the court's meaning it is left obscure. In fact, if a distinction exists, it is thin and tenuous as gossamer. To quote, with great deference, words of the learned Chief Justice himself, "the difference between the two is therefore only that which obtains between things which do not differ at all." It seems to the writer that in attempting the impossible task of reconciling these cases with prior decisions, the court becomes involved in some confusion. This is indicated to some extent by the fact that the attempt in each case takes a different form. In the Standard Oil case the effort was to show that previous cases did not decide that reasonable restraints were illegal. In this case the effort is to show that the Standard Oil case did not decide reasonable restraints to be legal. Either contention, if sound, would sufficiently support the court's position. In relying on both the court seems to confess a suspicion of the unsoundness of each. After all, however, the importance of these decisions lies neither in the use of particular words, nor in the fact that a substantial change as to the test of illegality, no matter by what name it was called, was made, but in the fact that they represent a sound and enlightened interpretation of the Act. Moreover it is no more than simple truth to say that the opinions in these cases, considered at large, in their broad-minded and wise treatment of a matter of almost unparalleled difficulty are superb specimens of the highest form of performance of the judicial function. The court is particularly successful in demonstrating the good sense and practical necessity of the rule adopted. The reasoning is sound and convincing. The statute cannot be interpreted strictly, that is, following the literal meaning of its words, and loosely, that is, according to its spirit and intent, at one and the same time. The court must decide which method of interpretation will secure the better results. If the statute is construed strictly and literally it will cover any and every combination, and nothing which cannot be tortured into a combination. As combinations may be either beneficial or harmful, and as there may be injurious restraint of trade even though nothing which is technically a combination exists, such an interpretation would at once destroy much that is good and permit much that is evil, and so cover both more and less than the statute intended. The reasonable construction is to follow the spirit and intent of the statute. Such an interpretation does not regard form, but covers all acts or conditions which inter

fere with the rights of outsiders, and which may be referred to loosely as wrongdoing.

The court proceeds to test the undisputed facts by the rule adopted. The enumeration of the facts which lead the court to its decision is the most valuable part of the opinion. The court felt that there was a purpose to acquire dominion and control of the trade by excluding others or by interfering with the right of outsiders to trade, and therefore an illegal combination, for the following reasons:

The first combination was impelled by a fierce trade war which itself was evidently inspired by one or more of the persons who brought about the combination.

The acts which followed the forming of the combination, such as the plug war and the snuff war, and the war with the English producers, indicated the intention to monopolize the whole field either by driving competitors out of business or compelling them to become parties to the combination.

The way in which control was secured secretly and the actual results obscured, by devious methods of stockholding, showed a conscious wrongdoing with intent to obtain mastery. This intent is further indicated by the absorption of elements essential to the manufacture of tobacco products, such as tinfoil, liquorice, and boxes, which kept others out of the trade.

The expenditure of millions of dollars in buying plants which were not used but closed up was merely buying off competition.

The almost uniform practice of obtaining agreements from the vendors not to engage in the tobacco trade, regarded not as separate transactions, but as a whole, showed the same purpose, namely, to control the situation by excluding others.

The court expressly states that the decision is not based on the following facts:

Not because of the vast amount of property aggregated by the combination;

Not alone because many corporations were united by resort to one device or another;

Not alone because of the dominion and control which exists over the tobacco trade.

The principle laid down in the Standard Oil case, that the form in which the assailed transactions are clothed is immaterial, is re

affirmed, and, if possible, accentuated. The court states the rule to be

"that the generic designation of the first and second sections of the law, when taken together, embrace every conceivable act which could possibly come within the spirit or purpose of the prohibitions of the law, without regard to the garb in which such acts were clothed." 21

Under this broad rule of law the court finds the combination illegal in all its aspects. The ownership of stock by the primary defendant in the accessory and subsidiary defendants, and the ownership in any of these companies, one with the other, and among themselves, is illegal. The primary defendant, which was formed as a combination between other companies, is illegal in its very existence. Irrespective of the question of stock ownership, the relations of the companies by contract and otherwise make every part of the combination illegal.

