INVESTIGATIONS AND DISSOLUTION SUIT
On March 1, 1920, the Supreme Court of the United States handed down a
decision acquitting the United States Steel Corporation from the charge
of the Government that it was a combination in restraint of trade,
bringing to an end litigation that had cost both the Corporation and
the Government many millions in cash and had for nearly nine years
thrown a threatening shadow on the steel industry and on American
business as a whole.
The decision, moreover, wrote the final chapter to a record of
investigations of and political attacks against the Corporation that
had lasted almost since its organization.
An immensity from its conception, an undertaking so vast that its
actions and policies, good or ill, reflected their results for the
industrial weal or woe, not of a single community but of the whole
American people; conceived and born, further, at a period when
the thoughts of the nation were directed toward the menace that
was believed to exist in trusts against the body politic and when
politicians and economists were bending their energies toward a study
of the question of big business, it was but natural that investigations
of one kind or another, but all directed toward the one end of finding
out whether the big company’s existence was a danger to the country or
not, should have played an important part in the history of the United
States Steel Corporation.
While United States Steel, its actions and its policies, have earned
the commendation of thoughtful students--perhaps even the majority
of the public, and many public speakers and writers have expressed
this, probably no other organization has enjoyed or been subjected to
so much--and generally such unconsidered--criticism as has the Steel
Corporation. Even the Standard Oil and the American Tobacco companies,
big and prominent as they were and as much as they have been attacked
for their methods of eliminating competition, have failed to strike the
public imagination as forcibly as the so-called Steel Trust. There were
two main reasons for this. To the mind of the student of economics the
activities of the Steel Corporation bore more importance to the public
welfare because of the part that steel plays in making or unmaking
the prosperity of the country, the importance of iron as one of the
resources of the nation. The steel trade is the industrial barometer
of the country and this is because steel enters into almost every line
of activity. So far as the public was concerned the very size of the
Corporation constituted its weakness. Its billion-dollar capitalization
captivated the imagination, compelled attention. What men do not
understand they are apt to fear, and how many can understand the import
of such a vast sum? As the majority opinion of the U. S. Supreme Court
says:--“The Corporation undoubtedly is of impressive size and it takes
an effort of resolution not to be affected by it or to exaggerate its
influence.”
And because it was so easy to inflame the public imagination with the
very mention of the “Steel Trust,” the Corporation became a shining
mark for the attacks of demagogues who recognized in it an excellent
net for snaring votes.
This does not mean that all the attacks on the big Corporation have
been the work of demagogues. Some have been originated by men entirely
sincere in their conviction that so great an enterprise was inherently
dangerous to the well being of the country at large. But it was
generally overlooked that the power to do harm implies an equal power
to work good, and the question resolves itself in the final analysis
to an individual one. What were the powers of the Steel Corporation
and how were they used? The investigations, ending in the suit for the
dissolution of the “Steel Trust” and its absolution by the Supreme
Court, have brought to the light of day all the actions of the big
company, have submitted them to the glare of pitiless publicity, and
the vast industry has been judged not alone in the courts but at the
bar of public opinion. What have been these investigations, why were
they instituted and in what have they resulted?
On June 18, 1898, an investigation into the question of trusts and
their relation to labor and, in fact, their effect on the country
generally, was decided on by resolution of Congress. A committee, known
as the Industrial Commission, was appointed to make the investigation.
This commission was composed of five members of the Senate, five
members of the House of Representatives, and nine others, assisted by
a large corps of experts in economics. The committee did not finish
its work until the later part of 1901, its report being presented on
December 5th of that year. So that the Corporation began its existence
during the life of the commission and came in for a certain amount of
study on its part. As the report, generally speaking, was an academic
one and as it dealt very little with the Corporation, it may be passed
over here.
The first investigation bearing directly upon the methods or practices
of the Steel Corporation was begun during the administration of
President Roosevelt. James R. Garfield, appointed Commissioner
of Corporations in the Department of Commerce and Labor when the
department was instituted early in 1903, was instructed by the
President to investigate various large corporations and in the course
of this work he directed his attention to the steel trade. About 1905
Mr. Garfield began an investigation of the Corporation and the work was
carried on until some years after he had resigned his post and become
a member of the Roosevelt cabinet.
