City of Lafayette v. Louisiana Power & Light Co.

435 U.S. 389, 98 S. Ct. 1123, 55 L. Ed. 2d 364, 1978 U.S. LEXIS 19, 24 P.U.R.4th 395

• Court: Supreme Court of the United States
• Decided: March 29, 1978
• Docket: 76-864
• Status: Published

Opinions

Mr. Justice Brennan

delivered the opinion of the Court (Part I), together with an opinion (Parts II and III), in which Mr. Justice Marshall, Mr. Justice Powell, and Mr. Justice Stevens joined.

Parker v. Brown, 317 U. S. 341 (1943), held that the federal antitrust laws do not prohibit a State “as sovereign” from imposing certain anticompetitive restraints “as an act of government.” The question in this case is the extent to which the antitrust laws prohibit a State’s cities from imposing such anticompetitive restraints.

Petitioner cities are organized under the laws of the State of Louisiana,¹ which grant them power to own and operate electric utility systems both within and beyond their city limits.² Petitioners brought this action in the District Court for the Eastern District of Louisiana, alleging that, among others,³ Louisiana Power & Light Co. (LP&L), an investor-owned electric service utility with which petitioners compete in the areas beyond their city limits,⁴ committed various antitrust offenses which injured petitioners in the operation of their electric utility systems.⁵ LP&L counterclaimed, seeking damages and injunctive relief for various antitrust offenses which petitioners had allegedly committed and which injured it in its business and property.⁶

Petitioners moved to dismiss the counterclaim on the ground that, as cities and subdivisions of the State of Louisiana, the “state action” doctrine of Parker v. Brown, rendered federal antitrust laws inapplicable to them. The District Court granted the motion, holding that the decision of the Court of Appeals for the Fifth Circuit in Saenz v. University Interscholastic League, 487 F. 2d 1026 (1973), required dismissal, notwithstanding that “[t]hese plaintiff cities are engaging in what is clearly a business activity ... in which a profit is realized,” and “for this reason . . . this court is reluctant to hold that the antitrust laws do not apply to any state activity.” ⁷ App. 47 (emphasis in original). The District Court in this case read Saenz to interpret the “state action” exemption ⁸ as requiring the “holding that purely state government activities are not subject to the requirements of the antitrust laws of the United States,” App. 48, thereby making petitioners’ status as cities determinative against maintenance of antitrust suits against them. The Court of Appeals for the Fifth Circuit reversed and remanded for further proceedings.⁹ 532 F. 2d 431 (1976). The Court of Appeals noted that the District Court had acted before this Court’s decision in Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), and held that “taken together” Parker v. Brown and Goldfarb “require the following analysis”:

“A subordinate state governmental body is not ipso facto exempt from the operation of the antitrust laws. Rather, a district court must ask whether the state legislature contemplated a certain type of anticompetitive restraint. In our opinion, though, it is not necessary to point to an express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activity was clearly within the legislative intent. Thus, a trial judge may ascertain, from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of. On the other hand, as in Goldfarb, the connection between a legislative grant of power and the subordinate entity’s asserted use of that power may be too tenuous to permit the conclusion that the entity’s intended scope of activity encompassed such conduct. Whether a governmental body’s actions are comprehended within the powers granted to it by the legislature is, of course, a determination which can be made only under the specific facts in each case. A district judge’s inquiry on this point should be broad enough to include all evidence which might show the scope of legislative intent.” 532 F. 2d, at 434-435 (footnotes omitted).

We granted certiorari, 430 U. S. 944 (1977). We affirm.

I

Petitioners’ principal argument is that “since a city is merely a subdivision of a state and only exercises power delegated to it by the state, Parker’s- findings regarding the congressionally intended scope of the Sherman Act apply with equal force to such political subdivisions.” Brief for Petitioners 5. Before addressing this question, however, we shall address the contention implicit in petitioners’ arguments in their brief that, apart from the question of their exemption as agents of the State under the Parker doctrine, Congress never intended to subject local governments to the antitrust laws.

A

The antitrust laws impose liability on and create a cause of action for damages for a “person” or “persons” as defined in the Acts.¹⁰ Since the Court has held that the definition of “person” or “persons” embraces both cities and States, it is understandable that the cities do not argue that they are not “persons” within the meaning of the antitrust laws.

Section 8 of the Sherman Act, ch. 647, 26 Stat. 210, 15 U. S. C. § 7 (1976 ed.), and § 1 of the Clayton Act, 38 Stat. 730, 15 U. S. C. § 12 (1976 ed.), are general definitional sections which define “person” or “persons,” “wherever used in this [Act] ... 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.” ¹¹ Section 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15 (1976 ed.), provides, in pertinent part, that “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court. . ., and shall recover threefold the damages by him sustained____” ¹²

Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390 (1906), held that a municipality is a “person” within the meaning of § 8 of the Sherman Act, the general definitional section, and that the city of Atlanta therefore could maintain a treble-damages action under § 7, the predecessor of § 4 of the Clayton Act,¹³ against a supplier from whom the city purchased water pipe which it used to furnish water as a municipal utility service. Some 36 years later, Georgia v. Evans, 316 U. S. 159 (1942), held that the words “any person” in § 7 of the Sherman Act included States. Under that decision, the State of Georgia was permitted to bring an action in its own name charging injury from a combination to fix prices and suppress competition in the market for asphalt which the State purchased annually for use in the construction of public roads. The Court reasoned that “[njothing 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.” 316 U. S., at 162.

