Brewer, J., Dissenting. of the parties. The first three sections prohibit contracts and combinations in restraint of trade and monopolies; declare a person violating the provisions of these sections guilty of a misdemeanor and prescribe the punishment. Section 4 gives power to the Circuit Courts of the United States to prevent and restrain violations of the act. Section 6 provides for a forfeiture of property owned under any contract or combination or pursuant to any conspiracy, and seized while in course of transportation. Section 7 declares that any person injured in his business or property by reason of anything forbidden or declared to be unlawful in the act may sue therefor in any Circuit Court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold damages by him sustained. The present case comes within the proposition that "where a statute creates a new offense and denounces the penalty, or gives a new right and declares the remedy, the punishment or the remedy can be only that which the statute prescribes." Farmers & Mechanics' National Bank v. Dearing, 91 U. S. 29, 35; Barnet v. National Bank, 98 U. S. 555. These two cases arose under the National Banking Act of June 3, 1864, c. 106, 13 Stat. 99, and allustrate the doctrine referred to. That act prescribed the rate of interest which might be taken by national banks, and added that knowing and receiving a greater rate of interest should forfeit the entire interest; or if the interest had been paid, that the person paying might recover in an action of debt twice the amount of interest thus paid. These cases held that relief for a violation of the statute was a forfeiture of the interest due and not paid, or in case the interest had been paid an action of debt to recover double the amount paid. See also Oates v. National Bank, 100 U. S. 239. In Stephens v. Monongahela Bank, 111 U. S. 197, it was decided that the remedy prescribed by the statute was exclusive. In Driesbach v. National Bank, 104 U. S. 52, it was held that usurious interest paid a national bank on renewing a series of [274] notes could not in an action by the bank 10870°-S. Doc. 111, 62-1, vol 3—34 Syllabus. on the last of them be applied in satisfaction of the principal of the debt. Now, the remedies given in the Anti-Trust Act are three in number: First, a criminal prosecution; second, a forfeiture of property; and, third an action by any person injured to recover threefold the damages by him sustained. These being the remedies prescribed, are exclusive. The defendant sought neither of these remedies. It was not so anxious for the public welfare as to make complaint and secure criminal proceedings. There was no property to be forfeited. It did not seek to recover threefold the damage it had sustained, but only to avoid paying for the property it had purchased. The reason therefor is suggested in the opinion of the Circuit Court of Appeals, 148 Fed. Rep. 950: "The averment that they paid 50 per cent more for their gross purchases in consequence of the illegal combination has little merit in it, moral or otherwise. They doubtless sold again at the great minimum profit they agreed to exact from retailers, and the retailers later exacted the undue profit from the consuming public." Something of the same idea of the exclusiveness of a statutory remedy finds expression in Texas & Pacific Railway Company v. Abilene Cotton Oil Company, 204 U. S. 426, in which it was held that a carrier could not maintain an action at common law for excessive and unreasonable freight charges exacted on interstate shipments, where the rates charged were those which had been duly fixed by the carrier according to the interstate commerce act, and had not been found to be unreasonable by the Interstate Commerce Commission, and this notwithstanding the provision in section 22 of the act to regulate interstate commerce: "Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies." [742] UNITED STATES v. NEW YORK, N. H. & H. R. CO. ET. AL. (Circuit Court, D. Massachusetts. December 4, 1908.) CONSTITUTIONAL LAW (§ 209)-"DUE PROCESS OF LAW ”—“ EQUAI. PROTECTION OF LAWS."-There is a substantial distinction between the fifth amendment of the federal Constitution, which is obligatory Syllabus. only on the United States, and secures due process of law, and the fourteenth amendment, which is obligatory on the states and prohibits the denial of the equal protection of the laws; the latter expression being broader than the former, though the mere denia! of equal protection of the laws may run into the other limitation. Mere discrimination, however, does not necessarily have that effect." [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 678, 727; Dec. Dig. § 209. For other definitions, see Words and Phrases, vol. 3, pp. 22272256, 2423-2426; vol. 8, p. 7644.] CONSTITUTIONAL LAW (8314)-COURTS-ESTABLISHMENT-DUE PROCESS OF LAW.-Act Cong. Feb. 11, 1903, c. 544, 32 Stat. 823 (U. S. Comp. St. Supp. 1907, p. 951), providing that in any equity suit, in any federal Circuit Court, to protect trade and commerce against unlawful restraints and monopolies, the Attorney General may file a certificate of importance, whereupon the case shall be given precedence, and shall be heard by not [743] less than three Circuit Judges, or, if there are only two Circuit Judges in the circuit, then before them and such District Judge as they select, though discriminatory, is not unconstitutional. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 934; Dec. Dig. § 314.] CONSTITUTIONAL LAW (§ 251)-DUE PROCESS OF LAW. "Due process of law" does not prohibit the establishment of special commissions or the assignment of special judges for the trial of a specific offender, so long as there is a compliance otherwise with the rules of the common law. [Ed. Note. For other cases, see Constitutional Law, Dec. Dig § 251.] CONSTITUTIONAL LAW (§ 251*)" DUE PROCESS OF LAW". "LAW OF The expressions "due process of law" and "the law of the land" are synonymous. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 732; Dec. Dig. § 251. For other definitions, see Words and Phrases, vol. 8, pp. 7701. 7702.] In equity. Asa. P. French, U. S. Atty., and Wade H. Ellis, Asst. Atty. Gen., for the United States. Henry W. Beal, for defendants, New York, N. H. & H. R. Co., Consolidated Ry. Co., and Providence Securities Co. Syllabus copyrighted, 1909, by West Publishing Company. Opinion of the Court. Coolidge & Hight and Edgar T. Rich, for defendant Boston & M. R. R. F. A. Farnham, for defendant Providence Securities Co. J. H. Benton, for defendants New York, N. H. & H. R. Co. and Providence Securities Co. Before COLT, PUTNAM, and LOWELL, Circuit Judges. PUTNAM, Circuit Judge. This is a bill filed by the United States by virtue of the provisions of the act approved July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), commonly known as the "Sherman" or "Anti-Trust Act," and perhaps of statutes in amendment thereof. After the bill had been filed and the subpoena issued, and certain demurrers and pleas filed by the whole or a portion of the respondents, and on October 1, 1908, the Attorney General filed the following certificate: "In the Circuit Court of the United States for the District of Massachusetts. "No. 483, In Equity. "The United States, Petitioner, v. The New York, New Haven and Hartford Railroad Company et al. "I hereby certify that, in my opinion, the above-entitled case is of genereal public importance, and request that the same be given precedence over others and in every way expedited, and be assigned for hearing at the earliest practicable day before not less than three Circuit Judges of the First Judicial Circuit. [Signed] CHARLES J. BONAPARTE, "Attorney General of the United States." [744] Thereupon, and with sufficient promptness, to wit, on October 20, 1908, the respondents filed the following paper, namely: (Circuit Court of the United States for the District of Massachusetts.) No. 483.-In Equity. The United States of America, complainant, v. The New York, New Haven and Hartford Railroad Company, and others, defendants. (Objection to hearing this case "before not less than three Circuit Judges of the First Judicial Circuit," as requested by the Attorney General of the United States.) Opinion of the Court. "The defendants object to the hearing of this case before not less than three Circuit Judges of the First Judicial Circuit,' as requested by the Attorney General of the United States in his certificate filed October 1, 1908, for the following, among other, reasons: "First. Because such three judges sitting for the hearing of this case, as thus requested, will not be an inferior court ordained and established by the Congress of the United States, within the meaning of the Constitution of the United States, and especially within the meaning of section 1, art. 3, Constitution of the United States. "Second. Because it is not competent for Congress under the provisions of the Constitution of the United States to authorize the hearing and determination of this cause by three Circuit Judges in the manner requested by the Attorney General in his said certificate. "Third. Because the three Circuit Judges who are requested by the Attorney General to hear and determine this cause have no jurisdiction thus to hear and determine it. "Fourth. Because this cause being brought and now pending in the Circuit Court of the United States, and the parties being by proper pleadings at issue therein, the same can not be transferred to the jurisdiction of three Circuit Judges and be by them tried as a special tribunal upon the discretionary request of the Attorney General of the United States." The proceedings with reference to determining the jurisdiction and organization of the courts of the United States are so simple and informal that we need not consider at all whether there is any particular method by which the respondents should raise the propositions which the paper copies seeks to raise, beyond stating that there is no question that none of the issues have been waived, or lost, either by express or implied estoppel, or otherwise. The statute by virtue of which this certificate of the Attorney General was filed, namely, section 1 of the act of February 11, 1903, c. 544, 32 Stat. 823 (U. S. Comp. St. Supp. 1907, p. 951), reads as follows: "That in any suit in equity pending or hereafter brought in any Circuit Court of the United States under the act entitled 'An act to protect trade and commerce against unlawful restraints and monopolies,' approved July second, eighteen hundred and ninety, 'An act to regulate commerce,' approved February 4, eighteen hundred and eighty-seven, or any other acts having a like purpose that hereafter may be enacted, wherein the United States is complainant, the Attorney General may file with the clerk of such court a certificate that, in his opinion, the case is one of general public importance, a copy of which shall be immediately furnished by such clerk to each of the Circuit Judges of the circuit in which the case is pending. Thereupon |