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poration who embezzles the moneys thereof shall be deemed guilty of a felony punishable under Federal as well as State laws. Punishment is also provided for every director, agent, manager or officer of a common carrier knowingly violating the regulatory provisions with reference to the relations between a common carrier and any person or corporation with which more than $50,000 worth of business is done in any one year. “Persons and partnerships” are subject to complaint by the Commissions or Board for violating any of the provisions of sections 2, 3, in and 8 of the law and are punishable by contempt proceedings for failure or refusal to obey any order of the Court entered in a proceeding instituted therein by the Commissions or Board. A violation of the penal provisions of the Anti-trust laws by a corporation shall be deemed to be also that of the individual officers, directors or agents thereof who have authorized, ordered or done any of the acts constituting in whole or in part such violation. Any person shall be entitled to have injunctive relief in any Federal Court having jurisdiction against threatened loss or damage by a violation of the Anti-trust laws.
Persons violating the express inhibitions of the law contained in sections 2, 3, 7 and 8 are not criminally liable therefor.
A private banker having deposits, capital, surplus and undivided profits aggregating more than $5,000,000 is not eligible to be a director in any national bank, nor is any private banker eligible to be a director in any national bank in a city of more than 200,000 inhabitants. All other interlocking inhibitions are also necessarily applicable to persons, although aimed at certain classes of corporations.
Neither labor, agricultural or horticultural organizations not for profit, nor the members thereof shall be held to be illegal combinations or conspiracies in restraint of trade under the Anti-trust laws.
(b) As to CORPORATIONS. The provisions of the Clayton law making stock ownership by one corporation in another illegal, either in a competing corporation or in two or more corporations competing with each other, where commerce is thereby restrained or a tendency to monopolize is created, apply to corporations only.
Corporations are subject to the provisions condemning price discrimination, tying contracts, stock ownership and interlocking, but no criminal penalties are provided for violation thereof. Such violations subject corporations to actions for threefold damages by persons injured thereby. Corporations may own stock in other corporations as an investment only and may own the stock of subsidiary companies formed for the actual carrying on of their immediate lawful business or the natural and legitimate branches or extensions thereof when competition is not substantially lessened thereby.
Common carriers may own stock in short or branch line companies when no substantial competition is thereby suppressed. Decree in any suit by or on behalf of the United States under the Anti-trust laws finding a violation thereof shall be prima facie evidence against the defendant therein in any suit or proceeding brought by another party against the defendant under said laws. This provision is available either on behalf of or against corporations. The stock ownership provisions do not make unlawful any lawful stock ownership existing at the time the law became effective.
Common carriers interlocking with supply, con
struction and financial concerns with which they do more than $50,000 worth of business in any one year are subject to regulation by the Interstate Commerce Commission in respect of such business, and to criminal penalties for violation of the section governing such regulation.
Corporations are subject to the powers and process of the Commissions or Board to enforce compliance with the laws and may be proceeded against in equity by the government to prevent and restrain violation thereof. Any corporation may in proper cases have injunctive relief against threatened loss or damage by a violation of the Anti-trust laws.
3. Trade Commission Law. Section 5 of the Trade Commission law empowers the Commission to prevent “persons, partnerships or corporations, except banks and common carriers," from using unfair methods of competition. Necessarily, contempt proceedings and penalties are prescribed against corporations in order to make this power effective. But, as elsewhere stated, no crime either against persons or corporations is predicated upon any use of unfair methods of competition, nor is any private right of action for damages given by this law to any person who has suffered damages by the use of unfair methods of competition.
The word “corporation” is defined in this law to mean any company or association for profit, incorporated or unincorporated, with or without shares of capital stock, except partnerships.
The inquisitorial powers of the Trade Commission enumerated particularly in section 6 are all directed against corporations and not against per
The power to investigate, to examine books, records, documents, etc., would seem by these provisions to be limited to the books, records, documents, etc., of corporations. Incidental to this power the question will naturally arise in many instances as to whether or not certain papers and documents are the property of the corporation or of the individual officer or agent thereof. But it seems clear that records and documents which are the property of individuals are not subject to the powers of the Commission. The constitutional power of Congress to regulate interstate commerce may be exercised to the same extent over persons as over corporations, subject to the limitations contained in the fourth amendment concerning searches and seizures and the fifth amendment concerning self-incrimination. However, it seems reasonably clear from a consideration of the entire law that Congress intended to confine the Commission's inquisitorial powers to corporations only.
SUITS FOR DAMAGES OR FOR INJUNCTION
UNDER THESE LAWS.
There is nothing in the Trade Commission law in regard to suits for damages by private persons. This does not mean, however, that a person injured by violation of the rule against unfair methods of competition is necessarily deprived of the right to recover damages resulting therefrom. The Supreme Court must determine the legal question involved. Whether the Court will hold that the Trade Commission must act primarily as to the matters and things within its jurisdiction, as it has held the Interstate Commerce Commission must act with reference to carriers, 14 is doubtful.
Section 4 of the Clayton law gives any person injured in his business or property by reason of anything forbidden in the Anti-trust laws the right to sue therefor in any District Court of the United States in the district in which the defendant resides, is found or has an agent, without respect to the amount in controversy, and provides that the person suing shall recover threefold damages, costs of suit and a reasonable attorney's fee. This provision applies to the Clayton law a similar measure of damage to that embodied in section n of the Sherman law. Persons, therefore, injured by price discrimination, tying contracts, interlocking directors or stock ownership may recover threefold the damages occasioned thereby. The Courts likewise must decide as to whether or not such action will lie before the violation complained of has been passed upon by the Trade Commission.
14.—Texas & Pacific Ry. Co. vs. Abilene Cotton Oil Co., 204 U. S. 426; Interstate Commerce Commission vs. Illinois Central R. R. Co., 215 U. S. 452.
Section 5 of the Clayton law provides that in any suit brought under the Anti-trust laws by any private person against one who has been a defendant in a criminal or equity proceeding by the United States to enforce the Anti-trust laws, the decree or judgment shall be prima facie evidence against such defendant to the extent that it would operate as an estoppel as between the parties thereto. In other words, if one has been found guilty in a government suit of violating the Anti-trust laws, the judgment or decree would be presumptive evidence of the fact of violation. The plaintiff in an action for damages against such person would still have to show injury occasioned by the wrongful act.
The second paragraph of the section provides that the statute of limitations applicable to private rights of action under the Anti-trust laws shall not run as to any act complained of in a suit by the government under such laws, during the pendency of such suit.