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sentatives, are opposed to the creation of colossal business organizations by process of the merger of competiting companies, it is not for the Supreme Court to point out the inexpediency of such a policy and the injury it might do to our world trade, ast Justice McKenna is so careful to do.

197; Addyston Pipe Company v. United States, 175 U. S. 211, 238; Harriman v. Northern Securities Co., 197 U. S. 244, 291; Union Pacific Case, 226 U. S. 61, 88. While it was not the purpose of the Act to condemn contracts which in a lawful manner seek to expand one's own business and further legitimate trade, it did intend effective

The dissenting opinion of Justice Dayly to reach and control all conspiracies and

contains one paragraph which in the great clearness of its thought-a notable characteristic of Justice Day's opinions - thoroughly proves how far astray the majority of the Court has wandered in the present decision. Justice Day said:

"I agree that the Act offers no objection. to the mere size of a corporation, nor to the continued exertion of its lawful power, when that size and power have been obtained by lawful means and developed by natural growth, although its resources, capital and strength may give to such corporation a dominating place in the business and industry with which it is concerned. It is entitled to maintain its size and the power that legitimately goes with it, provided no law has been transgressed in obtaining it. But I understand the reiterated decisions of this court construing the Sherman Act to hold that this power may not legally be derived from conspiracies, combinations, or contracts in restraint of trade. To permit this would be practically to annul the Sherman Law by judicial decree. This principle has been so often declared by the decisions that it is only necessary to refer to some of them. It is the scope of such combinations. and their power to suppress and stifle competition and create or tend to create monopolies, which, as we have declared so often as to make its reiteration monotonous, it was the purpose of the Sherman Act to condemn, including all combinations and conspiracies to restrain the free and natural flow of trade in the channels of interstate

commerce."

Justice Day is sustained in his statement of the construction of the Sherman Act by the cases which during the last thirty years have construed this law. Pearsall v. Great Northern Ry. Co., 161 U. S. 646; TransMissouri Freight Assn. Case, 166 U. S. 290, 324; Northern Securities Case, 193 U. S.

combinations or contracts of whatever form which unduly restrain competition and unduly obstruct the natural course of trade, or which from their nature, or effect, have proved effectual to restrain interstate commerce. Standard Oil Co. v. United States, 221 U. S. 1; United States v. American Tobacco Company, 221 U. S. 106; United States v. Reading Co., 226 U. S. 324; Straus v. American Publishers' Assn., 231 U. S. 222; Eastern States Lumber Association v. United States, 234 U. S. 600.

If the Steel Trust decision prevails the distinction between "good trusts" and "bad trusts," once the subject of ridicule and the butt of satirical jibes will have become established in the law by the solemn pronouncement of four judges of the Supreme Court. If the United States Steel Corporation is not a monopoly in restraint of trade, neither was the American Tobacco Company, nor the Standard Oil Company, nor Swift and Company, which recently, and, as it seems, to us, rather prematurely, in view of this decision, submitted to a decree of partial dissolution. If monopolies, irrespective of whether they are good or bad, are not prohibited by the Sherman Act, then let us quit talking about monopolies as being illegal but confine the inhibitions of the

Sherman Act to such transactions which in themselves effect a restraint of trade. But in such event the dissolution of a combination into its constituent companies would hardly be the proper remedy unless the merger itself, by reason of effecting a monopoly, whether accompanied by acts in actual restraint of trade or not, is illegal.

NOTES OF IMPORTANT DECISIONS.

VALIDITY OF RESTRICTIONS IN RESTRAINT OF EMPLOYMENT UNNECESSARY TO PROTECT THE PROMISEE.-Attorneys sometimes overreach themselves by attempting too much. This is especially true in the case of stipulations in a contract in restraint of trade or employment; in such matters it is best not to demand too much. This caution finds ample justification in the plaintiff's complete defeat in the case of Stores v. Abrams, 108 Atl. Rep. 541: In this case plaintiff entered into a contract to employ defendant as manager of its store in Bridgeport, Conn., in consideration of which the latter agreed not to engage himself in the same line of business or "connect himself with any firm engaged in business similar to that of the party of the first part, for a period of five years." The Court held that this restriction against the right of employment was too severe and void as contrary to public policy. The Court said:

"Under the law, restrictive stipulations in agreements between employer and employe are not viewed with the same indulgence as such stipulations between a vendor and vendee of a business and its good will.