The report of the Commissioner of Corporations on the steel industry
was made by Herbert Knox Smith, who held the post under President Taft.
Approximately two years were spent by Mr. Garfield in this
investigation. Some years later, testifying under oath, he stated that
the management of the Corporation had put no obstacle in the path of
the investigation, but that on the contrary Judge Gary had ordered that
all information he demanded be given. Further, Mr. Garfield said that
the head of the big company had asked him to inform him if anything
contrary to law was discovered during the investigation as it was the
desire and intention of the management to meet the law fully and to
correct any abuses if they existed. Mr. Garfield, apparently, could
find no cause of complaint, for he reported to the President that he
had discovered nothing that necessitated that the Department of Justice
be informed with a view to instituting proceedings.
Further, Mr. Garfield declared, in questioning competitors of the
Corporation, steel consumers, and railroad traffic managers, he had
found no indication of the crushing of competition which would have
been revealed by complaints of competitors as they had been in the
case of other “trusts,” no signs of discontent among consumers, and no
evidence of rebating, used by some big concerns as a powerful weapon in
eliminating competition.
On July 1, 1911, the report of Mr. Smith was submitted, through
Secretary of Commerce and Labor Charles Nagel, to President Taft. Mr.
Smith’s report was an exhaustive and complete study of the Corporation.
One may find fault with his conclusions, but the work is without equal
as a compendium of facts and statistics regarding the Corporation.
[Illustration: (_Upper_) Ore Boat Unloading]
[Illustration: (_Lower_) An Ore Train]
In some respects the Smith report was unfavorable to the Corporation,
although the Commissioner made no claim of suppressed competition.
His criticisms were leveled principally at the big company on the two
points of over-capitalization and the matter of the Hill ore lease.
[Illustration: Ore Boats at Duluth Docks]
Mr. Smith claimed that the tangible assets of the Corporation at the
time of its organization were $682,000,000 against which $1,400,000,000
of securities were issued. At the end of 1910, he said, tangible
assets had increased to $1,187,000,000 and securities issued to
$1,468,000,000. As already pointed out Mr. Smith’s calculations did not
allow fully for ore property values, worth hundreds of millions.
The reader will remember that, in an earlier chapter, it was pointed
out that the over-capitalization of the Corporation did not admit
of doubt, an assertion proven by its practical admission by the
management of the Corporation who put $500,000,000 of earnings into
new construction for no other apparent reason than to equalize
capitalization and property values. Yet Mr. Smith’s figures appear
somewhat too drastic. Some of the reasons for this belief have been
stated before, but it is pertinent to point out that, in the 1910
valuation, Mr. Smith indicates that the main point of divergence is
that of ore reserve values, and on this point it would be safe to
say that the mass of opinion in the steel trade, that is the mass of
competent observers, would support the Corporation’s figures.
That Mr. Smith’s criticism of the Hill lease was well taken seems to be
proven by the decision of the directors to abandon the lease, although
another reason for this action was to be found in the gradual decline
in the metallic content of the ore as operations proceeded. Yet the
question as to whether the undertaking of the lease was intended,
as Mr. Smith thinks, to keep out competitors, or merely to secure a
safe ore reserve for the Corporation, must always remain a matter of
opinion. As the Corporation’s entire history fails to indicate a desire
to crush or to keep out competitors, it appears only fair to give it
the benefit of the doubt in this instance. On one point, however, the
lease is open to criticism; it seems to have been an error of business
judgment.
But the work of the Commissioner of Corporations was being done
quietly, and in the meanwhile the public were being kept keenly
interested in the trust question and politicians were waging active
war against the trusts. The evidence brought out in the Standard Oil
and Tobacco suits served to inflame public indignation against big
business generally and “Hit the trusts!” became almost a shibboleth for
political advancement. It was no wonder, then, that the “Steel Trust”
should be criticized and it should be questioned why no action had been
taken against it, the obvious answer that it had not violated the law
being one which would hardly have satisfied the masses and certainly
one that politicians were not going to advance under the circumstances.
