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Ed. 341, 35 Sup. Ct. 170. Damages may be recovered although some of the business affected is intrastate commerce and although the parties to the conspiracy are not themselves engaged in interstate commerce. Loewe v. Lawlor, 208 U. S. 274, 52 L. Ed. 488, 28 Sup. Ct. 301, and see Loewe v. Lawlor, 209 Fed. 721, 126 C. C. A. 445, same styled case, 187 Fed. 522, 109 C. C. A. 288, writ of certiorari denied. Loewe v. Lawlor, 223 U. S. 729, 56 L. Ed. 633, 32 Sup. Ct. 527, and notes in L. R. A. (N. S. ) 97, 23 L. R. A. (N. S.) 1263, 26 L. R. A. (N. S.) 153, 1 Brit. Rul. Cas. 281.
Notes of Decisions Rendered Since 1915.
When the general plan is an illegal combination affecting interstate commerce, it is not material that parts of the plan involve only intrastate commerce; and all persons privy to the general plan, although executing only parts thereof, are proper parties in a suit for damages. Marienelli v. United Booking Offices, 227 Fed. 165. Cause of action assignable and survives the death of the tort feasor. United Copper Securities Co. v. Amalgamated Copper Co., 232 Fed. 574, 146 C. C. A. 532. Cause of action not assignable and does not pass to a trustee in bankruptcy. Bonvillain v. American Sugar Refining Co., 250 Fed. 641. See also Imperial Film Exchange v. General Film Co., 244 Fed. 985, and General Film Co. v. Sampliner, 252 Fed. 443; affirmed 255 Fed. 242, C. C. A., rehearing denied 259 Fed. 152 — C. C. A. —. Appeal in forma pauperis denied, U. S. 63 L. Ed. 39 Sup. Ct. Venue stated under both Sherman and Clayton Acts. Southern Photo Material Co. v. Eastman Kodak Co., 234 Fed. 955. Damages, when recoverable in suits against labor unions. Dowd v. United Mine Workers, 235 Fed. 1, 148 C. C. A. 495. One who participated or acquiesced in a violation of the statute cannot recover damages. Bluefields S. S. Co. v. United Fruit Co., 243 Fed. 1, 155 C. C. A. 531. Appeal to the supreme court dismissed on stipulation. 248 U. S. 595, 63 L. Ed., 39 Sup. Ct. 136. Sherman law does not authorize recovery of damages for unfair practices, but only for monopolizing or attempting to monopolize. American Steel Co. v. American Steel & Wire Co., 244 Fed. 300 What allegations are necessary in a suit under this section. Noyes
v. Parsons, 245 Fed. 689, 158 C. C. A. 91. Must show special injury. Ketchum v. Denver & R. G. R. Co., 248 Fed. 106, 160 C. C. A. 246. Can sue where defendant has an office and is doing business. Venner v. Penn. Steel Co., 250 Fed. 292. Parties and pleadings discussed. McLatchy v. King, 250 Fed. 920. A shipper who pays an excessive freight rate as a result of a violation of the act may recover the amount that the rate paid exceeded a reasonable rate. Thomsen Cayser, 243 U. S. 66, 61 L. Ed. 597, 37 Sup. Ct. 353. Decree prior to enactment of Clayton Act adjudging defendant guilty under the Sherman Act not admissible in a suit under this section. Buckeye Powder Co. v. Dupont de Nemours Powder Co., 248 U. S. 55, 63 L. Ed., 39 Sup. Ct. -.
In United States v. Colgate & Co., 250 U. S. 300, 63 L. Ed. 570, 39 Sup. Ct. 465 the Supreme Court said: "The purpose of the Sherman Act is to prohibit monopolies, contracts, and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce, in a word, to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell. "The trader or manufacturer, on the other hand, carries on an entirely private business, and may sell to whom he pleases.' United States v. Trans-Missouri Freight Asso., 166 U. S. 290, 320, 41 L. Ed. 1007, 17 Sup. Ct. Rep. 540. 'A retail dealer has the unquestioned right to stop dealing with a wholesaler for reasons sufficient to himself, and may do so because he thinks such dealer is acting unfairly in trying to undermine his trade.' Eastern States Retail Lumber Dealers' Asso. v. United States, 234 U. S. 600, 614, 58 L. Ed. 1490, 1500, L. R. A. 1915A, 788, 34 Sup. Ct. 951."
