ninety-four, entitled "An Act to reduce taxation to provide revenue for the Government, and for other purposes," or the provisions of any other Act of Congress amending or supplementing the said Act of July second, eighteeen hundred and ninety, commonly known as the Sherman Antitrust Act, and amendments thereto, or said sections of the Act of August twenty-seventh, eighteen hundred and ninety-four. The question of fact may be determined by the judgment of any court of the United States of competent jurisdiction in any cause pending before it to which the owners or operators of such ship are parties. Suit may be brought by any shipper or by the Attorney General of the United States.

Section 30. Federal Trade Commission Act.

The Federal Trade Commission Act of September 26, 1914, established a commission with administrative and quasi-judicial functions. In certain aspects both of these functions have relation to the enforcement of the antitrust laws, and only in respect to these functions is it necessary to consider the Federal Trade Commission Act in this connection.

Section 6 of this act confers on the commission the following powers, among others: (1) To investigate the organization, business, management, etc., of corporations engaged in commerce, excepting banks and common carriers; (2) to require such corporations to make annual and special reports; (3) to investigate and report to the Attorney General on the manner in which a decree to prevent or restrain violations of the antitrust acts has been carried out; (4) to investigate and report on alleged violations of the antitrust acts upon the request of the President or either House of Congress; (5) to investigate and make recommendations concerning the readjustment of the business of any corporation alleged to be violating the antitrust acts, upon the application of the Attorney General; (6) to investigate trade conditions in foreign countries where combinations or other conditions may affect the foreign trade of the United States, and to report and make recommendations to Congress. This section reads as follows:

SEC. 6. That the commission shall also have power

(a) To gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practices, and management of any corporation engaged in commerce, excepting banks and common carriers subject to the Act to regulate commerce, and its relation to other corporations and to individuals, associations, and partnerships.

(b) To require, by general or special orders, corporations engaged in commerce, excepting banks, and common carriers subject to the Act to regulate commerce, or any class of them, or any of them, respectively, to file with the commission in such form as the commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective corporations filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the commission may prescribe, and shall be filed with the commission within such reasonable period as the com

mission may prescribe, unless additional time be granted in any case by the commission.

(c) Whenever a final decree has been entered against any defendant corporation in any suit brought by the United States to prevent and restrain any violation of the antitrust Acts, to make investigation, upon its own initiative, of the manner in which the decree has been or is being carried out, and upon the application of the Attorney General it shall be its duty to make such investigation. It shall transmit to the Attorney General a report embodying its findings and recommendations as a result of any such investigation, and the report shall be made public in the discretion of the commission.

(d) Upon the direction of the President or either House of Congress to investigate and report the facts relating to any alleged violations of the antitrust Acts by any corporation.

(e) Upon the application of the Attorney General to investigate and make recommendations for the readjustment of the business of any corporation alleged to be violating the antitrust Acts in order that the corporation may thereafter maintain its organization, management, and conduct of business in accordance with law.

(f) To make public from time to time such portions of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest; and to make annual and special reports to the Congress and to submit therewith recommendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use.

(g) From time to time to classify corporations and to make rules and regulations for the purpose of carrying out the provisions of this Act.

(h) To investigate, from time to time, trade conditions in and with foreign countries where associations, combinations, or practices, of manufacturers, merchants, or traders, or other conditions, may affect the foreign trade of the United States, and to report to Congress thereon, with such recommendations as it deems advisable.

In another section the terms "commerce" and "corporations" are defined for the purposes of this act. 'Commerce" means commerce among the States or with foreign nations; "corporations" include all associations to carry on business for profit, but not partnerships.

In this connection it should be noted that this act abolishes the Bureau of Corporations (see p. 13) and transfers its work to the Federal Trade Commission together with the personnel, records, etc. The Commissioner of Corporations, whose office is abolished by the act, had similar though less extensive powers.

Section 7 of this act provides that where equity suits are brought under the antitrust acts and the court is of opinion that the complainant is entitled to relief, it may refer the suit to the commission to act as a master in chancery to report an appropriate form of decree; the court, however, may adopt or reject the commission's report.

SEC. 7. That in any suit in equity brought by or under the direction of the Attorney General as provided in the antitrust Acts, the court may, upon the conclusion of the testimony therein, if it shall be then of opinion that the complainant is entitled to relief, refer said suit to the commission, as a master in chancery, to ascertain and report an appropriate form of decree therein. The commission shall proceed upon 30035°-16- -9

such notice to the parties and under such rules of procedure as the court may prescribe, and upon the coming in of such report such exceptions may be filed and such proceedings had in relation thereto as upon the report of a master in other equity causes, but the court may adopt or reject such report, in whole or in part, and enter such a decree as the nature of the case may in its judgment require.

While the foregoing powers of the commission expressly relate in large part to the enforcement of the antitrust laws, another important power is conferred on the commission which is also related thereto. By section 5 of this act unfair methods of competition in commerce are declared unlawful, and the commission is empowered to prevent such practices by persons, partnerships, or corporations, except banks and common carriers. For this purpose the commission is authorized after due hearing to issue orders requiring the cessation of such unfair methods of competition. To secure the observance of such an order, the commission may apply to the Federal courts, submitting the entire record in the case, and the court may affirm, modify, or set aside such order. In case it is sought to introduce new evidence before the court, the court may allow it and may order that it shall be taken before the commission. Any party required by order of the commission to cease from using unfair methods of competition may obtain a court review in a similar manner. The language of this section is as follows:

SEC. 5. That unfair methods of competition in commerce are hereby declared unlawful.

The commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, and common carriers subject to the Acts to regulate commerce, from using unfair methods of competition in commerce.