Public sentiment on the trust question, moreover, was being kept at
fever heat by a certain class of publication, and it was small wonder
that so rich an opportunity was seized upon by politicians. On May 4,
1911, a resolution, proposed by Representative Augustus O. Stanley,
of Kentucky, calling for an investigation of the United States Steel
Corporation, was introduced into the House and passed, and a committee
of congressmen headed by Mr. Stanley was appointed to undertake the
work. The other members of the committee, which became known as the
Stanley Committee, were:
Charles L. Bartlett, of Georgia, Democrat; Jack Beall, of
Texas, Democrat; Martin W. Littleton, of New York, Democrat;
D. J. McGillicuddy, of Maine, Democrat; Augustus P. Gardner, of
Massachusetts, Republican; Henry G. Danforth, of New York, Republican;
H. O. Young, of Michigan, Republican; John A. Sterling, of Illinois,
Republican.
The committee shortly began its work and in the course of its
investigation summoned as witnesses the heads of the Corporation and of
various independent steel companies, experts in economics, consumers,
and a host of other witnesses. The greatest publicity was given to
these hearings, but the Corporation, although practically put on trial,
could not avail itself of the usual recourse of a defendant, could not
call witnesses on its own behalf.
On August 2, 1912, the Stanley Committee presented its report, or
rather reports, for there were several. The majority report, signed
by Messrs. Stanley, Bartlett, Beall, and McGillicuddy, was a sweeping
condemnation of the Corporation, its organization and its methods. This
was a matter of little surprise as the entire method of conducting the
investigation was sufficient to convince the unprejudiced mind that the
effort of the investigators was not so much to find out whether the
Corporation had been influential for good or evil but to prove that it
was actually a violator of the law.
Practically everything the Corporation ever did was condemned in
this report. Among the items that came for particular criticism were
over-capitalization, the bond conversion plan, the Hill ore lease, the
Union-Sharon purchase, the Gary dinners, the Tennessee purchase, the
Corporation’s attitude toward labor unions and toward labor generally,
and interlocking directorates.
According to the report the Corporation played an important and
dangerous part in influencing legislation, particularly in helping to
disseminate literature in favor of a high tariff. The letters produced
in support of this charge, however, do not seem to be very convincing
proof, indicating that no means other than perfectly legitimate ones
were used to assist in maintaining the tariff on steel products, the
necessity for which all steel men were agreed on.
In regard to the purchase of the Tennessee Coal, Iron & Railroad Co.,
the Stanley Committee asserted unequivocally that George W. Perkins,
a Morgan partner and a member of the board of directors of the Steel
Corporation, deliberately attempted to precipitate a run on the Trust
Co. of America with the purpose of forcing the interests in control of
the Tennessee company to sell. The details of the deal and the events
connected with the run on the trust company have been discussed in the
chapter devoted to the Tennessee purchase.
On the question of interlocking directorates the majority of the
Stanley Committee expressed their grave apprehension of its menace
to the country and pointed out that the Corporation, through its
directors, had representation on the boards of railroads capitalized
at $10,265,000,000; banks and trust companies whose capital, surplus,
and undivided profits aggregated $3,315,000,000; industrial concerns
capitalized at $2,803,509,000; and express, steamship, and terminal
companies capitalized at $2,272,000,000.
Finally, the committee demanded that the railroads owned by the Steel
Corporation be segregated from it as a matter of public necessity, the
ownership of these roads giving the Corporation a great advantage over
competitors.
A minority report, signed by Augustus P. Gardner, Henry G. Danforth,
and H. O. Young, concurred with the main report in some particulars but
suggested that the majority had singled out incidents to bolster up its
arguments without regard to their relative unimportance, the result
being an overdrawn picture of the iniquities claimed to have been
perpetrated by the Corporation. While the second report unequivocally
condemned the organization of the Corporation as an attempt by the
Morgan interests to eliminate competition against the steel companies
in which they were concerned and to do away with the ever-present
menace that Andrew Carnegie was supposed to be, it said that the actual
control of the actions of the great combine had been put into the hands
of “exceedingly competent, although perhaps not altruistic, managers
who have subsequently made it a success.”
The minority report also pointed out that significant fact that the
price of steel, as based on a representative list of products, had
declined from $38.80 a ton before the Corporation was formed to $36.11
in 1911.
Finally, the minority members did not favor the dissolution of the
Corporation, merely contenting themselves with the suggestion that
it be put under Federal control. Incidentally, such control over all
corporate activities has been frequently urged by Judge Gary, head of
the Corporation.
