A State is a "person" within the meaning of § 7 of the Sherman
Act, and entitled thereby to sue for treble damages when, as a
purchaser of asphalt, it is injured by a combination suppressing
competition and fixing prices of that commodity in interstate
commerce.
United States v. Cooper Corp., 312 U.
S. 600, distinguished. P. 162.
123 F.2d 57, reversed.
Page 316 U. S. 160
Certiorari, 315 U.S. 792, to review the affirmance of a judgment
dismissing an action for treble damages under § 7 of the Sherman
Act.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Complaining that the respondents had combined to fix prices and
suppress competition in the sale of asphalt in violation of the
Sherman Law, the State of Georgia, which each year purchases large
quantities of asphalt for use in the construction of public roads,
brought this suit to recover treble damages under § 7 of that Act,
26 Stat. 209, 210, 15 U.S.C. § 15. According to that section,
"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
district court of the United States . . . and shall recover
threefold the damages by him sustained. . . ."
Section 8 provides that
"the word 'person,' or 'persons,' wherever used in this act
shall be deemed to include corporations and associations existing
under the 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."
26 Stat. 209, 210, 15 U.S.C. § 7
Page 316 U. S. 161
.
The District Court dismissed the suit on the ground that the
State of Georgia is not a "person" under § 7 of the Act. Deeming
the question controlled by
United States v. Cooper Corp.,
312 U. S. 600, the
Circuit Court of Appeals for the Fifth Circuit affirmed the
judgment. 123 F.2d 57. The importance of the question in the
enforcement of the Sherman Law is attested by the fact that
thirty-four states, as friends of the Court, supported Georgia's
request that the decision be reviewed on certiorari. And so we
brought the case here. 315 U.S. 792.
The only question in the
Cooper case was
"whether, by the use of the phrase 'any person,' Congress
intended to confer upon the United States the right to maintain an
action for treble damages against a violator of the Act."
312 U.S. at
312 U. S. 604.
Emphasizing that the United States had chosen for itself three
potent weapons for enforcing the Act -- namely, criminal
prosecution under §§ 1, 2, and 3, injunction under § 4, and seizure
of property under § 6, the Court concluded that Congress did not
also give the United States the remedy of a civil action for
damages. This interpretation was drawn from the structure of the
Act, its legislative history, the practice under it, and past
judicial expressions. It was not held that the word "person,"
abstractly considered, could not include a governmental body.
Whether the word "person" or "corporation" includes a State or the
United States depends upon its legislative environment.
Ohio v.
Helvering, 292 U. S. 360,
292 U. S. 370.
The
Cooper case recognized that
"there is no hard and fast rule of exclusion. The purpose, the
subject matter, the context, the legislative history, and the
executive interpretation of the statute are aids to construction
which may indicate an intent, by the use of the term, to bring
state or nation within the scope of the law."
312 U.S. at
312 U. S.
604-605. Considering all these factors, the Court found
that Congress did not give to the Government, in addition to the
other remedies exclusively
Page 316 U. S. 162
provided for it, the remedy of treble damages -- the only remedy
originally given to victims other than the Government of practices
proscribed by the Act.
The considerations which led to this construction are entirely
lacking here. The State of Georgia, unlike the United States,
cannot prosecute violations of the Sherman Law. [
Footnote 1] Nor can it seize property
transported in defiance of it. And an amendment was necessary to
permit suit for an injunction by others than the United States.
See Minnesota v. Northern Securities Co., 194 U. S.
48,
194 U. S. 70-71,
and Act of October 15, 1914, c. 323, § 16, 38 Stat. 730, 737. If
the State is not a "person" within § 8, the Sherman Law leaves it
without any redress for injuries resulting from practices outlawed
by that Act.
The question now before us, therefore, is whether no remedy
whatever is open to a State when it is the immediate victim of a
violation of the Sherman Law. We can perceive no reason for
believing that Congress wanted to deprive a State, as purchaser of
commodities shipped in interstate commerce, of the civil remedy of
treble damages which is available to other purchasers who suffer
through violation of the Act. We have already held that such a
remedy is afforded to a subdivision of the State, a municipality,
which purchases pipes for use in constructing a waterworks system.
Chattanooga Foundry v. Atlanta, 203 U.
S. 390. Reason balks against implying denial of such a
remedy to a State which purchases materials for use in building
public highways. Nothing in the Act, its history, or its policy
could justify so restrictive a construction of the word "person" in
§ 7 as to exclude a State. Such a construction would deny all
redress to
Page 316 U. S. 163
a State, when mulcted by a violator of the Sherman Law, merely
because it is a State. [
Footnote
2]
Reversed.
MR. JUSTICE BLACK concurs in the result.
[
Footnote 1]
In 1914, Congress rejected an amendment to authorize the
Attorney General of any State to institute a criminal proceeding,
in the name of the United States, to enforce the antitrust laws. 51
Cong.Rec. 14519, 14527.
[
Footnote 2]
We put to one side the suggestion that, if the Sherman Law gives
a State a right of action, Article III of the Constitution would
give this Court original jurisdiction of such a suit if a State saw
fit to pursue its remedy here. If the district courts are given
jurisdiction, a State may bring suit there even though under
Article III suit might be brought here.
United States v.
California, 297 U. S. 175,
297 U. S.
187.
MR. JUSTICE ROBERTS.
I agree that this case is not ruled by our decision in
United States v. Cooper Corp., 312 U.
S. 600. Certain of the reasons adduced in support of
that decision are inapplicable here. I am, nevertheless, of opinion
that the judgment should be affirmed. I base this conclusion upon
the plain words of the Sherman Act. Section 7 provides that "any
person who shall be injured in his business or property by any
other person" by any action forbidden by the statute may sue and
recover damages therefor. Section 8 provides that the word "person"
or "persons," wherever used in the 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,
of the laws of any foreign country."
If the word "person" is to include a state as plaintiff, it must
equally include a state as a defendant, or the language used is
meaningless. Moreover, when, in § 8, Congress took the trouble to
include as "persons" corporations organized under the laws of a
state, the inference is plain that the state itself was not to be
deemed a corporation organized under its own laws, any more than
the United
Page 316 U. S. 164
States is to be deemed a corporation organized under its own
laws.
It is not our function to speculate as to what Congress probably
intended by the words it used or to enforce the supposed policy of
the Act by adding a provision which Congress might have
incorporated but omitted.