of Appeal, nor the Supreme Court, in the least discloses whether the preponderant position is, in and of itself, a ground of illegality, or merely prima facie evidence of an excluding purpose to be carried out by illegal excluding practices. The result reached might go upon either ground. Many other cases are subject to a similar analysis.33 So where the competing properties were bought up and united in a new corporation or board of trustees under the old managers, or under new managers, the size of the combination and its preponderant position in the business caused it to be held illegal.34 But whether this result was reached because the size was, solely, it would not justify a dissolution of the combination, and if not so relied upon it was unnecessary to mention it at all.

33 Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173 (1871) (Combination of all the bituminous coal mines in a given district, and all but one at that time open which supplied bituminous coal in a large district); Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666 (1886) (Combination included all the salt producers in a large salt-producing territory); People v. Sheldon, 139 N. Y. 251, 34 N. E. 785 (1893) (Combination of "all the retail coal dealers in the city of Lockport except one "); People v. Milk Exchange, 145 N. Y. 267, 272, 39 N. E. 1062 (1895) (“Acting upon these by-laws, the defendant's board of directors have from time to time during its corporate existence fixed the price of milk to be paid by dealers, and the prices so fixed have largely controlled the market in and about the city of New York and of the milk-producing territory contiguous thereto. These facts are significant, and we are unable to escape the conviction that there was a combination on the part of the milk dealers and creamery men in and about the city of New York to fix and control the price that they should pay for milk"); Cummings v. Union Blue Stone Co., 164 N. Y. 401, 403, 58 N. E. 525 (1900) (Assuming blue stone quarrying and selling to be a business separate from stone quarrying and selling generally, the combination in question was of fifteen producers "of nearly the whole product of Hudson river bluestone, and of at least ninety per centum of the whole amount of such stone sold in the New York market to customers in various states east of the Mississippi river "); Emery v. Ohio Candle Co., 47 Ohio St. 320, 321, 24 N. E. 660 (1890) (Combination of “the manufacturers of 95 per cent of the star candles in that part of the United States lying east of the 114° of longitude west of Greenwich, or substantially all the territory east of the western boundary of Utah"); Nester v. Continental Brewing Co., 161 Pa. St. 473, 29 Atl. 102 (1894) (Combination of the forty-five brewers of the county of Philadelphia); Pocahontas Coke Co. v. Powhatan Coal & Coke Co., 60 W. Va. 508, 56 S. E. 264 (1906) (Combination of twenty coke manufacturing and producing corporations operating in the same field); Milwaukee Masons & Builders' Ass'n v. Niezerowski, 95 Wis. 129, 70 N. W. 166 (1897) (Combination of "nearly six-sevenths of the mason builders in Milwaukee"); Stanton v. Allen, 5 Denio (N. Y.) 434 (1848) (Combination among the whole, or a large proportion, of the proprietors of boats on the Erie and Oswego canals); Hoffman v. Brooks, 6 Ohio Dec. reprint, 1215 (1884) (Combination of all the tobacco warehousemen in Cincinnati); McBirney & Johnston White Lead Co. v. Consolidated Lead Co., 8 Ohio Dec. 762 (1883) (Combination of the white lead manufacturers of the United States west of Buffalo).

34 Chapin v. Brown Bros., 83 Iowa 156, 48 N. W. 1074 (1891); Distilling & Cattle

in and of itself, a basis for illegality, or because it was only prima facie and unrebutted evidence of an intent to exclude others from the field, is not in the least made plain.

In a number of cases, it must be conceded, there was lacking direct proof of the preponderant position of the combination in the business.35 In the Standard Oil of Ohio Case,36 the record presented consisted of the petition, answer, and demurrer of the state. This record apparently presented no statement of the fact that the units combining in the Standard Oil Trust of 1882 were competing, nor did it disclose what capital they represented, or whether as combined they occupied a preponderant position in the industry. The court evidently took judicial notice of these important facts. It is clear that heretofore at least, courts have not been over particular about requiring records which showed the size and preponderant position of the combination in question. Yet it is not conceivable that these courts were holding illegal every combination however insignificant which eliminated competition between the units combined.37 Hence some assumptions about size and preponderant position must be made in all cases where the combination has been held illegal. When such an assumption is made, the courts are absolutely silent as to whether the fact of size and preponderant position is, in and of itself, conclusive of illegality, or merely prima facie evidence of an excluding purpose.

