the United States represented by the Attorney General the exclusive province of preventing and restraining violations of the Anti-trust laws, to the complete elimination of individuals and even States as suitors seeking to correct abuses and to assert the right to immediate redress through proceedings in equity.

In view of the infrequency of the instances where popular rights, once extended, have afterward been withdrawn or even curtailed, it seems unlikely that the right to enforce the Antitrust laws through suits in equity will be again confined to government control. The general tenor of recent legislation on this subject is opposed to that feature of Sherman Law practice; and whatever the result may be, the road to redress by personal initiative remains open to every real or artificial person who feels that he or it is or may be oppressed by trade-restraint or some other "unfair method of competition in commerce." Whether the shorter road is also quicker and better, is something which the future must disclose.

Certain other modifications of equity practice should now receive attention.

2. NOTICE IN EQUITY PRACTICE.

Extent of Notice Courts of Equity Require.-At the inception of our judiciary system, Congress passed the Judiciary Act of 1789, containing the plan outlined by Chief Justice Ellsworth, whereby power was conferred upon the courts to issue injunctive writs, including writs of ne exeat in accordance to legal usages and practice.

This statute was revised in 1793, and the foregoing power was confirmed, but with the limitation: "No injunction shall be issued in any case without reasonable previous notice to the adverse party or his attorney."

The intent of the law was plain; but like many general statutes its terms were too sweeping to permit of complete justice in all cases. In practice the rule was substantially modified by judicial constructions holding that the statutory provision did not cover situations where an irreparable injury was threatened. In a leading case the court said:

"Every court of equity possesses the power to mold its rules in relation to the time of appearing and answering so as to prevent the rule from working injustice, and it is

not only in the power of the court, but it is its duty to exercise a sound discretion upon this subject."

In brief, the spirit of equity jurisprudence rendered it incompatible for the court to issue writs or orders which were idle when the adverse party had notice and an opportunity to change the situation before the hearing; and therefore, in compliance with substantial justice, the court exercised its discretionary power in respect to requiring prior notice, notwithstanding the restrictive nature of the prohibiting words.

In this manner the practice became less broad than the law; and matters continued in that condition down to the general revision of 1873. The clause containing the provision as to notice in respect to injunctions is therein made to conform to the practice, as follows:

"Whenever notice is given of a motion for an injunction out of a district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the judge or court."

3. PRACTICE REVISED.

Practice Regulated by Clayton Law.-This provision is specifically repealed by paragraph 3 of Section 17 of the Clayton Law. In its place an amplified system of injunctive relief is set forth in Sections 15 to 19, inclusive, with a further provision in Section 20, restricting the granting of injunctive relief in disputes concerning terms or conditions of employment.

The Federal courts are also granted jurisdiction to enforce the provisions of the Sherman Law, by Section 4 thereof; and a like authority is conferred by Section 74 of the Wilson Tariff Law," in relation to combinations and contracts in restraint of im

2 Ex parte Poultnoy, 4 Peters C. C. C. 472.

3 Section 263 of the Judiciary Code, revision of 1873; continued in effect by the Judiciary Act of 1911; repealed by Clayton Law, Section 17, paragraph 3.

4 For text, see Appendix C, pages 279-281.

5 See Appendix D, pages 282-3.

port trade. While it will be noted that such writs do not require security and are not circumscribed as to the prior notice required for the issuance of a temporary restraining order, those statutes can be invoked only by and through the several district attorneys under the direction of the Attorney-General; and such. proceedings accordingly do not come within the scope of the subject of personally conducted actions, but rather pertain to administrative prosecutions on behalf of the government.

Restraining Orders Will be Issued in the Public Interest.— Section 5 of the Federal Trade Commission Law confers powers somewhat similar, in that in proceedings instituted by the Commission in accordance with the purposes of its creation, that body is authorized to issue and cause to be served an order requiring the defendant "to cease and desist from using such methods of competition," i. e., unfair methods of competition in commerce. Any person, firm, or partnership may upon application be permitted to intervene; but it will be noted that this law does not permit any private party to become the complainant in the proceeding, which is to be instituted only when the decision of the question at issue "would be to the interest of the public."

