dissenting.
Concurring in the views expressed by Mr. Justice Holmes, it seeiris to me another matter is worthy of consideration.
The transactions between the plaintiff and defendant were, as held by the court, in violation of the Anti-Trust Act, 26 *273Stat. 209. That act defines the rights and liabilities of the parties. The first three sections prohibit contracts and combinations in restraint of trade and monopolies; declare a person violating the provisions of these sections guilty of a misdemeanor and prescribe the punishment. Section 4 gives power to the Circuit Courts of the United States to prevent and restrain violations of the act. Section 6 provides for a forfeiture of property owned under any contract or combination or pursuant to any conspiracy, and seized while in course of transportation. Section 7 declares that any person injured in his business or property by reason of anything forbidden or declared-to be unlawful in the 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 threefold damages by him sustained.
The present case comes within the proposition that “ where a statute creates a new offense and denounces the penalty, or gives a new right and declares the remedy, the punishment or the remedy can be only that which the statute prescribes.” Farmers & Mechanics' National Bank v. Dearing, 91 U. S. 29, 35; Barnet v. National Bank, 98 U. S. 555. These two cases arose under the National Banking Act of June 3, 1864, c. 106, 13 Stat. 99, and illustrate the doctrine referred to. That act prescribed the rate of interest which might be taken by national banks, and added that knowing and receiving a greater rate of interest- should forfeit the entire interest; or if the interest had been paid, that the person paying might recover in an action of debt twice the amount of interest thus paid. These cases held that relief for a violation of the statute was a forfeiture of the interest due and not paid, or in case the interest had been paid an action of debt to recover double the amount paid. See also Oates v. National Bank, 100 U. S. 239.
In Stephens v. Monongahela Bank, 111 U. S. 197, it was decided that the remedy prescribed by the statute was exclusive. In Driesbach v. National Bank, 104 U. S. 52, it was held that usurious interest paid a national bank on renewing a series of *274notes could not in an action by the bank on the last of them be ¿pplied in satisfaction of the principal of the debt.
Now, the remedies given in the Anti-Trust Act are three in number: First, a criminal prosecution; second, a forfeiture of property; and, third, an action by any person injured to recover threefold the damages by him sustained. These being the remedies prescribed, are exclusive. The defendant sought neither of these remedies. It was not so anxious for'the public welfare as to make complaint and secure criminal proceedings. There was no property to be forfeited. It did not seek to recover threefold the damage it had sustained, but only to avoid paying for the property it had purchased. The reason therefor is suggested in the opinion of the Circuit Court of Appeals, 148 Fed. Rep. 939, 950:
“The averment that they paid 50 per cent more for their gross purchases in consequence of the illegal combination has little merit in it, moral or otherwise. They' doubtless sold again at the great minimum'profit they agreed to exact'from retailers, and the retailers later exacted the undue profit from the consuming public.”
Something of the same idea of the exclusiveness of a statutory remedy finds expression in Texas & Pacific Railway Company v. Abilene Cotton Oil Company, 204 U. S. 426, in which it was held that a carrier could not maintain an action at common law for excessive and unreasonable freight charges exacted on interstate shipments, where the rates charged were those which had been duly fixed by the carrier according to the interstate commerce act, and had not been found to be unreasonable by the Interstate Commerce Commission, and this notwithstanding the provision in § 22 of the act to regulate interstate commerce : “ Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of sthis act are in addition to such remedies.”