3. Outside of the decision of the District Court in the International Harvester Case,38 there have been no results and no dicta which clearly announce the first view. It must be conceded, however, that the language of the courts in a number of cases, which are, nevertheless, explainable on the ground that there was a prima Feeding Co. v. People, 156 Ill. 448, 41 N. E. 188 (1895); Bishop v. American Preservers' Co., 157 Ill. 284, 41 N. E. 765 (1895); Harding v. American Glucose Co., 182 Ill. 551, 55 N. E. 577 (1899).

35 Judd v. Harrington, 139 N. Y. 105, 34 N. E. 790 (1893); Texas Standard Oil Co. v. Adoue, 83 Tex. 650 (1892); Hooker v. Vandewater, 4 Denio (N. Y.) 349 (1847); De Witt Wire-Cloth Co. v. New Jersey Wire-Cloth Co., 14 N. Y. Supp. 277 (1891); Anderson v. Jett, 89 Ky. 375 (1889); Vulcan Powder Co. v. Hercules Powder Co., 96 Cal. 510, 31 Pac. 581 (1892); Ford v. Chicago Milk Shippers' Ass'n, 155 Ill. 166, 39 N. E. 651 (1895); India Bagging Ass'n v. Kock & Co., 14 La. Ann. 168 (1859); Urmston v. Whitelegg Bros., 63 L. T. (N. S.) 455 (1890).

36 State v. Standard Oil Co., 49 Ohio St. 137, 30 N. E. 279 (1892).

37 See cases supra, notes 15, 16.

38 214 Fed. 987 (1914) (now pending on writ of error in the Supreme Court of the United States).

facie inference of excluding purposes and practices, sound as if the court regarded the mere elimination of competition between the units combined as illegal per se.39 So, scattered through cases where there was a clear purpose to exclude others by illegal methods of competition,40 or a combination of railroads or public service corporations where the field was not, as a matter of law, free to the public to enter, or where the problem here discussed was not involved, will be found many general expressions which make it appear as if the court thought mere size in any business was inimical to the public interest.42 One reason for such expressions is now fairly clear.

39 See cases supra, notes 33, 34.

40 See cases supra, notes 5, 6. 41 See cases supra, note 12.

42 People v. Chicago Gas Trust Co., 130 Ill. 268, 303, 22 N. E. 798 (1889). ("We concur in the following views expressed by the supreme court of Georgia in the case of Central R. R. Co. v. Collins, supra, [40 Ga. 582]: 'All experience has shown that large accumulations of property in hands likely to keep it intact for a long period are dangerous to the public weal. Having perpetual succession, any kind of a corporation has peculiar facilities for such accumulation, and most governments have found it necessary to exercise great caution in their grants of corporate powers. Even religious corporations professing, and in the main, truly, nothing but the general good, have proven obnoxious to this objection, so that in England it was long ago found necessary to restrict them in their powers of acquiring real estate. Freed as such bodies are from the sure bound to the schemes of individuals, the grave, they are able to add field to field, and power to power, until they become entirely too strong for that society which is made up of those whose plans are limited by a single life."")

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Woodbury v. McClurg, 78 Miss. 831, 835, 29 So. 514, 515 (1901). (In holding an attempt at power in a corporation to purchase stock in other corporations not competing with it, the court said: "That the powers attempted to be lodged in the Laurel Gravel Company would be illegal, if granted, we cannot doubt. They would make it a stupendous monster, capable of swallowing into its insatiable maw all the mercantile and manufacturing institutions of the entire country, because none of them would be in any competition with it in the gravel business.")

Richardson v. Buhl, 77 Mich. 632, 658, 43 N. W. 1102 (1889). (“Indeed, it is doubtful if free government can long exist in a country where such enormous amounts of money are allowed to be accumulated in the vaults of corporations, to be used at discretion in controlling the property and business of the country against the interest of the public and that of the people, for the personal gain and aggrandizement of a few individuals.")

State v. Standard Oil Co., 49 Ohio St. 137, 187, 30 N. E. 279 (1892). (“A society in which a few men are the employers and the great body are merely employees or servants, is not the most desirable in a republic; and it should be as much the policy of the laws to multiply the numbers engaged in independent pursuits or in the profits of production as to cheapen the price to the consumer. Such policy would tend to an equality of fortunes among its citizens, thought to be so desirable in a republic, and lessen the amount of pauperism and crime.")