In United States v. v. Schrader, 251 U. S., 64 L. Ed. -, 40 Sup. Ct. the court held that a definite contract fixing resale prices was unlawful. The Colgate case dealt with a refusal to sell, which right to sell or refuse to sell exists
for any or no reason; the Schrader case dealt with a contract which restrained competition.
§ 493. Person Includes Corporation and Association. That the word "person," or "persons," wherever used in this act shall be deemed to include corporations and associations existing under or authorized by the laws of either the United. States, the laws of any of the territories, the laws of any state, or the laws of any foreign country.
Section eight of the Act of July 2, 1890, known as the Sherman Anti-Trust Act.
Corporations may be indicted. United States v. MacAndrews & Forbes Co., 149 Fed. 823, 836.
For discussion of meaning of "person" and "persons" see Dowd v. United Mine Workers of America, 235 Fed. 1, 148 C. C. A. 495.
§ 494. Act of August 28, 1894, So Far as It Relates to Trusts and Combinations in Restraint of Trade.-Sec. 73. That every combination, conspiracy, trust, agreement, or contract, is hereby declared to be contrary to public policy, illegal, and void, when the same is made by or between two or more persons or corporations either of whom as agent or principal is engaged in importing any article from any foreign country into the United States, and when such combination, conspiracy, trust agreement, or contract is intended to operate in restraint of lawful trade, or free competition in lawful trade or commerce, or to increase the market price in any part of the United States of any article or articles imported or intended to be imported into the United States, or of any manufacture into which such imported article enters or is intended to enter. Every person who is or shall hereafter be engaged in the importation of goods or any commodity from any foreign country in violation of this section of this act, or who shall combine or conspire with another to violate the same, is guilty of a misdemeanor, and, on conviction thereof in any court of the United States, such person shall be fined in a sum not less than one hundred dollars and not exceeding five thousand dollars, and shall be further punished by imprisonment, in the discretion of the court, for a term not less than three months nor exceeding twelve months.
Sec. 74. That the several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of section seventy-three of this act; and it shall be the duty of the several district attorneys of the United States, in their respective districts under the direction of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petitions setting forth the case and praying that such violations shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition the court shall proceed, as soon as may be, to the hearing and determination of the case; and pending such petition and before final decree, the court may at any time make such temporary restraining order or prohibition. as shall be deemed just in the premises.
Sec. 75. That whenever it shall appear to the court before which any proceeding under the seventy-fourth section of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas, to that end may be served in any district by the marshal thereof.
Sec. 76. That any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section seventy-three of this act, imported into and being within the United States or being in the course of transportation from one state to another, or to or from a territory, or the District of Columbia, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure, and condemnation of property imported into the United States contrary to law.
Sec. 77. That any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee.
Received by the President, August 15, 1894.
(Note by the Department of State. The foregoing act having been presented to the President of the United States for his approval, and not having been returned by him to the house of Congress in which it originated within the time. prescribed by the Constitution of the United States, has become a law without his approval.)
Act of July 24, 1897, § 34.
And provided further, that nothing in this act shall be construed to repeal or in any manner affect the sections numbered 73, 74, 75, 76 and 77 of an act entitled "An act to reduce taxation, to provide revenue for the government, and for other purposes, which became a law on the twenty-eighth day of August, 1894.
Section 73 and 76 quoted in the section above were amended by the act of Feb. 12, 1913, 37 Stat. 667, Chap. 40, by adding to Sec. 73 the words "as" agent or "principal" and to Sec. 76 the words "imported into and being within the United States." Section 11 of the Panama Canal Act, Act Aug. 24, 1912, 37 Stat. 560, 567, Chap. 390, provides: "No vessel permitted to engage in the coastwise or foreign trade of the United States shall be permitted to enter or pass through said canal, if such ship is owned, chartered or operated, or controlled by any person or company which is doing business in violation of any of the anti-trust acts" and "The question of fact may be determined by the judgment of any court of the United States of competent jurisdiction in any cause pending before it to which the owners or operators of such ships are parties. Suit may be brought by any shipper or by the Attorney-General of the United States."
§ 495. Clayton Act-Definitions. That "anti-trust laws," as used herein, includes the act entitled "An act to protect trade and commerce against unlawful restraints and monopolies," approved July second, eighteen hundred and ninety; sections seventy-three to seventy-seven, inclusive, of an act entitled "an act to reduce taxation, to provide revenue for the Government, and for other purposes," of August twenty