the judgment may be affirmed, reversed or modified as justice may require.

Reasonable bail may be fixed and the defendant admitted to bail after the appeal has been consummated, by any justice, or any judge of any district court of the United States, or any court of the District of Columbia.

Intent and Scope of Contempt Proceedings Considered.— The existence of these provisions of the Clayton Law in the sections immediately following those which regulate the practice upon applications for injunctions in disputes between employer and employees, seems to indicate that the purpose of Sections 21 to 24, inclusive, is to provide a ready means of meeting and overcoming violence in labor troubles, if and when they arise. The words of the statute in this connection are not special but general, and in terms include every form of disobedience to the writ, process, order or other command of a United States court, where any infraction of a Federal or State statute creating a crime, is involved. No doubt other situations will occur where this enactment will be operative and its powers invoked, in cases outside of labor disputes; but while these cases are possible, the vast majority of proceedings of this description will, it is believed, be of the class mentioned above. If this view is correct, the general purport of those provisions is to remove from labor the fear of interference with their peaceful efforts to adjust questions or disputes connected with their divers callings; but if they overstep the boundaries which the law circumscribes and seek to promote their interests or to propagate their ideas by illicit means or measures, then these proceedings provide a ready and powerful method for the judicial control and correction of the situation.

10. OLD FORMS OF CONTEMPT RETAINED.

Familiar Forms of Contempt Proceedings Retained.-Further corroboration of these views is contained in the provisions of Section 24. It is therein set forth that the contempt proceedings provided for in the prior sections of the Clayton Law shall not be construed to relate to "contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice"; nor shall the existing practice or usages at law or in equity be superseded in connection with contempt proceedings instituted to punish disobedience of any lawful writ, process, rule,

decree or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States. In short, the old practice for the punishment of contempts is left intact, excepting that special provision is made for the prosecution of resistence accompanied by violence, with indications that this proceeding is intended as a precautionary measure directed especially at labor disputes and other situations where the interests of numerous persons are involved.

The final regulation of the practice in contempt actions appears in Section 25, where the limitation for prosecution is fixed at one year from the date of the act complained of. The provision is unqualified, and includes all contempt of every name and nature.

11. STATUTORY LIMITATION ONE YEAR; CRIMINAL PROCEEDINGS NOT BARRED.

Contempt Proceedings do not Bar Criminal Prosecution.In addition to limiting the period of prosecution, Section 25 further enacts that the proceeding to punish a contempt shall not be a bar to any criminal prosecution for the same act or acts, and that nothing therein contained shall affect any proceedings in contempt pending at the time of the passage of this act.

The relationship between the right to injunctive relief and the right to enforce it through proceedings in contempt for infractions thereof, is so intimate and natural that we have not sought to introduce them in separate chapters. Their juxtaposition in the statute is some indication that they should not be separated here.

ACTIONS FOR DAMAGES UNDER THE PROVISIONS OF THE FEDERAL TRADE COMMISSION ACT

AND ANTI-TRUST LAWS.

1. Generally as to Right to Bring Actions.

2. Right Covers All Violations of Anti-trust Laws.

3. Sherman Law Provision for Triple Damages Re-enacted.

4. Certain Judgments Prima Facie Evidence.

5. Government Suit Extends Statute of Limitations.

6. Locus of Suit.

7. Procedure of Service Discussed.

8. Attendance of Witnesses Considered.

1. GENERALLY AS TO RIGHT TO BRING ACTIONS. General Remarks.-Among the anomalous features of the new legislation comprised in the Federal Trade Commission Act and the Clayton Law must be included the absence of provision for any description of individual initiative under the first-named statute. Even the means to be availed of by the Commission in instituting proceedings and setting in motion its machinery is left in uncertainty by the law-makers.

Whether the Commission is authorized to exercise the powers granted by Section 5 of the creating act upon the basis of a sworn affidavit or verified complaint, or by testimony secured at a preliminary hearing or investigation, or whether it was intended that that body shall take judicial notice of facts within its official knowledge and proceed accordingly to hear and determine, are elements of the actual procedure we can only surmise, until this and similar questions have been made the object of decisions by the Commission, and have been reviewed by the courts.