The ultimate relief is, of course, an order of an injunctive nature, and is reviewable by the courts upon the record upon which the original order was granted. It is probable that the power to apply for mandamus, contained in paragraph 4 of Section 9, relates to these orders as well as to the production of books, papers, etc., required in the course of investigations by the Commission. 4. PUBLIC INTERESTS conserved UNDER COMMISSION ACT.

No Preliminary Injunction Provided for under Federal Trade Commission Act.-The fact that these proceedings are only instituted by the Commission itself, and then only in matters where the public interest is concerned, prepare us for the absence of any provision for preliminary injunctions or restraining orders. No such power exists under the Federal Trade Commission Act. The law creates an instrument for a state trial, to correct a public wrong, with the right on the Commission's part to admit private parties as interveners, in its discretion. The minimum of time fixed by the statute, thirty days (Section 5), of itself prevents any summary steps to restrain an existing or threatened injury.

In this respect the Federal Trade Commission Act is in accord with the practice laid down by the courts in their construction of Section 4 of the Sherman Law. No private person is authorized to bring an action for injunctive relief under that section. Even a State cannot intrude in that field of litigation reserved exclusively for the Federal government.

No doubt it was the legislative intent to leave actions of that nature to be instituted by the persons concerned, under the individual rights conferred in and by the Clayton Law, whenever individual rights under the protection of the Anti-trust acts are invaded.

5. CLAYTON LAW PROVISIONS.

Injunctive Relief under Clayton Law.-Returning to our consideration of the provisions for injunctive relief substituted in the place of Section 263 of the Judicial Code,' we find that Section 15 of the Clayton Law confers jurisdiction upon the United States government acting by the several district attorneys, to obtain complete injunctive relief, including temporary orders of a restraining nature. Section 16 empowers private parties

"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 Anti-trust laws, including Sections 2 [Price Discrimination], 3 [Conditional on "Tying" Contracts], 7 [Stock Ownership in Competing Corporations], and 8, [Stock Ownership by Holding Companies] 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."

6 Piddock v. Harrington, 64 Fed. 821; Greer, Mills & Co. v. Stoller, 77 Fed. 1. Minnesota v. Northern Securities Co., 194 U. S. 48, 2 Fed. Antitrust Dec., 533. Also see Thornton's Sherman Anti-trust Act, § 351, page 694, etc.

7 See Appendix I, pages 291-3.

The ensuing portion of the section prohibits bringing any injunctive suit against a railroad in matters under the authority and supervision of the Interstate Commerce Commission. Infraction of the Sherman Law by railroads and other common carriers generally, are not within the jurisdiction of the Interstate Commerce Commission; and hence such combination in restraint of trade as were held unlawful by the Supreme Court in the TransMissouri Freight Association case, would be subject to restraint by injunction by private parties; and railroads and other common carriers could presumably be enjoined from filing with the Interstate Commerce Commission rates in accordance with such unlawful agreement. In the above-cited case it was squarely held that where railroads associated themselves together for the purpose of making rates by agreement, those combinations were in restraint of trade, and constituted violations of the Sherman Act.

The words, "Anti-trust laws," contained in the foregoing statutory provision (Clayton Law, Section 16), are defined in Section I of said law. They include the Sherman Act; Sections 73 to 77, inclusive, of the Wilson Tariff Law, as amended; and the Clayton Law itself.

Under the provisions of Section 16, Congress has extended to individuals the right to bring actions to restrain violations of the Sherman Law. No doubt this broadening of the means for enforcing the Anti-trust statute was intended to nullify the rule resulting from certain decisions and authorities cited, restricting to the Attorney-General the right to bring suits in equity to enjoin violations thereof.

In addition to or in substitution for such government-brought suits, there exists the right of the Federal Trade Commission to proceed under Section 5 of the creating act, whenever it deems the public interests will be conserved; and power to admit private individuals to intervene in such governmental proceedings should and no doubt will in practice inure to the benefit of private parties, especially since by Section 5 of the Clayton Law, every final judgment or decree in any criminal prosecution or suit in equity brought by the government under the Anti-trust Laws becomes

8 166 U. S. 290.

9 National Fireproofing Company v. Mason Builders Association, 169 Fed. 259. Even a state cannot institute such a suit. Minnesota v. Northern Securities Co., 194 U. S. 48, decided in 1904.