Although both Chattanooga Foundry and Georgia v. Evans involved the public bodies as plaintiffs, whereas petitioners in the instant case are defendants to a counterclaim, the basis of those decisions plainly precludes a reading of “person” or “persons” to include municipal utility operators that sue as plaintiffs but not to include such municipal operators when sued as defendants. Thus, the conclusion that the antitrust laws are not to be construed as meant by Congress to subject cities to liability under the antitrust laws must rest on the impact of some overriding public policy which negates the construction of coverage, and not upon a reading of “person” or “persons” as not including them.¹⁴

B

Petitioners suggest several reasons why, in addition to their arguments for exemption as agents of the State under the Parker doctrine, a congressional purpose not to subject cities to the antitrust laws should be inferred. Those arguments, like the Parker exemption itself, necessarily must be considered in light of the presumption against implied exclusions from coverage under the antitrust laws.

(1)

The purposes and intended scope of the Sherman Act have been developed in prior cases and require only brief mention here. Commenting upon the language of the Act in rejecting a claim that the insurance business was excluded from coverage, the Court stated: “Language more comprehensive is difficult to conceive. On its face it shows a carefully studied attempt to bring within the Act every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states.” United States v. SouthEastern Underwriters Assn., 322 U. S. 533, 553 (1944). That and subsequent cases reviewing the legislative history of the Sherman Act have concluded that Congress, exercising the full extent of its constitutional power,¹⁵ sought to establish a regime of competition as the fundamental principle governing commerce in this country.¹⁶

For this reason, our cases have held that even when Congress by subsequent legislation establishes a regulatory regime over an area of commercial activity, the antitrust laws will not be displaced unless it appears that the antitrust and regulatory provisions are plainly repugnant. E. g., United States v. Philadelphia Nat. Bank, 374 U. S. 321, 350-351, and n. 28 (1963) (collecting cases). The presumption against repeal by implication reflects the understanding that the antitrust laws establish overarching and fundamental policies, a principle which argues with equal force against implied exclusions. See Goldfarb, 421 U. S., at 786-788.

Two policies have been held sufficiently weighty to override the presumption against implied exclusions from coverage of the antitrust laws. In Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), the Court held that, regardless of anticompetitive purpose or intent, a concerted effort by persons to influence lawmakers to enact legislation beneficial to themselves or detrimental to competitors was not within the scope of the antitrust laws. Although there is nothing in the language of the statute or its history which would indicate that Congress considered such an exclusion, the impact of two correlative principles was held to require the conclusion that the presumption should not support a finding of coverage. The first is that a contrary construction would impede the open communication between the polity and its lawmakers which is vital to the functioning of a representative democracy. Second, “and of at least equal significance,” is the threat to the constitutionally protected right of petition which a contrary construction would entail. Id., at 137-138.¹⁷ Parker v. Brown¹⁸ identified a second overriding policy, namely that “[i]n a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.” 317 U. S., at 351.

Common to the two implied exclusions was potential conflict with policies of signal importance in our national traditions and governmental structure of federalism. Even then, however, the recognized exclusions have been unavailing to prevent antitrust enforcement which, though implicating those fundamental policies, was not thought severely to impinge upon them. See, e. g., Goldfarb, supra; California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972).

Petitioners’ arguments therefore cannot prevail unless they demonstrate that there are countervailing policies which are sufficiently weighty to overcome the presumption. We now turn to a consideration of whether, apart from the question of their exemption as agents of the State under the Parker doctrine, petitioners have made that showing.

(2)

Petitioners argue that their exclusion must be inferred because it would be anomalous to subject municipalities to the criminal and civil liabilities imposed upon violators of the antitrust laws. The short answer is that it has not been regarded as anomalous to require compliance by municipalities with the substantive standards of other federal laws which impose such sanctions upon “persons.” See Union Pacific R. Co. v. United States, 313 U. S. 450 (1941).¹⁹ See generally Ohio v. Helvering, 292 U. S. 360, 370 (1934);²⁰ California v. United States, 320 U. S. 577 (1944).²¹ But those cases do not necessarily require the conclusion that remedies appropriate to redress violations by private corporations would be equally appropriate for municipalities; nor need we decide any question of remedy in this case.²²

Petitioners next argue that the antitrust laws are intended to protect the public only from abuses of private power and not from actions of municipalities that exist to serve the public weal.

Petitioners’ contention that their goal is not private profit but public service is only partly correct. Every business enterprise, public or private, operates its business in furtherance of its own goals. In the case of a municipally owned utility, that goal is likely to be, broadly speaking, the benefit of its citizens. But the economic choices made by public corporations in the conduct of their business affairs, designed as they are to assure maximum benefits for the community constituency, are not inherently more likely to comport with the broader interests of national economic well-being than are those of private corporations acting in furtherance of the interests of the organization and its shareholders. The allegations of the counterclaim, which for present purposes we accept as true,²³ aptly illustrate the impact which local governments, acting as providers of services, may have on other individuals and business enterprises with which they interrelate as purchasers, suppliers, and sometimes, as here, as competitors.²⁴

LP&L alleged that the city of Plaquemine contracted to provide LP&L’s electric customers outside its city limits gas and water service only on condition that the customers purchase electricity from the city and not from LP&L.²⁵ The effect of such a tie-in is twofold. First, the tying contract might injure former LP&L customers in two ways. The net effect of the tying contract might be to increase the cost of electric service to these customers. Moreover, a municipality conceivably might charge discriminatorily higher rates to such captive customers outside its jurisdiction without a cost-justified basis. Both of these practices would provide maximum benefits for its constituents, while disserving the interests of the affected customers. Second, the practice would necessarily have an impact on the regulated public utility whose service is displaced.²⁶ The elimination of customers in an established service area would likely reduce revenues, and possibly require abandonment or loss of existing equipment the effect of which would be to reduce its rate base and possibly affect its capital structure. The surviving customers and the investor-owners would bear the brunt of these consequences. The decision to displace existing service, rather than being made on the basis of efficiency in the distribution of services, may be made by the municipality in the interest of realizing maximum benefits to itself without regard to extraterritorial impact and regional efficiency.²⁷