It seems so probable, however, that the Commission will continue to accept and act upon verified charges in affidavits or in a formal complaint, that such procedure may be assumed for the present, and until the problem is settled in due course.1

1 On this point, Rule II prescribes that "the application shall be in writing, signed by or in behalf of the applicant." Some phases of the jurisdictional question involved will no doubt be the subject of adjudications, when they come up in due course. For provisions of Rules generally,—see pages 231-235, post.

The question of the right of an individual to sue for damages for infractions is in a similarly uncertain state. Indeed, this condition of doubt takes on a twofold aspect: (a) has he a right to sue at all; (b) does such right as exists arise prior to an actual adjudication by the Commission upon the legality of the alleged wrongful act.

Upon the ancient pronouncement by Lord Hardwicke: "There can be no injury but there must be a remedy," it is obvious that redress must somewhere and by some means be found for the private injury involved in the "unfair methods of competition in commerce," the punishment and prevention of which was the very essence of the legislative idea in creating the Federal Trade Commission and endowing it with wide and compelling powers.

Of course, the general purpose of the creating act is to provide a continuing body with administrative and judicial powers, which shall oversee the business situation of the country at large, and will as if from a watchtower, behold the conflagration at its start, and overcome it before the difficulty has passed beyond control. To observe, control and correct,―these are the three main factors in the official life and duties of the Federal Trade Commission. But while it is fully-even exclusively-empowered to act, it does not follow that a private person does not obtain derivative rights.

2. RIGHT COVERS ALL VIOLATIONS OF ANTI-TRUST LAWS.

Laws Imply Rights and Liabilities Through Actions.-The power to sue for injuries to business or property "by reason of anything forbidden in the Anti-trust laws," and to recover threefold damages, conferred by Section 4 of the Clayton Law, the privilege to depend upon the final decree in a government suit or action as prima facie evidence in a similar proceeding brought against the same defendant by a private party granted by Section 5 of said law; and the important provision in paragraph 2 thereof, wherein and whereby the three year statute of limitation is suspended for private parties during the pendency of such government suit or action, or criminal proceeding,-are all features which, taken together, seem pro tanto to indicate and recognize a

2 Charitable Corporations v. Sir Robert Sutton, 2d Atkins 400, decided in 1742.

right that must extend into the provisions of the Federal Trade Commission Act although the statute itself is not enumerated among and technically is outside of the Anti-trust laws.

At the very least, these elements in an associated statute enacted almost simultaneously with that law, encourage the injured party in the belief that "unfair methods of competition in commerce" assure and carry with them the right to sue for the damage that the person has sustained in his business or property.

These Implied Rights Present Question for Supreme Court. -The question is one which must be passed upon by the Supreme Court, unless Congress, acting upon the "recommendations for additional legislation" permitted by paragraph (f), Section 6 of the creating act, or legislating upon its own initiative,—shall in the meantime enlarge the right to sue under authority of Section 4 of the Clayton Law, and shall in specific terms authorize recoveries for injuries inflicted by "unfair methods of competition in commerce."

3. SHERMAN LAW PROVISION FOR TRIPLE DAMAGES RE-ENACTED.

Right to Recover Threefold Damages.-As has already been mentioned in the foregoing discussion of particular phases of the Federal Trade Commission Act, there is no uncertain sound to the phraseology employed in the Clayton Law in connection with the right of an individual to sue for and recover damages sustained under any infraction of the Anti-trust laws. In fact, the threefold damage clause of the Sherman Law and the Wilson Tariff Act, is repeated and embodied in Section 4 of the Clayton Law.*

Probably all actions of that nature in future will be brought under the authority of the later statute, though in its terms it is

3 As the matter stands, such a right must be deduced from the legislative acts; and leading cases under the Interstate Commerce Act,-"Act to Regulate Commerce" (24 Stat. 382), as amended,—have held that in a similar situation the Commerce Commission must take the primary step, in order that private rights may accrue. Texas and Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452.

4 For text of Sherman Law, see Appendix C, pages 279-281; for Wilson Tariff Act, Sections 73 to 77, inclusive, see Appendix D, pages 282-3.