Plan of Bill Proposed by Hon. George H. Earle, Jr., Philadelphia.

by George Howard Earle, Jr.

Plan of Bill Proposed by Hon. George H. Earle, Jr., Philadelphia.

AN ACT To protect trade and commerce among the States and with foreign nations, the freedom to participate therein, and the free flow thereof, from all restraints, monopolies, dangerous powers, and other obstructions, and to define, declare, and enact the national law and governmental policy in relation thereto.

Whereas serious differences of judicial and other opinion have arisen both as to the policy and proper interpretation of an act of Congress of July second, eighteen hundred and ninety^[1] (chapter six hundred and forty-seven), relating to restraints of trade; and so forth, resulting in grave uncertainty detrimental to the public welfare; and

Whereas the Constitution having vested Congress with the power and discretion as to means of regulating trade and commerce among the States and with foreign nations, and constituting its laws, constitutionally adopted, relating thereto the supreme law of the land; and

Whereas the power and discretion as to means are plenary (McCulloch v. Maryland, 4 Wheat., 423-424), and no trace is to be found in the Constitution of an intention to create a dependence of the Government of the Union on those of the States for the execution of the great powers assigned to it (In re Debs, 158 U. S., 678), its means having been made by the Constitution completely adequate to its ends, it being entitled to rely upon its own means alone for the full accomplishment of its constitutional ends; and

Whereas when concurrent powers of the States conflict with those of the Nation (McCulloch v. Maryland, 4 Wheat., 421, etc.), such is the paramount power of the Constitution that wherever repugnancy appears in the exercise of such powers, the powers of the States, not those of the Nation, must yield; it being axiomatic that the Constitution and the laws made in pursuance thereof are so supreme that they control the laws of the respective States and can not be controlled by them, and where repugnancy appears, that authority which is supreme must control, not yield to that over which it is supreme; and

Whereas the States have no power, in any manner or by any means to retard, impede, burden, or in any manner control (id., 436) the operation of constitutional laws enacted by Congress to carry into execution the powers vested in the General Government; and

Whereas by the Constitution of the Nation the Government thereof is divided into three distinct and independent branches (Hayburn's case, 2 Dall., 409 n.), and it is the duty of each to abstain from and to oppose encroachments on either: Now therefore
Be it enacted by the Senate and House of Representatives in Congress assembled:

DECLARATION OF PUBLIC POLICY.

Section 1. That it is and shall be the public policy of the United States to prevent and prohibit every combination whatever to secure action which essentially obstructs the free flow of commerce among the States or with foreign nations (Loewe v. Lalor, 208 U. S., 274), or restricts, in that regard, the liberty to enter into or engage in business (Harriman v. Northern Securities case, 197 U. S., 291); or to secure such powers, as, in view of natural temptation to acquire gain, if exercised, tend to so prevent competition as to restrain such commerce.
It being now declared to accord with said policy to keep such trade free from all obstruction, or dangerous probability of obstruction, whether it be physical or economic, denominated "reasonable" or "unreasonable," "due" or "undue," "direct" or "indirect."
It being further expressly declared that all things that tend to, or actually obstruct, limit, or diminish such trade or commerce, in any degree, and whether for private benefit or not, are injurious, unreasonable, and harmful to the public, and illegal.
It being further declared to be part of such policy to regard all monopolies, or attempts to monopolize, whether of transportation, or the buying, selling, or making of commodities that, in whole or part, usually pass into national commerce; or of establishing power of applying unified tactics as to prices, as tending to such advance of prices as to naturally and directly restrain and limit the flow of interstate, as well as that of intrastate trade.
It being further declared to be the national policy to regard all monopolies of commodities as but the creation of an unlawful power of irregularly imposing taxation upon trade among the States and with foreign nations, and thus directly tending to restrain it.
It is hereby declared not to be part of said public policy, to regard all cooperation as necessarily injurious, nor all competition as necessarily beneficial; it being a chief purpose of national policy now declared to so safeguard both that whilst all beneficial cooperation may be permitted and encouraged, competition shall never be so restrained or limited as to create natural tendency to, or dangerous probability of, injury of power to injure the public; or to substitute an arbitrary fixing of prices through contracts, unified tactics, or other means or methods, for the natural results following from free competition.

