose of the acts, etc., injuriously restrained trade, that the words as used in the statute were designed to have and did have but a like significance.'' 221 U. S. on page 179. If the word "" competi tion" had been used in the statute a reasonable construction thereof might have required the judicial prefix of the word 'undue'' or 'unreasonable. But the words "restraint of trade" were used in the Sherman Act and these words common law and in the law of this country at the time of the adoption of the Anti-Trust Act only embraced acts or contracts or agreements or combinations which operated to the prejudice of the public interests.'' "at Restraint of competition may or may not be unreasonable and unlawful at common law, depending upon the circumstances of the particular case, just as an alleged fraud may or may not be illegal, depending upon the intention and nature of the transaction. An agreement not to bid at a public sale, if made for the purpose of stifling competition and is injurious to the interests of the public, is an agreement in restraint of trade. Every such agreement is "in the eye of the law, unreasonable. Whatever is injurious to the interest of the public is void on the ground of public policy. See opinion of Chief Justice Tindal in Horner v. Graves, 7 Bing, 735, cited by Taft while Circuit Judge in United States v. Addyston Pipe & Steel Co., 85 Federal Reporter on page 282. But an agreement not to bid at a public sale may be reasonable and lawful. Thus an agreement between two or more persons that one shall bid for the benefit of all will be upheld where the object of the arrangement is to raise, by a union of their means, the requisite purchase money, or to make a division of the property for their accommodation, or to protect existing interests, or any similar fair object. In these and the like cases, "the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. 66 Mr. Chief Justice White, in his controversy with Mr. Justice Harlan, in the Oil and Tobacco cases, overlooked the distinction between "restraint of compe-. tition and restraint of trade."' This distinction is based on reason, the soul of the law. That the Chief Justice confounded restraint of competition with restraint of trade is evident from his language in the Tobacco case as follows: "" "Applying the rule of reason to the construction of the statute it was held in the Standard Oil case that as the words 'restraint of trade' at common The Sherman Act did not enlarge the category of contracts, combinations and conspiracies "in restraint of trade." It did not penalize such combinations as where two physicians in the same city, or two surgeons, one in Kansas City, Mo., and the other in Kansas City, Kans., form a partnership and thereby cease to be competitors. It was not necessary to interpolate the word "undue'' or unreasonable" before the words "restraint of trade." At the close of the controversy, Justice Harlan, concurring with the decision in the Tobacco case, on page 193, says: "Let me say, also, that as we all agree that the combination in question was illegal under any construction of the Anti-Trust Act, there was not the slightest necessity to enter upon an extended argument to show that the Act of Congress was to be read as if it contained the word 'unreasonable' or 'undue.' that is said in the court's opinion in support of that view is, I say with respect, obiter dicta pure and simple.'' MONOPOLY All Among other definitions of monopoly the Standard Dictionary gives the following: "In political economy, such control of a special thing as a commodity, as enables the person or persons exercising it to raise the price of it above its real value, or above the price it would bring under competition."' In Standard Oil Co. of New Jersey v. United States, 221 U. S., 1 (37 Supreme Court Reporter, 502, 512) Chief Justice White, delivering the opinion of the court said: "The evils which led to the public outcry against monopolies" (allowed by the king or sovereign power) "and to the final denial of the power to make them may be thus summarily stated: (1) The power which the mo nopoly gave to the one who enjoyed it, to fix the price and thereby injure the public; (2) The power which it engendered of enabling a limitation on production; and (3) The danger of deterioration in quality of the monopolized article which it was deemed was the inevitable resultant of the control over its production and sale." In National Cotton Oil Co. v. Texas, 197 U. S. 129 (25 Supreme Court Reporter, 379, 382) decided in 1905, Mr. Justice McKenna, delivering the unanimous opinion of the Supreme Court, said: "It is enough to say that the idea of monopoly is not now confined to a grant of privileges. It is understood to include a 'condition produced by the acts of mere individuals.' Its dominant thought now is, '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."' In U. S. v. Trans-Missouri Freight Asso., 166 U. S. 290, 324, Mr. Justice Peckham, delivering the opinion of the court, said: "It is not material that the price of an article may be lowered. It is the power of the combination to raise it, and the result in any event is unfortunate for the country by depriving it of the services of a large number of small but independent dealers who were familiar with the business and who had spent their lives in it, and who supported themselves and their families from the small profits realized therein. Whether they be able to find other avenues to earn their livelihood is not so material, because it is not for the real prosperity of any country that such changes should occur which result in transferring an independent business man, the head of his establishment, small though it might be, into a mere servant or agent of a corporation for selling the commodities which he once manufactured or dealt in, having no voice in shaping the business policy of the company and bound to obey orders issued by others. Nor is it for the substantial interests of the country that any one commodity should be within the sole power and subject to the sole will of one powerful combination of capital." In U. S. v. Union Pacific R. R. Co., 226 U. S. 61, 33 Sup. Ct. Rep. 53, 58, decided December, 1912, Mr. Justice Day, delivering the opinion of the court, says: "The consolidation of two great competing systems of railroads engaged in interstate commerce by a transfer to one of a dominating stock interest in the other 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 (United States v. Joint Traffic Asso., 171 U. S. 577, 19 Sup. Ct. Rep. 25). It directly tends to less activity in furnishing the public with prompt and efficient service in carrying and handling freight and in carrying passengers, and in attention and prompt adjustment of the demands of patrons for losses, and in these respects puts interstate commerce under restraint. Nor does it make any difference that rates for the time being may not be raised and much money be spent in improvements after the combination is effected. It is the scope of such combinations and their power to suppress or stifle competition or create monopoly which determines the applicability of the (Sherman) act.'' It is the gigantic size of a corporation which gives it the power to monopolize a private industry, or become a monopoly. MONOPOLY A NATIONAL EVIL The evils resulting from monopolistic methods in restraint of trade, and from the ruthless operations of corporations of sufficient size and power "to fix prices" of industrial products throughout the country are national evils and require a national power for their suppression. The monopoly evil will continue to exist so long as the several States create monopolistic corporations, or allow multi-millionaires to build up within their borders corporations of monopolistic size. Notwithstanding the segregation of the Oil and Tobacco combinations, the individual accessory and subsidiary parts are more rapacious than ever. The parent vulture with her brood need not, and do not, walk along the legal highways of interstate commerce. They fly over State lines beyond the reach of any Congressional gun, and each can go to an old nest or make a new one wherever there is an oil or tobacco field between New Jersey and the Pacific. "Moody's Analyses of Investments,'' published January 1, 1914, has the following statements: |