The second allegation of LP&L’s counterclaim,²⁸ is that petitioners conspired with others to engage in sham and frivolous litigation against LP&L before various federal agencies²⁹ and federal courts for the purpose, and with the effect, of delaying approval and construction of LP&L’s proposed nuclear electric generating plant. It is alleged that this course of conduct was designed to deprive LP&L of needed financing and to impose delay costs, amounting to $180 million, which would effectively block construction of the proposed project. Such activity may benefit the citizens of Plaquemine and Lafayette by eliminating a competitive threat to expansion of the municipal utilities in still undeveloped areas beyond the cities’ territorial limits. But that kind of activity, if truly anticompetitive,³⁰ may impose enormous unnecessary costs on the potential customers of the nuclear generating facility both within and beyond the cities’ proposed area of expansion. In addition, it may cause significant injury to LP&L, interfering with its ability to provide expanded service.

Another aspect of the public-service argument³¹ is that because government is subject to political control, the welfare of its citizens is assured through the political process and that federal antitrust regulation is therefore unnecessary. The argument that consumers dissatisfied with the service provided by the municipal utilities may seek redress through the political process is without merit. While petitioners recognize, as they must, that those consumers living outside the municipality who are forced to take municipal service have no political recourse at the municipal level, they argue nevertheless that the customers may take their complaints to the state legislature. It fairly may be questioned whether the consumers in question or the Florida corporation of which LP&L is a subsidiary have a meaningful chance of influencing the state legislature to outlaw on an ad hoc basis whatever anticompetitive practices petitioners may direct against them from time to time. More fundamentally, however, that argument cuts far too broadly; the same argument may be made regarding anticompetitive activity in which any corporation engages. Mulcted consumers and unfairly displaced competitors may always seek redress through the political process. In enacting the Sherman Act, however, Congress mandated competition as the polestar by which all must be guided in ordering their business affairs. It did not leave this fundamental national policy to the vagaries of the political process, but established a broad policy, to be administered by neutral courts,³² which would guarantee every enterprise the right to exercise “whatever economic muscle it can muster,” United States v. Topco Associates, 405 U. S. 596, 610 (1972), without regard to the amount of influence it might have with local or state legislatures.³³

In 1972, there were 62,437 different units of local government in this country.³⁴ Of this number 23,885 were special districts which had a defined goal or goals for the provision of one or several services,³⁵ while the remaining 38,552 represented the number of counties, municipalities, and townships, most of which have broad authority for general governance subject to limitations in one way or another imposed by the State.³⁶ These units may, and do, participate in and affect the economic life of this Nation in a great number and variety of ways. When these bodies act as owners and providers of services, they are fully capable of aggrandizing other economic units with which they interrelate, with the potential of serious distortion of the rational and efficient allocation of resources, and the efficiency of free markets which the regime of competition embodied in the antitrust laws is thought to engender.³⁷ If municipalities were free to make economic choices counseled solely by their own parochial interests and without regard to their anticompetitive effects, a serious chink in the armor of antitrust protection would be introduced at odds with the comprehensive national policy Congress established.³⁸

We conclude that these additional arguments for implying an exclusion for local governments from the antitrust laws must be rejected. We therefore turn to petitioners’ principal argument, that “Parker’s findings regarding the congressionally intended scope of the Sherman Act apply with equal force to such political subdivisions.” Brief for Petitioners 5.

II

Plainly petitioners are in error in arguing that Parker held that all governmental entities, whether state agencies or subdivisions of a State, are, simply by reason of their status as such, exempt from the antitrust laws.

Parker v. Brown involved the California Agricultural Prorate Act enacted by the California Legislature as a program to be enforced “through action of state officials ... to restrict competition among the growers '[of raisins] and maintain prices in the distribution of their commodities to packers.” 317 U. S., at 346. The Court held that the program was not prohibited by the federal antitrust laws since “nothing in the language of the Sherman Act or in its history . . . suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature,” id., at 350-351, and “[t]he state ... as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit.” Id., at 352.

Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), underscored the significance of Parker’s holding that the determinant of the exemption was whether the challenged action was “an act of government” by the State as “sovereign.” Parker repeatedly emphasized that the anticompetitive effects of California’s prorate program derived from “the state[’s] command”; the State adopted, organized, and enforced the program “in the execution of a governmental policy.” ³⁹ 317 U. S., at 352. Goldfarb, on the other hand, presented the question “whether a minimum-fee schedule for lawyers published by the Fairfax County Bar Association and enforced by the Virginia State Bar,” 421 U. S., at 775, violated the Sherman Act. Exemption was claimed on the ground that the Virginia State Bar was “a state agency by law.” Id., at 790. The Virginia Legislature had empowered the Supreme Court of Virginia to regulate the practice of law and had assigned the State Bar a role in that regulation as an administrative agency of the Virginia Supreme Court. But no Virginia statute referred to lawyers’ fees and the Supreme Court of Virginia had taken no action requiring the use of and adherence to minimum-fee schedules. Goldfarb therefore held that it could not be said that the anticompetitive effects of minimum-fee schedules were directed by the State acting as sovereign. Id., at 791. The State Bar, though acting within its broad powers, had “voluntarily joined in what is essentially a private anti-competitive activity,” id., at 792, and was not executing the mandate of the State. Thus, the actions of the State Bar had failed to meet “[t]he threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe.. . .” Id., at 790. Goldfarb therefore made it clear that, for purposes of the Parker doctrine, not every act of a state agency is that of the State as sovereign.

