with merely declaring the combination void at law, such as all contracts which were simply in restraint of trade. But there are cases which almost seem to apply this law of unmoral purpose to individual action. First of all is the very old case of Tarlton vs. McGawley.1 That was a case where a slave trader having his ship off the coast of Africa had collected a tribe of negroes upon the beach for the purpose of enslaving them; but a competing slave trader came up with another vessel, and in order to destroy his competitor's trade fired a cannon with the intention of scaring the negroes on the beach so that they ran away into the woods and escaped. One or two were killed or injured but there was no trespass committed upon the defendant. The point that slave trading was an immoral occupation in itself was of course not raised in those days; yet this perfectly lawful act was held to give the owner of the vessel the right to damages when he got back to London.

Wyeman vs. Deady 2 was a Connecticut case where the plaintiff got damages against defendants for procuring his discharge by intimidation of the employer. The element of conspiracy was said by the court not to be in the case. So in Brennen vs. United Hatters,3 the plaintiff recovered damages from the Hatters' Union because he refused to pay the fine and they took away his membership card which resulted in his discharge by the employer, and the court go to the length of saying that malice is the intentional doing of a wrongful act without justification and a wrongful act is an act, which in the ordinary course will infringe upon the rights of another. But perhaps the most extreme modern case, almost going back to the old case against McGawley, that of the slave trader, is the Minnesota case of Tuttle vs. Buck,1 where the defendant, not a barber, but a banker, established another barber in the town for the purpose of competing with the plaintiff, who had been for some years established as a barber in the same village. It was alleged that this was done with the sole purpose of destroying the plaintiff's business, and not for any legitimate interest of the defendant, and the plaintiff, although the court was evidently in some doubt, got damages under a divided opinion. Finally there was also a Louisiana case where the proprietor of a barroom recovered damages against the superintendent of a street car line for advising the car conductors and drivers not to patronize his saloon.

These are examples of cases brought against individuals not in conspiracy which seem to me to go to the extreme limit of the law.

Let us now close by applying our principle to modern cases of combination; one of labor and one of capital. If our test is of any value it should stand application to the very most recent and most important controversies now before the public, and we will take as examples

but merely as examples, for the cases are still sub judice - the great Government suit against the Standard Oil Company on the one hand and the contempt process against Messrs. Gompers, Mitchell and others in the Buck Stove and Range case at Washington, D.C., on the other.

In the first place we must recognize that serious difficulty arises from the fact that we are acting under a statute, at least in matters of interstate commerce, the Sherman Act of July 2, 1890. At common law a combination in restraint of trade or a monopoly by royal grant were both void; no contract under them could be enforced; and by the Statute of Monopolies any person injured might bring a common law suit and recover treble damages; indeed it appears from the East India case that this was common law without the statute. No machinery of government interference was provided; the tremendous power of the government was not employed like a club to destroy the business and all that it represented; it was always, under common law principles, a lawsuit between individuals.

3

The contract or combination might indeed be held void as against the suit of any third person aggrieved, or against the defense of a party refusing to be bound by it, but there the matter ended. Now our Sherman Act goes beyond the common law in two particulars: First, the familiar one that on its face it forbids all contracts in any restraint of interstate commerce, even a reasonable one; and secondly, and quite as important, that instead of leaving the matter to individuals it is made the duty of the Government, through any District Attorney, to institute proceedings in equity to prevent and restrain such violations. All property owned under any such contract or combination, being transported from one State to another or from a foreign country, may be seized and forfeited; and then follows the common law provision of treble damages to the individual injured. It is furthermore made a misdemeanor for any person to engage in such combination or make such contract. The Act, of course, applies to corporations and is called "An Act to Protect Trade and Commerce Against Unlawful Restraints and Monopolies." Section one names particularly contracts in restraint of trade, and punishes persons engaged in such; and section two is addressed to persons who monopolize or attempt to monopolize or combine to monopolize any part of such interstate trade. It was apparent in the argument before the Supreme Court that both bench and bar had some difficulty in seeing what new thing section two added to section one, and yet they were bound to find such additional meaning if possible. Where the statute transcends or contradicts common law is well shown in section one where "every contract, combination or conspiracy in restraint of trade" is denounced. But a combination in restraint of trade is by the definition of the

1 Sherman Act, Sect. 4.

2 Ibid. Sect. 7.

Ibid. Sect. 3.

common law a conspiracy, so this is tautologous, while the words "every contract" in section one, with the words "any part" in section two, have forced our courts to denounce contracts in restraint of trade, or combinations, which at the common law would have been reasonable growth and not monopoly.

But to my mind the innovation of the remedy is more important still. Mr. Johnson, in arguing for the Standard Oil Company, urged at least that they be punished only for what they had done wrong, and not totally destroyed. But the sledge hammer of government prosecution cannot stop short of destruction. No other penalty is provided. And a still more important consequence of using this direct prosecution by government in a court of chancery is that there is no jury trial of the facts in the locality where they happened. It practically comes to an attempt by the Supreme Court to decide what is peculiarly a question of fact, on a written record, which did indeed, I believe in this case, amount to twenty-seven printed volumes. But the question of intention and of the reasonableness of ordinary business matters is peculiarly adapted to be tried by a jury of the people in the locality affected. Under the Sherman Act our highest tribunal is deprived of this assistance. Furthermore the difficulty of discriminating between "good trusts and bad trusts" is enormously more difficult for a high court of appeal in a hearing on a bill in equity than it is for a jury in a common law suit for damages. However, leaving the essential difficulties of interpreting this Act of Congress with this brief mention, let us now try to apply our test, which is after all I think, the test intended by the Sherman Act as I believe it to be, the test of the common law.

