of the Clayton Law enlarge the scope of the rights of individuals, under the Sherman Law. Injunctions under Section 4 of the Sherman Law may be granted by a United States court of equity as the suit of the government; and a similar right exists under Section 15 of the Clayton Law. But in addition thereto, any person, firm, corporation, or association has like rights, provided an injunction bond is filed and the requirements of Sections 16 to 20 are complied with. The right to enforce the provisions of the Clayton Law contained in Section 2, price discrimination, Section 3, tying contracts, Section 7, corporate stock ownership, and Section 8, interlocking directorates, under Section II thereof, also extends individual rights of initiative into the jurisdictions of the Interstate Commerce Commission and the Federal Reserve Board. Right to Litigate Enlarged.-On the other hand this enlarged capacity to sue carries with it an enlarged field of litigation wherein the allegations of the complaining parties must be met and combatted; and to this extent the Clayton Law may be said to have increased the liability of individuals under the Sherman Law and the other Anti-trust statutes. The phraseology of the Sherman Law is so condensed that it seems more satisfactory to quote than to attempt to abbreviate it. Section 7 is as follows: "Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any circuit [district] 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 the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." It is incorporated in almost exact words in Section 4 of the Clayton Law. The right to pursue a defendant into another district than that in which he or it resides, permitted at the instance of the government in Section 5 of the Sherman Law, is granted to every litigant when the defendant is a corporation, provided it can be found or transacts business therein. The rule that Section 5 of the Sherman Law does not apply to actions to recover damages 6 Greer, Mills & Co. v. Stoller, 77 Fed. 1. under Section 7 thereof, is continued in the Clayton Law; and Section 13 accordingly permits subpoenas to run into any district only where the United States is the moving party under the Antitrust law. Triple Damage Rights Also Enlarged.—In one particular the liability of the Sherman Law is largely increased for individuals. The threefold measure of damages is extended by the inclusion in the Clayton Law of the acts prohibited by Section 2, price discrimination, Section 3, tying contracts, Section 7, corporate stock ownership, and Section 8, interlocking directorates. Probably Section 4 of the Clayton Law includes rights of actions for damages arising from interlocking directorates between common carriers and financial or supply houses, in the improbable event that such damages can be legally proven; for Section 4 covers injuries "by reason of anything forbidden in the Anti-trust laws." Definitions of "Person" Compared.—The final provision of the Sherman Law, Section 8, is as follows: "The word "person" or "persons" used in this act shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States or the laws of any of the Territories, the laws of any State or the laws of any foreign country." Attention has been already called to the use of similar defining words in the equivalent provision contained in Section 1 of the Clayton Law; though in the latter statute the word “person” is necessarily confined to individuals where it is employed in provisions which prescribe the rights or duties of members of boards of directors, or incumbents of other offices. The definition of "corporation" in Section 4 of the Federal Trade Commission Law is an effort to unload from the word "person" some portion of this burden of meaning which overweights it in the Sherman and Clayton Laws. Like the distances between the fixed stars,-the extent of space involved is almost too great for human comprehension. As it stands, "person" when employed in the Sherman Law and Clayton Law includes partnerships and unincorporated associations in addition to bodies corporate, and every class of individual human beings. b. Liability of Corporations Subject Matter Treated in Last Paragraph.-The principal phases of this department of our topic have come up incidentally in writing of individual liability. Scope of Liability Enlarged.-The liability to prosecution has now been extended by removal of the limitations prescribed in the leading decision upon that point;' and individuals as well as the government may now, by virtue of Section 16 of the Clayton Law, institute proceedings in equity against corporate as well as other defendants, praying for injunctive relief against “threatened loss or damage by a violation of the anti-trust laws, including Sections 2, 3, 7 and 8 of this [Clayton] Act." Upon the law side of the court, the extent of the liability for three-fold damages recoverable under Section 7 of the Sherman Law, has been greatly increased by the more comprehensive terms of Section 4 of the Clayton Law. Individual Responsibility for Corporate Acts.-Beside the responsibility of defending its property and other interests along a more extended line-a responsibility that devolves upon the corporation as a whole-the individual officer, director and agent must respond where his acts are the subject of complaint under Section 14 of the Clayton Law. Thus it is apparent that under this new legislation a revision of former methods of regulating incorporated bodies is intended, and that both the material and the personal sides are involved. In brief, this new dispensation extends in manifold directions; and in each quarter there is need for study by those who have their own interests and those of the corporation at stake, when seeking the correct solution of the difficulty that confronts them. Abuse of Chartered Powers.-The powers of joint contribution, and of concealment, so readily at command under the legal fiction of an artificial entity, and which it must be admitted in the last analysis supply the foundation for criticism of many corporate practices, have compelled Congress to take notice of this opportunity for abuse of chartered powers. Old Remedies Applied by New Methods.-In brief, the Antitrust laws as amended and supplemented supply a new method for the enforcement of old doctrines, a method which looks behind the form and regards mainly the substance, and places the 7 Minnesota v. Northern Securities Co., 194 U. S. 48; Thornton's Sherman Anti-trust Act, § 351. penal and civil liability upon the officer, or agent, or member of the directing board. General Result Beneficial to Individuals.-To this extent the Federal Trade Commission Act and the Clayton Law have amended and supplemented the Sherman Law and the Anti-trust laws in general, and to this extent the liability of the individual has been increased. But it is requisite to say in this connection that whatever that burden may prove to be in practice, there are reasons to believe that the dignities and rights of citizenship have been enhanced in far greater measure and that the public at large will benefit in future by its ability to work under a coherent and efficient plan, provided with a supervising board fully empowered to protect the individual in his right to demand and require fair methods of competition in commerce. CHAPTER X. SUITS FOR INJUNCTION UNDER THE FEDERAL LAW; ALSO, SPECIAL CONTEMPT PROCEED- 1. Importance of Subject Considered. 2. Notice in Equity Practice. 3. Practice Revised. 4. Public Interest Conserved under Commission Act. 5. Clayton Law Provisions. 6. Application and Hearing. 7. Order Must be Specific. 8. Special Limitations in Trade Disputes. 9. Contempt Proceedings Where Disobedience Involves Criminal Act. 10. Old Forms of Contempt Retained. 11. Statutory Limitation One Year; Criminal Proceedings Not Barred. 1. IMPORTAnce of subject conSIDERED. 1. Right to Injunctive Relief Retained and Enlarged.Despite the danger of appearing to state a mere truism, it is necessary to call attention to the extreme importance of the subject of injunctive relief. Particularly is this required concerning a newly created administrative body equipped with judicial functions that call for the employment of restraining orders in the performance of the duties committed to it by direct legislation or naturally associated with its allotted sphere of action. While in numerous directions the new legislation comprised in the Commission Act and the Clayton Law has safe-guarded public interests and extended the right of the individual manufacturer, trader or consumer to demand fair treatment in business, in no quarter is this considerate treatment by Congress more plainly evident than in the enlargement of the individual's right to seek injunctive relief. By certain important decisions construing Section 4 of the Sherman Law,1 the Supreme Court confined to I See matters referred to and authorities cited in Notes 3, 4 and 5. For extracts from interesting and able report of the Senate Judiciary Committee submitted prior to the enactment of the Federal Trade Commission Act and Clayton Law,-with particular reference to the history and nature of injunctions, and the practice in application to courts of equity when injunctive relief is sought,-see Appendix N, pages 335-344, post. |