Final Adjudication in Government Proceeding Prima Facie Evidence; Statute of Limitations Suspended.-Under the terms of Section 5 a final decree in any criminal prosecution or suit in equity brought by or on behalf of the United States under the Anti-trust laws shall be prima facie evidence against the defendant, in any suit or proceeding brought by another party against the defendant under said laws, provided the contention of the göyernment was successful in the prior action. In addition, this section declares the statute of limitations inoperative against private claims pending government suit to prevent, restrain or punish violations of any of the Anti-trust laws.

Interdiction of Joint Interests Between Common Carriers and Supply, Etc., Concerns.-Common carriers interlocking in their boards of directors with supply, construction and financial companies with which they do more than $50,000 in volume of business in any one year are by Section 10 rendered amenable to regulation by the Interstate Commerce Commission, and infraction of this statutory provision is made punishable by criminal proceedings, which may be instituted against the common carrier corporation as well as against its directors, agents, managers or officers. The fine against the corporation is fixed at $25,000, while the maximum penalty for the individual directors, etc., is $5,000 fine with imprisonment for one year. By Section 14, the provision that authorizing directors, officers or agents are liable for unlawful corporate acts and may be punished in criminal proceedings, is decreed to apply generally in all violations of any of the penal provisions of the Anti-trust laws.

Enforcement Proceedings Regulated by Section 11.-Corporations are subject to the powers and process of the respective commissions and the Federal Reserve Board; and the specific enactments as to their several powers and authorities and the means provided for the orderly application and enforcement thereof will in general be found in Section II of the Clayton Law The procedure is set forth in Chapters IV and V, to which reference is made for particular information. The Rules contained in pages 232 to 235, and the forms appearing in pages 236 to 245 should also be consulted.

Under Sections 21 to 24, Court's Direction Involves Liability to Contempt Proceedings.-While the district courts are authorized by Section 9 of the Commission Act to issue writs of

mandamus commanding and compelling any person or corporation to comply with any provisions of that statute or to obey the Commission's orders, there is no equivalent provision in the Clayton Law. Perhaps the fact that the latter law is included in the Anti-trust legislation and has the severe penal provisions associated with laws to reach misdemeanors and other crimes, may explain the discrepancy. Instead of the civil writ of mandamus we find substituted very broad provisions contained in Sections 21 to 24 inclusive, authorizing proceedings for semi-criminal contempt. The power to punish covers wilful disobedience of "any lawful writ, process, order, rule, decree or command of any district court of the United States or any court of the District of Columbia by doing any act or thing therein or thereby forbidden to be done by him, if the act or thing so done by him be of such a character as to constitute also a criminal offence under any statute of the United States, or under the laws of any State in which the act was committed"; such offender shall be "proceeded against for his said contempt as hereinafter provided." The defendant is entitled to notice, and to a jury trial, if demanded by him; a review, with reasonable bail, is another provision of the statute. This proceeding, however, must not be confounded with the right to enforce obedience in suits or actions instituted by the United States; or to contempts committed in the presence of the court or so near thereto as to amount to an obstruction of the administration of justice. Pursuant to Section 24, these offences continue punishable in summary manner in conformity to the usages at law and in equity.

Any corporation which fears a threatened loss or damage by any violation of the Anti-trust laws may have injunctive relief, in a proper case (Sections 16 to 20, inclusive). What constitutes a proper case with the particulars of procedure the law prescribes will appear in Chapter X, which is devoted to a discussion of "Injunctions and Contempt Proceedings Under the Federal Trade Commission Act and Clayton Law."

3. LIABILITY UNDER THE SHERMAN LAW.

In General.-While it is not intended at this place to enter fully into the discussion of the scope and effectiveness of the Sherman Law, since it has received particular attention at another place (Chapter VIII), still some remarks will without doubt be

useful in regard to the question of where and when the liability for prohibited acts ensues.

In this connection, it may be well to call attention to the fact that the Clayton Law is in effect an amendment of the Sherman Law, and is by its terms as expressed in its title, declared to be supplementary to the "existing laws against unlawful restraint and monopolies," i. e., to the laws commonly known and occasionally described in the statute themselves (see Clayton Law, Section 1) as the Anti-trust acts.

It is one feature of the history of legislation in a republic that laws of a nature declarative of individual rights, with the avowed intention of protecting the ordinary citizen in his business or profession, are always progressive; and later statutes explain, apply and generally broaden out the application of the initial enactment. In a monarchy or autocracy, the powers of the Duma or other legislative body may be seriously curtailed, or the semi-independent constitutional rights of Finland or other principality may be cut down; but under a democracy the people are granted or rather demand and take over additional powers and interests in the government, until what at first was esteemed a privilege has grown into an acknowledged right. The saying of Jefferson, "The cure for the ills of democracy is found in more democracy," may not appeal to statesmen and it may be opposed in party platforms and ideals; but the fact remains that the wheels of the political machine appear to revolve only in one direction in a republic.

a. Individual Liability.

