port trade, even though the acts constituting such unfair methods are done without the territorial jurisdiction of the United Sates.

Sec. 5. OBLIGATIONS OF EXPORT TRADE ASSOCIATIONS UNDER THIS ACT. PENALTIES FOR FAILURE TO COMPLY. DUTIES AND POWERS OF COMMISSION.

Even though

acts involved

done without ter

ritorial jurisdiction of United States.

associations or

to

file statement

Trade Commis

cation of offices,

dresses of officers.

ticles of incorpo

of association,

To furnish also information as to

SEC. 5. That every association now engaged solely in Export trade export trade, within sixty days after the passage of this corporations Act, and every association entered into hereafter which with Federal engages solely in export trade, within thirty days after sion showing lo its creation, shall file with the Federal Trade Commis- names, and adsion a verified written statement setting forth the loca- etc., and also artion of its offices or places of business and the names and ration or contract addresses of all its officers and of all its stockholders or etc. members, and if a corporation, a copy of its certificate or articles of incorporation and by-laws, and if unincorporated, a copy of its articles or contract of association, and on the first day of January of each year thereafter it shall make a like statement of the location of its offices or places of business and the names and addresses of all its officers and of all its stockholders or members and of all amendments to and changes in its articles or certificate of incorporation or in its articles or contract of association. It shall also furnish to the commission such information as the commission may require organization, as to its organization, business, conduct, practices, management, and relation to other associations, corporations, partnerships, and individuals. Any association which shall fail so to do shall not have the benefit of the pro- of benefit of secs. visions of section two and section three of this Act, and 2 and 3, and fine. it shall also forfeit to the United States the sum of $100 for each and every day of the continuance of such failure, which forfeiture shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States brought in the district. where the association has its principal office, or in any district in which it shall do business. It shall be the District attorduty of the various district attorneys, under the direction for recovery of of the Attorney General of the United States, to prosecute for the recovery of the forfeiture. The costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States.

business, etc.

Penalties, loss

neys to prosecute forfeiture.

Federal Trade Commission to

Sec. 5. OBLIGATIONS OF EXPORT TRADE ASSOCIATIONS UNDER THIS ACT. PENALTIES FOR FAILURE TO COMPLY. DUTIES AND POWERS OF COMMISSIONContinued.

Whenever the Federal Trade Commission shall have investigate re-reason to believe that an association or any agreement artificial or inten- made or act done by such association is in restraint of

straint of trade,

tional enhance

ment or depres- trade within the United States or in restraint of the exsion of prices or

substantial less

ening of compe

ning of come port trade of any domestic competitor of such association, tition by associa- or that an association either in the United States or else

tion.

violation.

where has entered into any agreement, understanding, or conspiracy, or done any act which artificially or intentionally enhances or depresses prices within the United States of commodities of the class exported by such association, or which substantially lessens competition within the United States or otherwise restrains trade therein, it shall summon such association, its officers, and agents to appear before it, and thereafter conduct an investigation May recom into the alleged violations of law. Upon investigation, mend readjustment in case of if it shall conclude that the law has been violated, it may make to such association recommendations for the readjustment of its business, in order that it may thereafter maintain its organization and management and conduct its To refer and business in accordance with law. If such association fails mendations to to comply with the recommendations of the Federal Trade if association fails Commission, said commission shall refer its findings and to comply with recommendation. recommendations to the Attorney General of the United States for such action thereon as he may deem proper. Commission For the purpose of enforcing these provisions the Feders as under Federal Trade Commission shall have all the powers, so far

ings and recom

Attorney General

given same pow

eral Trade Com

mission Act so

far as applicable, as applicable, given it in "An Act to create a Federal Trade Commission, to define its powers and duties, and for other purposes."

Approved, April 10, 1918.