United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 324 (1896). (“...

They were made for the most part in the '80s and '90s. That was a time when the process of shifting from smaller units to larger and still larger units was carried on with extraordinary rapidity and persistence. The power which came from the sudden combination was new and uncontrolled by those who possessed it. It had been, and was being, terribly abused. Unlawful excluding practices were the regular accompaniments of combinations which occupied a preponderant position in the business. The consequence was that all such combinations received a bad name. Combination was, in and of itself, regarded as dangerous and contrary to the interests of society. Furthermore, the courts did not at all appreciate that they could draw a sharp line between combinations which had the excluding purpose and used unlawful excluding practices and those which did not. They did not at all perceive that size and preponder

it is not for the real prosperity of any country that such changes should occur which result in transferring an independent business man, the head of his establishment, small though it might be, into a mere servant or agent of a corporation for selling the commodities which he once manufactured or dealt in, having no voice in shaping the business policy of the company and bound to obey orders issued by others.")

Similar expressions occurred in the debate preceding the passage of the Sherman Act:

United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 319 (1896). (The court, referring to these debates, said: “Among these trusts it was said in Congress were the Beef Trust, the Standard Oil Trust, the Steel Trust, the Barbed Fence Wire Trust, the Sugar Trust, the Cordage Trust, the Cotton Seed Oil Trust, the Whisky Trust and many others, and these trusts it was stated had assumed an importance and had acquired a power which were dangerous to the whole country, and that their existence was directly antagonistic to its peace and prosperity."

Senator Sherman, opening the debate upon the Sherman Act, said (21 CONG. REC. 2457): "But associated enterprise and capital are not satisfied with partnerships and corporations competing with each other, and have invented a new form of combination, commonly called trusts, that seeks to avoid competition by combining the controlling corporations, partnerships, and individuals engaged in the same business, and placing the power and property of the combination under the government of a few individuals, and often under the control of a single man called a trustee, a chairman, or a president. . . .

"Such a combination is far more dangerous than any heretofore invented, and, when it embraces the great body of all the corporations engaged in a particular industry in all of the States of the Union, it tends to advance the price to the consumer of any article produced, it is a substantial monopoly injurious to the public, and, by the rule of both the common and civil law, is null and void and the just subject of restraint by the courts, of forfeiture of corporate rights and privileges, and in some cases should be denounced as a crime, and the individuals engaged in it should be punished as criminals. It is this kind of a combination we have to deal with now."

ant position in the business might be made, in and of itself, prima facie evidence of the intent to exclude by the use of unlawful excluding practices and thus require the combination to meet that case against it. In the face of the unlawful use of the power of combinations and the profound obscurity as to where the line was to be drawn against them, it is not to be wondered at that courts, while reaching sound results, should have stressed and fulminated against combinations as such, and looked upon size as something inherently reprehensible. But even so, it is apparent that these same courts made no conscious decision between the rule that size and preponderant position were, per se, illegal, and the rule which made them merely prima facie evidence of an intent to exclude others by unlawful means. The latter view is entirely consistent with the fear of size in combination though not always with the heat with which that fear is expressed.

It should be observed also that the concession of the District Court in the International Harvester Case 43 that "there is no limit under the American law to which a business may not independently grow," is difficult to reconcile with the proposition that mere size and preponderant position is, in and of itself, illegal. It is useless to insist that mere growth is normal and combination abnormal. Both are normal methods of growth. Combination is normal up to a certain point so long as it is legal. No advance is made by saying it is abnormal because it is illegal, when its abnormality is in turn used to prove its illegality. If size is a menace in the case of growth by combination it is a menace where there is growth without combination. How the growth may occur is immaterial. On the other hand, if size and preponderant position in the business are by themselves not a test of illegality, but only evidence of the excluding purpose, then we may fairly make a difference between independent and normal growth (so called) and combination. The former might properly furnish no prima facie evidence of the excluding purpose. The latter would.

It is generally assumed that an agreement between competitors, together occupying a preponderant position in the business, that they will maintain a fixed price or a fixed minimum price at least, is illegal. From this it has been argued that a mere combination

43 214 Fed. 987 (1914).

Urmston v. Whitelegg Bros., 63 L. T. R. (N. s.) 455 (1890). It should be observed

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