Whenever the commission shall have reason to believe that any such person, partnership, or corporation has been or is using any unfair method of competition in commerce, and if it shall appear to the commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person, partnership, or corporation a complaint stating its charges in that respect, and containing a notice of a hearing upon a day and at a place therein fixed at least thirty days after the service of said complaint. The person, partnership, or corporation so complained of shall have the right to appear at the place and time so fixed and show cause why an order should not be entered by the commission requiring such person, partnership, or corporation to cease and desist from the violation of the law so charged in said complaint. Any person, partnership, or corporation may make application, and upon good cause shown may be allowed by the commission, to intervene and appear in said proceeding by counsel or in person. The testimony in any such proceeding shall be reduced to writing and filed in the office of the commission. If upon such hearing the commission shall be of the opinion that the method of competition in question is prohibited by this Act, it shall make a report in writing in which it shall state its findings as to the facts, and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist from using such method of competition. Until a transcript of the record in such hearing shall have been filed in a circuit court of appeals of the United States, as hereinafter provided, the commission may at any time, upon such notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any report or any order made or issued by it under this section.

If such person, partnership, or corporation fails or neglects to obey such order of the commission while the same is in effect, the commission may apply to the circuit court of appeals of the United States, within any circuit where the method of competition in question was used or where such person, partnership, or corporation resides or carries on business, for the enforcement of its order, and shall certify and file with its application a transcript of the entire record in the proceeding, including all the testimony taken and the report and order of the commission. Upon such filing of the application and transcript the court shall cause notice thereof to be served upon such person, partnership, or corporation and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript a decree affirming, modifying, or setting aside the order of the commission. The findings of the commission as to the facts, if supported by testimony, shall be conclusive. If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the commission, the court may order such additional evidence to be taken before the commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The commission may modify its findings as to the facts, or make new findings, by reason of the additional evidence so taken, and it shall file such modified or new findings, which, if supported by testimony, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order, with the return of such additional evidence. The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari as provided in section two hundred and forty of the Judicial Code.

Any party required by such order of the commission to cease and desist from using such method of competition may obtain a review of such order in said circuit court of appeals by filing in the court a written petition praying that the order of the commission be set aside. A copy of such petition shall be forthwith served upon the commission, and thereupon the commission forthwith shall certify and file in the court a transcript of the record as hereinbefore provided. Upon the filing of the transcript the court shall have the same jurisdiction to affirm, set aside, or modify the order of the commission as in the case of an application by the commission for the enforcement of its order, and the findings of the commission as to the facts, if supported by testimony, shall in like manner be conclusive.

The jurisdiction of the circuit court of appeals of the United States to enforce, set aside, or modify orders of the commission shall be exclusive.

Such proceedings in the circuit court of appeals shall be given precedence over other cases pending therein, and shall be in every way expedited. No order of the commission or judgment of the court to enforce the same shall in any wise relieve or absolve any person, partnership, or corporation from any liability under the antitrust Acts.

Complaints, orders, and other processes of the commission under this section may be served by anyone duly authorized by the commission, either (a) by delivering a copy thereof to the person to be served, or to a member of the partnership to be served, or to the president, secretary, or other executive officer or a director of the corporation to be served; or (b) by leaving a copy thereof at the principal office or place of business of such person, partnership, or corporation; or (c) by registering and mailing a copy thereof addressed to such person, partnership, or corporation at his or its principal office or place of business. The verified return by the person so serving said complaint, order, or other process setting forth the manner of said service shall be proof of the same, and the return post-office receipt for said complaint, order,

or other process registered and mailed as aforesaid shall be proof of the service of the

same.

While unfair methods of competition are not necessarily practices forbidden by the antitrust acts, yet Congress, as indicated by the reports of the committees having jurisdiction in this legislation, intended, in part, by this provision to prevent the development of monopolistic conditions.1

The last section of this act expressly provides that nothing contained in it shall be construed to alter, modify, or repeal the antitrust acts, or to interfere with the enforcement thereof.

SEC. 11. Nothing contained in this Act shall be construed to prevent or interfere with the enforcement of the provisions of the antitrust Acts or the Acts to regulate commerce, nor shall anything contained in the Act be construed to alter, modify, or repeal the said antitrust Acts or the Acts to regulate commerce or any part or parts thereof.

Section 31. Clayton Antitrust Act.

The Clayton Antitrust Act, which is entitled "An act to supplement existing laws against unlawful restraints and monopolies, and for other purposes," was approved on October 15, 1914. As its title indicates, it relates in part to the same subject as the antitrust acts described above. Only these portions of the law are considered below. Other portions which are not discussed relate especially to the use of injunctions by the courts, to punishment for contempts with respect to such injunctions, and to making criminal certain dishonest practices in the management of common-carrier corporations. The chief provisions of the Clayton Act which are of importance in connection with the antitrust laws relate to (1) the prohibition of certain trade practices (secs. 2 and 3); (2) the prohibition of certain forms of company organization and management (secs 7 and 8); (3) a requirement that common carriers in certain cases shall purchase supplies, etc., through competitive bids and prohibiting interference with free competition in bidding (sec. 10); (4) a specific rule of construction in the application of the antitrust laws to certain kinds of associations (sec. 6); (5) various provisions as to the remedies, rules of evidence and procedure in the enforcement of the antitrust laws (secs. 4, 5, 11, 14, 15, 16, and 20).

Section 1 defines certain terms used in this act substantially as follows: "Antitrust laws" includes the Sherman Antitrust Act of 1890, sections 73 to 77, inclusive, of the Wilson Tariff Act of 1894, as amended, and also this act; "commerce" includes interstate and foreign commerce, but does not apply to the Philippine Islands; "perincludes a corporation or association.

Section 2 declares it unlawful for any person engaged in commerce to discriminate in price between different purchasers of commodities

1 See House Report No. 1142, 63d Cong., 2d. sess.