George Howard Earle, Jr.

“ Bearing in mind that throughout the whole history of the Common Law, it has been considered that it was part of the common liberty for men to buy and sell their property in a free market, always restrained, but only restrained by free competition. ”

“ When, however, you come to civil cases, the uninterrupted definition of fair prices has always been the same. Where damages have to be fixed by a jury, a reasonable price has always been the market price fixed in free competition. ”

“ It is difficult to understand how anyone familiar with the subject and the decisions, can reasonably think that three perfectly familiar words, that have had a legal meaning for centuries to the contrary, are sufficient to set at naught all the work of great lawyers and economic thinkers. The cases are numerous that when words in a certain connection, in statute or in law, are given a constant meaning, it takes demonstration to the contrary not to so understand them in a subsequent statute. ”

“ This leads to a fact constantly overlooked. At Common Law men were not only permitted to obtain bargains, but profit by them. Indeed, with free competition, the more bargains that were obtained, the better for the consumer, as those having obtained them would in their competition be naturally able and tempted to give the public at least a portion of the benefit. If the incentive were to be taken away, it would inevitably tend to higher prices. Now, the Act scrupulously avoids any mention of such profits. And it cannot be written into a criminal statute. ”

“ How can it be explained, when the Act used exactly the same terms the Common Law had so continually defined, that so many have simply taken it for granted that it meant exactly the opposite; and thus destroyed the freedom of men to trade in open competition. ”

“ So far as this question is concerned, the statute, properly construed "in the light of well-settled principles," is plainly constitutional.
Two considerations pointed out by Judge Connor in the Myatt case, [18] are of value. The first that "a fair and reasonable construction of the entire section would make the purpose or intent an essential element in the unlawful character of each of them"; and second, as he thus states it: [19] "It is significant that neither of the words 'price' or 'profit' is found in either of the prohibited acts which may be committed by a single person." ”

“ If the decisions of the Supreme Court are to be regarded, no such result can follow, for "in cases admitting of doubt, the intention of the lawmaker is to be sought in the entire context of the selection—statute, or series of statutes in pari materia," as decided in the Atkins case. [9] "It is elementary when the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity. ”

“ The Chief Justice has shown, in the Standard Oil case, as plainly as it can be made, that undue prices are prices that result from monopoly, because the normal or proper price, the non-excessive price, is the price fixed in free competition. ”

“ There could not be a clearer statement of the oft-demonstrated principle that the greatest protection possible against excessive prices was to be found in safeguarding the freedom of competition, which, of course, could not exist if its chief method of underbidding was wrested from free traders. ”

“ And not forgetting that all experience has always shown that no other system has ever either continued, or failed to be injurious, and finally, that these fundamental truths have been so wrought into our jurisprudence that for generations it has been settled that where prices are thus fixed they are not only "just and reasonable prices," but their best and conclusive evidence ”

“ Whether this was an excessive price is not made clear, and leaves the matter in equilibrio, as is well illustrated by the case where a man was indicted for selling an article at one-half the price at which he might on the actual results have had to replace it, if his business were to continue. ”