5 See ante, p. 613 et seq.

APPENDIX II

DECISIONS OF THE COURTS IN CASES INSTITUTED AGAINST OR BY THE COMMISSION1

HILLS BROS v. FEDERAL TRADE COMMISSION 1

(Circuit Court of Appeals, Ninth Circuit. January 4, 1926)2

No. 4493

1. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY NO. 802, NEW, VOL. SA KEY-NO. SERIES-FEDERAL TRADE COMMISSION HELD NOT REQUIRED TO MAKE SPECIFIC FINDING THAT PROCEEDING WAS IN PUBLIC INTEREST. Where complaint by Federal Trade Commission charging unfair competition, recited that commission was acting in public interest, under Act September 26, 1914, Section 5 (Comp. St. Sec. 8836e), finding that method of competition employed was prohibited by act included question of public interest, and no specific finding thereon was necessary.

2. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY No. 80% New, VOL. 8A KEY-NO. SERIES-ORDINARILY ADMISSION OF INCOMPETENT TESTIMONY BY FEDERAL TRADE COMMISSION CAN NOT BE ASSIGNED AS ERROR. Ordinarily admission of incompetent testimony by Federal Trade Commission in proceedings to prevent unfair competition under Act Sept. 26, 1914, Section 5 (Comp. St. Sec. 8836e), can not be assigned as error; court being concerned only with question whether there is any competent testimony to support commission's finding.

3. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY NO. 802, NEW, VOL. SA KEY-NO. SERIES-FEDERAL TRADE COMMISSION HAS NO JURISDICTION OF COMMERCE WHOLLY WITHIN STATE.

Federal Trade Commission has no jurisdiction of commerce wholly within State in proceedings to compel discontinuance of unfair competion under Act Sept. 26, 1914, Section 5 (Comp. St. Sec. SS36e), because of limitations of powers of Congress, and not because of decisions of State courts.

4. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY No. 80% NEW, VOL. 8A KEY-NO. SERIES-FEDERAL TRADE COMMISSION HAS JURISDICTION OF INTERSTATE COMMERCE, NOT LIMITED BY DECISIONS OF STATE COURT.

Federal Trade Commission, in proceedings to compel discontinuance of unfair competition under Act Sept. 26, 1914, Section 5 (Comp. St. Sec. 8836e), has jurisdiction of interstate commerce, not limited by decisions of state court.

5. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY No. 802. NEW, VOL. 8A KEY-NO. SERIES-WHERE EVIDENCE SHOWED UNIFORM PLAN OF MAINTAINING RESALE PRICES, EVIDENCE OF SALES WITHIN STATE HELD ADMISSIBLE.

1 The case is reported in 9 F. (2d) 481.

* Petition for rehearing by the company denied on January 26, 1926. of certiorari by the company denied by the Supreme Court on April 12, 662.) Petition for rehearing of such petition denied May 24.

Where evidence showed that coffee imported had uniform plan of maintaining prices by refusing to sell to retailers who cut prices, testimony as to intrastate sales was admissible to show course of business in interstate commerce. 6. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY No. 80%1⁄2 NEW, VOL. 8A KEY-NO. SERIES EVIDENCE OF INDIVIDUAL TRANSACTIONS HELD ADMISSIBLE TO PROVE MARKETING PLAN OR POLICY.

In proceeding by Federal Trade Commission under Act Sept. 26, 1914, Section 5 (Comp. St. Sec. 8836e), to compel discontinuance of unfair methods of competition, evidence of individual transactions was admissible to prove merchandising plan or policy.

7. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY No. 80%1⁄2 NEW, VOL. 8A KEY-NO. SERIES EVIDENCE OF METHODS EMPLOYED BY OTHERS HELD PROPERLY EXCLUDED IN PROCEEDINGS TO COMPEL DISCONTINUANCE OF UNFAIR COMPETITION.

In proceedings by Federal Trade Commission under Act Sept. 26, 1914, Section 5 (Comp. St. Sec. 8836e), to compel discontinuance of unfair methods of competition, evidence of methods employed by others held properly excluded.

8. TRADE-MARKS AND TRADE-NAMES AND UNFAIR COMPETITION KEY No. 801⁄2, NEW, VOL. SA KEY-NO. SERIES EVIDENCE HELD TO SUPPORT FINDING THAT COFFEE IMPORTER KEPT “Do NOT SELL LIST."

Evidence held to support findings that coffee importer kept "do not sell list" of customers refusing to maintain minimum prices.

