violations of such agreements; actions for damages on covenants not to compete with the purchaser of a business, or suits praying an injunction to prevent violations of such agreements; suits by manufacturers to enforce contracts for maintenance of resale prices fixed by them.

In 51 cases the law has been urged in defense and in only 16 of these has it been successfully pleaded; in 10 instances it has been made the basis of plaintiff's claim for injunctive relief or damages and in only 3 of these has judgment been entered for the plaintiff. In 4 other cases the law has been invoked, but the decisions have rested on other grounds that have involved some question of jurisdiction or sufficiency of service of process, and no question of substantive rights under the law has been involved. In 9 casos private parties have sought by suits in equity to restrain violations of the law which they deemed resulted in injury to themselves; in these suits the courts have invariably held that such action will lie only at the suit of the Government.

OTHER ANTITRUST LAWS.

Section 26. General statement.

Besides the Sherman Antitrust Act of 1890 there should be especially noted certain provisions of the Act to Regulate Commerce of 1887, of the Wilson Tariff Act of 1894 (as amended by an act of Feb 12, 1913), of the Panama Canal Act of 1912, and of two recent laws, namely, the Federal Trade Commission Act of 1914 and the Clayton Antitrust Act of 1914. Each of these laws deals either largely or in part with other matters than trusts or combinations in restraint of trade. There has been practically no judicial interpretation of the meaning of those provisions of these laws which are considered here, except with respect to the Act to Regulate Commerce. The Federal Trade Commission Act and the Clayton Antitrust Act were enacted so recently that there has been little or no opportunity for such interpretation. Besides these laws there have been enacted certain others. which have more or less bearing on the enforcement of the antitrust acts, but these do not require detailed consideration here.1

1 Among these laws the following, which are of a substantive character, may be noted: (1) An act making appropriations for sundry civil expenses, etc., of June 23, 1913. This law appropriated additional funds for the Department of Justice for the enforcement of the antitrust laws, but provided that none of these moneys should be expended in prosecuting (a) any organization or individual for entering into any combination to increase wages, etc., or any act done in furtherance thereof, not in itself lawful, or (b) producers of farm products and associations of farmers cooperating to obtain a fair and reasonable price for their products. The same provision was made in the sundry civil appropriation act of Aug. 1, 1914. (2) An act making appropriations for the naval service, etc., of Mar. 4, 1913. This law provided that no part of the money appropriated should be expended for the purchase of certain steel products, armament, and machinery from persons, etc., who have conspired to monopolize interstate or foreign commerce in such articles, existing contracts excepted.

(3) An act making appropriations to provide for the expenses of the government of the District of Columbia, etc., of Mar. 4, 1913. This law created a Public Utilities Commission for the District of Columbia, and public-utility corporations were forbidden, without the consent of the commission, to transfer their franchises, to acquire the stocks or bonds of competing corporations, or to purchase the property of another public utility for the purpose of consolidation, etc.

Section 27. Act to Regulate Commerce of 1887.

The Act to Regulate Commerce of February 4, 1887, was apparently the first Federal statute containing any provision aimed to prevent monopolistic combinations, although the provision relating to such combinations is merely incidental to the broader purposes of the law.

Section 5 of this law prohibits any common carrier subject to this act from making any agreement with another common carrier for the pooling of freights of different and competing railroads or from dividing the earnings of such railroads.

SEC. 5. That it shall be unlawful for any common carrier subject to the provisions of this Act to enter into any contract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads, or any portion thereof; and in any case of an agreement for the pooling of freights as aforesaid, each day of its continuance shall be deemed a separate offense.