DEFINITIONS, ETC.

Sec. 2. For the purposes of this act:
(a) The expressions "trade" and "commerce," unless otherwise determined by the context, shall relate to trade and commerce among the States and with foreign nations.
(b) The expression "combination in the form of trust or otherwise in restraint of trade or commerce" is used to cover, include, and mean combinations of two or more persons, to do or accomplish any of the things declared to be in contravention of the public policy of the United States, as in this act declared; or to, in any wise, accomplish any purpose that will restrain, or tend to restrain, trade or commerce; and which would not have been criminal but for the provisions of this act, though unenforceable at common law; and no such combination is to be deemed "reasonable," "due," or lawful.
(c) The expression "conspiracy in restraint of trade among the States or with foreign nations" is used to cover, include, and mean all combinations that actually do, or naturally tend to, restrain trade or commerce, where there is either means or end that would make such conspiracy action giving, to a party injured, or criminal, at common law. And no such conspiracy is deemed to be "reasonable," or "due," or lawful.
(d) The expression "contracts in restraint of trade or commerce among the States or with foreign nations" is used to include, cover, and mean voluntary contractual contracts whereby one or more agree voluntarily to limit his or their right and freedom to engage in such trade or commerce. Such contracts are declared to be prima facie unlawful; but to become lawful only upon it being established that they do not actually and naturally tend to restrain such trade or commerce; really tending to aid and benefit it, without injuring the public, and with no purpose or dangerous probability or tendency of injuring it, by creating the power of or establishing monopolies and fixing trade prices by unified tactics in relation thereto.
(e) The expression "monopolize or attempt to monopolize" is used to cover, include, and mean not only all completed monopolies, but all efforts or arrangements naturally tending thereto, and especially all cases where power is sought or obtained to so fix the cost of producing, delivering, buying, or selling anything that naturally flows in or involves trade or commerce among the States or with foreign nations, by unified tactics, as distinguished from such prices fixed and controlled by natural law where free and effective competition exists, it being the opinion of Congress that all such attempts to monopolize, whether completed or not, naturally and directly restrain trade and commerce among the States and with foreign nations by increasing prices and decreasing consumption more injuriously and odiously than in any other way or by any other means, such attempts, when successful, in the opinion of Congress, placing in private hands, whether authorized by State action or not, a power of arbitrary taxation of national commerce not even possessed by the sovereign States themselves.

DECLARATION OF PURPOSE.

Sec. 3. The purpose and object of this act, to be considered in its interpretation, being to preserve the liberty of all to freely enter into and continue in a free flow of national trade; to constitute all monopolies of commodities, as well as all things actually tending to restrain such trade, prima facie evidence of an intent to restrain; to encourage and make lawful everything that may aid and foster it, and to prohibit and punish all things that either tend to or do limit, obstruct, burden, or destroy it, and to regard and be governed by actualities and not mere appearances or nomenclature.
Sec. 4. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
Sec. 5. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
Sec. 6. Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Territories and any State or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
Sec. 7. The several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain violations 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 petition setting forth the case and praying that such violation 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. 8. Whenever it shall appear to the court before which any proceeding under section four 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. 9. Any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section one of this act, and being in the course of transportation from one State to another, or to a foreign country, 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. 10. 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, or in any district where the "injury" for which suit is brought is alleged to have been in whole or part inflicted, 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. And damages may be proved in any legal way, including proof of prior earnings of the plaintiff in a business unlawfully interfered with or by the earnings of the defendant or defendants in the most profitable part of their business, not exceeding in amount the amount of business which could and would probably have been done but for the wrongs complained of. No action, however, to be sustainable where the plaintiff's case does not exceed a mere unacted upon desire or intent to so engage in such trade.
Sec. 11. This act is declared to be severable in every word, phrase, and part, and it is the intention that all or any of its provisions that can be lawfully enforced shall be, notwithstanding deficiencies in any other part.
Sec. 12. 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.

Notes

1. The Sherman Antitrust Act