difficult the matter), but is merely a decision that those complaining have not sustained the burden of proof placed upon them by public policy; whilst a decision against the rate by reason of the omission of any necessary element of calculation is conclusive proof of unreasonableness and consequently of illegality.
A finding, therefore, that any charge is illegal because of the omission of such an essential feature, is a conclusive finding that those traders who have included it in their calculations have done so reasonably, and that if there is no ascertainable basis of reaching a definite test, no basis that excludes as a necessary element speculation, guessing or surmise, they have not, at least beyond all reasonable doubt, violated their duty; and that, where such elements of uncertainty are fixed conditions of business enterprises, there does not, and cannot exist the data upon which indictment or conviction is possible in a free government, or after a fair trial within the meaning of the Constitution. Because free men cannot lose their liberty or property for errors of judgment resulting from the lack of powers or of the guiding of the necessary and adequate experience of the ordinarily reasonable average businessman.
With this understood, nothing more clearly demonstrates the accuracy of the position taken by the Supreme Court in the International Harvester case,[1]
- ↑ Note: In International Harvester Co., etc., vs. Kentucky, 234 U. S. 216, 1914, the company had been prosecuted, convicted and fined for having entered into agreement, as it was alleged, with other companies for the purpose of controlling the price of harvesters, enhancing such price above the "real value" of harvesters, and for having sold them at a price in excess of their "real value." The Kentucky statutes, under which the prosecutions were brought, made punishable by fine or imprisonment agreements, or combinations entered into for the purpose of limiting, fixing or changing the price of articles or in any way to diminish their output; and also to prevent "all trusts from combining to depreciate below its
