United States v. Cooper Corp.

Mr. Justice Roberts

delivered the opinion of the Court.

We took this case because it presents the important question whether the United States may maintain an action for treble damages under § 7 of the Sherman Act.1

The complaint charged the respondents had illegally *604 combined and conspired to fix collusive prices of articles purchased by the United States; alleged the money damage inflicted upon the United States thereby, and sought judgment for three times that amount. The District Court granted a motion to dismiss the complaint on the ground that the United States is not a person as the term is used in § 7 of the Sherman Act.2 The Circuit Court of Appeals affirmed the judgment.3

Section 7 provides:

“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 three fold the damages by him sustained, and the costs of suit, including a reasonable attorney’s fee.”

The United States is a juristic person in the sense that it has capacity to sue upon contracts made with it or in vindication of its property rights. The Sherman Act, however, created new rights and remedies which are available only to those on whom they are conferred by the Act.4 The precise question for decision, therefore, is 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.

Since, in common usage, the term “person” does not include the sovereign, statutes employing the phrase are ordinarily construed to exclude it.5 But there is no hard *605 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.* *6

The Government admits that often the word “person” is used in such a sense as not to include the sovereign but urges that where, as in the present instance, its wider application is consistent with, and tends to effectuate, the public policy evidenced by the statute, the term should be held to embrace the Government. And it strongly urges that all the considerations which moved Congress to confer the right to recover damages upon individuals and corporations injured by violations of the Act apply with equal force to the United States, which, as a large procurer of goods and services, is as likely to be injured by the denounced combinations and monopolies as is a natural or corporate person. We are asked, in this view, so to construe the Act as not to deny to the Government what public policy is thought to require.

Decision is not to be reached by a strict construction of the words of the Act, nor by the application of artificial canons of construction. On the contrary, we are to read the statutory language in its ordinary and natural sense, and if doubts remain, resolve them in the light, not only of the policy intended to be served by the enactment, but, as well, by all other available aids to construction. But it is not our function to engraft on a statute additions which we think the legislature logically might or should have made.7

*606 The recent expressions of this court in Tigner v. Texas, 310 U. S. 141, 148, 149, warn that it is not for the courts to indulge in the business of policy-making in the field of antitrust legislation. Congress has not left us at large to devise every feasible means for protecting the Government as a purchaser. It is the function of Congress to fashion means to that end, and Congress has discharged this duty from time to time according to its own wisdom. Our function ends with the endeavor to ascertain from the words used, construed in the light of the relevant material, what was in fact the intent of Congress.

Without going beyond the words of the section, the use of the phrase “any person” is insufficient to authorize an action by the Government. This conclusion is supported by the fact that if the purpose was to include the United States, “the ordinary dignities of speech would have led” to its mention by name.8 It is supported also by the collocation of the phrase in the section. The provision is that “any person” injured by violation of the Act “by any other person or corporation” may maintain an action for treble damages against the latter. It is hardly credible that Congress used the term “person” in different senses in the same sentence. Yet, unless it did, the United States would not only be entitled to sue but would be liable to suit for treble damages. The more natural inference, we think, is that the meaning of the word was in both uses limited to what are usually known as natural and artificial persons, that is, individuals and corporations. In addition, the concluding words of the section give the injured party, as part of his costs, a reasonable attorney's fee, — a provision more appropriate for a private litigant than for the United States.

The connotation of a term in one portion of an Act may often be clarified by reference to its use in others. *607 The word “person” is used in several sections other than §. 7. In §§ 1, 2, and 3 the phrase designating those liable criminally is “every person who shall” etc. In each instance it is obvious that while the term “person” may well include a corporation it cannot embrace the United States. In § 8 Congress attempted to make clear that the term “person” is to include a corporation. The provision is “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.” The very fact, however, that this sweeping inclusion of various entities was thought important to preclude any narrow interpretation emphasizes the fact that if the United States was intended to be included Congress would have so provided expressly. We may say in passing that the argument that the United States may be treated as a corporation organized under its own laws, that is, under the Constitution as the fundamental law, seems so strained as not to merit serious consideration. It is fair to assume that the term “person,” in the absence of an indication to the contrary, was employed by the Congress throughout the Act in the same, and not in different, senses.