*

The only important case apparently which has been decided by the Supreme Court with reference to the construction of this section was Southern Pacific Co. v. Interstate Commerce Commission.1 Certain western railroads had published through rates on citrus fruits from California to the Atlantic seaboard, allowing the shippers to control the routing. Later, on account of rebating to shippers practiced by connecting eastern roads, they issued new rates and reserved to themselves the routing, at the same time promising fair treatment to the eastern roads and eventually giving them certain percentages of guaranteed tonnage. The Interstate Commerce Commission, which regarded this action as subjecting shippers to undue disadvantage and a violation of section 3 of the Act to Regulate Commerce of 1887, ordered them to desist. The circuit court upheld the order, but on the ground that this arrangement was a violation of the prohibition against pooling in section 5. The Supreme Court reversed this decision, however, holding that the acts complained of were lawful and did not amount to a pooling of freights within the meaning of section 5. The court said in part (p. 560):

Now, while the most important, if not the only, effect of the routing agreement is to take away this rebating practice, and to hold all parties to that agreement as part of the joint through rate tariff, we think no case is made out of a violation of the pooling provision in the fifth section of the act, even where the initial carrier promises fair treatment to the connecting roads, and carries out such promises.

Rate agreements among railroads have also been attacked, however, under the Sherman Antitrust Law (see p. 95), and also combinations in the form of holding companies. (See p. 103.)

1220 U. S., 536 (1906).

Section 28. Wilson Tariff Act of 1894.

This law was entitled "An act to reduce taxation, to provide revenue for the Government, and for other purposes," and became a law on August 27, 1894. In connection with the legislation regarding customs duties, certain provisions were inserted with a view to preventing combinations in restraint of trade with respect to the foreign commerce of the United States. These provisions are contained in sections 73 to 77, inclusive, of the said law. Sections 73 and 76 were slightly amended on February 12, 1913, the amended form being shown below.

Section 73 of the Wilson Tariff Act declares contrary to public policy, illegal, and void every combination, etc., of persons or corporations when any of them is engaged in importing articles into the United States, and when such combination is intended to operate in restraint of lawful trade or free competition in lawful trade, or to increase the market price in the United States of any article imported or of any manufacture into which such imported article enters; violation of the act is declared a misdemeanor and penalties are provided.

SEC. 73. That every combination, conspiracy, trust, agreement, or contract is hereby declared to be contrary to public policy, illegal, and void, when the same is made by or between two or more persons or corporations either of whom, as agent or principal, is engaged in importing any article from any foreign country into the United States, and when such combination, conspiracy, trust, agreement, or contract is intended to operate in restraint of lawful trade, or free competition in lawful trade or commerce, or to increase the market price in any part of the United States of any article or articles imported or intended to be imported into the United States, or of any manufacture into which such imported article enters or is intended to enter. Every person who is or shall hereafter be engaged in the importation of goods or any commodity from any foreign country in violation of this section of this Act, or who shall combine or conspire with another to violate the same, is guilty of a misdemeanor, and, on conviction thereof in any court of the United States, such person shall be fined in a sum not less than one hundred dollars and not exceeding five thousand dollars, and shall be further punished by imprisonment in the discretion of the court, for a term not less than three months nor exceeding twelve months.1

Section 74 of this act, which provides for suits in equity by the United States Government, is practically identical in phraseology with section 4 of the Sherman Antitrust Act, except that it is made applicable to offenses described in section 73 of this act. The precise terms of this section, therefore, do not require repetition here. (See p. 71.)

Section 75 of this act, which relates to the jurisdiction of the courts in such equity suits, is practically identical in phraseology with section 5 of the Sherman Antitrust Act, except in the section.

1 The act of 1913, referred to above, amended this section by inserting the words "as agent or principal” near the beginning of the section.

numbers referred to, and, therefore, need not be repeated here. (See p. 71.)

Section 76 of this act, which relates to the seizure and condemnation of property owned by a combination, etc., is practically the same as section 6 of the Sherman Antitrust Act, except that it applies to articles "imported into and being within the United States or being in the course of transportation from one State to another, or to or from a Territory, or the District of Columbia," instead of to articles "in the course of transportation from one State to another, or to a foreign country." (See p. 71.) It is therefore unnecessary

to give the precise terms in further detail.

Section 77 of this act is identical with section 7 of the Sherman Antitrust Act, except that it is introduced with the additional word "that," and, therefore, need not be repeated here. (See p. 72.)

The most striking variation of the Wilson Tariff Act from the Sherman Antitrust Act is in the definition of the offense in section 73, which has been given above. In particular it should be noted that a combination "to increase the market price" either of an imported article or of an article manufactured from such imported article, is prohibited. This provision is made in addition to provisions prohibiting combinations "in restraint of lawful trade" or "free competition in lawful trade or commerce." No reference is made in this act to monopolizing or attempting to monopolize.

