(40 Sup.Ct.) it was applied with emphasis in 1840 in Holmes v. Jennison, 14 Pet. 540, 570, 10 L. Ed. 579; and in the recent case of Knowlton v. Moore, 178 U. S. 41, 20 Sup. Ct. 747, 44 L. Ed. 969, it is referred to as an elementary canon of constitutional construction. The authoritative dictionaries, general and law, and the decided cases, agree, that "concurrent" means "joint and equal authority," "running together, having the same authority," and therefore the grant of concurrent power to the Congress and the states should *408 give to each equal, the same, *authority to enforce the Amendment by appropriate legislation. But the conclusions of the Court from which I dissent, by rendering the Volstead Act of Congress paramount to state laws, necessarily deprive the states of all power to enact legislation in conflict with it, and construe the Amendment precisely as if the word "concurrent" were not in it. The power of Congress is rendered as supreme as if the grant to enforce the Amendment had been to it alone, as it is in the Thirteenth, Fourteenth and Fifteenth Amendments and as it was in one proposed form of the Eighteenth Amendment which was rejected by Congress (Cong. Rec. July 30, tracts and agreements between states, which without it would be unconstitutional and void. The Wilson Act of 1890 (Comp. St. § 8738), the Webb-Kenyon Act of 1913 (Comp. St. § 8739), and the Reed Amendment of 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 8739a, 10387a-10387c), are familiar examples of co-operative legislation on the subject of intoxicating liquors. Other instances could readily be supplied. When to this we add that the Volstead Act is obviously in very large part a compilation from the prohibition codes of various states and is supposed to contain what is best in each of them, there is every reason to believe that if concurrent legislation were insisted upon, the act would be promptly approved by the Legislatures of many of the states and would thereby become the concurrent law of the state and nation throughout a large part of the Union. Under this construction, which I think should be given the Amendment, there would be large scope also for its operation even in states which might refuse to concur in congressional legislation for its enforcement. In my judgment the law in such a state would be as if no special grant of concurrent power for the enforcement of the first section had been 1917, p. 5548, and December 17, 1917, P. made in the second section, but, neverthe 469). Such a construction should not be given the Amendment if it can reasonably be avoided, as it very clearly may be, I think, with a resultant giving of a large and beneficent effect to the grant, as it is written. Giving to the word "concurrent" its usual and authoritative meaning would result in congressional legislation under this grant of power being effective within the boundaries of any state only when concurred in by action of Congress and of such state, which, however, could readily be accomplished by the approval by either of the legislation of the other or by the adoption of identical legislation by both. Such legislation would be concurrent in fact and in law, and could be enforced by the courts and officers of either the nation or the state, thereby insuring a more general and satisfactory observance of it than could possibly be obtained by the federal authorities alone. It would, to a great extent, relieve Congress of the burden and the general government of the odium to be derived from the antagonism which would certainly spring from enforcing within states federal laws which must touch the daily life of the people very intimately and often very irritatingly. *409 *Such co-operation in legislation is not unfamiliar to our Constitution or in our practical experience. less, the first section, prohibiting the manufacture, sale, transportation, importation or exportation, of intoxicating liquors for beverage purposes, would be the supreme law of the land within the nonconcurring states and they would be powerless to license, tax, or otherwise recognize as lawful anything violating that section, so that any state law in form attempting such recognition would be unconstitutional and void. Congress would have full power under the interstate com *410 merce clause, *and it would be its duty, to prevent the movement of such liquor for beverage purposes into or out of such a state and the plenary police power over the subject, so firmly established in the states before the Eighteenth Amendment was adopted, would continue for use in the restricted field which the first section of the Amendment leaves