SEC. 5. That a final judgment or decree hereafter rendered in any criminal prosecution or in any suit or proceeding in equity brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any suit or proceeding brought by any other party against such defendant under said laws as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, This section shall not apply to consent judgments or decrees entered before any testimony has been taken: Provided further, This section shall not apply to consent judgments or decrees rendered in criminal proceedings or suits in equity, now pending, in which the taking of testimony has been commenced but has not been concluded, provided such judgments or decrees are rendered before any further testimony is taken.

Whenever any suit or proceeding in equity or criminal prosecution is instituted by the United States to prevent, restrain or punish violations of any of the antitrust laws, the running of the statute of limitations in respect of each and every private right of action arising under said laws and based in whole or in part on any matter complained of in said suit or proceeding shall be suspended during the pendency thereof.

The provisions of this section increase the protection afforded by the antitrust laws by a new rule of evidence and by extending in certain cases the period of prescription for private suits.

Section 11 gives to the Interstate Commission Commission, the Federal Reserve Board, and the Federal Trade Commission, respectively, the authority to enforce the provisions of sections 2, 3, 7, and 8 in so far as they affect persons or corporations subject to their jurisdiction. The form of procedure is substantially the same in each case as that prescribed for the Federal Trade Commission with respect to unfair methods of competition, which has been quoted above. (See p. 130.) The text of this provision is given, therefore, only for the introductory paragraph which defines the jurisdiction of the several administrative boards or commissions.

SEC. 11. That authority to enforce compliance with sections two, three, seven, and eight of this Act by the persons respectively subject thereto is hereby vested: in the Interstate Commerce Commission where applicable to common carriers, in the Federal Reserve Board where applicable to banks, banking associations and trust companies, and in the Federal Trade Commission where applicable to all other character of commerce, to be exercised as follows:

* * *

This paragraph is found in place of the first and second paragraphs of section 5 of the Federal Trade Commission Act. Otherwise section 5 and this section are identical, except that a clause in the first sentence of the third paragraph in section 5, namely, "and if it shall appear to the commission that a proceeding by it in respect thereof would be to the interest of the public," is not found in section 11 of this law.

In this connection it may be noted that sections 2, 3, 7, and 8, while they forbid certain practices or forms of business organization, do not prescribe any penalties. Section 11 furnishes one means of enforcing these prohibitions, namely, in the last resort a court injunc

tion; others are found in section 15 (see below), which gives the district attorneys a right to bring suits in equity to restrain violations of the law; in section 4, which gives persons injured thereby the right to sue for triple damages; and in section 16 (see below), which gives persons, associations, etc., the right to injunctive relief in certain cases.

Section 14 provides that when a corporation has violated penal provisions of the antitrust laws the directors, officers, or agents who authorized, ordered, or committed any of the acts constituting in whole or in part such violation shall be held guilty of a misdemeanor and upon conviction punished by fine or imprisonment, or both.

SEC. 14. That whenever a corporation shall violate any of the penal provisions of the antitrust laws, such violation shall be deemed to be also that of the individual directors, officers, or agents of such corporation who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation, and such violation shall be deemed a misdemeanor, and upon conviction therefor of any such director, officer, or agent he shall be punished by a fine of not exceeding $5,000 or by imprisonment for not exceeding one year, or by both, in the discretion of the

court.

This provision applies apparently to sections 1, 2, and 3 of the Sherman Antitrust Act, to section 73 of the Wilson Tariff Act, and to sections 9 and 10 of this law, which prohibit certain practices by common carriers engaged in commerce. Sections 2, 3, 7, and 8 of this act contain prohibitions, but no penal provisions.

Section 15 gives to the several district attorneys of the United States the duty to institute proceedings to prevent violations of this act and the duty, under the direction of the Attorney General, to bring suits in equity for that purpose, and prescribes the form of procedure. This section is identical with sections 4 and 5 of the Sherman Antitrust Act (see p. 71), except that the word "that" is placed at the beginning of the section. It is not necessary, therefore, to repeat the language of this section. It should be noted, however, that this section gives the district courts a jurisdiction concurrent with that of the Federal Trade Commission, the Federal Reserve Board, and the Interstate Commerce Commission, respectively, in the enforcement of sections 2, 3, 7, and 8 of this law.