"In the latter case, the restrictions add to the value of what the vendor wishes to sell, and also add to the value of what the vendee purchases. In such cases also the parties are presumably more nearly on a parity in ability to negotiate than is the case in the negotiation of agreements between employer and employe.

"In a restrictive covenant between a vendor of a business and the vendee, "a large scope for freedom of contract and a correspondingly large restraint of trade" is allowable. In a restrictive covenant between employer and employe on the other hand, there is "small scope for the restraint of the right to labor and trade and a correspondingly small freedom of contract."

The general policy of a strict construction of contracts in restraint of re-employment as against the former employer is well settled by authority. See Rogers Mfg. Co. v. Rogers, 58 Conn. 356, 20 Atl. 467, 7 L. R. A. 779, 18 Am. St. Rep. 278; Eureka Laundry Co. v. Long, 35 L. R. A. (N. S.) 119, note; Simms v. Burnette, 16 L. R. A. (N. S.) 389, note; Herbert Morris, Limited, v. Saxelby, (1916) 1 A. C. 688; Mason v. Provident C. & S. Co., (1913) A. C. 724; Nordenfeldt v. Maxim H. G. & A. Co., (1894) A. C. 565; Id., 11 Reports, 27; Konski v. Peet, (1915) 1 Ch. 530; Herreshoff v. Boutineau, 17 R. I. 3, 19 Atl. 712, 8 L. R. A. 469, 33 Am. St. Rep. 850.

On the question of the validity of the particular restrictions in this case the Court declared that it went far beyond what was neces

sary and that all plaintiff would be allowed to exact was an agreement providing that the defendant, while connected with a competing business, should not solicit trade from persons who were customers of the plaintiff at the store where defendant was formerly employed. This rule follows the English rule announced in Konski v. Peet (1915), 1 Ch. 530.

The present case, as we said in the beginning, should be a warning to attorneys not to exact too much from an employe on leaving a former employment. This warning is emphasized by the Supreme Court of Rhode Island in the case of Herreshoff v. Boutineau, 17 R. I. 7, 19 Atl. 469, 8 L. R. A. 469, where the Court said:

"Covenantees (in contracts in restraint of trade between employer and employe) desiring the maximum protection have, no doubt, a dif ficult task. When they fail, it is commonly be cause, like the dog in the fable, they grasp too much, and so lose all."

A recent English decision (Hepworth v. Ry. ott, 89 L. J. Ch., p. 69) holds that the contract of a "movie" actor not to use his pseudonym, "Stewart Rome," in any capacity after the end of his employment was invalid as "extending beyond what was reasonably necessary for the employer's protection."

RIGHT TO USE EVIDENCE GAINED BY UNLAWFUL SEARCH AND SEIZURE.-Evidence secured by an unlawful search and seizure cannot be used nor required to be produced and this rule shall hereafter apply to corporations as well as to persons is the important rule announced by the United State Supreme Court in the recent case of Silverthorne Lumber Co. v. United States, 40 Sup. Ct. Rep. 182.

In this case after the two Silverthorne brothers had been arrested under an indictment charging a single specific offense, their place of business was searched without a warrant. The trial court ordered the papers returned, but permitted the district attorney to make copies and photographs. The Silverthorne brothers were ordered to bring the original books and documents before the grand jury. On their refusal to do so they were adjudged as being in contempt, the brothers sentenced to imprisonment and the corporation fined. On appeal the Supreme Court, by a vote of seven to two (the Chief Justice and Justice Pitney dissenting), reversed the judgment of contempt and held that evidence thus illegally secured could not only not be used by the Government but the defendant himself could not be required produce evidence, knowledge of which was

gained in such an unlawful manner. In reaching this decision the Court had to overrule the case of Linn v. United States, 25 Fed. 476. The Court said:

"The essense of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. The numerous decisions, like Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Td. 575, holding that a collateral inquiry into the mode in which evidence has been got will not be allowed when the question is raised for the first time at the trial, are no authority in the present proceeding, as is explained in Weeks v. United States, 232 U. S. 383, 394, 395, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. Whether some of those decisions have gone too far or have given wrong reasons it is unnecessary to inquire; the principle applicable to the present case seems to us plain. It is stated satisfactority in Flagg v. United States, 233 Fed. 481, 483, 147 C. C. A. 367. In Linn v. United States, 251 Fed. 476, 480, 163 C. C. A. 470, it was thought that different rule applied to a corporation, on the ground that it was not privileged from producing its books and papers. But the rights of a corporation against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.

WHAT IS A COMMON LAW MARRIAGE?

In this country, the general rule is that marriage is regarded as merely a civil contract, requiring no particular formality, which may be made by a private agreement between the parties, and which is capable of being proved by circumstances, as any other contract may be proved.

But whatever the case may be in England, yet it is clear that, with us, the mar

ties to solemnize them or to inflict spiritual censure if they refuse.

Certainly, by our law, marriage is regarded only as a civil contract, and whatever is sufficient evidence of the assent of the parties' minds to enter into that relation, establishes a marriage. This may be either per verba de praesenti, "I take you for my wife," etc., or per verba de futuro, an agreement to marry in future, with subsequent cohabitation. Where parties agree to marry in future, and afterwards cohabit, the law infers that this cohabitation was an execution of the previous agreement. Like other contracts, it may be proved by circumstances, as by the parties living together, and speaking of or treating each. other as husband and wife.1

In Tiffany's Persons and Domestic Relations the author states the rule as follows:

"Certainly by the great weight of authority in this country, no formality in the celebration of a marriage is necessary, unless required by statute; but a marriage is perfectly valid at common law, whatever the form of celebration, and even if all ceremony was dispensed with. All that is necessary is that the parties shall consent to presently live together as husband and wife."

In Meister v. Moore3 the United States Supreme Court held that a marriage valid at common law is valid, nothwithstanding the statutes of the State where it is contracted prescribe directions respecting its formation and solemnization, unless they contain express words of nullity. The Court said:

"This court adopts as an authoritative declaration of the law of Michigan, the ruling of the Supreme Court of that State in Hutchins v. Kimmell, 31 Mich. 126, that, notwithstanding the statutory regulations have not been complied with, a marriage contracted there per verba de praesenti is valid.

"That such a contract constitutes a mar

riage is complete, for every purpose, by riage at common law there can be no doubt,

the contract, without celebration. We have no Church, recognized by law, in the face of which the spousals might be celebrated. There is no Spiritual Court to compel par

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in view of the adjudications made in this country, from its earliest settlement to the present day. Marriage is everywhere regarded as a civil contract."

The case of Hutchins v. Kimmell was a case decided on the 13th of January, 1875. There, it is true, the direct question was, whether a marriage had been effected in a foreign country. But, in considering it, the Court found it necessary to declare what the law of the State was; and it was thus stated by Cooley, J.:

"Had the supposed marriage taken place in this State, evidence that a ceremony was performed ostensibly in celebration of it, with the apparent consent and co-operation of the parties, would have been evidence of a marriage, even though it had fallen short of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts; the few cases of dissent, or apparent dissent, being borne down by the great weight of authority in favor of the rule as we have stated it.” C. J. RAMAGE.

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Judge Rellstab's opinion is the first judicial attempt to construe these two terms and for that reason is interesting at this time. The following is the opinion complete:

Title II of the National Prohibition Act is alleged to be invalid.

First. Because the act lacks the concur rence of the State of New Jersey.