The scheme and structure of the legislation are likewise important to a proper ascertainment of its purpose and intent. Sections 1, 2, and 3 impose criminal sanctions for violations of the acts denounced in those sections respectively. Section 4 gives jurisdiction to the federal courts of proceedings by the Government to restrain violations of the Act and imposes upon United States Attorneys the duty to institute equity proceedings to that end. Section 5 regulates service in such suits. Section 6 authorizes seizure, in the course of interstate transportation, of goods owned under any contract or pursuant to any conspiracy made illegal by the statute.

*608 Thus far the Act deals in detail with the criminal and civil remedies of the Government in vindication of the policy of the legislation. There follows § 7, the only other substantive section, giving a civil action for an injury to property rights.

It seems evident that the Act envisaged two classes of actions, — those made available only to the Government, which are first provided in detail, and, in addition, a right of action for treble damages granted to redress private injury. If this be the fair construction of the Act, the Court’s task is finished when it gives effect to the purposes of the law, evidenced by the various remedies it affords for different situations. Though the law gave a remedy by way of injunction at the suit of the United States, we were pressed to say that a private person should have the same remedy. We were compelled to answer that Congress had not seen fit so to provide.9 For the like reasons we cannot hold that since a private purchaser is given a remedy for his losses in treble damages, the United States should be awarded the same remedy.

Supplemental legislation lends support to the view that Congress had in mind the distinction between public and private remedies and did not intend to confer a right of action on the United States by the use of the phrase “any person” in § 7. The antitrust provisions of the Wilson Tariff Act10 follow the same pattern as the Sherman Act. Section 7311 denounces combinations and agreements between parties importing articles from a foreign country and declares that every person guilty of *609 violation of its terms shall be punished. Section 74 confers jurisdiction upon the federal courts and authorizes proceedings in equity by the United States to restrain such acts. Section 76 provides for seizure and forfeiture of property imported into the United States contrary to law and § 77 gives an action for treble damages to any person against any other person or corporation in the exact words of § 7 of the Sherman Act.

The antidumping provisions of the Revenue Act of 191612 make it a criminal offense for “any person” importing articles from a foreign country to sell, or cause to be imported or sold, such articles within the United States at substantially less than the market value of such articles at the time of exportation in the principal markets of the country of production, etc. They further declare that any person injured in his business or property by any violation may sue therefor in the United States courts and recover threefold damages and costs, including a reasonable attorney’s fee. It must be obvious that the United States cannot be embraced by the phrase “any person” there used.

When Congress came to supplement the Sherman Act by the Clayton Act,13 it included in the latter a significant section bearing upon the question under consideration. Doubts had arisen as to whether issues adjudicated in a criminal proceeding or a suit in equity brought by the United States should be taken as concluded in an action for treble damages subsequently brought by an injured party. By § 5 of the Clayton Act it was sought to give such adjudication that effect. The section provides:

“A final judgment or decree hereafter rendered in any criminal prosecution or in any suit or proceeding in *610 equity brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any suit or proceeding brought by any other party against such defendant under said laws as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, This section shall not apply to consent judgments or decrees entered before any testimony has been taken.”

Immediately following this provision the section continues :

“Whenever any suit or proceeding in equity or criminal prosecution is instituted by the United States to prevent, restrain or punish violations of any of the antitrust laws, the running of the statute of limitations in respect of each and every private right of action arising under said laws and based in whole or in part on any matter complained of in said suit or proceeding shall be suspended during the pendency thereof.”

Here again it seems clear that Congress recognized the distinction between proceedings' initiated by the Government to vindicate public rights and actions by private litigants for damages.

It should be noted that § 1 of the Clayton Act again defined the term “person” exactly as it was defined by § 8 of the Sherman Act, and § 4 again enacted that any person injured by a violation might recover treble damages together with a reasonable attorney’s fee.

There has been a considerable body of judicial expression to the effect that § 7 authorizes an action for damages only by private suitors and not by the Government.14 While none of the cases presented the exact ques *611 tion here involved, the statements bearing on the subject exhibit a uniform opinion contrary to the Government’s present contention.