unoccupied and the presumption must always be indulged that a state will observe and not defy the requirements of the national Constitution. Doubtless such a construction as I am proposing would not satisfy the views of extreme advocates of prohibition or of its opponents, but in my judgment it is required by the salutary rule of constitutional construction referred to, the importance of which cannot be overstated. It is intended to prevent courts from rewriting the Constitution in a form in which judges think it should have By section 10 of article 1 of the Constitution of the United States the states are de- been written instead of giving effect to the prived of power to do many things without language actually used in it, and very certhe consent of Congress, and that consent tainly departures from it will return to has frequently been given, especially to con- plague the authors of them. It does not require the eye of a seer to see contention at | Fourteenth Amendment which would have i the bar of this Court against liberal, paramount, congressional definition of intoxicating liquors as strenuous and determined as that which we have witnessed over the strict definition of the Volstead Act. With respect to the eleventh conclusion of the Court, it is enough to say that it approves as valid a definition of liquor as intoxicating which is expressly admitted not to be intoxicating in each of the cases in which it is considered. This is deemed warranted, I suppose, as legislation appropriate to the enforcement of the first section and precedent is found for it in prohibition legislation by states. But I cannot agree that the prohibition of the manufacture, sale, etc., of intoxicating liquors in the first section of the Eighteenth Amendment gives that plenary power over the subject which the Legislatures of the states derive from the people or which may be derived from the war *411 powers of the Constitution. Believing, as I do, that the scope of the first section cannot constitutionally be enlarged by the language contained in the second section, I dissent from this conclusion of the Court. In the Slaughterhouse Cases, 16 Wall 36, 21 L. Ed. 394, and other cases, this Court was urged to give a construction to the radically changed the whole constitutional theory of the relations of our state and federal governments by transferring to the general government that police power, through the exercise of which the people of the various states theretofore regulated their local affairs in conformity with the widely differing standards of life, of conduct and of duty which must necessarily prevail in a country of so great extent as ours, with its varieties of climate, of industry and of habits of the people. But this Court, resisting the pressure of the passing hour, maintained the integrity of state control over local affairs to the extent that it had not been deliberately and clearly surrendered to the general government, in a number of decisions which came to command the confidence even of the generation active when they were rendered and which have been regarded by our succeeding generation as sound and wise and highly fortunate for our country. The cases now before us seem to me to again present questions of like character to, and of not less importance than, those which were presented in those great cases, and I regret profoundly that I cannot share in the disposition which the majority of my Associates think should be made of them. END OF CASES IN VOL. 40. Auffmordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. 103, 34 L. Ed. 674... 302 Adams Exp. Co. v. Ohio, 165 U. S. 194, Sup. Ct. 305, 41 L. Ed. 683; 166 U. S. Sup. Ct. 604, 41 L. Ed. 965.. 227, 17 185, 17 238, 20 Addyston Pipe Co. v. U. S., 175 U. S. 211, Sup. Ct. 96, 44 L. Ed. 136. Adirondack R. Co. v. New York, 176 U. S. 335, 349, 20 Sup. Ct. 460, 44 L. Ed. 492.. Ætna Life Ins. Co. v. Ward, 140 U. S. 76, 91, 11 Sup. Ct. 720, 35 L. Ed. 371.. Aktieselskabet Korn-Og Foderstof Kompagniet v. Rederiaktiebolaget Atlanten, D. C., 232 Fed. 403; 250 Fed. 935, 163 C. C. A. 185, Ann. Cas. 1918E, 491..... Alabama Great Southern R. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147...... 63 87 Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280, 34 Sup. Ct. 829, 58 L. Ed. 1312... Atlantic Coast Line R. Co. v. Mims, 242 U. S. 532, 37 Sup. Ct. 188, 61 L. Ed. 476... Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 59, 61, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157... Aultman & Taylor Co. v. Syme, 79 Fed. 238, 24 C. C. A. 539.. Austin v. The Aldermen, 7 Wall. 694, 699, 19 L. Ed. 224.... Ayres, In re, 123 U. S. 443, 506, 8 Sup. Ct. 164, 31 L. Ed. 216...... 