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not exclusive, and the right to sue thereunder is cumulative and not due to any repealing of the prior laws, in that particular. Section 4 is as follows:

"That any person who shall be injured in his business or property by reason of anything forbidden in the Anti-trust laws may sue therefor in any district court of the United States in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." As stated above, this language is identical with Section 7 of the Sherman Law, and Section 77 of the Wilson Tariff Law, except that the scope is here broadened to include the whole range of the Anti-trust laws.

The Definition of "Person" in Clayton Law.-In view of the importance of the rights conferred by Section 4 of the Clayton Law, it is necessary as well as useful to note that the "person," to whom that right pertains, includes corporations and associations anywhere authorized or existing; also that this definition, contained in paragraph 3, Section 1 of the Clayton Law, is copied from Section 8 of the Sherman Law; consequently, not only private individuals but associations of every form, whether chartered or unincorporated, provided only they "exist" anywhere, may avail themselves of this right to bring suit.

Additions to Injuries that Will Sustain Action.-Persons injured by price discrimination, conditional or "tying" contracts, stock ownership or interlocking directorates, henceforth may sue for and recover threefold the damages they have suffered therefrom.

Since the Sherman Law and the Wilson Tariff Law also fall within the list of Anti-trust legislation, enumerated in paragraph I, Section I of the Clayton Law,-injuries to business or property sustained by reason of contracts in restraint of trade, monopolies or attempts to monopolize, or conspiracies, as well as contracts in restraint of import trade, carry with them a like privilege.

Whether actions under the provisions of the Clayton Law will lie, before the Federal Trade Commission has passed upon the alleged violation, is a question for the courts to determine. In this respect, the situation somewhat resembles the problem presented by the want of completeness in the wording of the Federal Trade

Commission Act in marking out the extent of the right to litigate, (see pages 125, 126, supra). Perhaps amendments will be made which will clear up both of these questions.

4. CERTAIN judgments PRIMA FACIE EVIDENCE. Former Judgment or Decree Prima Facie Evidence.-Section 5 of the Clayton Law affords the person bringing an action under the Anti-trust laws the advantage of introducing as prima facie evidence the final decree in any civil or criminal proceeding which the government has instituted against the same defendant under said laws. Notwithstanding this privilege, the plaintiff, in order to recover damages, would still have to show that he had suffered injury from the wrongful act.

5. GOVERNMENT SUIT EXTENDS STATUTE OF LIMITATIONS.

Extension of Time in Which to Sue.-By paragraph 2 of Section 5, the statute of limitations is made inoperative against private claims during the pendency of a government suit, either civil or criminal; and in many cases the three year limit will thereby be materially extended. In brief, since the extension springs from any inclusion whatever and is "in respect of each and every private right of action arising under said [Anti-trust] laws and based in whole or in part on any matter complained of in said suit or proceedings," it is difficult to conceive how language of broader import could have been employed.

6. LOCUS OF SUIT.

Corporate Defendant May be Sued Wherever Found.-The remaining provision of the Anti-trust laws which interests and concerns us at this time and in this connection, is contained in Section 12 of the Clayton Law. Owing to its brevity we present it in its entirety:

"That any suit, action, or proceeding under the Antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found."

No definition of the word "process" appears in any place in the Anti-trust laws.

7. PROCEDUre of service of process discuSSED.

Service of Process.-From the context in paragraph 8 of the Federal Trade Commission Act, and the corresponding provision (paragraph 7, Section 11) of the Clayton Law, it appears that other legal papers beside complaints and orders are included. Probably the term covers writs, warrants of arrest and every species of mandate requiring the authority and signature of the court, excepting subpoenas. This species of mandatory direction to appear is issued in many State courts by the attorney, although such is not the practice in the Federal courts. Separate provisions governing the service, etc., of subpoenas are found in Section 12 of the Clayton Law, but it applies only to actions brought by or on behalf of the government.

But outside of and beyond the matter of inference that may be drawn from the separate mention of subpoenas in that section, it presents a matter of interest here. Subpoenas in any action brought by or on behalf of the United States under the Antitrust Laws-whether such matter is civil or criminal-may run into another judicial district than that in which the trial is held; but witnesses shall not be summoned from a place more distant than one hundred miles from the point of trial without the permission of the trial court upon proper application and cause

shown.

It is believed that the statute might well extend this rule to every litigant under the Anti-trust laws. The method of taking testimony by Commission de bene esse, i. e., subject to exception upon the trial,-is both expensive and unsatisfactory. No good reason is apparent why the government with its vast machinery of salaried officials should be exempt from the hardships and inconveniences of this rule, while it is continued in full operation to vex and discourage private parties in point of both time and expense.

Anti-trust Actions Semi-public Matters.-All Anti-trust actions are in their nature semi-public, since they serve to deter as well as to punish wrong-doing in quarters where trusts and monopolies were the controlling factors in business, up to a comparatively recent time. To bring about a reform and to inculcate

new ideals in business is the evident purpose of Anti-trust legislation.

8. ATTENDANCE OF WITNESSES CONSIDERED.

Witnesses.-The danger of calling the witness a great distance from home to harass him is prevented by the necessity of obtaining leave of the court, when the resulting journey would exceed one hundred miles.

Arguments of weight may no doubt be advanced against the extension of the right to compel witnesses in ordinary actions to attend before the Federal courts; but in Anti-trust cases, we repeat, latitude might well be afforded to treat the States as counties are regarded in State courts, and to compel attendance within a radius of five hundred miles, or such maximum distance as Congress shall see fit to fix; reserving each particular exceptional instance to be passed upon by the trial court,-the subpoena to be effectual therein only when officially indorsed.

The actions for damages brought by "persons" under the Antitrust laws, except as above specified, are subject to the usual rules and regulations applicable to other litigations of that nature.

CHAPTER XII.

CRIMINAL PROVISIONS OF THE ANTI-TRUST

LAWS.

1. Federal Trade Commission Act.

2. Clayton Law.

3. Sherman Law.

4. Wilson Tariff Law.

General Consideration of Subject Essential.-In treating of the criminal features of the Anti-trust laws, and more particularly of those contained in the latest enactments, viz., the Federal Trade Commission Act, and the Clayton Law, it is essential that certain facts and circumstances shall be clearly understood and constantly borne in mind; otherwise the true basis for construing these legislative provisions will be lost sight of and perhaps entirely passed by.

Nature of First Named Two Statutes Civil rather than Criminal.-In the first place, the first named two statutes are curative and administrative rather than penal in their inception. The Sherman Law1 is drastic, and the penalties vary from restraint by injunction, and sequestration and condemnation of property, to fines and imprisonment,-all comprised within the space of eight brief sections.

The Wilson Law2 applies the same rules and penalties to the prohibited acts when committed in connection with import trade.

It remained for the Federal Trade Commission Act and the Clayton Law to propose some scheme of conduct which would amplify the legislative plan and present it as a rounded and completed whole.

Operation Postponed in Some Instances.-Realizing that the business interests of the country at large must adjust themselves to the situation which these new regulations created, Congress deferred the actual operation of certain provisions for the space of two years; and has confined the punitive features to restraining orders and threefold damages in numerous instances where the

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

2 For text of Sections 73-77, inclusive, see Appendix D, pages 282, 283.

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