9. MONOFOLIES KEY-NO. 12(1) WHAT PERSON MAY LAWFULLY DO INDIVIDUALLY, HE MAY NOT ALWAYS DO LAWFULLY BY COMBINATION OR COOPERATION WITH OTHERS.

What person may lawfully do individually, he may not always do lawfully by combination or cooperation with others.

10. MONOPOLIES KEY No. 17 (2)-SYSTEM OF MERCHANDISING TO MAINTAIN RESALE PRICE BY RETAILERS HELD TO JUSTIFY ORDERING ITS DISCONTINUANCE BY FEDERAL TRADE COMMISSION.

System of merchandising employed by coffee importer with cooperation of customers and salesmen, whereby goods were not sold to retailers not maintaining minimum resale price fixed by it, held to authorize Federal Trade Commission to order discontinuance of such practices under Act Sept. 26, 1914, Section 5 (Comp. St. Sec. 8836e).

11. CONSTITUTIONAL LAW KEY NO. 70(3)—ARGUMENT AS TO EVILS OF PRICE CUTTING SHOULD BE PRESENTED TO LEGISLATURE AND NOT TO COURTS.

Argument as to evils of price cutting should be presented to Legislature, and not to court in proceeding by Federal Trade Commission to compel discontinuance of merchandising methods designed to maintain prices.

(The syllabus is taken from 9 F. (2d) 481)

Petition to review order of the Federal Trade Commission. Order affirmed.

Myrick & Deering and Scott, of San Francisco, Calif, (Frank P. Deering, of San Francisco, Calif., of counsel), for petitioner.

Adrien F. Busick, assistant chief counsel, Federal Trade Commission, G. Edwin Rowland, and James W. Nichol, all of Washington, D. C., for respondent.

Before HUNT, RUDKIN, and MCCAMANT, Circuit Judges.

RUDKIN, Circuit Judge:

This is a proceeding to review an order of the Federal Trade Commission. The facts as found by the commission are substantially as follows:

The petitioner is a corporation organized and existing under the laws of the State of California, with its principal office or place of business at San Francisco. Its capital stock is $2,000,000. It is extensively engaged in the business of importing coffee from Brazil and other foreign countries and selling the same in the United States, after roasting, grading, blending and packing. Generally speaking, its sales are made to retail dealers only, but in some of the western states it sells to jobbers, on the same terms and conditions, and in some of the eastern states exclusive territory is allotted to wholesale dealers. The petitioner has about 25,000 customers in all. About 54 per cent of these are located in the State of California and the remaining 46 per cent in various other States of the Union; principally in the States of Washington, Oregon, Idaho, Utah, Colorado, Arizona, New Mexico, Nevada, Wyoming and Missouri. It employs sixty-one salesmen who visit retail grocers and other retail dealers from time to time and solicit orders for coffee. These salesmen are under the general direction of a sales manager located at the principal office in San Francisco. Branches are maintained at different places in charge of branch office supervisors. The coffee is marketed under different brands and trade names, but the Red Can Brand and the Blue Can Brand are the only two with which we are concerned at this time. By advertising and otherwise the petitioner has created a demand for its products, and in the year 1923, sales of the two brands in question approximated 25,000,000 pounds. About 44 per cent of the sales were outside of the State of California.

In November, 1920, the petitioner adopted a policy or plan of fixing a minimum price at which retail dealers should sell its coffee to the consuming public. This plan provided that the retail price should be five cents per pound above store cost, that is, above the list price with transportation added. Its purpose in adopting this policy was to make the price of the Red and Blue Can Brands uniform in the various localities in which it is sold, and to prevent price cutting by dealers. The plan, as adopted, does not prevent retail dealers from selling more than five cents per pound above store cost, but in some instances salesmen in the employ of the petitioner have questioned the wisdom or policy of selling above the minimum price. The fixing of a minimum price by the petitioner has a tendency to cause retail dealers to regard the minimum price as a maximum one, and a great majority of dealers sell at the minimum price and no other.

The petitioner made this minimum retail price plan known to the retail trade by issuing a bulletin to all salesmen and they in turn informed the retail dealers. The petitioner also caused ad