37 254 65 521 376 404 554 370 Babbitt v. Dutcher, 216 U. S. 102, 113, 30 Sup. Ct. 333 Baccus v. Louisiana, 232 U. S. 334, 34 Sup. Ct. 255 485 Alaska Pac. Fisheries v. Alaska, 249 U. S. 53, 61, American Diamond Drill Co. v. Sullivan Mach. American Exp. Co. v. Caldwell, 244 U. S. 617, 37 Backus v. Fort Street Union Depot Co., 169 U. S. 557, 568, 569, 18 Sup. Ct. 445, 42 L. Ed. 853..... 94 .63, 64, 304 583 Bacon v. Texas, 163 U. S. 207, 216, 16 Sup. Ct. Badger v. Badger, 2 Wall. 87, 95, 17 L. Ed. 836... 127 ......18, 21 Baer Bros. Mercantile Co. v. Denver & R. G. R. Co., 233 U. S. 479, 34 Sup. Ct. 641, 58 L. Ed. 1055... Baez, Ex parte, 177 U. S. 378, 20 Sup. Ct. 673, 44 L. Ed. 813.... Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N. Y. 432, 111 N. E. 1075, L. R. A. 1916F, 407, Ann. Cas. 1918A, 389... Bailey v. Railroad Co., 22 Wall. 604, 22 L. Ed. 840 215 Bailey v. Western Union Tel. Co., 97 Kan. 619, 856 518 Anhlo-American Provision Co. v. Davis Provision Appleby v. Buffalo, 221 U. S. 524, 529, 31 Sup.. Ct. Arizona Employers' Liability Cases, 250 U. S. 400, 429, 39 Sup. Ct. 553, 559, 63 L. Ed. 1058... 404 332 156 Pac. 716.... Baker v. Baker, Eccles & Co., 242 U. S. 394, 401, 37 Sup. Ct. 152, 61 L. Ed. 386. 513 539 173 203 71 7 Balbas v. U. S., 257 Fed. 17, 168 C. C. A. 229.... 266 Baldwin v. Franks, 120 U. S. 678, 683, 7 Sup. Ct. 656, 657, 32 L. Ed. 766.... Ball v. Halsell, 161 U. S. 72, 82, 84, 16 Sup. Ct. 554, 40 L. Ed. 622... 384 ...475, 476, 478 Ball v. Wm. Hunt & Sons, Ltd. [1912] App. Cas. 496 Ball Engineering Co. v. J. G. White & Co., 250 U. S. 46, 54-57, 39 Sup. Ct. 393, 63 L. Ed. 835... 46 ....172, 520 Bank of Augusta v. Earle, 13 Pet. 579, 589-591, 10 L. Ed. 274; 191 U. S. 375, 24 Sup. Ct. 92, 48 .45, 46, 68, 218 Arkansas v. Tennessee, 246 U. S. 158, 38 Sup. Ct. ...25, 26 Armour & Co. v. Virginia, 246 U. S. 1, 6, 38 Sup. Ct. 267, 62 L. Ed. 547.... 225 Aspen Mining & Smelting Co. v. Billings, 150 132 L. Ed. 225.... .371, 559 Bank of England v. Vagliano Bros. (1891) L. R. App. Cas. 107.. 363 Bank of Newport v. Cook, 60 Ark. 288, 30 S. W. Bank of United States v. Johnson, 3 Cranch, C. 363 *436 40 SUP.CT. 545 ......109, 150 Barbour v. Georgia, 249 U. S. 454, 459, 39 Sup. (591) *(2) Instead of undertaking to define what practices should be deemed unfair, as had been done in earlier legislation, the act left the determination to the commission." Experience with existing laws had taught that definition, being necessarily rigid, would prove embarrassing and, if rigorously applied, might involve great hardship. Methods of competition which would be unfair in one industry, under certain circumstances, might, when adopted in another industry, or even in the same industry under different circumstances, *437 be entirely unobjectionable. Furthermore, an enumeration, however comprehensive, of existing methods of unfair competition must necessarily soon prove incomplete, as with new conditions constantly arising novel unfair methods would be devised and developed. In leaving to the commission the determination of the question whether the method of competition pursued in a particular case was unfair, Congress followed the precedent which and it declared that findings of fact so made (if duly supported by evidence) were to be taken as final. The question whether the method of competition pursued could, on those facts, reasonably be held by the commission to constitute an unfair method of competition, being a question of law, was necessarily left open to review by the court. Compare Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 42, 32 Sup. Ct. 22, 56 L. Ed. 83; Interstate Commerce Commission v. Baltimore & Ohio R. R., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699. Third. Such a question of law is presented to us for decision, and it is this: Can the refusal by a manufacturer to sell his product to a jobber or retailer, except upon condition that the purchaser will buy from him also *438 his *trade requirements in another article or articles, reasonably be found by the commission to be an unfair method of competition under the circumstances set forth in the find it had set a quarter of century earlier, when ings of fact? If we were called upon to con by the act to regulate commerce it conferred upon the Interstate Commerce Commission power to determine whether a preference or sider the sufficiency of the complaint, and that merely, the question for our decision would be, whether the particular practice advantage given to a shipper or locality fell could, under any circumstances, reasonably within the prohibition