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a considerable number of the most important ones decided under the common law. Legislators can thus the more readily judge the wisdom, or lack of wisdom, of seeking new remedies instead of trusting to the common law.
Legislation in the United States must be, under the Constitution, a matter of consideration by both Congress and the State legislatures in their respective fields. The line of demarcation between their powers is not readily drawn in actual practice, and in this matter of the control of corporations the puzzling entanglements of State commerce with interstate commerce have tested the acumen of the wisest judges.
To put easily within reach the means for noting part of the decisions of the United States courts on this question—a question which must be fully considered, if further legislation regarding monopolies is to be seriously undertaken-eighteen leading cases which dwell most upon the relations of the powers of Congress and the State legislatures have been added. Of course no serious and extended study can be made from brief digests; but it is hoped that enough has been given to indicate the lines of discussion followed by our Federal courts.
Two or three leading Canadian and English cases have been added as a matter of interesting comparison.
There has also been added a tabular digest of all the statutes, to render easy a comparison of those of the different States.
Part II consists of a digest of the corporation laws of the several States, in so far as these laws are applicable to large industrial combinations.
The Industrial Commission has undertaken also the compilation of the most important provisions of foreign statutes which relate to the control of corporations. It is believed that this compilation, which will take considerable time for its completion, will prove to be a valuable supplement to the present volume.
STATUTES AND DIGESTED DECISIONS OF FEDERAL, STATE, AND TERRITORIAL LAW RELATING TO
TRUSTS AND INDUSTRIAL COMBINATIONS.
JEREMIAH W. JENKS,
LETTER OF TRANSMITTAL.
To the Industrial Commission:
I have the honor to submit herewith a compilation of the statutes of the Federal, State, and Territorial governments on the subject of trusts and industrial combinations, together with a digest of the decisions of the courts made under these statutes, and of numerous leading cases decided under the common law.
It is as yet too early to sum up the results of recent legislation on so complex a subject; but a brief study of the statutes and of the cases thus far decided may justify the following observations:
1. Practically all of these statutes were framed with the same purpose in view: To prevent the formation of combinations in trade which might become dangerous to the public, and to destroy such as already exist. In a few cases an attempt is made through special powers granted to prosecuting officers to secure information regarding these organizations, and then to strike them down, if they are seen to be monopolies in the common-law sense.
It is a striking fact that not one of these statutes aims especially at securing publicity regarding the business of the large industrial combinations through detailed reports, in order that the publicity itself may prove a remedial measure.
2. In several of the States, as will be seen from the chart, an attempt has been made to exempt from the heavy penalties of the law dealers in certain products (agricultural products and live stock) and certain classes in the community (the farmers and laborers) on the ground that such combinations are not injurious to the public.
3. The common law is sufficient to enable learned judges to protect the welfare of the people against monopolies that can be clearly proved to be against public policy. The proof needed to establish monopoly seems to vary somewhat with the locality.
4. The statutes, by defining in specific terms, referring to modern conditions, what is the act objected to, put people and prosecuting officers more on the alert regarding their rights and duties. It is probable, too, that through the statutes the principles of the common law are fitted more rapidly into modern conditions and that they have been somewhat extended.
Possibly at times the fear of a new form of business organization may have led to the extension of legal privileges of interference with private business beyond what the public welfare demands. Some of the statutes, if read literally, would seem to forbid many perfectly innocent associations among individuals; but the courts seem invariably to have assumed that only monopoly-at least virtual monopoly-was attacked, and the decisions have been made accordingly. The courts in most instances have not entered upon the discussion of the more difficult question as to whether the monopoly in question was against public policy; but in some few cases that has formed the basis of the decision.
5. The courts, both state and national, very generally uphold the anti-monopoly statutes. Those declared unconstitutional have been generally so declared on only minor points, which could readily be changed in subsequent statutes, but a late decision in the United States circuit court holds exceptions of special classes unconstitutional.
6. There is a tendency on the part of the courts to put combinations of labor and of capital into the same class before the law, unless special exceptions have been made.
It gives me pleasure to call attention to the very intelligent and careful work of Mr. Herbert A. Heminway, who has assisted me throughout in the preparation of this volume. Respectfully submitted.
JEREMIAH W. JENKS. FEBRUARY 20, 1900.