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of the Clayton law against price discrimination and tying contracts.
The Interstate Commerce Commission under section 11 of the Clayton law is given jurisdiction to enforce sections 2, 3, 7 and 8 thereof wherever they apply to common carriers. There is no limitation as to the kinds of common carriers affected, and therefore the jurisdiction of the Interstate Commerce Commission under these sections is not confined to such carriers as are subject to the Acts to Regulate Commerce, but is broadened so as to include all common carriers who are such under the common law definition. All common law common carriers may be affected by these four sections, even if they are not otherwise subject to the jurisdiction of the Interstate Commerce Commission. For further discussion of the manner in which these sections are enforced see the titles “Inhibitions of the Clayton law” and “Commission Procedure” herein.
Section expressly forbids the elimination of competition through stock ownership by one corporation in a competing corporation, or by one corporation in two or more corporations which compete among themselves. This applies to carriers. The section provides that its terms do not prevent the ownership of stock for investment only, nor the formation of or ownership of stock in subsidiary corporations for the actual carrying on of natural or legitimate branches or extensions of the business of the parent company. The section also expressly provides that nothing therein contained shall be construed to prohibit any common carrier subject to “the laws to regulate commerce” from aiding in the construction of branch or short lines which are feeders to the main line of the company, nor to prevent such carrier from owning stock in such lines or in extending its main line
through the medium of the acquisition of stock. In view of the fact that common carriers frequently have duties to perform merely incidental to transportation, which may well be performed by subsidiary corporations, and in view of the character of the language used in the section, we believe common carriers may own stock in subsidiary corporations other than branch lines.
Section 8 provides that no person shall at the same time be a director in two corporations if elimination of competition by agreement between them would constitute a violation of any of the Anti-trust laws, but declares that this provision shall not apply to “common carriers subject to the Act to Regulate Commerce, approved February 4, 1887.” Note that this language means railroads only, for they were the only common carriers subject to the original act to regulate commerce which was approved February 4th, 1887. In other places in the Clayton law in speaking of common carriers they are mentioned as “subject to the laws to regulate commerce" 10 and as “every * * * corporation engaged in commerce as a common carrier” 11 and “common carrier engaged in commerce." 12 It seems that in limiting the application of interlocking provisions to such common carriers as were subject to the Act to Regulate Commerce approved February 4th, 1887, Congress chose definite language for a definite purpose. We therefore conclude that the prohibition against interlocking directors is effective as to all common carriers in interstate commerce, except railroads.
Section 10 specifically regulates dealings in securi
10.—Section 7, paragraph 4. 11.-Section 9, paragraph 1. 12.-Section 10, paragraph 1.
ties, supplies and other articles of commerce amounting in the aggregate to more than $50,000 in any one year, between a common carrier "engaged in commerce” and another corporation, firm, or partnership when the common carrier has on its board of directors or as its president, manager, purchasing officer, or agent in the particular transaction, any person who is at the same time a director, manager, purchasing or selling officer of, or who is substantially interested in, such other concern. Such transactions cannot be carried on unless made after competitive bidding under regulations to be prescribed by the Interstate Commerce Commission. No bids shall be received unless the name and address of the bidder, or its directors, officers and general managers, if a corporation, or members, if a firm, be given with the bid. Penalties are prescribed for any attempt to prevent free and fair competition among the bidders, and every common carrier having any such transaction or making such purchases is required to file a full and detailed statement of the transaction, showing the manner of bidding, who were the bidders, their names and addresses, with the Interstate Commerce Commission, and the Commission is directed, if it has reason to believe the law has been violated, to transmit all papers and documents and its findings in relation thereto to the Attorney General. This section is not limited to common carriers subject to the Act to Regulate Commerce, but applies to all common carriers "engaged in commerce.” A fine not exceeding $25,000 shall be paid by any common carrier violating this section, and every director, agent, manager or officer who has knowingly voted for or directed the act constituting the violation, or aided or abetted shall be deemed guilty of a misdemeanor and fined
not exceeding $5,000 or imprisoned not more than one year, or both.
Embezzlement by any president, director, officer or manager of any firm, association or corporation engaged in commerce as a common carrier, is made a felony punishable by a fine of not less than $500 or imprisonment from one to ten years, or both. It is provided in the section that nothing therein shall take away or impair the jurisdiction of the State Courts and that a judgment of conviction or acquittal on the merits under the laws of any State shall be a bar to prosecution in the Federal Courts for the same act or acts.
The right to sue for injunctive relief given to any person for violations of the Anti-trust laws shall not be construed to give such person the right to obtain such relief against common carriers “subject to the provisions of the Act to Regulate Commerce approved February 4, 1887,” in respect to any matter "subject to the regulation or other jurisdiction of the Interstate Commerce Commission.” But the Interstate Commerce Commission has no jurisdiction to enforce the Sherman law as to common carriers. Therefore it would appear that individuals may bring suits to prevent carriers from filing with the Interstate Commerce Commission rates made by agreement between the carriers. The Supreme Court has held 13 that associations of railroads that made rates by agreement were combinations in restraint of trade in violation of the Sherman law.
18.—Trans-Missouri Freight Association case, 166 U. S. 290.
AMENABILITY OF PERSONS. AS DISTIN. GUISHED FROM CORPORATIONS, TO
1. Sherman Law. The Sherman law provides that the word “person” or “persons” wherever used shall be deemed to include corporations and associations existing under the laws of the United States, or of any Territory, State or foreign country. The Sherman law does not contain the word "corporation” in any other place, and is therefore applicable to persons, including partnerships, and corporations or associations with or without shares of capital stock and for profit or not for profit.
2. Clayton Law. The Clayton law, which is considered an amendment of the Sherman law, defines "person” or “persons” in the identical language in which those words are defined in the Sherman law. The application of the Clayton law therefore is as broad as that of the Sherman law, unless limited elsewhere in the act.
(a) As To PERSONS. Persons are subject to the provisions inhibiting price discrimination, tying contracts and interlocking. They are also given the right to recover threefold damages for injuries sustained by reason of the violation of the law. Decree in any suit by or on behalf of the United States under the Anti-trust laws finding a violation thereof shall be prima facie evidence against the defendant therein in any suit or proceeding brought by another party against the defendant under said laws. This provision is available either on behalf of or against persons. A president, director, officer or manager of a common carrier cor