This did not end the list or reports as Representatives Young and
Littleton each appended his personal views, both of which were
favorable to the Steel Corporation in many respects.
A year or more after the presentation of the Stanley Committee reports
some interesting events calculated to throw a new light on the causes
that led to the inception of the investigation transpired. A man known
as David Lamar (an assumed name on his own confession), one who bore so
unsavory a reputation in financial circles that he was styled “The Wolf
of Wall Street,” came forward with the assertion that he himself had
written the Stanley resolution for investigation and had used it, or
attempted to do so, as a club over the heads of the Morgan interests.
This failing, he had sent the resolution to Stanley through Henry B.
Martin, secretary of an association called the Anti-Trust League, and
the Kentucky congressman had introduced it into the House.
Lamar’s story was confirmed by Martin and by Edward Lauterbach, a New
York lawyer. It was followed by a denial on the part of Stanley who
pointed out that the resolution was offered originally by him in 1910,
a year before the time of its passage upon its second introduction,
whereas Lauterbach had said that Lamar showed him the resolution
in 1911. The record of the Senate committee which heard the Lamar
evidence, however, shows that Lauterbach stated he had seen the
resolution as early as 1908, or thereabouts, and that he thought it had
been offered to the House in 1910. Upon a suggestion from a senator,
who apparently was not cognizant of the fact that the resolution had
been presented unsuccessfully a year before its passage, that it did
not come before the House until 1911, Lauterbach corrected his date.
Under the circumstances this correction was natural, although the
original testimony was the more reliable.
However ignorant Stanley might have been of knowledge of Lamar’s
authorship of the resolution, and however sincere his motives in
bringing it before Congress, the connection of “The Wolf of Wall
Street” with the matter, which seems fairly conclusively proven, was in
itself sufficient to give a sinister aspect to the whole investigation,
to suggest that its inception was the result of base motives.
Following the Stanley investigation came the Government’s Steel
dissolution suit. That the one grew out of the other is easy to
believe. In fact, it would be difficult to think otherwise. The United
States Steel Corporation had been organized, had done business, and
prospered under successive Republican administrations. It had been
investigated by the governmental departments charged with such work but
these had failed to find sufficient evidence to warrant the bringing of
a suit against the big company. The Stanley resolution was passed by
a House controlled by a Democratic majority and the measure had been
applauded by a large body of voters who had been taught to believe by
their political advisors that all big business was necessarily evil.
The Republican Party was facing grave danger of defeat in the coming
elections of 1912 and the advantage the investigation had gained
for the Democrats among the class of voters referred to could only
be offset, it seemed, by a political “grand-stand play” of the same
nature. Here, again, we come to a question of motives, but all the
evidence obtainable seems to show that this was at least one of the
reasons why, on October 26, 1911, the Attorney-General for the United
States, George W. Wickersham, caused to be filed at Trenton a suit for
the dissolution of the United States Steel Corporation.
It cannot be said that the suit surprised any one. The country at
large had long wondered why no action had been taken against the Steel
Corporation; why this great combine alone seemed to be immune from
attack by the Federal authorities. Those unfamiliar with its conduct
and policies and knowing it only as the biggest of the “trusts” could
attribute the immunity only to political influence, while those better
informed, although believing that the Corporation’s entire history
had been such as to render attack futile, all violations of the law
having been carefully avoided by it, and that the Corporation was not a
monopoly in restraint of trade, felt that the force of popular opinion
must sooner or later result in a suit.
In the Government’s charges were reiterated practically the same
complaints found against the Corporation in the Stanley report; and a
complete dissolution was asked for. The Corporation replied denying in
toto all the charges and asserting its innocence of any violation of
the Sherman Anti-Trust Act.
Jacob M. Dickinson, former Secretary of War in the Roosevelt cabinet,
was put in charge of the prosecution, assisted by Henry E. Colton. An
imposing array of legal talent was lined up on the Corporation side,
its counsel including Joseph H. Choate, John G. Johnson, Francis Lynde
Stetson, Richard V. Lindabury, Cordenio A. Severance, David A. Reed,
and Raynal C. Bolling. The actual conduct of the case was principally
in the hands of Messrs. Lindabury, Severance, and Reed.