Language of Sherman Law Extremely Condensed.—Applying the principles enumerated above to the work at hand, it may be said without fear of serious contradiction that nowhere in the Revised Statutes at Large is there more condensed meaning than is contained in the eight brief sections that together make up the Sherman Law. It seems to have been the Congressional intent to weigh every word, and to give every portion of the law the same attention and thought which would ordinarily be reserved for a provision of the Constitution itself.

Joint Restraints of Trade Illegal.-For statute in full, see pages 279-281. Section I deals with contracts, combinations and conspiracies in restraint of trade or commerce. It relates to and declares illegal every form of executory agreement and under

standing, and it is especially aimed at industrial trusts and trade agreements between independent concerns, or competitive in

terests.

Sherman Law Reinforced by Clayton Law.-The prohibition, however, is directed solely against acts "in restraint of trade"; it is plain that acts of competition in aid of securing or enlarging trade or commerce-short of a monopoly—are not intended to be proscribed. This fact is ably presented in Thornton's work, "The Sherman Anti-trust Act," pages 308-9; but much of the reasoning and necessarily a portion of the deductions drawn are rendered obsolete in view of the preventive legislation contained in Sections 2, 3, 7 and 8 of the Clayton Law, wherein and whereby price discrimination, tying contracts, corporate stock ownership in competing corporations, and interlocking directorates are declared to be unlawful acts. This interdiction of "the very appearance of evil" is specific, and therefore outside the scope of judicial rulings and the deliberations of text-writers upon the matter and measure of the nature and the class of acts intended to be interdicted by the Anti-trust laws. Reaching back of and beneath the physical results of the desire to deal unfairly, the new legislation seeks to remove the condition out of which the occasions for such unfair actions would flow. Such is the intent of Congress; as to its practical effects or the manner and extent to which it is applied by the Federal Trade Commission or construed by the courts, these are matters that rest as yet in the lap of the gods.

There can be no question that Section 1-and the supplementary matter contained in Sections 2, 3, 7, and 8 of the Clayton Law-involve the fullest degree of personal liability, except in so far as Section 7 of the Clayton Law refers exclusively to corporate acts.

Monopolies, Whether by Combinations or Individuals, Prohibited.-Section 2 of the Sherman Law is directed especially at monopolies, which may be conducted by single persons, or corporations, or firms; whereas the provisions of Section I require a combination or conspiracy, and this of course involves joint action by two or more persons or concerns. So that while one person may offend against the second section by monopolizing acts, the first section contemplates and is directed against conduct of two or more. The comments upon the occasion for and the objects sought to be accomplished by the provisions of Section I apply with equal force here.

Section 3 specifies Territories, etc., as localities where the act applies, and declares illegal every contract, combination or trust in the prohibited class.

The provisions of Section 4 confer jurisdiction for enforcement upon the United States circuit courts,-now merged in the district courts, and Section 5 extends to every district the right to serve summons and subpœnas.

The right to condemn property in course of transportation, owned in violation of Section 1, is contained in Section 6.

Criminal Jurisdiction Extended by Clayton Law.-This section concludes the penal provisions of the Sherman Law. Their application to individuals has been very much extended by Section 14 of the Clayton Law which makes a violation by a corporation also the act of its directors, officers and agents consenting thereto. This enlargement applies to any penal provision of the Anti-trust laws. The somewhat familiar spectacle of an infraction of these laws followed by a fine imposed upon the perhaps already injured or impaired corporate body, is not henceforth to constitute the only penalty. These penal features, however, have their own allotted place, Chapter XII, and only brief mention will be made of them in passing.

Word "person" has Wide Application here.-It should be remembered that under the Sherman Law a very broad definition of the word "person" applies, and that wherever that word is found it must be deemed to include not only individuals and firms, but also corporations and associations under the laws of the United States, or of any Territory, State or foreign country.

Enforcement by Contempt Proceedings Allowed.-Contempt proceedings are permitted under Section 21 of the Clayton Law, wherever the disobedience of the order constitutes a criminal offence under the laws of the United States, or of any State. Such designation, of course, includes infractions of the Sherman Law. Such contempt actions are subject to jury trial; and must be instituted within one year. Construing Section 14 of the Clayton Law in connection with the penal provisions of the Sherman Law, it seems probable that contempt actions would lie against directors of corporations charged with violations thereof, or with similar infractions of any penal provision of the Anti-trust laws.

Some Compensating Rights Are Conferred.-As some compensation for these increased severities, the amendatory features