existing independently of statute.17 And, where such illegal restriction is the result of an agreement, the illegality renders the agreement non-enforcible,18 though, as a rule, no civil liability results merely from the existence of such a restriction.19 Generally speaking, however, legislation against such restrictions is designed for the purpose of enforcing criminal, rather than civil, liability, and it is at any rate not clear that there exists at common law any criminal liability for such a restriction.20 In this view there is a justification of legislation against restrictions upon competition, to say nothing of the advantages derived from well-defined rules of procedure and evidence. But, as has been seen elsewhere, anti-trust legislation generally has, particularly by reason of the failure to distinguish between the doctrine against restrictions upon competition, and that against contracts in restraint of trade, been extended much beyond its proper scope, often with mischievous results.21 § 181. Class legislation.—In addition to the provision already considered, a State is forbidden by the Fourteenth Amendment to "deny to any person within its jurisdiction the equal protection of the laws." This includes denying to any person or class of persons the protection of the laws that is enjoyed by other persons or classes in the same place and under the same circumstances.22 Such protection is denied in case of a penal statute making an arbitrary classification of those subject to its provisions, thus in case of the provision that has appeared in several anti-trust acts excepting from the provisions of such act "agricultural products or live stock while in the hands of producer or raiser.” 23 17 See c. XIV. 18 See § 167. 19 See § 164. 20 See § 163. 21 See § 160. 22 Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 559; 22 Supm. 431, 439; 46 L. Ed. 679 (1902). 23 Thus, in the Illinois act held unconstitutional in Connolly v. Union Sewer Pipe Co., supra. See § 209. And so held of the Georgia act. See § 207. For instances of other acts doubtless unconstitutional on the same ground, see under Ind. (§ 210); La. (§ 214); N. C. (§ 225); compare under Mich. (§ 217); Mont. (§ 221); Tenn. (§ 231); Tex. (§ 232). As to exemption of combinations relating to wages, see under Ill. (§ 209); La. (§ 214); Minn. (§ 218); Mont. (§ 221); N. C. (§ 225); Wis. (§ 235). That an act is unconstitutional because of such exemption, see under Neb. (§ 222); 2 Eddy on Combinations, §§ 910, 912. Compare as to effect of Iowa statute, § 211. As to legislation especially applicable to fire insurance, see Carroll v. Greenwich Ins. Co., 199 U. S. 401; 26 Supm. 66; 50 L. Ed. 246 (1905). CHAPTER XIX FEDERAL LEGISLATION § 182. The Federal anti-trust act of 1890, generally. 183. Constitutional basis of act. 184. Commerce as transportation. 185. Commerce as "among the several States." 186. Commerce as "with foreign nations." 187. Commerce in, from or to Territory or District of Columbia. 188. Trade as distinguished from commerce. 189. Transportation and other transactions within State, e. g., manufacture and sale. 190. Transaction within State, when included as incident of other acts. 191. Other transactions than restrictions upon competition, e. g., ac tion of employees. 192. The same; contracts in restraint of trade. 193. Substantial control of transportation as test of legality. 194. Reasonableness as test of legality. 195. Combination as element of illegality. 196. Acts of corporation. 197. Contract, etc., among those engaged in transportation, e. g., by railroad. 198. Contract, etc., among those not engaged in transportation, e. g., those engaged in production or sale. 199. The same; necessity that contract, etc., directly affect trade or commerce. 200. Penal liability. 201. Injunction. 202. Forfeiture, etc., of property. 203. Action for damages. § 182. The Federal anti-trust act of 1890, generally.-The most conspicuous instance of legislation against restrictions upon competition is what is commonly known as the Federal anti-trust act, which contains the following two distinct prohi 1 Act of July 2, 1890, c. 247 (26 Stat. L. 209) (entitled "an act to protect trade and commerce against unlawful restraints and monopo lies"). The act was held in Re Greene, 52 Fed. 104, 112 (C. C. Ohio, 1892), not to be retroactive, or to have any ex post facto opera bitions: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal." 2 "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other tion. In U. S. v. Trans-Missouri Freight Assoc., 58 Fed. 58, 77; 7 C. C. A. 15, 81; 24 L. R. A. 73, 87 (8th C., 1893); Greer v. Stoller, 77 Fed. 1 (C. C. Mo., 