recognizing that the term “person” in the Sherman Act included all entities, whether public or private, that “engaged in business whose activities might restrain or monopolize commercial intercourse among the states” and thus included both states and cities (internal quotation omitted)
How later courts described this case
- recognizing that the term “person” in the Sherman Act included all entities, whether public or private, that “engaged in business whose activities might restrain or monopolize commercial intercourse among the states” and thus included both states and cities (internal quotation omitted)
- noting that “[c]ases subsequent to Pennington have emphasized the possible constitutional infirmity in the antitrust laws that a contrary construction would entail in light of the serious threat to First Amendment freedoms that would have been presented”
- concluding that a municipality engages in state action when “the State authorized or directed [it] to act as it did”
- holding that the definition of “person” or “persons” liable under the antitrust laws clearly includes cities
Written by the judges who cited it.
The opinion
Mr. Justice Blackmun,
dissenting.
I join Mr. Justice Stewart’s dissent with the exception of Part II-B, but wish to note that I do not take his opinion as reaching the question whether petitioners should be immune under the Sherman Act even if found to have been acting in concert with private parties. To grant immunity to municipalities in such a circumstance would go beyond the protections previously accorded officials of the States themselves. See Parker v. Brown, 317 U. S. 341, 351-352 (1943) (“[W]e have no question of the state or its municipality becoming a participant in a private agreement or combination by others for restraint of trade, cf. Union Pacific R. Co. v. United States, 313 U. S. 450”). The Court of Appeals did not have the opportunity to rule on how a “conspiracy with private parties” exception to municipalities’ general immunity should be limited, if indeed such an exception is appropriate at all. If the view that municipalities are not subject to the full reach *442 of Sherman Act liability had commanded a majority, a remand for consideration of this more limited exception would be in order.
In light of the fact that the plurality and The Chief Justice have concluded that municipalities should be subject to broad Sherman Act liability, I must question the nonchalance with which the Court puts aside the question of remedy. Ante, at 402, and n. 22. It is a grave act to make governmental units potentially liable for massive treble damages when, however “proprietary” some of their activities may seem, they have fundamental responsibilities to their citizens for the provision of life-sustaining services such as police and fire protection. The several occasions in the past when the Court has found that Congress intended to subject municipalities and States to liability as “persons” or “corporations” do not provide the support for today's holding that the plurality opinion would pretend. Ante, at 400-402, and nn. 19-21. The Court cites previous constructions of the Elkins Act; the federal tax on sellers of alcoholic beverages; and the Shipping Act, 1916. But the financial penalties available under those Acts do not even approach the magnitude of the treble-damages remedy provided by the antitrust laws. 1 Nor has *443 the Court come to grips with the plainly mandatory language of § 4 of the Clayton Act, 15 U. S. C. § 15 (1976 ed.): “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . shall recover threefold the damages by him sustained” (emphasis supplied), and the repeated occasions on which Congress has rejected proposals to make the treble-damages remedy discretionary. 2 It is one thing to leave open the question of remedy if there is a conceivable defense to damages whose theory is consistent with the mandatory language of the Clayton Act (e. g., in the case of private utilities subject to state tariffs, that their conduct was required by state law and hence was involuntary). See Cantor v. Detroit Edison Co., 428 U. S. 579 , 614 — 615, n. 6 (1976) (opinion concurring in judgment) . It is quite another to delay the question of remedy in the absence of any suggested basis for a defense, especially where the prospect of insolvency for petitioner cities would so threaten the welfare of their inhabitants. The sensible course, it seems to me, is to consider the range of liability in light of the range of defendants for whom Sherman Act penalties would be appropriate.
Respondeat seeks treble damages in excess of $540 million in this case. If divided among Plaquemine and Lafayette residents, that penalty would exceed $28,000 for each family of four.
Under the federal tax on sellers of alcoholic beverages, 26 U. S. C. §§ 11 and 205 (1926 ed.), construed in Ohio v. Helvering, 292 U. S. 360, 370-371 (1934), the potential liability of the State of Ohio was $25 for each retail, and $100 for each wholesale, outlet. Under §§ 16 and 17 of the Shipping Act, 1916, 46 U. S. C. §§815 , 816 (1940 ed.), construed in Cdifomia v. United States, 320 U. S. 577, 585-586 (1944), a violation was a misdemeanor punishable by a $5,000 fine. The Court's only arguable support lies in § 1 of the Elkins Act, 49 U. S. C. § 41 , construed in Union Pacific R. Co. v. United States, 313 U. S. 450 (1941). Even there, the potential liability of a municipality not acting as a common carrier is a $20,000 fine, and, were illegal transportation rebates to be received by the municipality, three times the amount of the rebate. Even if a municipality were held *443 to be operating a common carrier under that Act, potential financial liability is limited to the fine and the actual damages caused by the prohibited conduct. 49 U. S. C. § 8 .
E. g., H. R. 4597, 83d Cong., 1st Sess. (1953); H. R. 6875, 84th Cong., 1st Sess. (1955); H. R. 978, 85th Cong., 1st Sess. (1957); H. R. 1184, 86th Cong., 1st Sess. (1959); H. R. 190, 87th Cong., 1st Sess. (1961). See also Hearings on H. R. 4597 before Subcommittee No. 3 of the House Committee on the Judiciary, 83d Cong., 1st Sess. (1953); Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 1st Sess., 189, 509-522, 2246-2249 (1955).