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COPYRIGHT, 1898,

BY

CALLAGHAN & CO.

STATE JOURNAL PRINTING COMPANY,
PRINTERS AND STEREOTYPERS,

MADISON, WIS.

PREFACE.

The comparative suddenness with which Trade and Labor Combinations, in their more recent forms, have been forced upon the attention of the courts, seems to have resulted in a deplorable confusion and conflict in the decisions, with reference to fundamental principles and their application. A writer upon a branch of the law wherein such principles and application have long been clearly established, has it almost exclusively for his function to merely register or formulate what has already been declared by the courts. But a proper performance of my present task has seemed to me to imperatively demand much more than this. I think it not too much to say, that thus far the fundamental principles to be applied in determining the legality of Trade and Labor Combinations and their acts, have not been apprehended at all, or at any rate have failed to secure general recognition.

By way of clearing the ground I have herein introduced, for the first time, the fundamental classification of Combinations Producing Private Injury and Combinations Producing Public Injury. A clear apprehension of the reason of this classification will suffice of itself to dissipate much of the fog and mist that have hitherto hovered about the groundwork of our topics.

The confusion and conflict in the decisions relating to Combinations Producing Private Injury is, as I have repeat

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ediy endeavored to point out, principally caused by the attempts to give effect to intent and combination as elements of civil liability. Happily some courts in this country have already repudiated them as such elements, and it is to be hoped that the notable decision made by the House of Lords in December, 1897, in the case of Allen v. Flood, will prove to be the deathblow, in this country as well as in England, of the doctrine giving effect to intent. Similar observations will apply to the doctrine giving effect to combination, which has likewise been recently repudiated in England, though not as yet by the court of last resort.

I have herein presented for the first time, as the fundamental and universal test of civil liability for an act of a trade or labor combination, whether it is the natural incident or outgrowth of some existing lawful relation. I may say in passing that the same test seems to me to furnish the essential element of the proper definition of a tort. After I had evolved this test as the only satisfactory one, it was gratifying to discover that, as a result of the elaborate discussions in Allen v. Flood, the majority of the court had reached what I may perhaps call an adumbration of, or approximation to, the test as I have stated it.

Probably the portion of the work devoted to Combinations Producing Public Injury will be of greater interest to the profession generally. Only within about the last ten years have these combinations, variously designated as monopolies,”

,” “trusts,” and so on, been frequently presented to the consideration of the courts. The investigations carried on in 1888 by committees appointed by the United States IIouse of Representatives, by the New York Senate, and by the Canadian House of Commons, substantially mark the com

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mencement of the epoch of the development of the law applicable to these combinations. In 1889 were enacted the first “anti-trust laws,” and such now exist in two-thirds of the States and Territories, besides the Federal legislation on the subject. Since that time the development of the law in this country, as measured by the number of decisions, has been rapid, though, as I have endeavored to point out, the legal status of these combinations has not yet been clearly defined by the English courts.

Yet, as with reference to the law of Combinations Producing Private Injury, it may be said here that, notwithstanding the comparatively large number of decisions, there is as yet a deplorable conflict and confusion as to fundamental principles and their application. As I have endeav. ored to point out, this result is due to at least two causes: one, the fallacious supposition that the doctrine against restrictions upon competition is based upon or a development of that against contracts in restraint of trade; the other, the failure to establish or seek to establish any fundamental test of the legality of such restrictions. I have endeavored to make plain what is the basis of the present doctrine against such restrictions, and to point out the existence of two imperfectly recognized tests of liability — the test of extent and the test of reasonableness.

Many of the decisions covered by the second portion of the work involve the construction of the so-called "anti-trust acts,” and it will doubtless be frequently found desirable to obtain ready reference to all the decisions directly construing the anti-trust laws of a particular jurisdiction. Although such decisions will be found scattered throughout this portion of the work, each in connection with its appropriate topic, yet in the index will be found grouped references to all the decisions directly construing the anti-trust laws of a particular jurisdiction, thus, under“ Federal anti-trust laws" or “Texas anti-trust laws."

Although the number of decisions cited herein is comparatively small, a reference to the number of citations, as given in the table of cases, may furnish a suggestion of the amount of labor involved in analyzing these decisions. Indeed, at this stage of the development of the law on these subjects, it is the function of the text-writer to very elaborately analyze a comparatively small number of decisions. As in course of time fundamental principles and their application become established, the number of decisions calling for citation by the text-writer will of course increase, but individual decisions will require less attention.

I have paid no special attention to the economic, as distinguished from the purely legal, aspect of restrictions upon competition. To those desirous of studying the economic aspects, I commend Von Halle's work on “Trusts or Industrial Combinations and Coalitions in the United States," published in 1895. It contains what appears to be an exhaustive bibliography of the subject, also a “partial list of trade combinations and coalitions achieved or attempted, and of the commodities covered by them in the United States." Much information of interest and value is also contained in Stickney's “State Control of Trade and Commerce," published in 1897.

FREDERICK H. COOKE. 120 Broadway, Borough of Manhattan,

New York City, October, 1898.

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