Hearings before a Special Examiner were ordered and these began in
New York early in 1912. Many months were consumed in the hearing of
testimony on either side, and it was not until the spring of 1914
that the last of the witnesses was examined. Among those called to
testify were former President Roosevelt; prominent steel men like John
A. Topping, E. C. Felton, Joseph G. Butler, Willis L. King, Charles
M. Schwab, James R. Bowron, Frank S. Witherbee, W. H. Donner, A. F.
Huston, Edwin R. Crawford, A. W. Thompson, Karl G. Roebling, James A.
Campbell, C. W. Bray, W. W. Lukens, John Stevenson, Jr., and a host
of others; prominent economists like Professor Jeremiah Jenks and Dr.
Francis Walker; financiers like Oakleigh Thorne, of the Trust Co. of
America, George M. Reynolds, and others; directors of the Corporation
including Judge Gary, James A. Farrell, J. H. Reed, Percival Roberts,
Jr., Daniel Reid, and so on, not to mention a vast array of railroad
purchasing agents, heads of large steel-consuming companies, and many
others among whom may be mentioned James R. Garfield and Lewis Cass
Ledyard.
A large part of the testimony was devoted to events far preceding the
organization of the Corporation, it being the intent of the government
counsel to show that not only was the Corporation restraining trade but
that the very elements of which it was composed, the companies absorbed
by the great merger, were themselves organized in violation of the
law. As the hearings progressed the conviction that the Corporation
would emerge from the ordeal of prosecution successfully became more
prevalent, the evidence, to the lay mind, all supporting its denial of
any violation of the law. The witnesses called for the defence were
unanimous in declaring that the big company, far from restraining
competition, had fostered it, and this point, in effect, was the very
nub of the matter. Even the witnesses for the prosecution, many of
them, took the same attitude.
It was in listening to this testimony, or the greater part of it, that
the writer conceived the idea of recording the history of the great
Corporation. Here was a mass of data, the sworn statements of prominent
and reliable business men, a foundation that could not be excelled for
a work of this character. From this mass of evidence, in large part,
have been taken the facts stated in this history. The records in the
dissolution suit, in fact, contain the whole story of the Corporation
up to the year 1911. Hence it would be vain to review in detail all the
testimony here.
The arguments of counsel for both sides were presented to the U. S.
District Court, and for months the business world waited anxiously for
its decision, one that would have a very far-reaching effect not on the
Corporation or the steel trade alone, but on business generally. For it
was felt that a decision adverse to the defendant would mean that mere
bigness was considered illegal and that no large corporate enterprise
would be allowed to exist, however free from evil its course of action
might be. If the Steel Corporation was adjudged a monopoly in restraint
of trade, it was thought, then all big business was doomed, for the
Corporation, certainly, had sought in every way to meet fully the
requirements of the law.
It was not until June 3, 1915, that the Court rendered its decision,
the most favorable to big business ever handed down in an anti-trust
suit, denying the petition of the Government and completely absolving
the Steel Corporation from the charge of monopoly. The decision
was unanimous, all the judges being in entire agreement that the
Corporation was not, and never had been, a monopoly in restraint of
trade.
All four of the judges concurred on the main point at issue--that of
trade restraint. A minority opinion, signed by Justices Woolley and
Hunt, expressed some divergence of thought on minor points, which we
shall come to. In the meantime, let us examine some extracts from
the main opinion, signed by Judge Buffington, presiding, and Judge
McPherson.
“As trade is a contest for it between persons and the gain of that
trade by one means the loss of it to another, it follows that the
person who best knows whether the man who gained it gained it fairly,
is the man who lost it. If there is monopoly we can find proof of it
from business competitors.”
“For of the conduct of the Steel Corporation, the views of its
competitors are the best gauge. Monopoly and unreasonable restraint
of trade are, after all, not questions of law, but questions of
hard-headed business rivalry, and whether there is monopoly of an
industry, whether trade is subjected to unreasonable restraint, whether
there is unfair competition, are facts about which business competitors
best know and are best qualified to speak. And it may be accepted as a
fact that where no competitor complains, and much more so, where they
unite in testifying that the business conduct of the Steel Corporation
has been fair, we can rest assured there has been neither monopoly
nor restraint. Indeed, the significant fact should be noted that no
such testimony of acts of oppression is found in this record as was
given by the competitors of the Tobacco or Standard Oil companies in
the suits against those companies. We have carefully examined all the
evidence given by competitors of the Steel Corporation. We have read
the testimony of customers who purchased both from it and from its
competitors. Its length precludes its recital here, but we may say its
volume, the wide range of location from which such witnesses came, and
their evidently substantial character in their several communities,
make an inevitable conclusion that the field of business enterprise in
the steel business is as open to, and is being as fully filled up by
the competitors of the Steel Corporation, as it is by that company.”