Bates v. State Bar of Arizona, 433 U. S. 350 (1977), involved the actions of a state agency to which the Parker exemption applied. Bates considered the applicability of the antitrust laws to a ban on attorney advertising directly imposed by the Arizona Supreme Court. In holding the antitrust laws inapplicable, Bates noted that “[tjhat court is the ultimate body wielding the State’s power over the practice of law, see Ariz. Const., Art. 3; In re Bailey, 30 Ariz. 407, 248 P. 29 (1926), and, thus, the restraint is 'compelled by direction of the State acting as a sovereign.’ ” Id., at 360, quoting Goldfarb, supra, at 791. We emphasized, moreover, the significance to our conclusion of the fact that the state policy requiring the anticompetitive restraint as part of a comprehensive regulatory system, was one clearly articulated and affirmatively expressed as state policy, and that the State’s policy was actively supervised by the State Supreme Court as the policymaker.⁴⁰

These decisions require rejection of petitioners’ proposition that their status as such automatically affords governmental entities the “state action” exemption.⁴¹ Parker’s limitation of the exemption, as applied by Goldfarb and Bates, to “official action directed by [the] state,” arises from the basis for the “state action” doctrine — that given our “dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority,” 317 U. S., at 351, a congressional purpose to subject to antitrust control the States’ acts of government will not lightly be inferred. To extend that doctrine to municipalities would be inconsistent with that limitation. Cities are not themselves sovereign; they do not receive all the federal deference of the States that create them. See, e. g., Edelman v. Jordan, 415 U. S. 651, 667 n. 12 (1974); Lincoln County v. Luning, 133 U. S. 529 (1890) (political subdivisions not protected by Eleventh Amendment from immunity from suit in federal court). Parker’s limitation of the exemption to “official action directed by a state,” 317 U. S., at 351, is consistent with the fact that the States’ subdivisions generally have not been treated as equivalents of the States themselves.⁴² In light of the serious economic dislocation which could result if cities were free to place their own parochial interests above the Nation’s economic goals reflected in the antitrust laws, see supra, at 403-408, we are especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach.

On the other hand, the fact that municipalities, simply by their status as such, are not within the Parker doctrine, does not necessarily mean that all of their anticompetitive activities are subject to antitrust restraints. Since “[mjunicipal corporations are instrumentalities of the State for the convenient administration of government within their limits.” Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U. S. 285, 287 (1883), the actions of municipalities may reflect state policy. We therefore conclude that the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service. There remains the question whether the Court of Appeals erred in holding that further inquiry should be made to determine whether petitioners’ actions were directed by the State.

Ill

The petitioners and our Brother Stewart’s dissent focus their arguments upon the fact that municipalities may exercise the sovereign power of the State, concluding from this that any actions which municipalities take necessarily reflect state policy and must therefore fall within the Parker doctrine. But, the fact that the governmental bodies sued are cities, with substantially less than statewide jurisdiction, has significance. When cities, each of the same status under state law, are equally free to approach a policy decision in their own way, the anticompetitive restraints adopted as policy by any one of them, may express its own preference, rather than that of the State.⁴³ Therefore, in the absence of evidence that the State authorized or directed a given municipality to act as it did, the actions of a particular city hardly can be found to be pursuant to “the state [’s] command,” or to be restraints that “the state ... as sovereign” imposed. 317 U. S., at 352. The most⁴⁴ that could be said is that state policy may be neutral. To permit municipalities to be shielded from the antitrust laws in such circumstances would impair the goals Congress sought to achieve by those laws, see supra, at 403-408, without furthering the policy underlying the Parker “exemption.” This does not mean, however, that a political subdivision necessarily must be able to point to a specific, detailed legislative authorization before it properly may assert a Parker defense to an antitrust suit. While a subordinate governmental unit’s claim to Parker immunity is not as readily established as the same claim by a state government sued as such, we agree with the Court of Appeals that an adequate state mandate for anticompetitive activities of cities and other subordinate governmental units exists when it is found “from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.”⁴⁵ 532 F. 2d, at 434.

The Parker doctrine, so understood, preserves to the States their freedom under our dual system of federalism to use their municipalities to administer state regulatory policies free of the inhibitions of the federal antitrust laws without at the same time permitting purely parochial interests to disrupt the Nation’s free-market goals.

Our Brother Stewart’s dissent argues that the result we reach will “greatly . . . impair the ability of a State to delegate governmental power broadly to its municipalities.” Post, at 438 (footnote omitted). That, with respect, is simply hyperbole. Our decision will render a State no less able to allocate governmental power between itself and its political subdivisions. It means only that when the State itself has not directed or authorized an anticompetitive practice, the State’s subdivisions in exercising their delegated power must obey the antitrust laws. The dissent notwithstanding, it is far too late to argue that a State’s desire to insulate anticompetitive practices not imposed by it as an act of government falls within the Parker doctrine. Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1951). Moreover, by characterizing the Parker exemption as fully applicable to local governmental units simply by virtue of their status as such, the approach taken by the dissent would hold anticompetitive municipal action free from federal antitrust enforcement even when state statutes specifically provide that municipalities shall be subject to the antitrust laws of the United States. See generally La. Rev. Stat. Ann. § 33:1334 (G) (West Supp. 1977), quoted in n. 44, supra. That result would be a perversion of federalism.⁴⁶

Today’s decision does not threaten the legitimate exercise of governmental power, nor does it preclude municipal government from providing services on a monopoly basis. Parker and its progeny make clear that a State properly may, as States did in Parker and Bates, direct or authorize its instrumentalities to act in a way which, if it did not reflect state policy, would be inconsistent with the antitrust laws. Compare Bates with Goldfarb. True, even a lawful monopolist may be subject to antitrust restraints when it seeks to extend or exploit its monopoly in a manner not contemplated by its authorization. Cf. Otter Tail Power Co. v. United States, 410 U. S. 366, 377-382 (1973).⁴⁷ But assuming that the municipality is authorized to provide a service on a monopoly basis, these limitations on municipal action⁴⁸ will not hobble the execution of legitimate governmental programs.

