poration thereof, by enjoining the Illinois corporation from entering a New Jersey trust corporation.

The public policy of Illinois, says the court, has always been against trusts and combinations organized for the purpose of suppressing competition and creating monopoly.

It makes no difference that the agreement for the illegal combination is not a formal written agreement. It may be verbal, or by understanding, or a scheme not embodied in writing, but evidenced by the actions of the parties. Quoting from the opinion: 1

"The material consideration in the case of such a combination is, as a general thing, not that prices are raised, but that it rests in the power and discretion of the trust or corporation taking all the plants of the several corporations to raise prices at any time it sees fit to do so. It does not relieve the trust of its objectionable features that it may reduce the price of the articles which it manufactures, because such reduction may be brought about for the express purpose of crushing out some competitor or competitors."

"It makes no difference whether the combination is effected through the instrumentality of trustees and trust certificates, or whether it is effected by creating a new corporation and conveying to it all the property of the competing corporations. The test is whether the necessary consequence of the combination is the controlling of prices or limiting of production or suppressing of competition in such a way as thereby to create a monopoly. Necessarily, when corporations when thus situated unite together all their properties in one new organization, and permit the latter to operate their properties, competition will be suppressed, and the new corporation will possess the power to limit production and control prices."

There is no question as to the power of the several states nor of the disposition of the courts to enforce the laws relating to trusts. The court decisions are numerous, and with scarcely an exception, have held trusts and combinations in restraint of trade to be void, and when the trade pertains to the necessaries of life, I think there can be no case found where a trust has been sustained in any particular,—such a trust as we have today and of which we are presumed to consider at this time.

The United States Supreme Court in many cases has held to be void trusts and combinations in restraint of trade. The most recent utterance of that body upon the question, and doubtless the most forcible and explicit opinion yet delivered by it, is the case of "Addyston Pipe Co., et al., vs. United States", in which the trust contract and agreement between the manufacturers of iron pipe was declared to be illegal and void, on the ground that it was in contravention of and obstructed inter-state commerce. This opinion is far-reaching in its scope, and it seems to me is the strongest decision yet

rendered, from a Federal standpoint, and indicates the extent of co-operation by the Federal government with the states.

In this case, the several defendants entered into an agreement that no pipe should be sold within a certain territory, embracing several states, except upon the terms provided in the contract, thus interfering with interstate commerce, as held by the court. I quote the following very significant language from the opinion: "What sound reason can be given why Congress should have the power to interfere in the case of the state, and yet have none in the case of the individual? Commerce is the important subject of consideration, and anything which directly obstructs and thus regulates that commerce which is carried on among the states, whether it is state legislation or private contracts between individuals or corporations, should be subject to the power of Congress in the regulation of that commerce."

This seems to settle the right of private contract question, so often suggested and discussed in connection with the trust question. Again quoting from the same opinion:

"While no particular contract regarding the furnishing of pipe and the price for which it should be furnished was in the contemplation of the parties to the combination at the time of its formation, yet it was their intention, as it was the purpose of the combination, to directly and by means of such combination increase the price for which all contracts for the delivery of pipe within the territory above described should be made, and the latter result was to be achieved by abolishing all competition between the parties to the combination. The direct and immediate result of the combination was therefore necessarily a restraint upon inter-state commerce in respect of articles manufactured by any of the parties to it to be transported beyond the state in which they were made."

"The defendants, by reason of this combination and agreement, could only send their goods out of the state in which they were manufactured for sale and delivery in another state, upon the terms and pursuant to the provisions of such combination. As pertinently asked by the court below, was not this a direct restraint upon inter-state commerce in those goods?"

It seems to me quite plain, under the decisions of our state and Federal courts, that the state can completely control trusts, as to their operations, contracts and manner of doing business within the state, that uniform legislation thereon would greatly facilitate the enforcement of the law in the several states, and that congressional enactment will take care of the question as between the states.

Many states have good anti-trust laws now. Congress some years ago passed an anti-trust law, and these laws need amendment from time to time, just like all other laws on important questions A thing so energetic, backed by so much wealth, avaricious as it always is, arrogant, and indifferent to the

rights of the people,-seeking, not to save souls, but to make money, is a thing not easily managed, hard to keep pace with, and ever ready to break in when an opportunity offers.