Section 29. Panama Canal Act of 1912.

An act of August 24, 1912, to provide for the opening of the Panama Canal, etc., provided in section 11, that section 5 of the Act to Regulate Commerce of February 4, 1887, should be amended substantially as follows: After July 1, 1914, it is declared unlawful for any common carrier subject to the provisions of the act to own, or control, directly or indirectly, or to have any interest in any common carrier by water, or vessel carrying freight or passengers, operated through the Panama Canal, or elsewhere, with which the said carrier does or may compete. Jurisdiction is conferred on the Interstate Commerce Commission to determine questions of fact. in this connection and to make orders in respect thereto which are final. If the commission is of opinion that such service by water, other than through the Panama Canal, is being operated in the interest of the public, etc., and will not reduce competition, it may extend the period for which such service may be operated beyond July 1, 1914, subject to regulation by the commission in the same manner as the railroad which controls it is regulated. This amendment provides further that no vessel may engage in the coastwise or

1 The act of 1913, referred to above, amended this section by inserting the words "imported into and being within the United States, or being" near the middle of the section.

foreign trade of the United States or pass through the Panama Canal if it is owned or controlled by any person or company doing business in violation of the Sherman Antitrust Act, or sections 73 to 77, inclusive, of the Wilson Tariff Act of 1894, or any acts amending or supplementing either of them. Jurisdiction in respect to this last provision is conferred on the Federal courts. The text of the foregoing provisions is as follows:

From and after the first day of July, nineteen hundred and fourteen, it shall be unlawful for any railroad company or other common carrier subject to the Act to regulate commerce to own, lease, operate, control, or have any interest whatsoever (by stock ownership or otherwise, either directly, indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water operated through the Panama Canal or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic or any vessel carrying freight or passengers upon said water route or elsewhere with which said railroad or other carrier aforesaid does or may compete for traffic; and in case of the violation of this provision each day in which such violation continues shall be deemed a separate offense.

Jurisdiction is hereby conferred on the Interstate Commerce Commission to determine questions of fact as to the competition or possibility of competition, after full hearing, on the application of any railroad company or other carrier. Such application may be filed for the purpose of determining whether any existing service is in violation of this section and pray for an order permitting the continuance of any vessel or vessels already in operation, or for the purpose of asking an order to install new service not in conflict with the provisions of this paragraph. The Commission may on its own motion or the application of any shipper institute proceedings to inquire into the operation of any vesel in use by any railroad or other carrier which has not applied to the Commission and had the question of competition or the possibility of competition determined as herein provided. In all such cases the order of said Commission shall be final.

If the Interstate Commerce Commission shall be of the opinion that any such existing specified service by water other than through the Panama Canal is being operated in the interest of the public and is of advantage to the convenience and commerce of the people, and that such extension will neither exclude, prevent, nor reduce competition on the route by water under consideration, the Interstate Commerce Commission may, by order, extend the time during which such service by water may continue to be operated beyond July first, nineteen hundred and fourteen. In every case of such extension the rates, schedules, and practices of such water carrier shall be filed with the Interstate Commerce Commission and shall be subject to the Act to regulate commerce and all amendments thereto in the same manner and to the same extent as is the railroad or other common carrier controlling such water carrier or interested in any manner in its operation: Provided, Any application for extension under the terms of this provision filed with the Interstate Commerce Commission prior to July first, nineteen hundred and fourteen, but for any reason not heard and disposed of before said date, may be considered and granted thereafter. No vessel permitted to engage in the coastwise or foreign trade of the United States shall be permitted to enter or pass through said canal if such ship is owned, chartered, operated, or controlled by any person or company which is doing business in violation of the provisions of the Act of Congress approved July second, eighteen hundred and ninety, entitled "An Act to protect trade and commerce against unlawful restraints and monopolies," or the provisions of sections seventy-three to seventy-seven, both inclusive, of an Act approved August twenty-seventh, eighteen hundred and