This was an action to recover such a balance. On page 980 the court says:

American jurisprudence has firmly settled the doctrine that all contracts which have a palpable tendency to stifle competition, either in the market value of commodities or in the carriage or transportation of such commodities, are contrary to public policy, and are, therefore, incapable of conferring upon the parties thereto any rights which a court of justice can recognize or enforce.

The case of Salt Co. v. Guthrie (35 Ohio, 666) draws the line more clearly and distinctly and lays down the true doctrine as to trade combinations. In this case an association of salt manufacturers entered into a combination for the purpose of selling and transporting that commodity. The court refused its aid to enforce the conditions of the combination, saying among other things:

The clear tendency of such an agreement is to establish a monopoly and to destroy competition in trade, and for that reason, on grounds of public policy, courts will not aid in its enforcement. It is no answer to say that competition in the salt trade was not in fact destroyed or that the price of the commodity was not unreasonably advanced. Courts will not stop to inquire as to the degree of injury inflicted upon the public; it is enough to know that the inevitable tendency of such contracts is injurious to the public.

The court, in referring to the difference between contracts in partial and in general restraint of trade, uses this significant language:

Upon the authorities, however, the line between such as are void and those that are binding is not very clearly defined. Public policy unquestionably favors competition in trade, to the end that its commodities may be afforded to the consumer as cheaply as possible, and is opposed to monopolies, which tend to advance market prices to the injury of the general public.

In the same line and to the same effect as the decisions we have quoted are the following cases:

India Bagging Association v. B. Kock & Co. (14 La. Ann., 168).
The Chicago Gas Co. v. Peoples Gas Co. (121 Ill., 530).
Pullman Co. v. Texas, etc., Ry. Co. (4 Woods, 317).

Western Union v. American Union (65 Ga., 160).

Richardson v. Buhl (77 Mich., 632).

The doctrine and effect of all these cases is that any agreement or combination directly affecting the welfare of the public, by stifling competition and breeding monopoly in trade and commerce, is contrary to public policy and invalid, and that the courts in such cases will not undertake to measure the degree of the stifling of competition or the degree of the monopoly. In such cases the reasonableness of the restraint is not measured or considered. The doctrine of reasonableness is only applied in cases of contracts limited as to time or place, or both, and where the interest of the parties was the principal thing at stake, but is not applied in cases where the general public welfare is at stake and where the express, or implied, purpose and effect is to prevent competition in trade, or to create a monopoly in trade. The very first paragraph of the antitrust act, to wit: "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," simply states the common-law doctrine as laid down by the courts in the cases cited, and applies it to interstate and foreign commerce. The reasonableness of such contracts or combinations was never made a question under the common law, because they were deemed to be contrary to public policy in this that they stifled competition and bred monopoly and, on that account, were deemed to be invalid.

A monopoly of trade found as little favor at common law as a contract in restraint of trade. It was a part of the great charter of King Henry III (A. D. 1224-5) and of the great charter of King Edward I (A. D. 1297), chapter 29, that "no freeman shall be dispossessed of his liberties or free customs, etc." Lord Coke in his Institutes of the Laws of England, part second, makes the following comment upon this paragraph of the great charter, to wit:

De libertatibus. This word, libertates, liberties, hath these significations: *

2. It signifieth the freedomes, that the subjects of England have; for example, the Company of the Merchant Tailors of England, having power by their Charter to make Ordinances, made an Ordinance, that every brother of the same Society should put the one-half of his clothes to be dressed by some Clothmaker of the same company, upon pain to forfeit etc. and it was adjudged that this Ordinance was against law, because it was against the liberty of the Subject, for every Subject hath freedom to put his clothes to be dressed by whom he will, & sic de similibus: And so it is, if such or the like grant had been made by his Letters Patents. 3. *

* *

So likewise, and for the same reason, if a grant be made to any man, to have the sole making of cards, or the sole dealing with any other trade, that grant is against the liberty, and freedom of the Subject, that before did, or lawfully might have used that trade, and consequently against this great Charter.

Generally all monopolies are against this great Charter, because they are against the liberty and freedom of the Subject, and against the law of the land.

One of the cases cited by Lord Coke in the margin is that of Davenant v. Hurdes (41 Eliz., 92) (the tailor case) reported in Moore's cases, 576. The other case cited by Lord Coke is that of Darcy v. Allein decided in 1692, and reported in 6 Coke Reports, 159. The syllabus of this case is as follows:

A grant by the Crown of the sole making of cards within the realm is void. A dispensation or license to have the sole importation and merchandising of cards, without any limitation or stint, notwithstanding the 3 E. 4, which imposes a forfeiture upon their importation.

The following cases sustain the doctrine laid down in the foregoing cases, to wit: Yarmouth v. Darrel (3 Modern, 75); the East India Company v. Sandis (Skinner's Report, 132).

