NOTES OF THE DAY.

Dominion, Volume 4, Issue 1173, 7 July 1911, Page 4

NOTES OF THE DAY.

A roixr of great importance was tackled by Dn. M'Aimirn, S.M., in a judgment delivered this week. The ease was a claim brought by ail industrial union of employers to recover from a certain linn moneys alleged to bo duo by that firm, as a member of the union, for timber levies and lines. The magistrate dismissed the claim on the ground that the agreement alleged to subsist between the union and the firm was ''in restraint oJf trade" and there-

fore not enforceable under the law. There is nothing unusual about that decision. AVhat was unusual and interesting was Dr. M'Artiii*k's attempt to extract the essence of the agreement's illegality:

"The character of the artiolo or legitimate trade sought to he monopolized docs not matter," he said. "The true test of tho illegality of the combination was the injury tn the public, nnd whether its necessary con.-.criuoiicc is to control prices, limit productions, or suppress competition ill such a way as to restrain trade and create a monopoly. It is not nrcesfnry that evil intent or actual injury must bo shown, but it is sufficient to know that the inevitable tendency of the Act is injurious to the public. What the Court has to consider is the power of the combination to control prices."

The definition of_ "restraint of trade" given here is exactly that ovor which American jurists arc just now seriously divided. The best American view is the one which looks, not, as Dr. M'Arthur dees, to the immediate "injury" to the public, but to the nature of .the questioned acts. In other words, all that the Court, where not specifically directed otherwise, has to do, is to consider whether an act challenged as being "in restraint of trade" does or,docs not diminish competition or is conspiratorial. The strength of the Trusts in the past has been the persistence of the idea that the stifling of competition may actually benefit the public. Mk. Taft has always held the other view: that the test of illegality is, not the immediate bad effects on the public, but the cffect upon free competition. The injury to the public, in this view, is not itself the taint of illegality but only evidence of the existence of the real taint, namely, murdered competition or conspiracy. The distinction is not .only not the fine one that it may appear to the lay mind, but a profound and broad distinction. The recent Standard Oil judgment, it has been pointed out, takes up the position that monopolistic acts or acts in restraint of trade arc in themselves illegal, and this, as the New York Post points out, "is an immeasurably different thing from a paternal discrimination between Trusts, according to the Court's opinion as to whether they were on the whole doing 'good' to the community or the reverse." The actual point involved in the local case seems to be exactly tha one which the caie brought by. the American Government against the Lumber Trust is intended to decide.

What will probably be longest remembered, by those present at last night's meeting in the Town Hall was the impressive response of the meeting to Mr. Massey's appeal for "an open Court and ail independent Bench." Although the audience Was hearty and enthusiastic throughout, this point of the speech probably went most firmly homo to the minds of all those present, and they instantly expressed their 'feelings in one of those bursts of earnest and long-continued enthusiasm which can come only from a public opinion deeply convinced and powerfully moved. Mr. Massey will, he the last -to think the applause was primarily a tribute to himself; he will prefer to interpret it as what it really was, namely, the protest of an outraged public against the breaking of the waves of political degeneration against the last dcfcncc of social freedom." Everybody in Wellington knows that the strong -resentment, lately made so strikingly manifest here, against the Ministry's interference with the judiciary and the procedure of the Court in the Macdonald case was equally shared by friends and opponents of the Government. For our part, we think it less important, and less bracing, that the incidents have turned the public so largely against the Government than that they have,shown that tho re is one tract of the public mind that the Government cannot corrupt. The public as-a-.whole still realises the vital importance of pure and fearless Courts of law, and it cannot ever feel secure so lonjj as the present Government remains in office. The remarkable demonstration last night is a true index of the public mind; and not even the most hopeful friend of the Government can in future venture to say that Mr.'Jas. Allen and Mr. Massey had not the whole public behind them in their courageous and patriotic indictment of the Ministry's dealings with the Chief Justice.