The first paragraph of the decree could hardly be broader, and gives effect to the widest possible construction of the Act. It is: "That the combination, in and of itself, as well as each and all of the elements composing it, whether corporate or individual, whether considered collectively or separately, be decreed to be in restraint of trade and an attempt to monopolize and a monopolization within the first and second sections of the Anti-Trust Act." 22

Indeed the words, "whether considered collectively or separately," if understood to mean what they say, seem too broad. Considered separately, it cannot be that each and every part of the combination is illegal.

The court states that the only way to deal with the case is to give a wider application to the Act than ever has been done before. This is particularly true when it comes to the remedy. Evidently a mere decree forbidding stock ownership by one part of the combination in another would be insufficient even if it were possible to carry it out. The court's conclusion as to the proper remedy is summarized in the decree as follows:

That the court below, in order to give effective force to the decree, be directed to hear the parties by evidence or otherwise as it may deem proper for the purpose of ascertaining and determining upon

some plan or method of dissolving the combination, and of recreating, out of the elements now composing it, a new condition which shall be honestly in harmony with and not repugnant to the law. Six months are allowed to do this. If the court below thinks best, the time may be extended for not more than sixty days. If a conclusion satisfactory to the court has not been reached at the end of the period allowed, the court below may grant a permanent injunction restraining the movements of the parties to the combination in interstate commerce, or it may appoint a receiver. During the time allowed for reconstruction all the defendants are restrained from doing any act to extend the combination further.

This is, of course, the most radical and striking remedy ever decreed under the Anti-Trust Act-one of the most striking and unusual ever provided for by a court of equity. The judicial branch of the government becomes, to all intents and purposes, an active party to a business reorganization.

In light of the near prospect of a final decree in this case, to discuss at this time any further the remedy provided by the Supreme Court would be premature.

Harlan, J., delivered an opinion concurring in part and in part dissenting, in which he reiterates the statements made by him in the Standard Oil case. In addition he suggests that, as the present combination was illegal under any possible construction of the statute, so much of the opinion as deals with the rule of reason is obiter dicta.

II.

It is now proposed to state as definitely as possible the rules of law to be drawn from these decisions. As a general summary the following is offered:

Any undue or unreasonable restraint of interstate trade is illegal. Trade is unduly restrained by agreements which lessen competition among those agreeing to an extent which may reasonably be thought to injure the competing or consuming public. Trade is also restrained unduly by acts, combinations, or mere conditions of existence, which represent a purpose to increase the trade of those who are parties to the assailed transaction or condition, by interfering with the right to trade of those who are strangers to such trans

action or condition; or, in other words, a purpose to acquire monopoly control. Trade is not unduly restrained by the termination of competition among those who voluntarily combine in the form of a corporate combination. Nevertheless, the combination of a great number of previously independent corporations, certainly if by means of a holding company, and probably if by means of the purchase of plants outright, creates a primâ facie case of illegality. Given an undue restraint, the law can reach any possible form of organization or condition of existence in which such restraint is manifested. A single corporation in no way representing any combination may offend the Act. The issue is to be determined in each. case by a consideration of all the pertinent facts, such as specific acts, general course of conduct, and results.

The above general summary may be made clearer by additional and more specific statements.

A combination may be made of any number of corporations in a given trade, and maintained by means of a holding company or through ownership of plants, provided it appears that, tested by actual facts, the combination represents a purpose not to acquire monopoly control, but some proper purpose, such as to secure greater industrial efficiency; to turn out a better product at a lower selling price; in a word, to share with the public the economic advantages lying in the fact of combination.

Nevertheless, as the mere formation of a great combination suggests an inference that there is an intent to control the situation, the burden of proving facts showing a rightful purpose is put on the combination.

A corporation, whether it represents a combination or not, may increase its business to any extent, even up to the point of acquiring the whole of a given trade, if it does so not by interfering with the right of others to compete, but by means of proper methods. Proper methods can be completely defined only after some decision which shall hold a great combination legal. The following are obviously proper methods; excellence of product, lowness of selling price, efficiency of management, skill in marketing of product, and ability to attract the custom of the public by reason of the above methods and by advertising. To meet increased trade acquired by proper methods, a corporation, whether it represents a combination or not, may increase its capital to any amount, extend its plant to any