The allegation of the bill in this behalf is:

"Because the State of New Jersey has not concurred in the provisions of said act of Congress of October 28, 1919, Exhibit II, and said provisions, if enforced without its concurrence, would violate, override, and nullify the rights and powers vested in and reserved to the State of New Jersey in respect of its internal and intrastate affairs

and concerns under the Constitution of the United States and the amendments thereto, and would deny to the plaintiff its constitutional right and liberty to carry on its business and manufacture and sell its nonintoxicating products as duly authorized by the laws of the State of New Jersey. (Par. XII, cl. 5.)”

This involves the interpretation of section 2 of the eighteenth amendment, and in particular the meaning of the word “concurrent" as used therein. The section reads as follows:

"Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by apropriate legislation."

This word is defined by the Century Dictionary as:

"1. Meeting in a point; passing through a common point.

"2. Concurring, or acting in conjunction; agreeing in the same act; contributing to the same event or effect; operating with; coincident.

"3. Conjoined; joint; concomitant; coordinate, combined."

And by Funk & Wagnalls Standard Dictionary as:

"1. Occurring or acting together; as, concurrent signs, concurrent forces.

"2. Meeting or joining at the same point; running together; as, concurrent lines.

"3. United in action or application; coordinate; concomitant; as, concurrent rem

edies or jurisdiction. Concurrent days, days added to make the civil correspond to the solar year.

Of these different definitions, the plaintiff has accepted, "Having the same authority; acting in conjunction" and "agreeing in the same act," and insists that these are the meanings intended by Congress in inserting "concurrent" into the second section of this amendment. Under such restricted meanings, Congress and the legislatures of the several States would have to agree upon every phase of the intended enforcing legislation, either as a whole in one act of legislation practically impossible, or by separate acts of legislation applicable to the several States respectively. This would lead to irreconcilable differences rather than to practical enforcing legislation. To impute to Congress and the ratifying States such an impracticable purpose in the use of that word, is unthinkable, and such imputation is not to be accepted unless no other meaning of the word is permissible or it clearly appears that such restricted meaning was the only one in the mind of Congress when this section was framed. Of the other authorized definitions of the word, we have, as noted, "Contributing to the same act or effect; operating with; coincident." "Occurring or acting together; as, concurrent signs; concurrent forces." "Meeting or joining at the same point; running together; as, concurrent lines." "United in action or application * * * concurrent remedies or jurisdiction."

Congress framed the proposed amendment, and to it was open any of these meanings of the word, and it is not to be restricted to any one meaning that the spirit of advocacy of any particular construction may suggest. That meaning which will carry out the intended purpose of Congress should be given to this word. The thing sought to be prohibited is the manufacture of and commerce in intoxicating liquors for beverage purposes, and the prohibition extends throughout the United States and all territory subject to its jurisdiction. Only the enforcement of this prohibition is sub

ject to the legislative power, and this power is delegated to both Congress and the several States. If Congressional action to be effective is dependent upon each of the States joining with it in its enforcement legislation, an absolute failure to effect such legislation is not merely possible but decidedly probable.

Based upon its selection of the more restricted meaning of "concurrent" the plaintiff contends that so far as concerns the manufacture, sale, and transportation of intoxicating liquors for beverage purposes within a State (intrastate business) no enforcement act of Congress affecting such business has any legal force or effect unless the State concurs therein. The practical effect of this limitation of the power of Congress is to confine its enforcement legislation to such manufacture as might be carried on in territories subject to the United States and to commerce with foreign nations (imports and exports) and among the several States (interstate). Such a limitation would deprive Congress of any effective control over by far the greater part of the business, the outlawry of which the amendment was intended to accomplish. It would give it no voice as to what should constitute intoxicating liquor when made the subject of intrastate business, and no regulation prescribed by it would have any effect on such business.

In such a division of power no uniformity as to what is intoxicating liquor or of regulations to prevent or detect violations could be reasonably expected. The differences in the percentages of alcohol allowed could be as numerous as the States, and the power of Congress would be practically confined to the prevention of smuggling the intoxicating liquor containing the greater quantity of alcohol from the States where it could lawfully be made and vended to those States where that of a lesser alcoholic content alone was lawful. When results of this kind are likely to flow from accepting the more limited definition of the word "concurrent" and the division of power built thereon, one naturally looks to the

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