Affirmed.

1 See La. Const., Art. 6, §§ 2, 7 (A) (effective Jan. 1, 1975); La. Const., Art. XIV, §40 (d) (1921) (effective prior to Jan. 1, 1975); see generally La. Rev. Stat. Ann. §§ 33:621, 33:361, 33:506 (West 1951).

2 La. Rev. Stat. Ann. § 33:1326 (West 1951); §§ 33:4162, 33:4163 (West 1966).

3 The complaint named as parties defendant Middle-South Utilities, Inc., a Florida corporation of which LP&L is a subsidiary, Central Louisiana Electric Co-., Inc., and Gulf States Utilities, Louisiana and Texas corporations respectively, engaged in the generation, transmission, and sale of electric power at wholesale and retail in Louisiana.

4 LP&L does not allege that it directly competes with the city of Lafayette, but does allege that the city of Plaquemine imposed tying arrangements which injured it. See Respondent’s Second Amended Counterclaim, App. 33-34; Affidavit of J. M. Wyatt, Senior Vice President of LP&L, id., at 37.

5 Petitioners’ complaint charged that the defendants conspired to restrain trade and attempted to monopolize and have monopolized the generation, transmission, and distribution of electric power by preventing the construction and operation of competing utility systems, by improperly refusing to wheel power, by foreclosing supplies from markets served by defendants, by engaging in boycotts against petitioners, and by utilizing sham litigation and other improper means to prevent the financing of construction of electric generation facilities beneficial to petitioners.

6 The counterclaim, as amended, alleged that the petitioners, together with a nonparty electric cooperative, had conspired to engage in sham litigation against LP&L to prevent the financing with the purpose and effect of delaying or preventing the construction of a nuclear electric-generating plant, to eliminate competition within the municipal boundaries by use of covenants in their respective debentures, to exclude competition in certain markets by using long-term supply agreements, and to displace LP&L in certain areas by requiring customers of LP&L to purchase electricity from petitioners as a condition of continued water and gas service.

7 Saenz was a treble-damages action by a slide-rule manufacturer who alleged a conspiracy between a state agency, the University Interscholastic League (UIL), its director, and a private competitor of Saenz to effect the rejection of Saenz products for use in interscholastic competition among Texas public schools. In Saenz the Court of Appeals affirmed the District Court’s dismissal of the action against the UIL and its director on the ground that as a state agency and a state official, they were not answerable under the Sherman Act.

8 The word “exemption” is commonly used by courts as a shorthand expression for Parker’s holding that the Sherman Act was not intended by Congress to prohibit the anticompetitive restraints imposed by California in that case.

9 In entering its order dismissing the counterclaim, the District Court made an express determination that there was no just reason for delay and expressly directed the entry of judgment for plaintiffs pursuant to Fed. Rule Civ. Proc. 54 (b). This action designated the dismissal as a final appealable order. See Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737, 742-743 (1976).

10 The word “person” or “persons” is used repeatedly in the antitrust statutes. For examples, see 15 U. S. C. § 1 (1976 ed.) (“Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony . . .”); 15 U. S. C. § 2 (1976 ed.) (“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony . . .”); 15 U. S. C. § 3 (1976 ed.) (“Every person [making a contract or engaging in a combination or conspiracy in restraint of trade in any Territory or the District of Columbia] shall be deemed guilty of a felony . . .”); 15 U. S. C. § 7 (1976 ed.) (defining the word “person” or “persons”); 15 U. S. C. § 8 (1976 ed.) (declaring illegal every contract, combination, or conspiracy in restraint of trade by persons or corporations engaged in importing articles into the United States, and providing that any person so engaged shall be guilty of a misdemeanor).

11 Section 8 of the Sherman Act provides in full:

“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.”

Section 8 has remained unchanged since its enactment in 1890.

Section 1 of the Clayton Act defines the word “person” or “persons” in language identical to that of § 8 of the Sherman Act, and it also has remained unchanged since its enactment in 1914.

12 Section 4 is quoted in full in n. 13, infra.

13 Section 7 of the Sherman Act, ch. 647, 26 Stat. 210 (1890) (repealed in 1955), provided in full:

“Any person who shah 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.”

Section 4 of the Clayton Act provides in full:

“Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”

Section 4 has remained unchanged since its enactment in 1914. It is made applicable to all of the antitrust statutes by § 1 of the Clayton Act, 15 U. S. C. §12 (1976 ed.).

14 When Congress wished to exempt municipal service operations from the coverage of the antitrust laws, it has done so without ambiguity. The Act of May 26, 1938, ch. 283, 52 Stat. 446, 15 U. S. C. § 13c (1976 ed.), grants a limited exemption to certain not-for-profit institutions for “purchases of their supplies for their own use” from the provisions of the Clayton Act as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C. §§ 13 to 13b and 21a (1976 ed.), which otherwise make it unlawful for a supplier to grant, or for an institution to induce, a discriminatory discount with respect to such supplies. Congress expressly included public libraries in this exemption. (Public libraries are, by definition, operated by local government. See 1 U. S. Office of Education, Biennial Surveys of Education in the United States, ch. 8 (Library Service 1938-1940), p. 27 (1947); 2 U. S. Office of Education, ch. 2 (Statistical Summary of Education, 1941-1942), p. 38; 32 Am. Library Assn. Bull. 272 (1938)).

15 See Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S, 219, 229-235 (1948).

16 “Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete — to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster.” United States v. Topco Associates, 405 U. S. 596, 610 (1972).

17 See also Mine Workers v. Pennington, 381 U. S. 657, 669-672 (1965). Pennington held that, regardless of the anticompetitive purpose or effect on small competing mining companies, the joint action of certain large mining companies and labor unions in lobbying before the Secretary of Labor in favor of legislation establishing a minimum wage for employees of contractors selling coal to the Tennessee Valley Authority and in lobbying before TVA to avoid coal purchases exempted from the legislation was not subject to antitrust attack. Cases 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. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 707-708 (1962); California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 516 (1972) (Stewart, J., concurring in judgment).