The legislative history is persuasive that the Sherman Act was not intended to give the United States a civil action for damages. Senator Sherman, on March 18,1890, introduced a bill which, in § 1, provided that the United States might bring various civil actions and, hr § 2, that “any person” should be- entitled to sue any “person” or “corporation” for double damages.15

In the discussion of the bill it was pointed out that § 1 authorized the United States to bring civil actions including those for simple damages and that, under § 2, private parties were entitled to sue for double damages. Senator Sherman stated that § 2 gave a right to sue for double damages only to private parties and not to the United *612 States. He stated that the civil suit by the United States authorized by § 1 might be for an ouster of the power of the corporation, for damages, or in quo warranto, and added: “But the second section provides purely a personal remedy, a civil suit also by citizens of the United States.”16

As is well known, after Senator Sherman’s bill had been amended, Senator Hoar rewrote most of the bill. In so doing he eliminated § 1 with its provision for civil suits by the United States and substituted §§ 1, 2, 3, 4, and 6, specifying the remedies, civil, criminal, and by way of forfeiture, available to the United States. In that revision he retained, with slight change, § 2 of the bill, increasing the recoverable damages to treble instead of double, and renumbered the section as § 7. In this form the bill was adopted.

As already stated, the language of § 7 of the Sherman Act was repeated in later statutes extending the antitrust laws although in the meantime this and other courts had expressed thé view that the section accorded the Government no right of suit for treble damages. When the Clayton Act was before the Senate, Senator Culberson, Chairman of the Committee which reported the bill, enumerated the usual types of action prosecuted under the Sherman Act, — criminal prosecutions, suits in equity, and actions for damages, and stated with respect to Government suits under the Sherman Act and the Clayton Act: “There is no suit authorized by any of these statutes except a criminal prosecution or a suit in equity. The United States does not bring a suit at law for damages.” 17

*613 In 1926 the Attorney General, in response to a Senate Resolution asking for information with respect to cases instituted under the first seven sections of the Sherman Act, wrote: “Under Section 7, which gives to private persons the right to sue/or injuries arising under the act, a number of actions have been instituted. The United States, however, under the statute is not a party to suits under that section.” 18

Senator O’Mahoney has introduced a bill, which is pending as S. 2719, prepared jointly by him and by the Assistant Attorney General in charge of antitrust matters. On June 28, 1939, the Senator stated that the purpose of the bill was to provide more effective civil remedies. In the course of his statement he said: “There is only one other remedy worth mentioning available under existing law to the Department of Justice — the civil action for-an injunction. In addition, there is the action in damages by a private person who has been injured. Neither of these remedies is effective.” He further stated: “The bill permits the United States, in effect, to bring a suit for damages against an offending corporation and against its individual directors and officers.” 19

It is significant that, in the light of the expressions by the courts, the supplemental legislation, and the legislative history, no action has ever been brought by the United States under § 7 in the fifty years during which *614 the statute has been in force until the present action was instituted. Down to the close of the year 1937, 428 criminal prosecutions and suits in equity had been instituted by the Government.20 Down to December, 1939, 103 civil suits had been instituted by private persons, including corporations.21 In the meantime the World War intervened with the Government a purchaser of enormous quantities of material and supplies. Then, as now, the complaint was prevalent that agreements and conspiracies existed to fix and maintain prices of materials needed by the Government. Arid throughout the life of the legislation able and vigilant officials devoted to enforcement of the policy of the Sherman Act have not been wanting.

In these circumstances the conviction that no right to sue had been given the Government, rather than a supine neglect to resort to an available remedy, seems to us the true explanation of the fact that no such actions have been instituted by the United States.

In summary, we are of opinion that the text of the Act, taken in its natural and ordinary sense, makes against the extension of the term “person" to include the United States, and that the usual aids to construction, taken together, instead of inducing the contrary conclusion, go to support the view that Congress did not use the word in the sense for which the Government, contends.

The judgment is

Affirmed.

*615 Mr. Justice Murphy took no part in the consideration or decision of this case.

Act of July 2,1890, c. 647, 26 Stat. 209, 210.