There are two species of monopolies: One in the nature of a grant from the sovereign power, of which the Card case, cited by Lord Coke, is a sample; the other created by agreement or combination between parties, of which the Tailor case, referred to by Lord Coke, is a sample. The definition of a monopoly of the former kind is as follows: "It is deemed to be an institution or allowance from the sovereign power of the State, by grant, commission, or otherwise, to any person or corporation for the sole buying, selling, making, working, or using of anything whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they have had before, or hindered in their lawful trade." All such grants were held illegal and void at common law, because they destroyed freedom of trade. As to monopolies created by contract or combination between the parties, the modern doctrine of the English courts seems to be that while such contracts are deemed illegal to the extent that they could not be enforced, or any damages secured for a breach of the same as between the parties, yet in respect to the public, unless they amounted to a criminal conspiracy, there is no relief. This at all events seems to be the doctrine laid down by the House of Lords in the case of Mogul Steamship Company v. McGregor, etc. (Law Reports Appeal Cases, 1892). This case has been cited as sustaining the doctrine that monopolies are not con

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trary to con.mon law, but a careful examination of the case shows that this view is not warranted. It was a case where parties interested in a certain steamship company subjected their rivals to such an excessive and strenuous competition that they forced them out of business. Lord Hannen diagnoses the case in the following language:

It was contended that the agreement between the defendants to act in combination which was proved to exist was illegal as being in restraint of trade. I think that it was so, in the sense that it was void, and could not have been enforced against any of the defendants who might have violated it. (Hilton v. Eckersley.) But it does not follow that the entering into such an agreement would, as contended, subject the persons doing so to an indictment for conspiracy, and I think that the opinion to that effect expressed by Crompton, J., in Hilton v. Eckersley is erroneous.

The question, however, raised for our consideration in this case is whether a person who has suffered loss in his business by the joint action of those who have entered into such an agreement can recover damages from them for the injury so sustained. In considering this question it is necessary to determine upon the evidence what was the object of the agreement between the defendants and what were the means by which they sought to attain that object. It appears to me that their object was to secure to themselves the benefit of the carrying trade from certain ports. It can not, I think, be reasonably suggested that this is unlawful in any sense of the word. The object of every trader is to procure for himself as large a share of the trade he is engaged in as he can. If, then, the object of the defendants was legitimate, were the means adopted by them open to objection? I can not see that they were. They sought to induce shippers to employ them rather than the plaintiffs, offering to such shippers as should during a fixed period deal exclusively with them the advantage of a rebate upon the freights they had paid. This is, in effect, nothing more than the ordinary form of competition between traders by offering goods or services at a cheaper rate than their rival.

See in this connection the case of Cousins v. Smith (13 Vessey, 542).

In this country we have as a rule no direct grants of monopolies from the Government. Our monopolies are created by agreement and combination between the parties thereto, and as a rule our courts have been as hostile to such monopolies as they have been to contracts in restraint of trade. Upon principle there can be no distinction between the two. In the very nature of the case a monopoly operates in restraint of trade because it stifles competition. The opinion of Justices Field and Bradley in the case of Butchers' Union Co. v. Crescent City Co. (111 U. Š., 746) elucidates this subject in clear and vigorous language. The following American cases elucidate and declare the rule as to monopolies:

Tuscaloosa Ice Mfg. v. Williams (127 Ala., 110).
Harding v. American Glucose Co. (182 Ill., 551).
Hoffman v. Brooks (6 Weekly Law Bulletin, 747).

Chapin v. Brown Bros. et al. (83 Iowa, 156).

Anderson v. Jett, etc. (89 Ky., 375).

People v. The North River Sugar Refining Co. (54 Hun., 354).

Arnot v. Pittston, etc. Coal Co. (68 N. Y., 558).

Craft v. McConoughy (79 Ill., 346).

Santa Clara Valley Mill, etc., Co. v. Hayes (76 Cal., 387).

The People v. Chicago Gas Trust Co. (130 Ill., 268).

Keene v. Kent (4 N. Y. State Reporter, 431).

In re Green (52 Fed., 104).

Upon principle a partial or limited monopoly is as obnoxious to the law as a complete monopoly. Chief Justice Fuller in United. States v. Knight (156 U. S., 1) declares:

Again, all the authorities agree that in order to vitiate a contract or combination it is not essential that its result should be a complete monopoly. It is sufficient if it really tends to that end and to deprive the public of the advantages which flow from free competition.

While at common law, as interpreted by the courts, contracts and combinations in general restraint of trade or to monopolize trade were, except in the special cases referred to, held to be illegal, without any regard as to whether they were reasonable or unreasonable, and while such contracts could not be enforced nor damages for their breach recovered as between the parties thereto, yet such contracts or combinations did not per se constitute a criminal offense, and third parties the public at large-were without a civil remedy unless they could show that the combination amounted to a criminal conspiracy. (See Mogul Steamship Co. v. McGregor, cited above.)

