Trusts.
Trusts, Holding Companies, and Mergers.—Not to be balked in this way the corporations devised a new plan for checking competition. This took the form of a trust. Corporations agreed to place their shares in the hands of trustees and these trustees, by virtue of holding the shares, controlled the business of all.[[172]] Through this control the trustees were able to make sure that no price-cutting would result from competition among the various companies comprised within the trust. |Holding companies.| Another plan, not widely different, was to organize a “holding company”, in other words a large corporation to hold all the shares of the smaller corporations not merely in trust but as the actual owner.[[173]] |Mergers.| Finally in some cases, the smaller companies were merged or consolidated outright into a single giant corporation. In such instances the smaller concerns passed out of existence and their former owners received shares in the new corporation.
Combinations stifle competition.
Why Industrial Combinations are Objectionable.—The chief objection to all these combinations, whether by informal agreement, pooling, trusts, holding companies, mergers is that they seek to restrain trade, to create monopolies, and to prevent the public from obtaining the advantages in the way of reduced prices and better quality which arise from free competition. So long as free competition exists the rise of prices is automatically checked. But when competition is stifled by monopoly, the public gets fleeced. When a monopoly is once created, moreover, free competition is difficult to establish again. The reason for this is that when anyone enters the monopolized line of business the holders of the monopoly cut their prices temporarily below the profit-making point and thus make it impossible for the new competitor to continue. Then, when they have driven him out of business, they put prices up once more.
The value of large-scale production.
On the other hand we must not lose sight of the fact that large-scale production is more economical than production in small quantities, and that large-scale production almost inevitably leads to industrial combinations. Most manufactured commodities are produced under what economists call “the law of increasing returns”, that is to say the larger the quantity produced, the smaller the cost per article. There is a great deal of overlapping and waste when goods are manufactured in small independent shops or factories. Large industrial combinations can obtain capital more easily; they can buy raw materials in larger quantities and at better prices; they are in a position to secure and use modern machinery; and they can create better facilities for selling their goods. Large-scale production also permits a profitable use of by-products, such as coke in the manufacture of gas or scraps of leather in the making of shoes. Where industries are small these by-products are not sufficient to make their sale worth while; but large-scale industries realize considerable sums from the sale of their by-products. From almost every point of view the large manufacturing establishments have a great advantage, and if we were to insist that all industry be carried on in small concerns, the public would be the loser in the end. Large-scale production is not in itself to be frowned upon but rather encouraged. The trouble arises from the misuse of the power over prices which results from monopoly, and this misuse of power is what the laws are endeavoring to prevent.
Federal and state control.
The Legal Control of Industrial Corporations.—The right to exercise control over industrial corporations, and thereby to protect the public against extortion, rests partly with the states and partly with the national government. Most corporations are created by state charters and this gives the state authority over them. So long, therefore, as a corporation confines its business within the limits of the state in which its charter was obtained, the national government has no control over it. But most large corporations, such as steel and oil companies, woolen and cotton companies, carry on their business in more than one state. They have factories scattered over several states. They buy materials in one state, manufacture them in another, and sell the products in a third. Wherever this is the case the national government does have authority over them, for the constitution gives to Congress the power “to regulate commerce among the several states”.
Industrial Corporations and the Sherman Law.—To understand the relation of the laws to combinations and monopolies it is necessary to go back a little way into legal history. |The common law rule against combinations in restraint of trade.| By the common law of England, which was introduced into the colonies before the Revolution and became the basis of the American legal system, it was provided that combinations were illegal when formed to restrain trade unreasonably. This was the prevailing legal doctrine in the United States for a hundred years after the formation of the Union, but it did not suffice to prevent the steady growth of monopolies. In 1890, therefore, Congress decided to draw the line more strictly and to this end enacted the Sherman Anti-Trust Law, which declared every contract or combination, in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce among the several states, to be illegal. |The rule in the Sherman Law.| No distinction was made by the words of this law between reasonable and unreasonable restraint of trade; the Sherman Law simply forbade all trade-restraining combinations in interstate business. It applied to railroads and industries alike, but it was not enforced widely until 1904, when the Supreme Court applied its provisions in the Northern Securities Case (see p. [365]).
This decision caused a great stirring among the dry bones of corporate industry. Many combinations and mergers had been formed in all parts of the country during the closing years of the nineteenth century, and it was argued that to tear these combinations apart would be exceedingly difficult. But the government proceeded against other consolidations, notably the Standard Oil Company and the American Tobacco Company, and secured their dissolution as well.[[174]] |The rule of reason.| In these latter cases, however, the Supreme Court gave hope for a less drastic interpretation of the Sherman Law by avowing its intention to decide each future case in accordance with the “rule of reason”. In other words the court stated its belief that the Sherman Law was not intended to break up all combinations, good, bad, and indifferent, but only those which were contrary to the public interest. By this dictum the Supreme Court re-established in effect the old common law principle that a combination may be legal or illegal according as its purpose is reasonable or unreasonable. And such is the law of the land today.[[175]]