31 F. Supp. 848.

114 F. 2d 413.

Wilder Mfg. Co. v. Corn Products Refining Co., 236 U. S. 165, 174; Fleitmann v. Welsbach Street Lighting Co., 240 U. S. 27, 29; Geddes v. Anaconda Copper Mining Co., 254 U. S. 590, 593.

United States v. Fox, 52 N. Y. 530; Id., 94 U. S. 315, 321.

See Levy v. McCartee, 6 Pet. 102, 110; United States v. Freeman, 3 How. 556, 565; Ohio v. Helvering, 292 U. S. 360, 370; Nardone v. United States, 302 U. S. 379.

The Pedro, 175 U. S. 354, 364; Dewey v. United States, 178 U. S. 510, 519, 520; Pirie v. Chicago Title & T. Co., 182 U. S. 438, 451; White v. United States, 191 U. S. 545, 551, 552; Ebert v. Poston, 266 U. S. 548, 554; Helvering v. Oregon Life Ins. Co., 311 U. S. 267, 272.

Davis v. Pringle, 268 U. S. 315, 318.

Minnesota v. Northern Securities Co., 194 U. S. 48, 71; Paine Lumber Co. v. Neal, 244 U. S. 459. The Act was amended to authorize suits for injunctions by private litigants. See the Clayton Act of October 15, 1914, c. 323, § 16, 38 Stat. 730, 737; 15 U. S. C. § 26.

Act of August 27, 1894, c. 349, 28 Stat. 509, as amended by Act of Feb. 12, 1913, c. 40, 37 Stat. 667; 15 U. S. C. § 8.

28 Stat. 570, 37 Stat. 667.

Act of September 8, 1916, c. 463, 39 Stat. 756, 798, 15 U. S. C. § 72.

Act of October 15, 1914, c. 323, 38 Stat. 730.

Pidcock v. Harrington, 64 F. 821, 822; Lowenstein v. Evans, 69 F. 908, 911; Greer, Mills & Co. v. Stoller, 71 F. 1, 3; City of Atlanta v. *611 Chattanooga Foundry Co., 101 F. 900, 904; Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 52; United States v. Patterson, 201 F. 697, 714; General Investment Co. v. Lake Shore & Michigan So. Ry. Co., 260 U. S. 261, 286; Glenn Coal Co. v. Dickinson Fuel Co., 72 F. 2d 885, 889; Quemos Theatre Co. v. Warner Bros. Pictures, 35 F. Supp. 949, 950; Tigner v. Texas, 310 U. S. 141, 148.

“Section 1:

“. . . And the circuit court of the United States shall have original jurisdiction of all suits of a civil nature at common law or in equity arising under this section, and to issue all remedial process, orders, or writs proper and necessary to enforce its provisions. And the Attorney-General and the several district attorneys are hereby directed, in the name of the United States, to commence and prosecute all such cases to final judgment and execution.”

“Section 2:

“That any person or corporation injured or damnified by such arrangement, contract, agreement, trust, or combination defined in the first section of this Act may sue for and recover, in any court of the United States of competent jurisdiction, without respect to the amount involved, of any person or corporation a party to a combination described in the first section of this Act, twice the amount of damages sustained and the costs of the suit, together with a reasonable attorney’s fee.”

21 Cong. Rec. 2563-2564.

51 Cong. Rec. 13898. Statements by members of the House Judiciary Committee indicate a similar view: 51 Cong. Rec. 9079, 9490. Representative Webb the chairman of that Committee mentioned the civil remedies available under the bill as treble damage *613 actions by persons, suits by the Federal Trade Commission, suits by the United States for injunctions, and similar suits by persons. He then said “Certainly the remedies are cumulative. The remedies pile up, and all of the remedies are open to the individual and to the Government in a suit.” 51 Cong. Rec. 16276. But obviously he meant that the remedies given the public and the individual respectively were cumulative, as they clearly are; for it is plain the remedy given the Federal Trade Commission is not afforded to the individual.

Sen. Doc. No. 79, 69th Cong., 1st Sess., p. 1.

84 Cong. Rec. 8192.

“Federal Antitrust Laws,” published by the Department of Justice January 1938.

49 Yale Law Journal 296.