Page:The Green Bag (1889–1914), Volume 20.pdf/268

 THE SHERMAN LAW of trade might be held at common law valid because reasonable.1 Such holding is im possible under the statute.

THE EFFECT OF THE STATUTE The illegality fastened upon a restraining contract by the anti-trust laws, however, is much more serious in its consequences than that attaching to such contract by the common law. These statutory conse quences are now to be discussed under pur second inquiry. The major portion of this article has been devoted to an inquiry as to the scope of the Act, because the language of the Act designating the contracts to be acted upon by it is so general as to require much examination into the decisions to determine its precise meaning; whereas the language of the Act devoted to the effects of the inclusion of a contract within its terms is more specific and admits of little misconstruction. These effects will b£ con sidered in the order of their appearance in the Statute. ILLEGALITY IN GENERAL. The Act (Sees. 1-3) declares such con tracts "to be illegal." This illegality is of the same effect as a defense to a suit upon the contract of restraint as was the similar illegality at common law. Thus, in Bement v. National Harrow Co. (186 U. S. 70), where the plaintiff contended that the supposed illegality of the contract sued on gave rise to such rights only as were set forth. in the statute, the court ruled in this wise: "Assuming that the plaintiff is right so far as any suit brought under that Act, we are nevertheless of opinion that anyone sued upon a contract may set up as a defense that it is a violation of the Act of Congress, and, if found to be so, that fact will constitute a good defence to the action " (p. 88). 1 Judge Taft (Harlan and Lurton, JJ. concur ring) has held that such a holding at common law would be error, upon the ground that such a contract is ipso jacto unreasonable (supra, p. 3).

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But the invalidity of the contract of com bination does not avail as a defense to suits upon collateral contracts entered into by the illegally formed combination. This question arose and was decided in Connolly v. Sewer Pipe Co. (184 U. S. 540); which was a suit by a member of an allegedly illegal com bination to recover for pipe sold to the defendant. The court said: "The con tracts . . . were collateral to the arrange ment for the combination referred to ... The combination may have been illegal, and yet the sale to the defendants was valid." With respect to the general illegality, a contract illegal by the statute stands upon the same footing as a contract illegal by the common law. CRIMINALITY OF CONTRACT. The statute reads (Sees, i and 3): "... Every person who shall make any such contract or engage in any such com bination or conspiracy, shall be deemed guilty of a misdemeanor, and, on convic tion thereof, shall be punished by fine not exceeding five thousand dollars, or by im prisonment not exceeding one year, or by both said punishments, in the discretion of the court." „ In respect of this criminal consequence of illegality, we have little but the statute to guide us. There are no common law crimes against the United States (In re Greene, 52 Fed. 104), nor did the common law of England include this offence as a crime, and so the statute is to be interpreted without this usual aid. The few prosecutions that have been brought under the Act have been decided adversely to the Government in the lower courts, usually upon demurrer or motion to quash, based upon insufficiencies of form. They settle practically but one point, — that the indictment must charge the offence with particularity, the words of the statute are insufficient. (See U. S. v. Greenhut, 50 Fed. 469; U. S. v. Patterson, 55 Fed. 605). Some light is shed upon the construction of these criminal provisions by