of an undue or unreasonable preference or advantage. See Pennsylvania Co. v. United States, supra, 236 U. S. 361, 35 Sup. Ct. 370, 59 L. Ed. 616; Texas & Pacific Railway v. Interstate Commerce Commission, 162 U. S. 197, 219, 220, 16 Sup. Ct. 666, 40 L. Ed. 940. Recognizing that the question whether a method of competitive practice was unfair would ordinarily depend upon special facts, Congress imposed upon the commission the duty of finding the facts, See Report Senate Committee on Interstate Commerce, June 13, 1914, Sixty-Third Congress, Second Session, No. 597, p. 13: "The committee gave care ful consideration to the question as to whether it would attempt to define the many and variable unfair practices which prevail in commerce and to forbid their continuance or whether it would, by a general declaration condemning unfair practices, leave it to the commission to determine what practices were unfair. It concluded that the latter course would be the better. * See also "Unfair .." Competition," by W. H. S. Stevens (University of Chicago Press, 1916) pp. 1, 2. For laws prohibiting specific acts of unfair competition, see "Trust Laws and Unfair Competition" (Federal) Bureau of Corporations (March 15, 1915) pp. 184, 199. * Report of (Federal) Bureau of Corporations on the International Harvester Co., March 3, 1913, р. 30: "In discussing the competitive methods of the company it should be recognized that some practices which might be regarded with indifference if there were a number of competitors of substantially equal size and power may become objectionable when one competitor far outranks not only its nearest rival, but practically all rivals combined, as is true of the International Harvester Company, so far as several of its most important lines are concerned." The Australian Industries Preservation Act, 19081910, expressly declares that "unfair competition means competition which is unfair in the circumstances." "Trust Laws and Unfair Competition" (Federal) Bureau of Corporations (March 15, 1915) pp. 552, 747. See note 1, supra. be deemed an unfair method of competition. But as this suit to set aside the order of the commission brings before us its findings of fact, we must determine whethere these are sufficient to support their conclusion of law that the practice constituted "under the circumstances therein set forth, unfair methods of competition in interstate commerce against other manufacturers, dealers and distributors in the material known as sugar-bag cloth, and against manufacurers, dealers and distributors of the bagging known as rewoven bagging and second-hand bagging in violation of" the statute. It is obvious that the imposition of such a condition is not necessarily and universally an unfair method; but that it may be such under some circumstances seems equally clear. Under the usual conditions of competitive trade the practice might be wholly unobjectionable. But the history of combinations has shown that what one may do with impunity, may have intolerable results when done by several in co-operation. Similarly what approximately equal individual traders may do in honorable rivalry may result in grave injustice and public injury, if done by a great corporation in a particular field of business which it is able to dominate. In other words, a method of competition fair among equals may be very unfair if applied where there is inequality of resources.10 Without providing for those cases where the method of competition here involved would *439 be unobjectionable, *Massachusetts legislated against the practice, as early as 1901, by a Its highest court, in applying the law which it held to be constitutional, described the prohibited method as "unfair competition." Commonwealth v. Strauss, 188 Mass. 229, 74 N. E. 308; Id., 191 Mass. 545, 78 N. E. 136, 11 L. R. A. (N. S.) 968, 6 Ann. Cas. 842. Compare People v. Duke, 19 Misc. Rep. 292, 44 N. Y. Supp. 336. The (Federal) Bureau of 10 See "The Morals of Monopoly and Competition," by H. B. Reed (1916) pp. 120-122. (40 Sup.Ct.) statute (chapter 478) of general application. (sugar-bag cloth. Warren, Jones & Gratz, of Corporations held the practice, which it de scribed as "full-line forcing" to be highly reprehensible.11 Congress, by section 3 of the Clayton Act, specifically prohibited the prac St. Louis, are the Carnegie Company's sole agents for selling and distributing steel ties. They are also the American Manufacturing Company's sole agents for selling and distributing jute bagging in the cotton-growing section west of the Mississippi. By virtue of their selling agency for the Carnegie Company, Warren, Jones & Gratz held a dominating and controlling position in the sale and dis- N tribution of cotton ties in the entire cottongrowing section of the country, and thereby it was in a position to force would-be purchas tice in a limited field under certain circum-ers of ties to also buy from them bagging stances. An injunction against the practice manufactured by the American Manufactur has been included in several decrees in favor of the government entered in cases under the Sherman Law.12 In the decree by which the American Tobacco Company was disintegrated pursuant to the mandate of this court, each of the fourteen companies was enjoined from "refusing to sell to any jobber any brand of any tobacco product manufactured by it, except upon condition that such jobber shall purchase from the vendor some other * * *" ing Company. A great many merchants, jobbers, and dealers in bagging and ties throughout the cotton-growing states were many times unable to procure ties from any other firm than Warren, Jones & Gratz. In many instances Warren, Jones & Gratz refused to sell ties unless the purchaser would also buy from them a corresponding amount of bagging, and such purchasers were oftentimes compelled to buy from them bagging manu ply of steel ties. *441 brand or product also manufactured and sold factured by the American Manufacturing by it. United States v. American Company in order to procure a sufficient supTobacco Co. (C. C.) 191 Fed. 371, 429. The practice here in question is merely one form of the so-called "tying clauses" or "conditional requirements" which have been declared in a discerning study of the whole subject to be "perhaps the most interesting of any of the methods of unfair competition."18 The following facts found by the commission, and which the Circuit Court of Appeals held were supported by sufficient evidence, *440 show that the conditions in the *cotton tie and bagging trade were in 1918 such that the Federal Trade Commission could reasonably find that the tying clause here in question was an unfair method of competition: Cotton, America's chief staple, is marketed in bales. To bale cotton, steel ties and jute bagging are es sential. The Carnegie Steel Company, a sub sidiary of the United States Steel Corporation, manufactures so large a propertion of all such steel ties that it dominates the cotton tie situation in the United States and is able to fix and control the price of such ties throughout the country. The American Manufacturing Company manufactures about 45 per cent. of all bagging used for cotton baling; one other company about 20 per cent.; and the remaining 35 per cent. is made up of second hand bagging and a material called 11 Report of the (Federal) Bureau of Corporations on the International Harvester Company (March 3, 1913) p. 308. 12 See "Unfair Methods of Competition and their Prevention" by W. H. S. Stevens, Annals, American Academy of Political and Social Science (1916) pp. 42, 43. "Trust Laws and Unfair Competition" (Federal) Bureau of Corporations (March 15, 1915) pp. 484-486, 493. *These are conditions closely resembling those under which "full-line forcing," "exclusive-dealing requirements" or "shutting off materials, supplies or machines from competitors"-well-known methods of competition, have been held to be unfair, when practiced by concerne holding a preponderant position in the trade.14 Fourth. The Circuit Court of Appeals set aside the order of the commission solely on the ground that it was without authority to determine the merits of specific individual grievances, and that the evidence did not support its finding that Warren, Jones & Gratz had "adopted and practiced the policy of refusing to sell steel ties to those merchants and dealers who wished to buy from them unless such merchants and dealers would also buy from them a corresponding amount of jute bagging." The reason assigned by the Circuit Court of Appeals for so holding was that the evidence failed to show that the practice complained of (although acted on in individual cases by respondents) had become their "general practice." But the power of the Trade Commission to prohibit an unfair method of competition found to have been used is not limited to cases where the practice had become general. What section 5 declares unlawful is not unfair competition. That had been unlawful / before. What that section made unlawful were "unfair methods of competition"; that is, the method or means by which an unfair 14 See "Trust Laws and Unfair Competition" (Fed 13 "Unfair Competition," by W. H. S. Stevens (1916) | eral) Bureau of Corporations (March 15, 1915) pp. p. 54. 319-323, 328. |