under the right to injunctions contained in Section 16 of the Clayton Law.

Governmental Initiative No Longer Required.-Every citizen may now apply for a restraining order where the injury disclosed in his complaint shows a violation of the provisions relating to price discrimination, "tying" contracts, or abuses of corporate methods by stock-ownership or control of the board of directors. Such injunctive relief may be sued for "in any court of the United States having jurisdiction over the parties."

Whereas even a State could not procure an injunction under Section 4 of the Sherman Law,21 (such relief being reserved for use in proceedings instituted by or at the instance of the Attorney-General in the government's behalf,) the modern doctrine enforced by positive statutory provisions opens the door to every aggrieved person, in the field which covers every usual form adopted by trusts or monopolies in their efforts to retain or exploit a given line of trade.

Earliest Anti-trust Decision under Sherman Law.-The earliest reported decision construing Sections 1 and 2 of the Sherman Law arose upon an application for the appointment of a receiver in connection with the enforcement of a sale which the defendant claimed to be void because intended to create a restraint of trade and virtual monopoly. The court says, per curiam,22

"Now it is to be observed that these statutes [Sections 1 and 2, aforesaid; also, corresponding provisions in the Anti-trust Law of the State of Louisiana] outline an offence, but require for its complete submission no ulterior motive, such as to defraud, etc.; and further that the language is altogether silent as to what means must be used to constitute the offence. * To compass

either of these things [restraint of trade or monopoly], with no other motive than to compass them, and by any means, constitutes the offence."

In reaching its conclusion, adverse to the application, the court notes the inversion of the usual order, in that the statutory provi

21 Minnesota v. Northern Securities Co., 194 U. S. 48. See also, National Fire-Proofing Co. v. Mason Builders Association, 169 Fed. 259. 22 American Biscuit and Mfg. Co. v. Klotz, 44 Fed. 721.

sion is used as a defence in meeting an alleged effort to monopolize; then, commenting upon the general object of the statute, the decision continues:

"The attempt to accumulate in the hands of a single organization the business [concerned in the application] should not be favored by a court of equity. It carries with it too much of danger of excluding healthy competition, thereby increasing the difficulty to the general public of participating in a most useful business [maintenance of bakeries] as well as adding to the possibility of multitudes of citizens being temporarily, at least, compelled to pay an arbitrary and high price for daily bread."

Reasoning in Early English Case Sustained.-It is curious and interesting to note that after more than three centuries, the identical defences interposed in Darcy v. Allen (pages 16, 19, ante), is again regarded with favor by a court of equity jurisdiction, i. e., the loss of opportunity to the individual and the presence of an indirect but measurable damage to the public-at-large,— which, taken together, create a situation where public policy prohibits tribunals from compelling compliance with trade-restraining contracts.

13. NARROWING ARGUMENT EXAMINED.

An Analysis of Sections 1 and 2.-An ingenious writer,2 has devoted attention and skill to an analysis of "The Face of the Sherman Law," and in that connection has dissected each of the first two sections. He concludes that the meaning of Section I is

"clear, precise and undebatable in all its words except two. Those two words are 'restraint' and 'commerce.'

*

To construe those two words is to construe that sentence. And to construe that sentence is to take the first and only really difficult step toward construing the whole statute." It is then pointed out that "restraint" has a threefold aspect: (a) It relates to and was intended to prohibit restraints both of international and interstate commerce;

23 Albert H. Walker in "A History of the Sherman Law," pages 48

(b) The meaning "is confined to direct restraint and is not aimed at indirect restraint of interstate or international commerce."

66

(c) when Congress in Section 1 of the Sherman Law prohibited combinations in restraint of interstate and international commerce, it did not intend to make that law the foundation for trivial and vexatious suits," whence he concludes that the acts complained of must be "extensive enough to be materially injurious to public or private welfare."

Perhaps without such intention, it may be that the authority quoted is in part responsible for the situation out of which Antitrust provisions have taken shape in the Clayton Law and its corollary, the Federal Trade Commission Act, providing the legal machinery for the enforcement thereof. Certain it is that "direct restraint" would preclude the prosecution of holding companies and other intermediary forms; while the third aspect would leave it to a court to classify wrongs which might appear trivial to a judge, whereas they might well be entirely destructive of the business interests of the complainant.