In the Standard Oil case the question would be was the combination actually complained of in this suit (which might, of course, be the original Trust agreement, or a later combination of corporations, or, finally, the articles of association of the Standard Oil Company of New Jersey itself) created with the intention and the aim of restraining trade in any of the many forms of such restraint, as by fixing prices, limiting output, parceling territory, or even unfair competition, the destruction of competitors by artificial underselling, or finally, with the intention and aim of establishing a Federal monopoly. No amount of reasonable acquisition without such malign purpose and with no evidence of any malign act, no amount of acquisition of more refineries, pipe-lines, fleets of ships, would in this test of itself amount to evidence of a criminal combination; even though the result, either by larger ownership or greater ability, might in fact be to get a very large percentage of the business of refining and shipping oil. On the other hand, if the jury found, — and now the court must act as a jury, — that the intention of the contract or combination or charter complained of was to bring about a national monopoly (and any one of

the above enumerated acts of restraining trade would be evidence of such intention), then a jury might find the contract or combination void; and so a State court, of intrastate combination, under the common law.

It is of course possible, if not probable, that our high court has no doubt of the law, but it is more than likely that they have a doubt of the facts, sitting merely as an appellate court of chancery with no jury to aid them.

Coming now to the Buck Stove case, the same principles apply. I leave out that part of the argument of counsel for Mr. Mitchell and Mr. Gompers, which is based on the claim that their right of the freedom of the press is infringed, for that brings up merely the constitutional question of whether the freedom of the press in our written constitutions means more than, as in England, the right to publish without preliminary censorship, being responsible for such acts of publication in the common law courts, in any ordinary way. It is lawful, for instance, to walk upon the highway, to exercise the right of free locomotion, yet there have been many injunctions where a congregating upon highways, or even the right of free locomotion in certain places, has been restrained. But the test of intention, it seems to me, works as well here as in the other case. The plaintiff claims that there is a combination to boycott his business, with one overt act. The evidence of such combination is the printing of his name weekly on the "Unfair List" of the official journal of the Federation of Labor, coupled with the expressed intention of going on so to print it in every journal until the plaintiff yields. The first question is simply whether there was a combination with the intention of controlling the plaintiff's lawful liberty, and of injuring, boycotting or destroying his business. That fact seems to be admitted; then the same question will arise as to the intention of the publication which is the cause of the sentence for contempt. Mr. Gompers himself asked me whether he had not the right to print the fact that there was a trade dispute with the Buck Stove Company in his own newspaper as part of his right to freedom of the press; I said "certainly you have. You can print it once at least as matter of news; you can doubtless comment upon it in your editorial column; but when you print it in every issue for a year or five years, and moreover, state that you intend to go on printing this Unfair List until the Buck Stove Company yields, it will be a question of fact whether you are printing that as matter of news, or as a threat, a boycott; the act of a combination with an unlawful aim." It may be difficult for us, for you and me or for lawyers to decide, but such cases are very often much more simple to a jury of common-sense men. Go before that jury if you can. If they hold that it is a matter of recurrent interest, of news, that you should print every week a story about this trade

dispute, they will so find. If, on the other hand, they see that it is part of an organized attempt to destroy the plaintiff's business, especially when coupled with a threat of continuing this printing forever in the editorial column, and not mere matter of news, they will probably find the other way.

I conclude, therefore, that we should think long and carefully before we abandon this great principle of our English law preventing the oppression of the individual by the multitude, and, in the law of combination, going directly to the ethical motive of the combine. It has been a commonplace of laymen critics that the law is not moral, that it does not go into the higher issues, that it is easy to keep within the letter of the law while morally guilty to one's neighbor or to the State. This is not true of our law of combination. Let us, therefore, not carelessly give up this one great domain of the law of private right, which, based both on our English history and the profoundest laws of economy at the same time, rises to the highest standard of duty to one's neighbor and to the State; the one great body of the common law based squarely on the Golden Rule.

STATE CONTROL OF PUBLIC UTILITIES 1

BY BRUCE WYMAN OF THE BOSTON BAR

(From the Harvard Law Review, June, 1911)

The Public Service Corporation has been placed quite completely under the regulating powers of the State, principally under the theory that it is a "business affected with a public interest.' EDITOR'S NOTE.

I

The difference between public callings and private business is a distinction in the law governing business relations which has always had, and will always have, most important consequences. Those in a public calling have always been under the extraordinary duty to serve all comers, while those in a private business might always refuse to sell if they pleased. So great a distinction as this constitutes a difference in kind of legal control rather than merely one of degree. The causes of this division are, of course, rather economic than strictly legal. And the relative importance of these two classes at any given time, therefore, depends ultimately upon the industrial conditions which prevail at that period. Thus in the England which we see through the medium of our earliest law reports the medieval system with its

1 Copyright, 1911, by Bruce Wyman - being in large part the Preface to Wyman on Public Service Corporations, reprinted by permission of Baker, Voorhis & Co.