18 See also Olsen v. Smith, 195 U. S. 332, 344-345 (1904).

19 Union Pacific considered the applicability to a city of § 1 of the Elkins Act, 32 Stat. 847, as amended, 34 Stat. 587, 49 U. S. C. §41 (1). That statute, in definitional language similar to that used in § 8 of the Sherman Act, makes it unlawful for "any person, persons, or corporation to offer, grant, or give, or to solicit, accept, or receive any rebate, concession, at discrimination in respect to the transportation of any property in interstate or foreign commerce by any [covered] common carrier . . . .” (Emphasis added.) Kansas City, Kan. (hereinafter Kansas), decided to develop its Public Levee as a metropolitan rail food terminal with wholesale and retail produce markets. Kansas constructed, operated, and owned the market, financing the development with municipal revenue bonds.

Another city, Kansas City, Mo. (hereinafter Missouri), also operated a rail food terminal within the same metropolitan area. Because Kansas believed that there was insufficient business in the metropolitan area to support both markets, it developed a plan to induce Missouri produce dealers to lease its facilities by offering cash payments and temporary reduction or abatement of rent. These payments exceeded the amounts needed to compensate the merchants for the costs of moving, settlement of existing leases, and disruption to business. Kansas adopted the payment plan by resolution, and its legality under Kansas law was sustained by the Kansas Supreme Court in a quo warranto proceeding. State ex rel. Parker v. Kansas City, 151 Kan. 1, 97 P. 2d 104, 98 P. 2d 101 (1939).

The Missouri terminal was served by a number of railroads, but the Kansas terminal was served virtually exclusively by the Union Pacific Railroad. As merchants moved from Missouri to Kansas, the Union Pacific’s traffic necessarily increased while that of the other railroads shrank. The United States charged that the effect of Kansas’ concessions to merchants was to permit them to ship produce over the Union Pacific more cheaply than on the competing railroads serving the Missouri terminal and, in effect, amounted to a rebate from Union Pacific’s tariffs. The District Court permanently enjoined Kansas from giving cash or rental credits to Missouri dealers to move or for moving to Kansas.

On appeal to this Court, Kansas argued that because the concessions were lawful under state law, it could not be enjoined from making them, and the United States argued that the municipality was a “person” within the meaning of the statute and therefore subject to the Act on the same terms

as a private corporation. See Brief for Appellants, O. T. 1940, No. 594, pp. 233-235, 244-256; Brief for United States, O. T. 1940, No. 594, p. 72. See generally id., at 59-68, 69-75.

The Court held that the municipality was a “person” subject to the Act, and, with a modification not important here, upheld the permanent injunction against it. Mr. Justice Roberts, in dissent, made the argument made by the cities here, that the statutory phrase “every person” was not sufficiently specific to justify the conclusion that Congress wished to subject municipal corporations and their officers to the criminal penalties for which the Act provided. It is significant that the cities’ argument was rejected in the context of the antirebate provisions of the Ellrins Act, a statute which essentially is an antitrust provision serving the same purposes as the anti-price-diserimination provisions of the RobinsonPatman Act. Accord, Slater, Antitrust and Government Action: A Formula For Narrowing Parker v. Brown, 69 Nw. U. L. Rev. 71, 89 n. 100 (1974).

20 Ohio v. Helvering sustained a federal tax liability imposed upon the State of Ohio in its business as a distributor of alcoholic beverages. The statute, Rev. Stat. § 3244 (1878), imposed a tax upon “[e]very person who sells or offers for sale [alcoholic beverages].” The applicable definitional section, Rev. Stat. §3140 (1878), provided: “[W]here not otherwise distinctly expressed or manifestly incompatible with the intent thereof, the word ‘person,’ as used in this title, shall be construed to mean and include a partnership, association, company, or corporation, as well as a natural person.” Helvering stated that “[w]hether the word ‘person’ or ‘corporation’ includes a state or the United States depends upon the connection in which the word is found,” 292 U. S., at 370, and held that “the state itself, when it becomes a dealer in intoxicating liquors, falls within the reach of the tax either as a ‘person’ under the statutory extension of that word to include a corporation, or as a ‘person’ without regard to such extension.” Id., at 371.

21 California held that a city and State are subject to §§ 16 and 17 of the Shipping Act, 1916, 39' Stat. 734, as amended, 46 U. S. C. §§ 815, 816, making unlawful certain practices of “person [s],” defined by § 1, 46 U. S. C. §801, as including “corporations, partnerships, and associations, existing under or authorized by the laws of the United States, or any State . . . .”

22 The question of remedy can arise only if the District Court, on the Court of Appeals remand, determines that petitioners’ activities are prohibited by the antitrust laws.

23 Cf. Hospital Building Co. v. Rex Hospital Trustees, 425 U. S. 738, 740 (1976). We use the allegations of the counterclaim only as a ready and convenient example of the kinds of activities in which a municipality may engage in the operation of its utility business which would have an anticompetitive effect transcending its municipal borders.

24 See generally Duke & Co. v. Foerster, 521 F. 2d 1277 (CA3 1975); New Mexico v. American Petrofina, Inc., 501 F. 2d 363 (CA9 1974); Hecht v. Pro-Football, Inc., 144 U. S. App. D. C. 56, 444 F. 2d 931 (1971).

25 See Respondent’s Second Amended Counterclaim, App. 33.

26 As one commentator has noted, our cases indicate that the protection against injury to the buyer is only one purpose of the rule against tying arrangements. Equally important is the need to protect competing sellers from competition unrelated to the merits of the product involved, and, concomitantly, to protect the market from distortion. Turner, The Validity of Tying Arrangements Under the Antitrust Laws, 72 Harv. L. Rev. 50, 60 (1958).