The chief virtue of the antitrust act is not so much in declaring combinations, contracts, and monopolies in restraint of trade and commerce to be illegal, for that they are at common law, as we have shown, but in directly applying the same to interstate commerce, and especially in providing remedies for its enforcement. Four classes of remedies are given by the act, to wit: First, remedy by criminal prosecution; second, by injunction; third, by seizure and confiscation of trust goods while in transit from one State to another or to a foreign country; and, fourth, by civil action for triple damages in behalf of any party injured by violation of the act. All these remedies have been applied and resorted to. Under the first head are, among others, the cases of

United States v. Patterson (55 Fed., 665).

United States v. McAndrews Forbes Co., the J. S. Young Co., and Karl Jungbluth and Howard E. Young. Southern district of New York. Defendants were all convicted. Case now pending on appeal to the United States Supreme Court.

United States v. Federal Salt Co. et al. Northern district of California. Defendants plead guilty and were fined.

United States v. Amsden Lumber Co. District court of Oklahoma. Defendants plead guilty and were fined.

United States v. Tribolet. District court of Oregon. Verdict of guilty; defendants were fined and paid same.

United States v. Atlantic Investment Co. Southern district of Georgia. Six defendants, all plead guilty and were each fined $5,000, making a total of $30,000. United States v. American Seating Company et al. Northern district of Illinois. All defendants but one plead guilty, and were fined and paid their fine.

United States v. Santa Rita Mining Co. et al. District of New Mexico. Defendants were fined. They have since appealed.

United States v. Union Pacific Coal Co. District court of Utah. Verdict of guilty, December 3, 1908.

The following are among the leading cases under the second head:

United States v. Northern Securities Co. (193 U. S., 197).

United States v. Trans-Missouri Freight Association (166 U. S., 290).
United States v. Joint Traffic Association (171 U. S., 505).

Swift & Co. v. United States (196 U. S., 375).

Addyston Pipe & Steel Co. v. United States (175 U. S., 211).

Under the third head is the case of United States v. One hundred and seventy-five Cases of Cigarettes. The case is pending in the southern district of Virginia. And, under the fourth head a leading case is that of Montague & Co. v. Lowry (193 U. S., 38). Other cases

are:

Lowe et al. v. Lawler et al. (208 U. S., 274).

Wheeler Stenzel Co. v. National Window Glass Jobbers' Association (152 Fed., 864). Loder v. Jayne (142 Fed., 1010)

Having called attention to the state of the common law and the changes wrought in it by the antitrust act, it remains to call atten

tion to the amendments proposed thereto by this bill (S. 6440). While the antitrust act puts all corporations and associations as well as individuals in the same category and makes them all alike subject to the provisions of the act, this bill segregates corporations and associations from individuals and puts the corporations into two different classes, to wit: Those subject to the interstate-commerce law-the railroad companies-and those not subject to that law. The latter class is, by the bill, given certain "benefits and immunities," if they register and comply with the provisions of the bill. The registration consists in filing with the Commissioner of Corporations a written application, with a written statement as to organization, financial condition, etc. The requirement for registration is different for corporations not for profit and without capital stock. On filing the application and statement required it is the duty of the Commissioner of Corporations to register the corporation or association.

The President, by the second section of the bill, is given power to make, alter, or revoke the registration requirements. The bill next provides that any corporation or association so registered and any person who is a party to any contract or combination may file a copy of the contract or a written statement of the combination with the Commissioner of Corporations, and thereupon the Commissioner of Corporations, with the concurrence of the Secretary of Commerce and Labor, may, on his own motion and without notice or hearing, enter an order that such contract or combination is in unreasonable restraint of trade, etc. If no such order is entered within thirty days after filing copy of contract or written statement, then no suit, prosecution, or proceeding shall lie under the antitrust act on account of such contract or combination unless the same is in unreasonable restraint of trade, etc.

If no copy of contract or written statement is filed or an order of unreasonableness is made and entered, then the corporation, association, or individual shall be liable and subject to all the provisions of the antitrust act. In case a common carrier, subject to the interstatecommerce act, is a party to a contract or combination, it may file a copy of the contract or a written statement of the combination with the Interstate Commerce Commission for the purpose of getting the benefit of the provisions of the bill. Thereupon the Interstate Commerce Commission may, on its own motion, without notice or hearing, enter an order that the contract or combination is in unreasonable restraint of trade, etc. If no such order is entered in thirty days the carrier shall be immune from prosecution under the antitrust act unless his contract or combination be in unreasonable restraint of trade, etc. If no copy of contract or written statement is filed, or if an order of unreasonableness is entered, then the carrier shall be liable to all the provisions of the act.

The difference between the two classes of corporations is this that in the case of common carriers, the Interstate Commerce Commission is given the power of determining the question of reasonableness or unreasonableness in the first instance, while as to other corporations this power is conferred on the Commissioner of Corporations. In the one case the power of giving a quasi, or qualified, immunity from criminal and civil prosecution is conferred on the Commissioner of Corporations, and in the other case on the Interstate Commerce Commission. In both cases the power of determining, without notice or