Next the Court turns to “that most injurious feature of monopoly’s
wrong to the public, to wit, increase in the price of its product or a
deterioration in quality.” It disposes of the question of quality first
thus:
“No dispute arises under the proofs. They are simply uniform that, both
with independents and the Steel Corporation, there has been a steady
bettering of quality in steel products.”
The question of prices it discussed at some length and intimated that
there had been no evidence presented to show that the Corporation
had unduly raised prices, while a large number of steel consumers
had agreed in testifying that active competition in prices for steel
existed between the Corporation and the independent companies, which
would alone indicate that prices had been only such as ordinary
business practice warranted. The Court added: “The Steel Corporation
has adopted a policy of price publicity and adherence, somewhat
analogous to the freight-rate stability followed by the railroads under
the directions of the Interstate Commerce Commission.”
Next the Court considered the subject of restraint of trade in the
export or international field and found that: “we are warranted in
holding that the foreign trade of the Steel Corporation, its mode of
building it up, and its retention when built up, are not contrary
to the Sherman Law. To hold otherwise would be practically and
commercially to enjoin the steel trade of the United States from using
the business methods which are necessary in order to build up and
maintain a dependable business abroad, and if the Sherman Law were so
construed, it would itself be a restraint of trade and unduly prejudice
the public by restraining foreign trade.”
On the charge that the inherent nature of the Corporation was
monopolistic, that the object of its organizers in bringing it together
was for restraining trade the Court says, in part:
“In view of the fact that the proportionate volume of competitive
business has increased since the Steel Company was formed and that
the proofs show no attempt by it to monopolize it to the exclusion of
its competitors, to now attribute to those who formed the Corporation
an intended monopolization would be to say that, having formed the
Corporation for the purpose of monopoly, they immediately abandoned
such purpose and made no effort to accomplish it.”
The Court disposes of the matter of the purchase of the Tennessee
Coal, Iron & Railroad Co., and of other purchases of steel properties
criticized by the Government, by saying: “We cannot but feel, in the
light of the proofs, that they were made in fair business course and
were, to use the language of the Supreme Court in the Standard Oil
case, ‘the honest exertion of one’s right to contract for his own
benefit unaccompanied by a wrongful motive to injure others.’”
Perhaps the most important point of divergence between the two
opinions lies in the fact that Justice Woolley, with whom Justice Hunt
concurred, held that it was the original purpose of the organizers of
the Corporation to restrain trade. These judges found, however, that
the big company did not attempt to exert a power, if it possessed
it, to destroy its competitors; they say: “Upon the finding that the
Corporation, in and of itself, is not now and has never been a monopoly
or a combination in restraint of trade, a decree of dissolution should
not be entered against it.”
In denying the petition for a dissolution of the Corporation the Court
stated that it would, if requested by the Government, retain the bill
of complaint to restrain further action of this sort by the defendant
corporation.
Metaphorically, business drew a sigh of relief when the decision of
the lower court was made public, a relief, however, chastened by the
expectation that an appeal to the Supreme Court was certain. But so
clear and unmistakeable were the findings of the District Court, so
little question seemed there to be in the minds of the judges, that no
evidence of monopoly or restraint of trade existed that the final issue
was awaited with confidence.
An appeal was filed in course of time--October 28, 1915. And for long
thereafter both sides girded their loins for the final effort. The
case was eventually argued before the Supreme Court on March 7-14,
1917, and later the Court ordered a re-argument, the date for the
re-argument being set for May of that year.
Meanwhile, the war that had been devastating Europe for three years had
at last reached out to the United States and this country had become
engaged in a conflict in which the industrial resources and financial
strength, to say nothing of the patriotism of the Steel Corporation,
were of enormous value and assistance.