27 While the investor-owned utilities in Louisiana are subject to regulation by the Louisiana Public Utilities Commission, municipally owned utilities are not subject to the jurisdiction of the PUC and hence apparently need not conform their expansion policies to whatever plans the PUC might deem advisable for coordinating service. See n. 44, infra.

28 See Respondent’s Answer & Counterclaim, App. 18-20.

29 The counterclaim alleged that petitioners engaged in sham litigation before the Securities and Exchange Commission, the Federal Power Commission, the Atomic Energy Commission, and the United States Department of Justice.

30 See generally California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972).

31 Petitioners have urged that the antimonopoly principles of the antitrust laws are inconsistent with the very nature of government operating as a monopoly in the public interest. They suggest that to apply antitrust principles to local governments will necessarily interfere with the execution of governmental programs. We do not agree. Acting as agents at the direction of the State, local governments are free to implement state policies without being subject to the antitrust laws to the same extent as would the State itself. See infra, at 413-417. On the other hand, it would not hinder governmental programs to require that cities authorized to provide services on a monopoly basis refrain from, for example, predatory conduct not itself directed by the State.

32 “The prohibitions of the Sherman Act were not stated in terms of precision or of crystal clarity and the Act itself did not define them. In consequence of the vagueness of its language, perhaps not uncalculated, the courts have been left to give content to the statute, and in the performance of that function it is appropriate that courts should interpret its word in the light of its legislative history and of the particular evils at which the legislation was aimed. . . .”

See Debates, 21 Cong. Rec. 2460, 3148; 2 Hoar, Autobiography of Seventy Years 364; Senator Edmunds, The Interstate Trust and Commerce Act of 1890, 194 No. Am. Rev. 801, 813, 'after most careful and earnest consideration by the Judiciary Committee of the Senate it was agreed by every member that it was quite impracticable to include by specific description all the acts which should come within the meaning and purpose of the words “trade” and “commerce” or “trust,” or the words “restraint” or “monopolize,” by precise and all-inclusive definitions; and that these were truly matters for judicial consideration.’

“See also Senator Hoar who with Senator Edmunds probably drafted the bill (see A. H. Walker, History of the Sherman Law (1910), p. 27-28) in 36 Cong. Rec. 522, Jan. 6, 1903: ‘We undertook by law to clothe the courts with the power and impose on them and the Department of Justice the duty of preventing all combinations in restraint of trade.. . .’”

Apex Hosiery Co. v. Leader, 310 U S. 469, 489, and n. 10 (1940).

33 The political-redress argument could also be made in the context of anticompetitive actions engaged in by the State itself. Our rejection of the argument here is not, however, inconsistent with the Parker doctrine. Parker did not reason that political redress is an adequate substitute for direct enforcement of the antitrust laws. Rather, Parker held that, in the absence of congressional intent to the contrary, a purpose that the antitrust laws be used to strike down the State’s regulatory program imposed as an act of government would not be inferred. To the extent that the actions of a State’s subdivisions are the actions of the State, the Parker exemption applies. See infra, at 413-417.

34 1 U. S. Bureau of the Census, 1972 Census of Governments, Governmental Organization 1 (1973). This figure (62,437) represents the total of county, municipal, township, and special district governments, but does not include the 15,781 independent school districts in the United States which, of course, have a much more narrowly defined range of functions and powers than those of local governmental units generally. See id., at 1-5.

35 See id., at 4-5.

36 See id., at 1-3.

37 See, e. g., Apex Hosiery Co. v. Leader, supra, at 493-495, n. 15 (reviewing legislative history).

38 See United States v. Topco Associates, 405 U. S., at 610; Apex Hosiery Co. v. Leader, supra, at 492-495, and n. 15; Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 229-235 (1948).

39 The state regulatory program involved in Parker furthered an important state interest which was consistent with federal policy. See Parker, 317 U. S., at 352-359.

40 The plurality opinion in Cantor v. Detroit Edison Co., 428 U. S. 579 (1976), also analyzed a “state action” exemption claim in terms of whether the challenged anticompetitive action was taken pursuant to state command. Detroit Edison, an electric utility regulated by Michigan, was charged by an independent seller of light bulbs with antitrust violations in the operation of a program which provided light bulbs without extra cost to electricity customers. Detroit Edison, relying on Parker, defended on the ground that the light-bulb program was included in its rate filed with and approved by the State Public Service Commission and that state law required it to follow the terms of the tariff as long as it was in effect. Cantor rejected the claim, holding that since no Michigan statutes regulated the light-bulb industry, and since neither the Michigan Legislature nor the Public Service Commission had passed upon the desirability of such a light-bulb program, the Commission's approval of Detroit Edison’s program did not “implement any statewide policy relating to light bulbs” and that “the State’s policy is neutral on the question whether a utility should, or should not, have such a program.” 428 U. S., at 585. The Chief Justice, while not joining all of the plurality opinion, agreed with this analysis. Id., at 604-605.

Cantor’s analysis is not, however, necessarily applicable here. Cantor was concerned with whether anticompetitive activity in which purely private parties engaged could, under the circumstances of that case, be insulated from antitrust enforcement. The situation involved here, on the other hand, presents the issue of under what circumstances a State’s subdivisions engaging in anticompetitive activities should be deemed to be acting as agents of the State.