It is entirely possible that this construction too frequently has led to a tendency to look upon a prosecution under the Sherman Act as constituting a species of state trial, and is responsible for the tendency to avoid the responsibility thereof,—a condition that prevailed during the administration of President Harrison. Usually only affairs of a public or semi-public nature have been considered worthy of such deliberation or action. Something of this is noticeable in the prevailing note in the Standard Oil and other leading cases; while no doubt unconscious it is to a certain extent discouraging if not a deterrent to an injured person seeking redress.

Arbitrary classifications are part and parcel of the social and legal systems in force in a kingdom or aristocracy; equality be fore the law is the touchstone best suited to the administration of justice in a republic. The question of relative size is always ungracious, and it is one that should be avoided where the statute itself does not make the sum involved the test of right to litigate. The point raised in (b) of the passage quoted is answered by the enactment of Sections 3, 7, and 8 of the Clayton Law, wherein and whereby conditional or "tying" contracts; stock ownership

in competing concerns direct, or through the medium of a holding company; and interlocking directorates-each of these devices being an indirect means of exercising restraint-are all declared unlawful where the acquisition of stock tends to restrain competition in the community or to create a monopoly of any line of trade.

In so far as the limitation of jurisdiction by excluding trivial or unimportant cases is suggested by division (c) of said passage as the true construction of the word "restraint" in Section I of the Sherman Law,-the total ignoring of the amount at stake fixes an entirely different standard for proceedings instituted under the Federal Trade Commission and Clayton laws. Under the Federal Trade Commission Act the sole criterion is whether "a proceeding by it [the Commission] in respect thereof would be to the interest of the public"; in the latter the Commission or Board has the right to set its restraining or curative machinery in motion whenever, at the instance of an individual feeling himself aggrieved, it "shall have reason to believe that any person is violating or has violated any of the provisions," etc.; and the right to proceed independently to obtain injunctive relief against "threatened loss or damage" by violation of its essential prohibitions is accorded by Section 16 of the same law.

Nothing can be more certain than that the legislation embodied in these last-mentioned statutes is purposed to nullify a property valuation, if such a classification could ever be properly read into the words of Section 1 of the Sherman Law. Congress has decreed that in future the enforcement of Anti-trust laws should be effected by means as simple and direct as the practice in Justice's Court, "the poor man's court."

Reverting to the arguments advanced by the able author mentioned on page 88, the word "monopolize" which is there stated to occupy a debatable ground as its specific meaning-seems twisted out of its ordinary signification. After referring to the Senate committee's definition of "monopolize," which appears on page 76, supra, the author argues that

"Section two of the Sherman Law does not prohibit a complete acquirement of the whole or any part of interstate or international commerce, except where that complete acquirement results from efforts of the monopolizer

to prevent other parties from competing with him in achieving that complete acquirement.

But it also follows that where a particular monopolizer does or does not possess or use superior skill and superior facilities for doing the work monopolized, but does attain a monopoly of that work by the aid of impediments placed by him in the path of his competitors, that monopolizer violates Section 2 of the Sherman Law.

Reason for Presenting foregoing Analysis.-This view has been set out somewhat at length because of the clearness of the expressing words and because similar ideas have been repeated from time to time in certain decisions under the Sherman Law. But the argument is believed to be fallacious; whatever force it may possess in academic discussion, this narrow construction has been specifically repudiated, voided and set at rest by the decisions in the Southern Pacific Railroad case and to a large extent in the International Harvester case,24 as well (see pages 19, 79, ante). While the terms of the existing decision in the Harvester Case may be modified or its application limited in the appeal now pending in the Supreme Court, it is improbable that any basic principle of Sherman Law construction will be disturbed.

Writer Above Quoted Now Controverted by Controlling Decisions.-The judicial determination of the vexatious problem which has so long troubled courts and counsel now bids fair to remain established as the law of the land in cases of this description. It will no doubt be observed how this result presents an example of the tendency in legal affairs to hark back to the mental point of view originally reasoned out by the courts. In this instance the reference is to the per curiam opinion in the first Sherman Law decision, American Biscuit and Mfg. Co. v. Klotz, quoted at page 87, where a literal construction is deduced and applied.

Advantage Definite Ruling Affords.-The constitutionality of the Sherman Law is now firmly established; and it is fortunate that this question of constitutionality should have reached a definite conclusion and the old order should have changed and moved off the stage before the advent of the Federal Trade Com

24 U. S. v. Union Pacific Rd., 226 U. S. 306; U. S. v. Int. Harvester Co., 214 Fed. 987.