I believe, however, that the principal thing now necessary to control the trust is the enforcement of law. It matters not how many laws we have, but what are enforced. I believe that the attempted enforcement of law against trusts has been simply to a point necessary to get judicial construction, and but very few cases seem to have had much attention after a judicial termination of the validity of the law. This is too often the case with all laws of importance. In the state of Kansas, the prohibitory law was vigorously enforced for a few years, until the courts sustained practically all of its provisions, and then it is said, the enforcement thereof has been practically abandoned in many places. I think this is very largely the case relating to the anti-trust laws of the several states and the government. We frequently hear of a case in this, that or the other court, wherein an anti-trust law has been held good, and enforced in that particular case, and thereafter the trust continues to operate, the same as before, without interference.

I think the legislative and judicial departments of government, generally speaking, have discharged their duties reasonably well in the several states and in the Federal government, and if the executive department of government will enforce the laws rigidly which we now have, the defects therein, when so found, will be promptly remedied by the other departments.

The conclusion I have therefore reached is that the trust has no "legal aspect", and it may be "controlled" by enforcement of the law.

THE LEGAL ASPECT OF TRUSTS AND THEIR CONTROL.

Mr. President and Brethren:

W. H. ROSSINGTON.

In honoring me with a request to address you today, the President of the Association has taken occasion to twice inform me by letter that I was not expected to occupy more than thirty minutes of your time. It was considerate upon his part, both for your sake and my own, and I might with satisfaction to both myself and my audience occupy a much briefer period if I had any new message to deliver in the way of solving this, which many regard to be the foremost problem of our times.

In the time limited, which I promise not to transcend, there is obviously no chance for any wide sweep or satisfactory detail of argument upon the subject or for even doing more than to state in a cursory and suggestive way the current ideas upon the so-called "trust" and the remedies and expedients to be applied to correct it if it should prove to be an evil. It is important that whatever we say here shall be from the point of view of the lawyer, for to the lawyers in the legislature, on the bench and at the bar will be ultimately committed the determination of the means for the regulation of these great combinations if they shall be allowed to continue, or to abate and destroy them if, as the alarmists fear, they shall menace the safety of the republic or the welfare of the people.

The theory of economics which lies at the base of the so-called "trusts" is nothing new. It is a theory which has struggled for supremacy in the commerce of the world for centuries. There have been always in the domain of trade two antagonistic forces; one favoring association, co-operation, control if possible to the end of regulating prices by an even distribution of commodities exposed to sale; the other striving to thwart this purpose by bringing about local congestion of products as the result of unrestrained and unlimited competition. The constant interaction of these forces produces alternately a sellers' and a buyers' market. "It is naught, it is naught' saith the buyer," is the spirit of one, while the other, like Alnaschar with his

stock of pottery in the Arabian tale, dreams of that local scarcity and conse quent demand which leads to sure and large gain. The advocates of one theory insist that competition is the life of trade and should be unrestrained; the advocates of the other theory believe and assert that unrestrained competition tends to the ultimate destruction of trade by depriving it of its hopes of just and reasonable rewards.

In the earlier stages of the struggle, say 350 years ago. the advocates of unrestrained competition had the best of it. It was then embodied in the substantive law of Great Britain that those who had made or purchased something more than was required for their own needs, and therefore had it to sell, had no right to enhance its value by any act or default of their own in bringing it to or exposing it in market. Particularly, that no intermedi. ate dealer, or as we call him nowadays, no "middleman" could by any enterprise or foresight get any advantage to himself by purchasing on the way to market or hindering the immediate sale of any product by buying it to sell again, or otherwise.

The name "trust" in the sense we use it here was first invented and applied in this country to a voluntary combination of partnerships or corporations or both. which, while retaining the ownership of their respective plants or businesses, surrendered the control of them to a central authority which should act and deal for all upon a guaranty of fixed returns. Since Judge Barrett's decision in the North River Sugar Refining Company case and other cognate decisions, holding that corporations were powerless to make such contracts with each other, this theory of commercial co-operation was abandoned. To the discussion which then arose with reference to this form of trusts among lawyers and in the public prints, one of the most notable contributions was that of the late Theodore W. Dwight, the principal of the Columbia Law School. His argument proceeded upon the theory that inasmuch as the early British statutes, notably the 5th and 6th Edward the VI, had been repealed before our revolution and did not become a part of our common law and that the course of common law in this country had never established the principles of those statutes, the organizations called "trusts" were. in the United States, both permissible and lawful provided they did not amount to an actual monopoly of a particular product.

This theory of the law seems to have been accepted, because it was found necessary in many of the States of the Union and in the Congress of the United States to enact statutes against combinations of this character. The British statutes last referred to denounced certain offenses against trade which were named in the vernacular of the period as "regrating," "forestalling," and "engrossing" The preamble of this ancient law is curious and instructive:

"Albeit divers good statutes heretofore have been made against fore