41 Petitioners argue that Goldfarb, like Cantor v. Detroit Edison Co., supra, expresses a limitation upon the circumstances under which private parties may be immunized from suit under the antitrust laws. They seek to avoid our holding in Goldfarb by suggesting that the State Bar, although a state agency by law acting in its official capacity, was somehow not a state agency because its official actions in issuing ethical opinions, see 421 U. S., at 791 n. 21, benefited its member-lawyers by discouraging price competition. We think it obvious that the fact that the ancillary effect of the State Bar’s policy, or even the conscious desire on its part, may have been to benefit the lawyers it regulated cannot transmute the State Bar’s official actions into those of a private organization. In addition to the decision in this case, every other Court of Appeals which has considered the immunity of. state instrumentalities after Goldfarb has regarded it as having held that anticompetitive actions of a state instrumentality not compelled by the State acting as sovereign are not immune from the antitrust laws. Fairfax v. Fairfax Hospital Assn., 562 F. 2d 280, 284-285 (CA4 1977); id., at 288 (concurring opinion); Kurek v. Pleasure Driveway & Park Dist., 557 F. 2d 580, 588-591 (CA7 1977), cert. pending, No. 77-440; Duke & Co. v. Foerster, 521 F. 2d, at 1280.

The acknowledgment of our Brother Stewart’s dissent, post, at 433, that, as noted in Indian Towing Co. v. United States, 350 U. S. 61, 67-68 (1955), “'Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it’” (citation omitted), discloses the fallacy of his effort to distinguish Goldfarb on the ground that, although the State Bar was “ 'a state agency for some limited purposes,’ . . . the price fixing it fostered was for the private benefit of its members and its actions were essentially those of a private professional group.” Post, at 431.

42 Without explication, our Brother Stewart’s dissent states that our “reliance ... on the basically irrelevant body of law under the Eleventh Amendment” is unfounded. Ibid. Rather, it is the statement that is unfounded. For the longstanding principle, of which Congress in 1890 was well aware, see Lincoln County v. Luning, 133 U. S. 529 (1890), is that political subdivisions are not as such sovereign. Certainly, nothing in National League of Cities v. Usery, 426 U. S. 833 (1976), even remotely-suggested the contrary; we search in vain for anything in that case that establishes a constructional principle of presumptive congressional deference in behalf of cities. Indeed our emphasis today in our conclusion, that municipalities are “exempt” from antitrust enforcement when acting as state agencies implementing state policy to the same extent as the State itself, makes it difficult to see how National League of Cities is even tangentially implicated.

43 “While state legislatures exercise extensive power over their constituents and over the various units of local government, the States universally leave much policy and decisionmaking to their governmental subdivisions. Legislators enact many laws but do not attempt to reach those countless matters of local concern necessarily left wholly or partly to those who govern at the local level.” Avery v. Midland County, 390 U. S. 474, 481 (1968).

Although Avery concluded that the actions of local government are the actions of the State for purposes of the Fourteenth Amendment, state action required under Parker has different attributes. Cf. Edelman v. Jordan, 415 U. S. 651, 667 n. 12 (1974).

44 Indeed, state policy may be contrary to that adopted by a political subdivision, yet, for a variety of reasons, might not render the local policy unlawful under state law. For example, a state public utilities commission might adopt, though we are not aware that the Louisiana PUC has done so, a policy prohibiting the specific anticompetitive practices in which the municipality engages, yet be unable to enforce that policy with respect to municipalities because it lacks jurisdiction over them. (The Louisiana PUC, in litigation unrelated to this case, has been held to lack jurisdiction over municipal utility systems whether operating within or without the municipality. City of Monroe v. Louisiana Public Serv. Comm’n, No. 177,757 — Div. “I” (19th Jud. Dist. Ct., Sept. 14, 1976).) If that were the case, and assuming that there were no other evidence to the contrary, it would be difficult to say that state policy fosters, much less compels, the anticompetitive practices.

Louisiana Rev. Stat. Ann. §33:1334 (G) (West Supp. 1977) provides another illustration of the fact that a particular activity in which a subdivision technically has power to engage does not necessarily conform to, and may conflict with, state policy. Louisiana has authorized municipalities to create intergovernmental commissions as municipal instrumentalities jointly to construct and operate public services including utilities. §§33:1324, 33:1331-33:1334 (West Supp. 1977). Such commissions are, by definition, political subdivisions of the State. § 33:1334 (D) (West Supp. 1977). Section 1334 (G) nevertheless provides that “[n]othing in this Chapter shall be construed to grant an immunity to or on behalf of any [such] public instrumentality . . . from any antitrust laws of the state or of the United States.”

45 We reject petitioners’ fallback position that an antitrust claim will not lie for anticompetitive municipal action which, though not state directed, is lawful under state law. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1951); Northern Securities Co. v. United States, 193 U. S. 197, 344-351 (1904); cf. Union Pacific R. Co. v. United States, 313 U. S. 450 (1941) (discussed in n. 19, supra). See also n. 44, supra.

46 Restating a theme made and rejected before, see Cantor v. Detroit Edison Co., 428 U. S., at 640 (Stewart, J., dissenting), our Brother Stewart’s dissent, post, at 438-440, likens judicial enforcement of the antitrust laws to a regime of substantive due process used by federal judges to strike down state and municipal economic regulation, thought by them unfair. That analogy, of course, ignores the congressional judgment mandating broad scope in enforcement of the antitrust laws and simply reflects the dissent’s view that such enforcement with respect to cities is unwise.

47 While the majority and dissent disagreed in Otter Tail over whether the specific practices of which plaintiffs complained could be regarded as unlawful anticompetitive restraints in light of the existence of federal regulation, there was agreement that a lawful monopolist could violate the antitrust laws. Compare 410 U. S., at 377-382 with id., at 390-391, n. 7 (Stewart, J., concurring in part and dissenting in part).

48 It may be that certain activities which might appear anticompetitive when engaged in by private parties, take on a different complexion when adopted by a local government. See generally Posner, The Proper Relationship Between State Regulation and the Federal Antitrust Laws, 49 N. Y. U. L. Rev. 693, 705 (1974).