Section 16 gives to any person, firm, corporation, or association the right to relief by injunction for threatened loss or damage by a violation of the antitrust laws, including sections 2, 3, 7, and 8 of this act under the same conditions as such relief would be granted by a court of equity, except with respect to matters subject to the jurisdiction of the Interstate Commerce Commission regarding common carriers.

SEC. 16. That any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections two, three, seven and eight of this Act, when and under the

same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue: Provided, That nothing herein contained shall be construed to entitle any person, firm, corporation, or association, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of the Act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commission.

Section 20 provides that in any case between an employer and employees, etc., relating to or growing out of a dispute as to the terms of employment, the United States courts shall not issue injunctions unless necessary to prevent irreparable injury to the property rights of the applicant.

This section provides further that an injunction shall not prohibit any person or persons, whether singly or in concert, from ceasing to work or persuading others to do so by peaceful means, or from attending at any place where he may lawfully be in order peacefully to communicate information or to persuade any person to abstain from working, or from ceasing to patronize or employ any party to such dispute, or persuading others thereto by peaceful and lawful means, or from paying or withholding strike benefits, or from peaceably assembling in a lawful manner and for lawful purposes. Finally, it is declared that the acts specified in this paragraph shall not be held to be violations of any law of the United States.

SEC. 20. That no restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney. And no such restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value; or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States.

This section aims primarily to limit the use of injunctions in labor disputes, especially with respect to such practices as "picketing" and "boycotting." It should be noted, however, that the last clause of the section is practically declaratory law and appears to make lawful certain practices of labor combinations which have sometimes been held to be unlawful by the courts.

This law contains also several other sections relating to the use of injunctions and to punishment for contempts, but they have no peculiar relation to the enforcement of the antitrust laws, and therefore do not need to be considered here.

CHAPTER IV.

IMPORTANT PROVISIONS OF STATE ANTITRUST LAWS.

Section 1. Introductory.

Since Federal antitrust laws do not reach purely intrastate transactions, there has been left to the States themselves an important field of activity in regulating trade and business practices. In recent years, especially in the past decade, various States have passed a large number of laws relating to trusts, monopolies, and restraint of trade. It seems desirable, therefore, in order that the entire field of antitrust legislation may be covered, to present a digest of State constitutional and statutory provisions relating to this subject. The object of these statutes, speaking broadly, has been twofold-first, to make criminal many contracts and agreements which at the common law were probably void only; second, to specify many practices which may in some cases have been held to be contrary to the principles of the common law, or to be included in the general terms “monopoly" or "restraint of trade," thus meeting, as far as practicable, the demand for more definiteness in the laws relating to this subject. In addition, a number of States have prohibited certain practices, such as local price cutting and demands by manufacturers for exclusive dealing, which the legislative bodies apparently considered would, if permitted, inevitably result in restraint of trade or tend to monopoly.

The plan of this chapter is to group by subjects the more important provisions of these laws to show the extent to which they have been adopted throughout the States and the differences in the terms employed in statutes apparently designed to apply to the same conditions or practices. The broad subjects covered in this presentation are: (1) Monopoly, (2) restraint of trade, (3) restraint of competition, (4) pooling, (5) price control, (6) limitation of output, (7) division of territory, (8) restraints on resales, (9) competitive methods, (10) provisions affecting agricultural interests, (11) provisions affecting labor, (12) holding companies, (13) provisions affecting business of a public nature, (14) recognition of common law principles, (15) administration of the law, (16) evidence, burden of proof, indictments, etc., (17) penalties, (18) stock watering. Wherever possible, a law which is fairly typical has been chosen as a model or basis of comparison for a particular group or subject, followed by a state