Doubtless the Government’s attorneys realized this fully. Doubtless
they were aware that, if the Court should grant their plea and the
Corporation be dissolved, the breaking up of the great organization
would so disorganize its activities that it could not continue, during
the dissolution process, the tower of strength it was in carrying
on the war. So, on the ground, well taken, that the conclusion of
the suit might disrupt the financial situation, the Government asked
for and obtained a postponement, although opposed in its plea by the
Corporation which was anxious to clear itself before the world as early
as might be.
And so it was not until after the return of peace, eight years after
the suit was initiated, that final arguments were presented (October
7-10, 1919) and not until March 1, 1920, that a final decision was
rendered, absolving the Corporation and dismissing the suit, as already
stated.
The Corporation’s victory in the Court of Last Resort was a rather
narrow one, four of the judges agreeing on dismissal of the
Government’s appeal, while three favored the Government’s side. Two
members of the Court did not sit in the case and took no part in the
decision, Justice McReynolds, who had been Attorney-General of the
United States during the progress of the litigation, and Justice Louis
Brandeis.
The judges voting for affirmance of the judgment of the lower court
dismissing the bill were Justice McKenna, who delivered the opinion,
and Justices Holmes, Van Deventer, and Chief Justice White, while
the minority opinion was written by Justice Day and concurred in by
Justices Pitney and Clarke.
On the question of the close division of the Court it might be pointed
out that, of eleven (excluding Justices McReynolds and Brandeis who
took no part in the matter) judges who sat on the case, four in the
District Court and seven in the Supreme Court, a total of eight were in
favor of the Corporation.
Compared to the opinion of the lower court that of the Supreme Court,
considered either as a literary effort or a comprehensive summing up of
the issues involved, is somewhat disappointing. A few pertinent facts
were emphasized by Judge McKenna, however, and these are well worth
alluding to.
Referring to unanimous testimony of both competitors and customers that
the Corporation’s trade methods had been not only legal but essentially
fair and, if the word may be used, sportsmanlike, as contrasted with
the Government’s claim that competitors were oppressed, Justice McKenna
said:
“The situation is indeed singular, and we may wonder at it, wonder
that the despotism of the Corporation, so baneful to the world in the
representation of the Government, did not produce protesting victims.”
So obviously beneficial to American industry had been the Corporation’s
activities in the export trade that even the Government’s attorneys did
not attack it on this score, in fact, they suggested that the export
organization should be preserved. On this point the Supreme Court
majority opinion said:
We do not see how the Steel Corporation can be such a beneficial
instrumentality in the trade of the world and its beneficence
preserved, and yet be such an evil instrumentality in the trade of
the United States that it must be destroyed.
And in concluding the opinion:
We are unable to see that the public interest will be served
by yielding to the contention of the Government respecting the
dissolution of the company or the separation from it of some of
its subsidiaries; and we do see in a contrary conclusion a risk of
injury to the public interest, including a material disturbance
of, and, it may be serious detriment to, the foreign trade. And in
submission to the policy of the law and its fortifying prohibitions
the public interest is of paramount importance.
In the final paragraph we have the nub of the whole matter. The
dissolution of the Corporation would have been contrary to the public
interest. Its preservation distinctly was in the public interest not
only from a foreign trade or other economic standpoint but on purely
sociological grounds.
Not satisfied with the decision the Government’s attorneys shortly
afterward moved for the reopening and rehearing of the case, but
this appeal was promptly and unequivocally denied by the Court, thus
definitely and finally settling the matter.
To the management of the Corporation, and particularly to Judge Gary,
who was responsible for, and had accepted the responsibility for,
its actions good or bad, the decision was more than gratifying. Its
effect was not merely sentimental, however. The decision, freeing the
Corporation from the stigma of illegality and, by inference, endorsing
its policies, left the big company at liberty to develop and expand
within the legitimate lines it had always followed.
For nine years the Corporation had been hampered by the shadow that was
hanging over it. It was prevented from engaging in new enterprises that
might have been favorably considered by its directors as any plans for
future development might at any time have been brought to nothing by
an adverse decision. It is yet too early to see any direct result of
the new freedom, but it is a safe presumption that, now enjoying it,
the Corporation will not fail to make use of it for the financial gain
of its stockholders and for the economic good of the United States.
[Illustration: A Trainload of Ingots in Molds]