1896), it was held, as a penal statute, to be subject to the rule of strict construction. See, however, Northern Securities Co. v. U. S., 193 U. S. 197, 358; 24 Supm. 436, 465; 48 L. Ed. 679 (1904); also opinion of Holmes, J. (193 U. S. 402; 24 Supm. 468); Bigelow v. Calumet & Hecla Mining Co.. 155 Fed. 869, 878 (C. C. Mich., 1907). In Greer v. Stoller, supra, the remedies created by the act were said to be "exclusive of all others." But such remedies do not take away the right of one against whom it is sought to enforce an agreement that is in violation of the act, to set up such illegality by way of defense. Bement v. National Harrow Co., 186 U. S. 70, 88; 22 Supm. 747, 754; 46 L. Ed. 1058 (1902). As to whether the provisions of the act may be enforced in a State court, see Getz v. Federal Salt Co., 147 Cal. 115; 81 Pac. 416; 109 Am. St. Rep. 114 (1905); People ex rel. v. American Tobacco Co., 2 Chicago L. J. Weekly, 249 (Cook Co. Cir. Ct. 1897?); State ex rel. Star Publishing Co. v. Associated Press, 159 Mo. 410, 466; 60 S. W. 91, 108; 51 L. R. A. 151, 170; 81 Am. St. Rep. 368 (1901); Locker v. American Tobacco Co., 121 App. D. 443; 106 N. Y. Suppl. 115 (1907); Post v. Railroad, 103 Tenn. 184, 226; 52 S. W. 301, 311; 55 L. R. A. 481, 492 (1899). Compare Moore v. U. S., 85 Fed. 465; 29 C. C. A. 269 (8th C., 1898). As to necessity of pleading defense based on act, see N. Y. Bank Note Co. v. Kidder Press Manuf. Co., 192 Mass. 391; 78 N. E. 463 (1906). As to application of act to State laws regulating pilotage, see Olsen v. Smith, 195 U. S. 332, 344; 25 Supm. 52, 55; 49 L. Ed. 224 (1904); to rights under patents, etc., §§ 112, 148. As to effect of violation upon right to relief against infringement of patent, see General Electric Co. v. Wise, 119 Fed. 922, 924 (C. C. N. Y., 1903). In Lowenstein v. Evans, 69 Fed. 908 (C. C. S. C., 1895), the act was held inapplicable to the monopoly of the liquor traffic by the State of South Carolina under a statute of that State; in Pastor v. N. Y. & Porto Rico S. S. Co., 3 Porto Rico, 95 (1907), to exclusive employment by a steamship carrier of a lighter company for reception and delivery of freight. See generally, as to act, articles in 16 Harv. Law Rev. 178 (19023) by W. F. Dana; Id. 539 by C. C. Langdell; 8 Columbia Law Rev. 452 (1908) by E. P. Wheeler; 18 Yale Law Jour. 311 (1908) by J. H. Benton; also article on "Possible Federal Trust Legislation" in 7 Columbia Law Rev. 93 (1907) by W. C. Noyes. 28 1. person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor." 3 4 § 183. Constitutional basis of act.-By the Federal constitution power is conferred upon Congress to "regulate commerce with foreign nations, and among the several States, and with the Indian tribes." In the exercise of such power Congress may legislate against restrictions upon competition; in other words, prescribe for such commerce "the rule of free competition." It is by way of exercise of such power that the Federal anti-trust act is said to have been enacted.5 As will hereafter be seen, the act applies, not only to what are strictly restrictions upon competition, but to other acts within the broad description of "restraint of trade or commerce." There seems no reason to doubt, however, that even as to such acts outside of the description of "restrictions upon competition" the act is within the authority conferred by the commerce clause. $ 184. Commerce as transportation.-It follows from the terms of the commerce clause, as well as from those of the act itself, that the scope of the act is limited to commerce. It becomes, therefore, of the utmost importance to determine precisely what is commerce, as the term is here used, and much of the confusion and uncertainty involved in the application of the act results from absence of clear conception on this point. In its ordinary signification, indeed, justified by its etymology, commerce seems to not only comprehend, but to be confined to, cases of exchanges of property, of which the great majority are 3 As to whether under § 2 the existence of mere power of control is sufficient, whether "performance, as well as power of performance should be considered," and "the elements of oppression and coercion should be shown to exist," see U. S. v. American Tobacco Co., 164 Fed. 700, 721 (C. C. N. Y., 1908). 4 Cooke on the Commerce Clause, § 35; see § 178, supra. 5 Northern Securities Co. v. U. S., 193 U. S. 197, 335; 24 Supm. 436, 456; 48 L. Ed. 679 (1904); Re Charge to Grand Jury, 151 Fed. 834 (D. C. Ga., 1907); WheelerStenzel Co. v. National Window Glass Jobbers' Assoc., 152 Fed. 864; 81 C. C. A. 658; 10 L. R. A. N. S. 972 (3d C., 1907). F |